Following the General Election at the end of last year, several significant pieces of environmental legislation have been published: the Agriculture, Fisheries and Environment Bills. You can find a critique of the Agriculture Bill here, the UK Fisheries Bill here and today I provide (thanks to our team) a more detailed assessment of the Environment Bill which was published a fortnight ago. At the end of this blog I explain how you can help make the Bill as good as nature needs it to be.
The UK Government says that the bill “sets out a vision for a greener future” and “underlines the government’s commitment to tackling climate change and to protecting and restoring our natural environment for future generations”.
Will the Environment Bill help us drive the restoration of nature for example by enabling more projects like Wallasea Island (shown in David Wootton's photo rspb-images.com)?
It’s worth noting that the Bill is broadly focused on England. Some of the provisions (such as for the proposed Office for Environmental Protection, environmental principles and the need to create environmental improvement plans) apply to Northern Ireland, but for the most part the rest of the Bill will apply in England only.
That said, I can’t overstate the significance of this legislation which, if it matches the UK Government’s stated ambitions, should not only maintain existing protections for some of our most threatened species and important places but also could help us put back what we have lost by providing commitment, tools and resources to restore the natural world.
Before the Environment Bill was re-laid in Parliament (after its brief appearance before the December General Election), I laid out five tests that it should meet. Below I offer an assessment from the RSPB team as to whether the legislation comes close to meeting these tests.
We have consistently made the point that important environmental principles (such as the polluter pays or precautionary principles) must be secured in law through this bill. Under EU law, it is a requirement that these principles are applied when making policy and law as well as considered when those laws and policies are implemented and interpreted, including by our domestic courts. The proposals within this bill downgrade these legal principles to mere considerations for policy making by Ministers. If those clauses remain unchanged they will no longer universally apply to the legal interpretation or enforcement of laws and thus lose their vital underpinning function and their role in providing direction for implementation and interpretation of policy and law. There are also a few legal loopholes which mean that in some situations Ministers do not have to consider the principles at all. And finally, where consideration of the principles is mandated it is only for Ministers, as opposed to broader consideration by public bodies. As public bodies have independent responsibilities for policy and decision making including the implementation and interpretation of environmental law, this will narrow the consideration and application of the principles considerably.
In our view, the proposals within the environment bill to ‘domesticate’ the environmental principles fall far short of recognising and securing their important role in the making and shaping of our laws. This part will require significant amendment and clarification to reassure us that they will retain their important role in law and policy making.
The OEP still remains a body under control of the UK Government with appointments and its budget largely controlled by the Secretary of State. This raises several concerns about the ability of this watchdog to effectively hold government to account when it has such an influence over it.
Furthermore, we still have serious concerns about the ability of this watchdog to act as an effective deterrent against breaches of environmental law by government and public bodies. It has limited capacity to compel remedial actions be taken in cases where environmental law is breached or to impose fines in cases of non-compliance. Both the independence of the OEP and its access to sanctions will need improvement if this body is to be truly “world-leading”. At it stands, it will not replace the enforcement powers currently afforded by the European Court of Justice under whose jurisdiction the UK has just left.
Again, this section of the Bill is unchanged, so, it still contains welcome provisions on requirements to set and achieve long-term targets, including, significantly for biodiversity. But there remain clear weaknesses with the target setting framework in the Bill. It does not set out clear requirements for the scope of a biodiversity target, meaning that limited or unambitious targets could be set which fail to cover all aspects of biodiversity and which fail to set the level of ambition required to turn around the declines facing our natural world.
Likewise, the Bill fails to compel successive governments to take action to ensure they are contributing towards meeting the long-term target. Interim binding targets and more detailed environmental improvement plans would help to ensure that all parts of government are taking the transformative actions needed to drive the recovery of nature.
Finally, the Bill fails to set out a clear, transparent process demonstrating how expert advice would be sought before setting targets. This provision should be strengthened within the Bill to ensure that targets are not set purely at the discretion of the government.
Much of the success of achieving the recovery of nature will depend on the provisions found within this chapter. The biodiversity clauses require new developments to deliver an overall gain (which is code for increase or enhancement) in biodiversity. Done right, this could make a positive contribution towards nature’s recovery, however, significant flaws remain. For example, these provisions do not apply to all developments as they exclude major and large-scale infrastructure projects (which is one of the reasons why we have opposed the decision to proceed with High Speed 2). This means that some of the largest projects taking place in England would not have to deliver gains for biodiversity, a significant missed opportunity. Additionally, habitats delivered through biodiversity gain need only be maintained for 30 years. Making sure these habitats are secured and maintained in perpetuity would ensure that they are permanently able to contribute to the nature’s recovery.
The Bill also includes provisions to create local nature recovery strategies, which could help contribute to the broader ambition of a Nature Recovery Network, (although this needs to be made more explicit). However, there is little detail on how these local nature strategies are linked to the target setting framework in the first half of the Bill, how they link to other local measures (such as biodiversity gain) and how local communities can engage with these processes to help shape the recovery of their local environment. There must also be a stronger requirement to use the strategies and to compel action on the ground, through for example, a clear link to the statutory planning system.
The UK government has made a number of written and verbal commitments to maintaining our environmental standards and protections as we leave the EU. Therefore, it would seem logical that to secure this commitment, the government would take the opportunity to enshrine it in this landmark piece of environmental legislation. Unfortunately, no such robust provisions are contained within the Bill. A robust legal commitment not to regress on our environmental standards and protections would go a long way to reassure the public of the stability of our existing protections on which to build the recovery of nature.
There are two more areas worthy of comment.
First, as we highlighted through our Risky Business report with WWF, the UK’s ecological impact extends beyond our shores and the ecological crisis is a global one. That’s why believe the Environment Bill should require targets to be set to reduce our global footprint and should include a due diligence duty- a duty that requires businesses to take steps to prevent environmental harm and report on progress to reduce the environmental impact of their activities.
Second, given the limited geographical scope of the Bill and the fact that the whole of the UK has exited from the EU, it is vital that all four countries of the UK bring in provisions to address the gaps in our environmental protections resulting from EU exit as well as similar commitments to drive the recovery of nature.
The Environment Bill will in the next few weeks face its second reading, before more detailed parliamentary scrutiny. As our assessment shows, there is much to like about the Bill, but we believe it requires significant amendment if it is to drive the recovery of nature. We will work with politicians of all parties to improve the Bill to ensure that we pass a truly world leading piece of environmental legislation that is fit to tackle the environmental crisis.
If you would like to help, please do ask your MP to make the Environment Bill stronger for nature. You can find out how to do this by visiting our campaign pages of our website here.
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