This post is by Hatti Owens, Client Earth lawyer. It was originally published on Business Green.
After a delay of over six months, the Environment Bill is finally back. Having just completed review by a committee of MPs in Parliament, we expect its enactment during the first part of next year.
But the Bill is soon to be finalised and problems remain that must be urgently addressed.
The Environment Bill is a key piece of legislation that will lay out a framework for environmental law and its enforcement post-Brexit. This Bill is government’s opportunity to secure a strong governance system that will help ensure environmental laws are properly implemented and complied with by all public bodies.
A core component of the Bill is the creation of a new environmental watchdog – the Office for Environmental Protection (OEP). The OEP will be responsible for holding government and other public authorities to account on their compliance with environmental law.
And yet, the government has recently made changes to the Bill which seriously undermine the watchdog’s independence and effectiveness. These changes threaten the OEP’s ability to contribute to environmental protection, thus jeopardising the UK government’s ability to make good on its aim to deliver the most ambitious environmental programme of any country on earth.
Bypassing environmental expertise
The OEP will have enforcement powers through a new mechanism called environmental review, which will enable the examination of potential breaches of environmental law.
The government previously decided that environmental review should sit within the Upper Tribunal. Using the Upper Tribunal could provide a more holistic enforcement process, with a more meaningful role for technical experts in reviewing decision-making. The government itself presented the “greater use of specialist environmental expertise” as a key benefit.
However, it has now backtracked on this approach. A new amendment moves environmental review to the High Court – without explaining how this will improve current mechanisms to challenge government decisions.
Already, members of the public can bring a ‘judicial review’ to the High Court, but the limitations are well known, with judicial review often failing to provide an effective way to challenge the lawfulness of complex environmental decisions.
In addition, the government’s announcement of a panel tasked with considering reform to judicial review appears to indicate the desire to narrow judicial review further, and create additional obstacles for would-be claimants.
Responding to potential breaches of environmental law often requires specialised expertise to ensure that technical and tricky environmental issues can be properly addressed. Without this, the OEP’s role as an effective enforcement body will be weakened.
Increasing government influence
The OEP can only step in when a potential failure to comply with environmental law is considered ‘serious’. This isn’t totally unreasonable: the OEP should be focussing on the most important, far-reaching and cross-cutting matters. But the government has introduced a change to the Bill that allows ministers to issue guidance over what kind of breaches should be considered ‘serious’.
This offers a clear pathway for the government to lean on the OEP if it starts embarrassing the government by pointing out too many of its failings. It seriously threatens the independence of the watchdog.
The Secretary of State has brushed away these concerns – asserting that this is a standard clause for bodies such as the OEP. But the truth is that this kind of influence simply does not exist in other enforcement bodies, so it shouldn’t exist here.
Why these changes matter
These changes – as well as other alterations to the OEP’s powers – are all individually worrying. They limit the OEP’s independence and ability to drive much needed improvements in environmental management, and they create unjustified administrative obstacles.
Without independent and authoritative enforcement, even the most ambitious environmental laws risk being ineffective.
Collectively, they also betray a deeply problematic shift towards reducing the scope for government accountability – consistent with recent government actions and rhetoric in other contexts. This includes, for instance, the ongoing look at reform options for judicial review which highlights an appetite to narrow the scope for review of government and public authority actions.
If this new watchdog is to do its job of holding government and authorities to account, these issues desperately need fixing before the Environment Bill becomes law. We now turn to the House of Lords who will soon be reviewing the Bill and will be able to propose changes to improve it.
Otherwise, the Environment Bill will fail to be world-leading, and the UK will be undermining its clear promises to deliver leadership on environmental commitments.