Amending the way to a Green Brexit?

Michael Gove’s rehabilitation as a vigorous champion of environmental protection must count as one of the most surprising political developments of recent years. Since becoming Secretary of State at DEFRA in June 2017, the strong advocate of leaving the EU has pledged to deliver a ‘Green Brexit’ and not only maintain, but even increase the UK’s environmental performance.

But have the government’s actions since 2016 lived up to his fine words? The much-awaited 25 Year Environment Plan published in January received a mixed reception. Crucially, it barely mentioned Brexit, leaving three principal concerns about what leaving the EU is really likely to mean for UK environment policy.

Three concerns

First, there is the risk of regulatory gaps. There are on-going concerns that the EU Withdrawal Bill’s attempt to copy-and-paste EU law into UK law will not successfully carry everything over, losing key elements such as the environmental principles.

Many of the principles, such as the polluter pays and precautionary principle, are listed in the EU Treaties but not in specific EU policies, and as such would not be integrated into UK law, leading to regulatory uncertainty.

Additionally, environmental policy may become much easier to unpick or repeal by the government (without parliamentary oversight), and it may become harder to hold the government accountable.

Second, there is a risk of ‘governance gaps’. The European Commission, the Court of Justice of the European Union and many agencies (like the European Environment Agency, the European Chemicals Agency) shape environmental governance through their role in policy development, evaluation, implementation and enforcement. Outside of the EU, the UK needs to develop alternative governance structures to replace these lost EU functions.

Third, the cross-border nature of environmental challenges and the devolved structured of the UK. Is there room for new forms of cooperation between England, Scotland, Wales and Northern Ireland in the new era of ‘taking back control’? Will Westminster and the devolved governments manage to work together to tackle shared challenges, or even, in some cases with their European neighbours?

The Krebs amendment

Amongst the 15 amendments passed in the House of Lords, against the government’s wishes, was one focused on the environment. It was directly relevant to DEFRA’s proposed response to the threat of regulatory and governance gaps.

Whereas Michael Gove argued environmental principles would be sufficiently protected in a policy statement, the amendment calls for ‘primary legislation to establish a duty on public authorities to apply principles’.

Interestingly, the Scottish Continuity Bill has already been amended to include EU environmental principles, although it uses a shorter list (without sustainable development or environmental integration).

It is also at odds with the recent DEFRA consultation on a new environmental watchdog to replace the European Commission. DEFRA’s proposed England-only body has been criticized both for its narrow remit (excluding climate change, focused on government) and weak powers (only able to make recommendations, with no ability to fine government).

The Krebs amendments calls for a more ambitious independent body with ‘the purpose of ensuring compliance with environmental law by public authorities’, developed after consultation with devolved and local governments.

Back to the Commons

As the EU (Withdrawal) Bill returns to the Commons, Michael Gove has shown some signs that he may be willing to change tack, possibly opening the door to the watchdog securing greater powers.

On 7 June, two diverging amendments were tabled to replace the Krebs proposal. The first one, tabled by Zac Goldsmith (Conservatives) is the one favoured by Michael Gove. The second one, tabled by the Chair of the Environment Audit Committee Mary Creagh (Labour) goes much further.

On environmental principles, the Goldsmith amendment agrees with Kreb’s list of principles and is content with a list of principles published in primary legislation, together with a ‘statement of policy’ on how to interpret them.

On enforcement, it calls for a public body able to take ‘proportionate enforcement action’ against a minister of the Crown. It remains very close to the original government vision, with the scope of the watchdog limited to government action and a policy statement on the principles.

Conversely, the Creagh amendment is much more ambitious. Spurred on by the Krebs amendment’s success, it spells out what a strong environmental watchdog would look like.

It lists its functions (e.g. to enforce the implementation of environmental law by public authorities, not simply by government; and also, to uphold environmental rights), powers (including the ability to fine public authorities) and mechanisms to keep it independent (sufficient level of funding, immunity from ministerial meddling etc.).

The way Parliament votes on these two amendments will provide a very strong indicator of how green Brexit will really be. A vote for the Goldsmith amendment would be a vote for a muzzled watchdog with more limited scope and weaker powers.

A vote for the Creagh amendment would be a vote for Michael Gove’s own stated ambition: to build “more effective, more rigorous and more responsive institutions, [and] new means of holding individuals and organisations to account for environmental outcomes.”

But irrespective of the way the votes go, discussions on the environmental watchdog will continue: the DEFRA consultation is open until 2 August and the Environment Audit Committee’s inquiry on the consultation is on-going.

By Viviane Gravey, Charlie Burns, Colin Reid, Andy Jordan and Richard Cowell, part of the Brexit and UK Environment Governance team

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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