Here's another guest blog, this time from my colleague Ali Plummer. This analysis was done with the expectation that today would see the second reading of the new Environment Bill. Obviously the Withdrawal Bill has taken precedence but the insight is still timely.
--------------
As outlined in a previous blog, the UK Government laid its Environment Bill before Parliament last Tuesday. Coming nearly six months after the UK Parliament declared a climate and environment emergency, the importance of a landmark piece of legislation to transform how we treat and interact with our natural world cannot be overstated.
The UK Government has described this Bill as a “transformative” piece of legislation “signalling a historic step change in the way we protect and enhance our precious natural environment”. As outlined in the State of Nature Report published two weeks ago, there has been no let-up in the loss of nature in recent decades, with these declines adding to centuries of depletion of our natural world. We have already lost 2% of species from the British Isles and another 15% are threatened with extinction.
This Bill therefore provides us with a real opportunity to try and tackle some of these issues, a moment that cannot come soon enough. But does it live up to the rhetoric and provide the transformative legal requirements we need to turn around the fortunes of our natural world?
The first thing to note is that it’s a large piece of legislation, significantly larger in scope than the draft published at the end of last year. We are hopeful that the extra clauses cover the gaps we have been highlighting in that last draft, but time is needed to fully digest it.
It is clear though that the Westminster Government has been listening as there is now a very welcome provision to legislate for a target setting framework to improve our natural world. And the Bill also now includes a range of measures including to improve waste management, resource efficiency and air quality, measures to regulate water abstraction and on water quality, and specific policies on nature and biodiversity.
Below, I consider specific elements of the Bill in more detail:
Environmental Principles
Previous blogs have commented on our serious concerns with how the draft Bill dealt with these important legal principles. It is therefore most disappointing that the clauses on principles are of no real improvement, despite the Queen’s Speech describing the Environment Bill as a way of ensuring that “for the first time, the environment principles will be enshrined in law”.
This is not true. Due to their presence in the EU Treaties, currently the principles need to be considered in creating policy and legislation, in their interpretation and implementation and therefore in decision making. The Environment Bill significantly weakens the application of the principles. It does not give them legal status, instead they are given very limited application as Ministers of the Crown only need to have regard to them when drafting policy. Weaknesses in this approach were outlined during the pre-legislative scrutiny of the draft Bill and by NGOs and academics alike so it is extremely disappointing that these concerns have not been taken on board.
The Office for Environmental Protection
This new environmental watchdog has been beefed up since the draft Bill published last year. The OEP can now initiate investigations (as opposed to waiting for a citizen’s complaint), can bring urgent judicial review proceedings and apply to the Upper Tribunal for an environmental review rather than to the High Court. On first glance, the ability to refer cases of possible failure to comply with environmental law to the Upper Tribunal is a significant win. The Government appears to have been listening, but we do not think the enforcement proposals are robust enough to act as a deterrent or provide a real remedy to breaches in environmental law. For example, unlike existing enforcement mechanisms, the OEP and subsequent enforcement mechanisms do not have access to fines.
The independence of the OEP is also unchanged from the draft Bill, leaving it quite weak & potentially vulnerable as it will be (if unchanged) very much a body of government.
It is however worth recognising the crucial change in the OEP’s remit within this Bill. All climate change legislation, including carbon budgets, are now within its remit. This is vital as it ensures that climate legislation can be as robustly enforced as the rest of environmental legislation and will help put us on track to net zero.
Whilst we recognise (and welcome) the Bill has been significantly changed, there remains much to do, to ensure that this new watchdog is truly, “world-leading” and we will be looking to strengthen this as the Bill is considered in Parliament.
Targets
The Bill outlines a framework for setting long term targets (of at least 15 years) in areas relating to the natural environment and people’s enjoyment of it. Targets must be set in a range of priority areas including water and biodiversity and there is a duty for the Secretary of State to meet these targets. This element of the Bill -including the requirement to meet the targets is significant- and could help support the transformative change we need to see across Whitehall to reverse the declines in our natural world.
However, it its current format, this framework contains little to compel successive governments to contribute towards achieving the targets. Instead it leaves all enforcement to the end of the 15-year period and the responsibility of the Secretary of State in place at that time. It is vital that these clauses are improved so that successive governments are compelled to act, by bringing forward measurable actions to ensure a contribution to delivering the long-term targets. This could be partially achieved by making the five yearly milestones legally binding.
Additionally, the Bill currently says very little about how the government should seek advice on setting these targets. We need to see much more detail to ensure that targets are informed by experts in a transparent and scientifically led process, with full public consultation.
Finally, the parameters under which targets can be set are not well-defined in the Bill. The targets will be set in secondary legislation after the Bill gets Royal Assent. Whilst this should ensure that the targets can be expertly advised, the Bill should set clearer parameters for the targets, as without, they risk being unambitious and narrow in scope, failing to achieve the transformation that we really need.
The nature chapter
This chapter includes, amongst other things, measures on biodiversity gain, conservation covenants and local nature recovery strategies (to identify how to enhance, protect & restore habitats). The biodiversity duty within the Natural Environment and Rural Communities Act 2006 is also strengthened through this Bill, now requiring all public authorities in England to consider what action they can take to conserve and enhance biodiversity – a considerable improvement compared to the previous requirement for an authority to “have regard to” conserving biodiversity.
The biodiversity gain proposals are significant as if done well, they could help restore biodiversity and reverse the declines in our natural world. However, the Bill still contains flaws which could significantly undermine the effectiveness of the biodiversity net gain measures. For example, newly created habitat could be ploughed up after only 30 years, key types of development (such as Nationally Significant Infrastructure Projects) are currently out of scope, the approach to protected sites is of concern and critical legal mechanisms are flawed or missing. We will continue to work with coalition partners and others to resolve these issues in the coming days, weeks and months.
Securing existing protections and standards
Other concerns with the Bill remain, including the absence of a non-regression clause. Whilst there is much in the Bill that could drive improvements, it is concerning that the government have not put their commitments to maintain our existing environmental standards into this legislation.
Most of the parts I have outlined above apply to England only (with the ability of the Northern Ireland Assembly to opt in to some provisions). Our natural world and the crisis we are in spans the four countries of the UK and therefore we need to see urgent provisions brought forward in all four countries to ensure that we can tackle the declines in biodiversity across the UK.
Next steps
As I said, this is a large Bill and this blog only covers part of it. Second reading of the Bill had been proposed for Wednesday afternoon, to give MPs the first opportunity to debate their views on it. However, due to the introduction of the European Union (Withdrawal Agreement) Bill, second reading on the Environment Bill has now been postponed- it is currently unclear when this will take place.
But rest assured whenever the Bill continues its passage through Parliament, we will be actively engaging with MPs and Lords to improve it, helping to sure it can deliver the transformative legislation needed to truly tackle the nature crisis.