Leaving the EU has created significant gaps in the UK’s legal and institutional framework for the environment. One of the most significant is the absence of UK-wide cooperation on the environment.
We do not have a collective effort to create a new multi-level environmental governance regime. Instead the focus of cooperation between the four nations of the UK has been limited to trade-related matters, and even here it has been faltering. UK environmental governance is fragmenting.
The governance gap
Leaving the EU meant the UK no longer had environmental principles enshrined in its constitution. And there was no longer an oversight and enforcement architecture applicable to the UK as a whole.
Defra’s initial consultation on environmental governance post-Brexit recognised these gaps.
The proposal for England was a new legal framework for environmental protection and a new environmental oversight body. The devolved administrations also proposed new ways of addressing the governance gap (see below).
The UK Government’s Environment Bill has received much commentary and criticism. The Commons Environmental Audit Committee’s 2019 report and the Commons Environment, Food and Rural Affairs Committee’s 2019 report gathered views on the how the legal and institutional framework proposed in the Environment Bill did not fill the governance gap.
The Committees and others highlight the important shift in status of legal principles for environmental protection in the Environment Bill.
Environmental principles are found in the constitutive treaties of the EU and legislation, but are to be confined to an environmental principles policy statement prepared by the Secretary of State for Environment.
This gives the Minister much discretion in defining the nature and status of the principles.
Concern was voiced about the independence of the Office for Environmental Protection.
The enforcement procedures foreseen in the Bill were found to contrast with the robust enforcement mechanisms of the European Commission.
Even if the new body is not to be compared to that of the EU, questions remain as to whether the new body lives up to the Government’s ambition of creating a ‘world-leading’ environmental body.
The fragmentation of UK environmental governance
Environment is a devolved matter. Different arrangements and ambition have developed in the four countries of the UK.
The Environment Bill applies primarily to England only. The proposed new oversight and enforcement body, the Office for Environmental Protection (OEP), is planned to operate in England and Northern Ireland.
Wales has appointed an interim assessor until a review of their environmental governance framework is complete. A 2020 report of the Environmental Governance Stakeholder Groups set up to examine the governance gap arising from EU Exit recommended a new environmental oversight body and legislation for environmental principles.
Recent legislation in Scotland has already established a new governance body there. Environmental Standards Scotland has a different remit to the OEP. And, unlike for England, environmental principles are contained within the Scotland legislation. The aim is to maintain equivalence to EU environmental law.
Until the creation of new governance frameworks in the four nations, the UK retains EU law as amended under the Withdrawal Act 2018.
We have seen a considerable amount of Defra secondary legislation conferring powers to the executive of the devolved governments – subsequently amended to remove reference to Northern Ireland due to its position under the Northern Ireland Protocol.
This approach under the Withdrawal Act and the new primary legislation upholds devolved responsibility for environmental matters but does not replace EU arrangements or create new UK-wide arrangements.
The need for cooperation on environment
The issue of divergence between the environmental ambition of the four nations of the UK has long been highlighted as a problem for environmental protection. While localised decision-making on the environment is crucial, cooperation at regional, national and international levels is also essential.
The development of UK-wide Common Frameworks – designed to agree a four-nation approach to retained EU law – includes many areas relevant to environment, but the focus has been on matters crucial to facilitating trade.
This UK-wide process is beset by challenges arising in UK intergovernmental relations and disagreements between the devolved and UK governments over the impact on devolved powers.
Joint working between the four nations is well-recognised to be underdeveloped. The Lords European Union Committee 2017 report on Brexit and devolution recognised that the EU was ‘part of the glue holding the United Kingdom together.’
Devolution in the UK was balanced by the supremacy and harmonising effect of EU law. A review of intergovernmental relations is in progress and includes a recommendation for a council of the four nations.
The opportunity for intra-UK and EU-UK collaboration on environment has not yet been taken up by the UK Government.
Indeed the UK-EU Trade and Cooperation Agreement clauses on environmental matters are also limited to trade issues rather than agreeing to further environmental ambitions. This threatens the ability of the UK to achieve its environmental aims both in the UK and internationally.
The four nations of the UK and the EU are committed to high environmental standards. A focus on environmental matters would make for an effective basis for collaboration between the four nations and between the UK and the EU.
The EU has a well-established system of multi-level governance on the environment – we could learn from our experience with the EU. Developing multi-level environmental governance in the UK would be a good start to addressing the fragmentation of environmental governance post-Brexit, creating the foundation for intergovernmental cooperation.
By Chloe Anthony, doctoral researcher at University of Sussex Law School.