Consultation document proposes replacing the European Commission with a new environmental watchdog, among other recommendations.

By Paul A. Davies and Michael D. Green

The UK government has announced a consultation in relation to the proposed new Environmental Principles and Governance Bill, which aims to ensure maintained and strengthened environmental protection following the UK’s exit from the EU. While this particular consultation, which was announced on 10 May, relates to England, the government has indicated that it will “… work closely with devolved administrations on common frameworks”. The government’s intention is to “… ensure we leave our environment in a better state than we inherited it”. The planned publication date for the Bill is this autumn.

The consultation document includes three parts:

  • Part 1 relates to the effect of environmental principles enshrined in both international and EU law, and how England’s statutory framework could incorporate these principles.
  • Part 2 addresses the idea of establishing a new watchdog to hold the government to account in relation to environmental protection.
  • Part 3 explores what the exact function and role of the new watchdog would be, as well as the responsibilities of government and Parliament in developing policy and law, along with the Environment Agency’s and Natural England’s role in implementing such policies.

Currently, much of the UK’s environmental law derives from EU regulations and directives. Further, the European Commission is the body that supervises the implementation of those regulations and directives. The consultation has clarified that central principles of EU law, such as ‘polluter pays’ and the precautionary principle, will receive legal significance after Brexit. The government’s basic starting point is that England will convert EU environmental law into English law.

The government has also separately published a 25 Year Environment Plan that details the government’s aspirations. These goals include decreasing pollution in rivers and the sea, developing more efficient sustainable energy, and protecting endangered species and habitats.

Against this backdrop, the consultation document proposes that the Bill will establish an independent body to replace the European Commission as the watchdog on environmental matters, as well as to hold government and public bodies accountable for environmental protection issues by providing scrutiny and advice. The consultation considers options for the body’s powers and responsibilities, and provides as follows:

  1. The new environmental body could provide feedback to the government on the government’s implementation of current and future environmental legislation and policy, the effectiveness of such actions, and areas of possible improvement. The government could also ask the new body to express an independent opinion on whether proposed changes to existing environmental law would enhance, maintain, or diminish environmental outcomes. The body could advise on the delivery of the 25 Year Environment Plan as an independent, statutory entity by comparing national progress with the Plan’s goals.
  2. This environmental body could respond to complaints from individuals and organisations regarding the delivery of environmental law by public authorities or the government. In order to adequately deal with complaints, the body would need to have powers to conduct investigations, request information, and deliver persuasive recommendations. The body could provide its recommendations to the government, which would be published and reported to Parliament.
  3. The environmental body could hold the government to account for delivering environmental laws. The body could then use enforcement powers against the government if the government fails to deliver the laws adequately when a specific legal obligation exists. In particular, the body could issue advisory notes requesting compliance, issue binding notes requiring government to implement corrective actions, intervene in legal proceedings brought by others, and agree environmental undertakings with the relevant government authority. Enforcement of environmental law against private individuals and businesses would not lie with the new body and would remain with bodies such as the Environment Agency and Natural England.

The consultation has also proposed that the Bill include a provision requiring ministers to produce a comprehensive policy statement outlining the ways in which they have implemented core environmental considerations in their policies, as well as how they would execute such policies in practice. The implementation of a policy statement requirement should provide businesses with greater certainty on how environmental principles will be applied, and the proposals would then be subject to parliamentary scrutiny. The consultation will address the question of whether this should form part of the proposed primary legislation.

Latham will continue to monitor the progress of the consultation, which is expected to last for three months, and the development of the Bill.

This post was prepared with the assistance of Olivia Featherstone in the London office of Latham & Watkins.