How to turn the Environment Bill into flagship legislation

This article was originally published on 21 October 2019 on Bright Blue, an independent think tank.

2019 has been a bumper year of promises when it comes to protecting our environment. This week’s Environment Bill offered the definitive opportunity to translate these promises into a legal guarantee – enforced by a world-leading watchdog – to make sure government, now and in the future, upholds standards we can be proud of. But for now, that chance has been missed. 

The big hole in this Bill is a legal commitment that environmental protections won’t be weakened – a non-regression clause. Government has repeatedly promised that Brexit will not lead to backsliding. If these promises were made with integrity, there should be no opposition to including this guarantee within the bill. In fact, while such a commitment couldn’t bind future governments, it could force them to explain, in Parliament, what value they see in taking actions that threaten our environment and the lives and livelihoods that depend upon it. It would set a direction of travel and provide a long-lasting legacy.  

Where's the effective watchdog?

To protect that legacy, we need a fierce guardian. A custodian of our environmental laws, regulations and commitments, able to ensure they’re applied correctly, are not ignored or overridden, and that their efficacy is measured. Such a guardian must have the powers, funding and impartiality to make sure that the rules are followed by all public authorities. This government’s 25 Year Environment Plan cannot hope to achieve the outcomes it seeks without an effective watchdog. 

This means we’ll need to see some major improvements to the commitments that did make it into the Bill published last Tuesday. 

Building on the existing Bill

First up, the proposed Office of Environmental Protection now has a sensible remit, covering the full gamut of environmental protections from nature to climate protection. It is set an extensive role, providing advice, review and enforcement of environmental law. Yet, this Bill lames it. It restricts the watchdog’s impact to issuing notices, reviewing explanations, apologies or obfuscations given in response to wrongdoing, and seeking only the most limited legal recourse. The EU courts were fully independent, able to carry out objective reviews, launch legal action and issue fines – surely the UK can equal, if not improve upon this model?  

Secondly, original proposals offered the welcome prospect of an ambitious list of binding targets aimed at driving real improvement – potentially including cutting carbon emissions, curbing our plastic addiction, investing in tree planting, and restoring natural areas. But the bill laid before parliament guarantees only four long term targets – on waste, biodiversity, water and air. It is riddled with loopholes allowing even these to be delayed, sidestepped or watered down – including an opportunity for government to abandon measures with a high economic cost or to explain failures in Parliament with no requirement to remedy them. A serious repair job will be needed to endow these aspirations with the heft and gravity required to shape future action.

And thirdly, to hit net zero and restore nature, all public bodies will need to pay more attention to the environment than ever before. That means we need to ensure that outside of the EU we apply the environmental principles which have helped deliver continued environmental improvement for the last 4 decades ambitiously, across all levels of government.  

There are also some serious flaws with the way the principles have been included in the new bill. The Withdrawal Act 2018 (in a clause championed by Zac Goldsmith as a backbencher) required that nine established environmental rights and principles, with their origins in international treaties we have signed, be given a legal basis in the draft Bill – and they were, when it was published last year. But the version of the Bill now laid before Parliament has completely omitted three of them: public access to information about the environment, the ability to participate in decision making about environmental matters, and the right of people to access environmental justice. 

This omission is a serious error that must  immediately be rectified as the Bill passes through Parliament. People can’t be shut out of opportunities to understand or challenge environmental policy. And there is no rationale for simultaneously setting up an Office of Environmental Protection to help communities hold public agencies to account while undermining the legislative basis for such action. 

Brexit and the Bill

It’s also worth considering this bill in the context of the UK’s exit from the EU. The proposed deal currently fails to extend the date at which the transition period ends, in effect cutting it from almost two years to just over one year. It simply is not feasible for an environmental watchdog to be up and running in 14 months when the bill establishing it has only just begun passage through Parliament. A proper transition is the sensible way to deliver Brexit. To get the most out of a future Environment Act, we need to extend the transition until all needed environmental protections are up and running. 

This year the UK became the first country to declare a climate emergency. It is time to act on that emergency. It seems unlikely that we’ll see an Environment Act this side of an election, but we need it fast. Let’s hope that MPs on all sides of the chamber take the chance to shape it into the great environmental legacy it could be and make this holey dinghy into flagship legislation.