This blog was first posted on Business Green.
The government’s environment legislative programme is in disarray. Earlier this month, bills that were halfway through their passage, including on agriculture, fisheries and trade, were lost as parliament was prorogued. The Environment Bill meanwhile is yet to appear in full.
This week’s Supreme Court ruling that the proroguing of parliament was unlawful could mean a swift return of parliament and resurrection of the lost bills. The absence of a working government majority, the continued threat of a chaotic no deal exit and the prospect of a general election add further complication to the constitutional melee that we are all trying to navigate.
The government was expected to set out its legislative plans for the next parliamentary session in a Queen’s Speech on October 14. It is imperative that bills on the environment, agriculture and fisheries are progressed to provide a stable legal framework after Brexit and, crucially, to address the environmental crisis affecting our wildlife, climate and natural resources. Regardless of the continued uncertainty, the bills must all be brought forward urgently.
Measures that are “not consistent” with the government’s plans
While all new legislative programmes are the product of collective bartering across government, it is concerning that, according to Private Eye, the leader of the House of Commons informed departments who pitched ideas for new legislation that: “Many of the measures ask for powers to establish regulatory regimes which do not appear to be consistent with what the UK wants to achieve post-exit”. Also, that a task and finish group would be set up to go through proposed legislation “in light of speed of anticipated speed of divergence from the EU”. Of course, divergence is not a unidirectional enterprise and could lead to improved and increased standards, but given the deregulatory predilections of many of the new members of the government’s inner circle, such reports are highly concerning.
The prime minister has made some welcome statements on the environment, but these are yet to win the legal underpinning to put them into practice. For example, at the Biarritz G7 summit he called for “new, more ambitious targets to help us get back the biodiversity that this planet is losing, and has lost” and recognised that climate and biodiversity were interlinked crises that required a joined-up approach. The government must now set out the breadth and depth of its environmental ambitions and address head on doubts that standards will be lowered after Brexit.
Five tests of the government’s green credentials
1. The Environment Bill must provide the legal basis for nature’s recovery. To reverse years of decline, ambitious, legally binding targets to clean up our environment and restore nature will be needed and there must be a firm legal footing for environmental principles in domestic law, including the precautionary principle. The draft Environmental Principles and Governance Bill’s treatment of these principles was roundly criticised by stakeholders and parliamentarians during pre-legislative scrutiny. These flaws must be addressed.
2. The new environmental watchdog, the Office for Environmental Protection, must be truly independent, empowered to act swiftly and with force and properly resourced. Its enforcement powers were categorised as ‘toothless’ by many and nothing short of a significant reworking will be enough to satisfy critics who demand equivalent and effective access to justice on potential breaches of environmental law. The watchdog must also be able to act swiftly on urgent breaches. Attempts to fetter either the speed or efficacy of its powers will be met with strong resistance.
3. Public money for public goods must remain at heart of the Agriculture Bill, with no watering down or tinkering. This is the only basis on which long term public support for farmers and land managers can be justified. The bill must also provide an assurance on the future funding of farming and land management policies so that farmers and land managers can invest for the future with confidence, including in environmental improvement.
4. The Fisheries Bill must be amended to ensure it is fit for purpose. While the inclusion of broad environmental objectives in the bill was welcome, it was not sufficient to achieve the government’s aim of creating a world-leading sustainable fisheries management regime. Since the bill was first published in October 2018, a number of prominent reports have highlighted the risks to the environment of overfishing, which is the biggest cause of marine biodiversity loss in the last 40 years. Recent advice from the International Council for the Exploration of the Sea revealed a significant decline in North Sea cod stocks. In light of this compelling evidence base, it is hard to fathom why the government continues to resist amending the bill to ensure that fishing limits will not be set above maximum sustainable yield.
5. Whatever the future relationship between the UK, its constituent nations, and the EU, it will be vital to maintain close environmental co-operation and high environmental standards not least because of the transboundary nature of so many environmental issues. A mutual and enforceable commitment to non-regression, so that standards will rise, not fall, is essential. The government may argue that the totality of its legislative aspirations are a de facto non-regression, but this is not the same as a legally steadfast commitment that standards will not fall, either now or in the future. In addition, the government must ensure that the UK’s future trade agreements guarantee the maintenance and enhancement of environmental standards, minimising the environmental footprint of trade. The Trade Bill had been amended to improve public participation in, and the parliamentary oversight of, trade negotiations; these safeguards must be embedded within the frameworks of all new trade agreements.