Words matter. But laws matter more. This government is not short of words to describe its environmental ambition. Its environmental improvement plan spans 262 pages, and it has recently updated its plans on water and air quality. But there is no guarantee that these plans and words will be embraced by future governments. We need look no further than last autumn to see how different governments approach the environment, when the administration led by Liz Truss briefly imperilled longstanding environmental protections through its ‘attack on nature’.
Embedding commitments in law is essential for a government which wants its pledges and priorities to endure and not be at risk of being cast aside in the bunfight for shiny new manifesto policies.
This is the context in which the Retained EU Law Bill is nearing the end of its parliamentary journey. It has courted controversy since it was first announced in January 2022, mainly because of the wide powers it would give government ministers to change or remove important laws in a great number of policy areas from the environment, to consumer protections and employment rights, with little oversight from parliament and no public consultation.
The government shouldn’t be scrapping laws just for the sake of it
A coalition of civil society groups, business voices, legal experts and consumer protection organisations have been tirelessly highlighting the risks of the bill, while advocating practical ways they could be addressed. There has been some success, as the government acted on some concerns by opting to retain laws at the end of this year, instead of the promised bonfire of laws. Kemi Badenoch reiterated this approach to the European Scrutiny Committee earlier this week when she emphasised that “transparency is key to legislate properly”, favouring a criteria based approach to regulation and not scrapping laws for the sake of it.
But that only solves one part of the bill’s threat, as the wide powers to change laws will remain in the clutches of ministers for the next three years, putting more than 4,000 laws at risk of removal without proper scrutiny. The bill will have a disproportionate effect on environmental protection, as most laws in its scope cover important areas such as nature protection, air and water quality and safe levels of chemicals and pesticides.
The dual concerns of parliamentary oversight and environmental protection have become further entwined as the bill has progressed. It is little surprise that they are the remaining two items to resolve before the bill can be granted Royal Assent. On Tuesday this week, peers inflicted two major defeats on the government in the second round of the bill’s parliamentary ‘ping pong’. This is the stage in which the bill passes between the Lords and the Commons to agree final changes. Sensible amendments by crossbench peers Lord Anderson of Ipswich and Lord Krebs were agreed, providing greater scope for MPs to scrutinise future changes to the laws in question and ensure that future governments cannot weaken existing levels of environmental protection.
Strengthening parliamentary scrutiny is an undoubted public good. The former clerk of the House of Commons Lord Lisvane gave a compelling explanation of why this matters and how it might be manufactured.
Given the margin by which the two votes were won, which was unusually large for this late stage of parliamentary proceedings, the government will be looking again at what concessions it may be able to offer to break this deadlock. The bill returns to the House of Commons on Monday 12 June.
A legal safeguard is needed for the UK’s world leading ambitions
Including an environmental safeguard in law should not be controversial, especially for a government that has pledged “the most ambitious environmental programme of any country on earth”.
In uncertain times, legal protections will always trump warm words. With a reported backlash against green policies elsewhere, enshrining legal protection for the environment would be a prudent and far sighted move.
It would also be consistent with how the government has previously legislated on the environment. For example, in its flagship Environment Act, it gave itself the power to change some parts of retained EU law called the Habitats Regulations, which protect wildlife sites and species like dormice and otters. But it explicitly framed these powers in the Act, and did not leave them open to interpretation in the way that the Retained EU Law Bill would presently. Under the Environment Act, ministers can only make changes if satisfied that they do not reduce the level of environmental protection; the power “includes a number of safeguards that are designed to retain our existing protections”, as ministers recognised at that time the importance of underpinning commitments in law. Lord Krebs’ amendment seeks a similar approach for the Retained EU Law Bill.
All the experts want legal protections
Lord Deben reminded parliament on Tuesday, that “…every exterior independent body, including the government’s own watchdog” supports including an environmental safeguard in law. The Office for Environmental Protection has recommended “…adding an environmental non-regression safeguard to the Bill as a minimum measure”, as has its sister body the Climate Change Committee.
The independent environmental watchdog in Wales “fully supports” a non-regression principle and the Scottish government is also supportive and remains concerned that “…standards for water and air quality, and providing protection for our natural habitats and wildlife are at risk from this deregulatory programme”.
As Lord Fox said during the debate, “The very fact that the Government are resisting this [environmental] amendment is the reason we need it.”