Environmental bodies warn EU Withdrawal Bill is ‘inadequate’ in current form

The UK’s leading environmental bodies have warned the government that the EU Withdrawal Bill, in its current form, ‘gravely threatens’ the UK’s ability to achieve Environment Secretary Michael Gove’s stated desire to deliver a ‘Green Brexit’.

As MPs begin to debate the landmark bill in the House of Commons today (7 September), a range of leading environmental professional bodies under the aegis of the Environmental Policy Forum (EPF) have delivered letters to Gove and Brexit Secretary David Davis.

Environmental bodies warn EU Withdrawal Bill is ‘inadequate’ in current formThe letters warn that the bill fails to provide for the provisions for parliamentary scrutiny of the proposed changes needed to make the transposition of EU environmental law workable, to ensure that fundamental environmental principles are protected and to provide a framework for independent scrutiny of future government performance on the environment.

The organisations also insist that the devolved administrations should not be prevented from pursuing ambitious environmental policy independent of general UK government policy, while also calling for the establishment of a fully independent body, answerable to Parliament to provide scrutiny of the government’s environmental performance and to hold it to account in the event that it is not fulfilling its environmental commitments.

The groups behind the letters from the EPF include the Chartered Institution of Water and Environmental Management (CIWEM), the Institution of Environmental Sciences (IES), the Chartered Institute of Ecology and Environmental Management (CIEEM), the Chartered Institution of Wastes Management (CIWM), the Society for the Environment (which comprises 24 licensed bodies), the IEMA, and the Landscape Institute.

Appropriate checks and balances

Commenting on the bill, Environmental Policy Forum Chair Professor Will Pope said: “The government has welcome ambitions for the environment, with a new 25-year plan imminent and a commitment to improve environmental quality for future generations. Yet plans without appropriate tools and measures for delivery and scrutiny will be doomed to failure.

“Brexit offers certain opportunities to manage our environment in a more effective manner, more bespoke to UK needs. Yet it also presents real risks that measures which have achieved cleaner rivers, seas, towns and cities could be eroded. We are calling for appropriate checks and balances to be established from the outset, to ensure we do not risk becoming the ‘dirty man of Europe’ again.”

Ensuring appropriate parliamentary scrutiny during withdrawal

The EPF is concerned that Clause 7 of the government’s Withdrawal Bill confers executive powers to ministers to implement legal and institutional changes that would normally be subject to parliamentary scrutiny.

The powers are broad and will effectively allow ministers to repeal or amend existing pieces of primary legislation, something that would usually require an Act of Parliament.

Around 800-1,000 statutory instruments will be required to address ‘deficiencies’ in transposed EU laws and most of these will be made without parliamentary debate, according to the provisions of the Bill.

The EPF recommends that the government should produce a list of instruments produced by ministers and allow the opportunity to debate instruments that Parliament feels pose a problem. The EPF suggests that the government should recommend the level of scrutiny to which each statutory instrument should be subject to, with the recommendation then to be reviewed by a parliamentary committee.

Transposing the principles of environmental protection

The EPF is keen to retain the fundamental principles underpinning environmental protection in Europe: the ‘precautionary principle’, the ‘preventive principle’ and the ‘polluter pays principle’. They provide a framework for how environmental policy should be developed and guidelines to businesses and the courts.

While the principles are included in certain Acts of Parliament, there are no direct equivalents in UK law. The EPF calls for the Withdrawal Bill to fully transpose these environmental principles into UK law to enable future cases to be brought if necessary, rather than relying on previous case law.

Working collaboratively with the devolved nations

While the EPF recognises the need for consistent frameworks across the UK in certain environmental policy areas as many environmental processes do not respect political boundaries, the group insists that the Withdrawal Bill must not curtail the devolved nations’ ability to improve environmental standards of their own accord, such as in Wales, where the government has implemented the ambitious Environment act and Well-being of Future Generations Act. Any common frameworks must set outcomes and not prescriptive processes and be agreed through collaboration and consensus.

Establishing a new independent body to provide governance and enforcement

Transposing EU law into UK law is not the only issue arising from Brexit - upon departure, the investigative role and jurisdiction of the European Commission and the Court of Justice of the European Union (CJEU) will end and will need to be replaced.

The UK government believes it judicial review and parliamentary elections are sufficient instruments to hold the government to account, despite reforms to judicial review making it much harder to access justice in environmental cases.

The EPF believes that an independent, well-resourced expert body should be established by an Act of Parliament, reporting to each of the four UK Assemblies/Parliaments and being connected to the Courts. The body should be funded by the UK Assemblies/Parliaments and be directly accountable to them. The body should also advise on the need for and form of long-term environmental policy to allow due scrutiny through the parliamentary process. 

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