Brexit: in the doghouse

5th October 2018

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Stephanie Tudgey

The ministerial rhetoric behind the government’s post-Brexit environmental watchdog is impressive, but will it have any power? Huw Morris reports.

Words can come back to haunt politicians, particularly when rhetoric clashes with reality. The UK’s environment secretary and prime minister are a case in point with their 25-year plan for the environment.

Michael Gove and Theresa May promised a “world-leading” environmental watchdog to protect the environment post-Brexit. Key will be its role in supporting the longer-term government aim to “be the first generation to leave the environment in a better state than when we inherited it”.

It sounded wonderful – but then the government launched a consultation document on its vision for that watchdog while confirming plans to publish an Environmental Principles and Governance Bill this autumn. Cue a succession of canine metaphors denouncing the plans: from former cabinet ministers of various parties, from sustainability professionals and green campaigners. The watchdog would be “more poodle than Rottweiler”, they said; “less Hound of the Baskervilles and more Muttley out of the Wacky Races”. Lord Deben, who as environment secretary in John Major’s government knew a thing or two about Whitehall’s relationships with government agencies, pointed out the crux of the matter: “The consultation paper has been written by two hands,” the chair of the Committee on Climate Change argues. “It is written by the hand that says: ‘We really must have an independent watchdog. We must stand up and say the environment comes first and we have to pass it on’. The other hand says: ‘Ah, but ministers must always be in charge and we must balance this promise with all sorts of other things’.”

The government’s narrative within the consultation encapsulates the “all sorts of other things” that critics fear. It pushes the idea of a trade-off between the economy and the environment, with a “proportionate approach” leading to better economic outcomes at the expense of environmental ones.

IEMA brands this thinking “outdated, unfounded and unhelpful”. The Aldersgate Group’s executive director Nick Molho says it shows the limitations of the government’s concept of environmental governance and betrays the myth that regulations are bad for growth – a myth that stands in the way of good environmental policymaking.

A work in progress

A glance at the consultation reveals that the government’s vision for the watchdog is a work in progress, setting out minimal firm proposals and then asking questions on how it should work. Since the consultation was published, the House of Commons has passed an amendment to the European Union (Withdrawal) Bill requiring the new agency to have the power to take proportionate enforcement action – including legal proceedings.

Everyone agrees that the UK leaving the EU will create an environmental governance gap, but major questions still hang over how to plug that gap. Many fear that, without tough penalties, authority, ambition and resources, the watchdog would struggle to enforce environmental law – leading to ‘zombie’ legislation, which sits on the statute book but is widely ignored. What clout will the body have? ClientEarth law and policy expert Tom West says that, while there is scope for the government to strengthen the proposal, its vision for a green watchdog is “far too weak” and “toothless”.

“To be truly effective, a green watchdog must have the power to take all public bodies to court when they fail in their duty to protect people and the planet,” he says. “It must be able to properly hold the government to account and engage with people and communities to help them solve their environmental problems.”

A second issue concerns the body’s authority. This betrays the clash between rhetoric and reality – whether the lofty statements on the environment in the 25-year plan are owned by the whole of government and not just Defra. And how will those goals be measured? “To what extent should the watchdog take not just central government to court, but also extend its reach into other areas of government and non-departmental bodies?” asks IEMA chief policy advisor Martin Baxter. “As for the advisory powers, what advice will it be giving?

“We are looking for a framework that would have legally binding goals, with the forthcoming act having the goals set out in the 25-year plan established in law. The framework needs to set targets and metrics for key environmental outcomes, set on a five-yearly basis. The new body should provide advice on what those milestones should be and whether or not they are being achieved.”

“The myth that regulations are bad for growth stands in the way of good environmental policymaking”

Duty of responsibility

Then there is the issue of ambition – not in ministers’ rhetoric, but in the need for “horizon-scanning” to spot longer-term environmental challenges early. This, in turn, would fuel a drive for innovation across the public and private sectors – which is crucial if the UK is to confront future environmental challenges.

“There has to be a connection between the long-term, high-level goals and what they mean for decisions on the ground,” says Baxter. “It’s very hard trying to regulate everybody without an overarching duty of environmental responsibility, so that government departments and public and private organisations have a basic duty to act responsibly towards the environment, or to take account of the environment in making decisions.

“If you do that, it helps to get people working together on developing the best solutions and doing what we want to do. Then it will be up to the government to fully fund the new independent body and its programmes to get us where we need to be.”

The Watchdog's responsibilites

  • Providing independent scrutiny and advice on government environmental policy and law. Similar to the Committee on Climate Change’s functions
  • Responding to government complaints about the government’s delivery of environmental law. Comprising powers to afford at least the same opportunities to submit environmental complaints as currently exist
  • Holding the government to account over its delivery of environmental law and exercising enforcement powers. Involving powers to issue advisory notices setting out corrective action where needed. Other mechanisms are being considered.

Huw Morris is a freelance journalist

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