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A new Environment Bill

By August 29, 2018 No Comments

A new Environment Bill?

A new Environment Bill, to be brought forward by the Government, was announced by Theresa May on the 18th July 2018. The proposed Bill would create a legal framework for the Government’s 25 Year Environment Plan launched earlier this year.

The Prime Minister said the Bill would encompass a range of issues, including action on air quality. The Bill would take into account the changes in the legal framework around the protection of the environment following Britain’s leaving the EU, and would ensure that proposed measures for protection of the environment and citizens’ environmental rights continue to have legal standing. The foundations of the bill and what it will include remain to be seen. A delivery date for the Bill is also yet to be set and critics worry that in the event of the UK leaving the EU without a new deal, this could leave the UK without any legal framework relating to the environment.

 

The European (Withdrawal) Act 2018 and its implications for a New Environment Act

EU law has shaped environmental protection in the UK for the past forty years. This means that it is essential that adequate environmental protection is embedded in UK policy in the period leading up to and following Brexit. Up to this point, it has been the European Commission that has held the UK government to account. Following Brexit, a number of the existing mechanisms which scrutinise the achievement of environmental targets and standards by Government will no longer exist in the UK.

The European (Withdrawal) Act 2018, passed through Parliament June 26th this year, which established the terms of Britain’s exit from the EU, established the provisions for environmental law in the Brexit procedure.[1] The Withdrawal Bill promises to ‘preserve environmental principles where they are included in existing EU directly applicable environmental regulations and case law.’[2] However, there are fears amongst green activists that this could mean that principles that have been essential in the development of European Environmental Law aren’t carried forward. These concerns follow previous failed attempts by the House of Lords to entrench EU standards in UK law. The establishment of an environmental watchdog as outlined in the Environmental Principles & Governance Bill (see below) is not fully outlined in the Withdrawal Bill. Here, the environmental watchdog’s powers are seemingly limited to the government activity, not public bodies.

The Act requires that, six months after Royal Assent of this Act, the Secretary of State – Michael Gove – must publish draft legislation which sets out a list of environmental principles. This would suggest that we might expect to see a draft of the new Environmental Bill by the end of this year, with the aim that environmental legislation is in place by 2020 by the end of the Brexit implementation period.

The Environmental Principles & Governance Bill

This is a separate Bill, announced by the Government in May 2018, focused on establishing how environmental principles should be embedded into law, public policy-making and delivery, and how the implementation thereof would be overseen. Importantly, the Environmental Principles & Governance Bill proposes the establishment of a new environmental watchdog who would ensure the government was held to account. However, the extent of this proposed watchdog’s powers is not formally outlined in the Bill, leading to worries amongst green activists that the new body would not have adequate enforcement capabilities in holding other actors – such as public bodies – to account.

 

How does this relate to proposals for a new Clean Air Act?

Campaigners are still calling for the introduction of a new Clean Air Act separate to the Environment Bill. Whilst the Secretary & DEFRA have commented that litigation concerning clean air in the UK will be covered in a new Environment  Act, campaigners insist that anew Clean Air Act is necessary to ensure legal limits regarding are pollution are set. These would replace the current legal limits on air pollution outlined by the European Commission.

It is unclear how the Environment Bill would address issues around air quality. We may have a scenario where elements of the Clean Air Bills currently passing through Parliament are incorporated. A more likely option would be that the new Environment Bill would rest more heavily on the Government’s current Clean Air Strategy. Whether the Environment Bill will go into sufficient detail regarding clean air remains to be seen; with the Bill concerning a broader spectrum of issues we are likely to see less targeted action, resulting in more speculative outcomes.

[1]http://www.legislation.gov.uk/ukpga/2018/16/section/16/enacted

[2]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/714379/180511_EUWB_Environmental_Protections_factsheet_10_May_18.pdf