The House of Commons Environmental Audit Committee’s pre-legislative scrutiny of the draft Environment (Governance and Principles) Bill has identified serious concerns with the Government’s proposed legislation to protect the environment if the UK leaves the European Union - and warns that “climate change mitigation has been specifically excluded from the Bill.”

The Committee’s Report, published yesterday, describes the Bill as lacking coherence, with many Government Departments exempted from their environmental responsibilities.

The EAC are warning:

“The environmental principles which guide and inform European Union legislation and policy have been severely downgraded by the proposals in the Bill.”

The MPs have also highlighted the fact that as the Bill stands, there is no Government agency with responsibility to enforce climate change mitigation measures - the Comittee said:

“Climate change mitigation has been specifically excluded from the Bill.”

Image: Chris LeBoutillier

“Climate change mitigation has been specifically excluded from the Bill”

Launching the report, Environmental Audit Committee Chair Mary Creagh MP said:

“If we want to be a world-leader in environmental protection, we need a world-leading body to protect it. The Government promised to create a new body for governance that would go beyond standards set by the European Union. The Bill, so far, falls woefully short of this vision.

“Far from creating a body which is independent, free to criticise the Government and hold it to account, this Bill would reduce action to meet environmental standards to a tick-box exercise, limit scrutiny, and pass the buck for environmental failings to local authorities.

“It’s shocking that enforcement to act on climate change has been deliberately left out of the remit of the OEP.

“The draft Bill means that if we leave the EU we will have weaker environmental principles, less monitoring and weaker enforcement, and no threat of fines to force government action.”

Environmental principles severely ‘downgraded’

MPs on the cross-Party Committee found that environmental principles used to guide current European Union legislation and policy, have been severely downgraded by the proposals in the Bill.

A principle that would set a legal requirement for policy and all public bodies to seek to ensure a high level of environmental protection and a presumption that environmental protection would not be reduced after leaving the EU has been left out of the list of principles in the Bill. Evidence to the Committee described this absence as “striking and surprising”.

The EAC had called for the Bill to require that “all public bodies to act in accordance with the principles” and said it considers it "troubling" that the Government has ignored this recommendation.

Office for Environmental Protection - Government failed to provide enough evidence it will give  OEP independence it needs 

The EAC’s recommendation in its 25 Year Plan report called for the new body to be accountable to Parliament with a statutory body of parliamentarians, modelled on the Public Accounts Commission, to set its budget, scrutinise its performance and oversee governance.

The EAC said evidence given to the inquiry had supported a greater role for Parliament with many witnesses suggesting that an arm’s length body would not be independent enough to hold Government to account.

The Committee heard evidence from the National Audit Office warning of the risks to the OEP’s independence in practice or in perception because it was funded by Defra, and its Chair appointed by Defra’s Secretary of State.

The Report finds that the Government has failed to provide enough evidence that it will give the OEP the independence it needs. The Committee said it stands by the previous recommendation that the OEP should report to Parliament.

Climate change ‘gap in enforcement’ – GHG emissions excluded from definition of environmental law

The MPs have also criticised the decision to exclude greenhouse gas emissions from the definition of environmental law. As a result, the OEP would have no enforcement function for climate change mitigation, creating an enforcement gap if the UK leaves the EU. This function is currently undertaken by the European Commission and the UK Committee on Climate Change has no enforcement powers. The Report is calling for the Government to ensure the OEP has climate change mitigation in its remit.

Enforcement powers limited to administrative compliance rather than achieving environmental standards

The EAC is warning thatas it stands, the OEP enforcement powers are limited to administrative compliance rather than achieving environmental standards, a departure from the enforcement procedure of the European Commission.

On failures by public authorities to comply with environmental law, the scope for enforcement action was "very tightly drawn" leaving the OEP with “little to get its teeth into". Under the propsed provisions, the threshold for failure would be dominated by questions of procedural lawfulness.

Unlike the approach of the European Commission, the Bill shifts responsibility for failing to comply with environmental law to individual public authorities, rather than the whole of Government.

The EAC have called for the whole of Government to be accountable for the achievement of environmental standards and targets, rather than individual public authorities.

Exclusions of policies deemed “not relevant” or with “no significant environmental benefit” by Government ‘absurd’

MPs are also concerned that a policy statement on environmental principles would allow the Secretary of State to exclude policies considered “not relevant” or with “no significant environmental benefit”.

They also criticise further exclusions to policies relating to the armed forces, defence or national security, taxation, spending or the allocation of resources within Government, or "any other matter specified in regulations made by the Secretary of State".

Evidence submitted to the EAC by the Environment Agency said the environmental regulator considered such exclusions would mean the principles would cease to have "a meaningful influence on the development and application of environmental policy and law after EU Exit". An environmental Barrister also described the exclusions as “absurd”.

The Report is calling for exclusions to the application of the principles to be ‘very narrowly defined’. The EAC also want the Bill to specify that:

• the Ministry of Defence as a landowner is not excluded
• general taxation or spending should not be excluded as many environmental measures depend on changes to the tax system

As is currently the case under EU law, the MPs want to see the environmental principles placed on an unqualified legal basis in relation to environmental policy with all public bodies having a duty to apply them .

Bill does not yet specify that environmental protection will match current EU standards

Under the current Brexit Withdrawal Agreement, if passed, the UK will conform to EU legislation on customs, taxation, the environment, labour law, state aid and competition. This includes a non-regression clause on the environment, meaning that environmental protection will not be weakened from current EU standards.

The Committee is highlighting the fact that Government has confirmed that the Bill’s proposals do not yet meet the non-regression clause. The Government has said it will consider the provisions of the Withdrawal Agreement before it publishes the final Bill.

The EAC has concluded that without implementing the recommendations already presented in this report, on independence, funding, the principles and enforcement, the Government will fail to meet its obligations under the Withdrawal Agreement.

The MPs are also concerned that because they have only seen sections on principles and governance to date, they have been unable to assess the full implications of the Bill for the environment.

Click here to download the House of Commons Environmental Audit Committee report in full