All bark, no bite: new environmental watchdog

6th July 2018

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Aaron Sheehan

It’s essential that any new environmental watchdog can genuinely hold the government to account after Brexit, writes Neil Howe.

As the UK’s exit from the EU continues to be negotiated, we are starting to gain some insight into how the country’s environment will look post-Brexit. The latest glimpse comes from the UK government’s consultation on Environmental Principles and Governance after EU Exit.

Running until August 2018, the consultation proposes the creation of an independent watchdog to hold the government to account for the decisions it makes on environmental protection. Currently, the European Commission, supported by the European Environment Agency, monitors the implementation of EU environmental legislation across member states. Where necessary, cases of non-compliance are brought to the European Court of Justice to ensure appropriate application of the law.

Addressing the issues

Once the UK leaves the EU, it will need an independent body to take over the monitoring of the UK government, in place of European jurisdiction. The consultation attempts to address this, by examining:

  • The current environmental principles in international and EU law, and how they can be implemented into domestic policy
  • The creation of a new watchdog to hold the government accountable, including development and implementation of policies
  • The role of the watchdog in the wider environmental context, and how it will work with the government and other authorities, such as the Environment Agency and Natural England.

Long time coming

Proposals for a new environmental watchdog were first suggested by environment secretary Michael Gove in November 2017. Amid concerns that the environmental legislation enshrined in EU law could be lost, and that the UK would be prepared to relax environmental policies post-Brexit, he suggested creating a “green Brexit” in which the environment would have a powerful voice.

However, the suggested consultation did not materialise – something that has been picked up on by the House of Lords.

Modest proposals

Several months on, we finally saw some initial published proposals, although they appeared to reflect current governmental divisions. It was a compromise. There would be a new watchdog, but it would be without any real power. No means to initiate legal action against the government. No obligation to continue to operate key environmental elements, such as the precautionary and ‘polluter pays’ principles. Nothing to do with climate change.

‘Holding the government accountable’ wouldn’t mean taking it to court if it flouted environmental standards; it would mean serving it with ‘advisory notices’ that request compliance and identify corrective actions.

House rules

Initially, criticism of the proposals came from environmental campaigners, who almost universally condemned them;

more recently, the Houses of Parliament have increased political scrutiny around the proposals. On 13 June, during an intense session on the EU Withdrawal Bill, the Commons passed an amendment by 320 votes to 296 that ensure the watchdog will have the power to take “proportionate enforcement action – including legal proceedings if necessary”. There were also reassurances that existing EU environmental principles would be set in primary legislation. However, its powers would be limited to central government, and not public bodies such as local authorities and the Environment Agency. Despite the amendments, it still means the UK will have less protection than it currently has.

“Despite the amendments, the UK will have less protection than it currently has"

Mind the gap

In a time of uncertainty for our profession, concrete proposals on filling the environmental ‘governance gap’ once the UK exits the EU are a positive step. However, it seems doubtful that, in its proposed form, the new environmental watchdog will be able to do the task that has successfully been carried out by the European Commission and the European Court of Justice. Gove claimed the watchdog would have “real bite” – but without the power EU authorities currently enjoy, it lacks teeth. It’s essential that any new body can genuinely hold the government to account in the same way that European institutions have been able to do in the past.

Neil Howe is senior legal author at Cedrec Information Systems.

Image credit: iStock

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