When ENDS meets Mary Creagh in late November, the Westminster air hangs heavy with, as the Labour backbencher puts it, “the unprecedented, historic uncertainty of the times we are living through”. This is no exaggeration. If MPs cannot vote through the prime minister’s Brexit deal on 11 December, there’s a real sense that the UK could face a political crisis without modern precedent. Right now, there are “no political facts”, according to Creagh, who chairs the Commons’ environmental audit committee.
With the day of the UK’s formal departure from the bloc rapidly approaching, one of the select committee chair’s most immediate concerns is that the 91 pieces of secondary legislation being drawn up by DEFRA, which the government must pass to update the UK statute book before Brexit day on 29 March 2019, are “not going to get the proper scrutiny” they require.
Some of these so-called statutory instruments (SIs) will be tabled under what is known as the affirmative procedure, meaning they must be approved by Parliament. But most will simply be laid under the negative procedure, entering into law on the day they are signed by a minister unless Parliament agrees on a motion to reject one. According to Creagh, the government could “of course” use this process as a way of weakening environmental protections.
The select committee chair adds that she is concerned about the prospect of “zombie legislation”, whereby EU laws that are carried over into the UK statute book refer to oversight from institutions that will no longer have authority in the UK. This could leave some environmental protections that “will no longer be monitored, updated and enforced”, according to Creagh.
There are hopes that the forthcoming environment bill will put some of the ambitions set out in the government’s 25-Year Environment Plan into law after Brexit, but Creagh voices doubts over whether the flagship piece of legislation will ever surface. Creagh says that the environmental audit committee and the environment, food and rural affairs (EFRA) committee are ready to scrutinise the bill early in January, “if it ever gets published”.
After our meeting, environment secretary Michael Gove told the EFRA committee that the bill would be published in two parts and will not be laid before Parliament until after Brexit. He said that the first part of the draft bill, covering environmental principles and governance, will be published before 26 December as required by the EU (Withdrawal) Act 2018. The rest of the draft will be published “in the first quarter of the new year”, and will feature in the Queen’s speech, according to Gove. The whole bill will not be laid before Parliament until after the UK has left the EU on 29 March 2019.
The bill has been presented by government as the vehicle by which a green Brexit will be delivered. But when ENDS asks Creagh what her preferred option is for the greenest possible Brexit, her answer is unequivocal: “No Brexit.” It is clear that Creagh considers this a very real possibility. Should Brexit happen, though, Creagh is concerned that regulations related to water, waste and air pollution are the most vulnerable to attack.
“There is nobody to monitor air pollution in this country. The last clean air act was 1956,” she says. “Everything else that has cleaned up the UK has come through the EU. Protection for species and protection for habitats all happen at the European level and at the moment people have the right to sue the government if they are not being protected properly.” Under the government’s proposed post-Brexit environmental governance arrangements, people will lose the right to take legal action against the government, she maintains. The powers of the proposed green watchdog should be upgraded in order to give it this ability, she argues. The EU (Withdrawal) Act provides for a watchdog with the ability to take legal action against “ministers of the crown”, but stops short of extending that power to all public bodies.
In Creagh’s opinion, the proposed watchdog is “clearly weaker” than the oversight role currently played by EU institutions. “We have to have a watchdog with teeth,” she says. “The government has got far more experience putting down watchdogs than setting them up,” Creagh adds, pointing out that the royal commission into environmental pollution and the sustainable development commissions were both scrapped in 2011 by the Tory-Lib Dem coalition government. “The government’s history in this area does not point towards a bright new dawn,” Creagh warns.
The current plight of England’s two key existing environmental regulators - the Environment Agency and Natural England - does not give Creagh confidence that the government’s proposed post-Brexit oversight body will pack sufficient punch. Creagh highlights the unexpected resignation of Natural England’s chief executive, James Cross, earlier this month, and is sympathetic to concerns that the regulator lacks independence from the government. “Natural England has lost half of its budget - it has basically been absorbed into DEFRA,” she says.
The Environment Agency, meanwhile, “is basically being co-opted as part of government rather than a critical friend of government,” Creagh adds. The agency, according to Creagh, lacks the resources to go after firms that flout environmental regulations. She says that the regulator did not have the resources to investigate fashion firm Burberry over its burning of its unsold stock. Burberry has denied it breached environmental rules, but has since stopped the practice. Creagh, however, is more concerned “that there is no way the agency can enforce the waste hierarchy”. The agency is now making few checks into “who’s shipping out which waste”, the committee chair says. “It carried out just three unannounced inspections in a year, down from dozens [the year before],” according to Creagh.
She adds that the Environment Agency is powerless to stop the wide scale abuse of the packaging recovery note system. According to Creagh, the system is “wide open to fraud”. At the committee’s request, public spending watchdog the National Audit Office examined packaging recycling obligations, finding the system to be “not sufficiently robust”. The committee sent the watchdog in, according to Creagh, “because we couldn’t see the money, we couldn’t see how it worked, and now we’ve discovered that 15,000 tonnes has been doubly claimed”.
Should MPs vote against the prime minister’s Brexit deal on 11 December, the prospect of a no-deal Brexit will become a very real one. For Creagh, this is the worst case scenario for the environment. “Then we lose access to our chemicals databases as well as the monitoring updating and enforcement of our environmental regulations and it will affect the whole country in terms of food imports, pharmaceutical imports and all imports and exports,” Creagh warns.
But rather than a no-deal, Creagh is holding out for a “no Brexit”. “The majority of people now want a people’s vote, she says. “The people cannot undermine the will of the people. You cannot say it’s undermining democracy if that is what people want.”