Boris Johnson has signed a deal with the European Commission, but will concerns about the UK's green governance make it harder to secure a free trade deal after Brexit? Photograph: European Union Boris Johnson has signed a deal with the European Commission, but will concerns about the UK's green governance make it harder to secure a free trade deal after Brexit? Photograph: European Union

Do ‘serious loopholes’ undermine DEFRA’s landmark Environment Bill?

Just a day after the Queen formally reopened parliament, DEFRA unveiled its long-anticipated Environment Bill, which sets out a legal framework for improving air and water quality, the natural world and waste management after Brexit.

While legal commentators are still grappling with the bill, which comes in at a hefty 234 pages, they have already sounded the alarm over passages that would give the government considerable flexibility over how it will apply a new set of environmental principles and leeway on meeting new legally-binding targets. 

Introducing the bill at the London Wetlands Centre, environment secretary Theresa Villiers said the governance structures it introduces “take the long view, acknowledging the obligations we owe to those who will occupy this world long after we are gone”.

But campaign group Greenpeace is concerned that the bill takes too long a view, since the government would only legally be held to account in 2037 - 15 years after the targets are set. 

While DEFRA would have to set five-year interim targets, these would not hold the same legal clout, the green group has pointed out.

The opposition has been quick to describe the clause as a “serious loophole”. Labour’s shadow environment secretary Sue Hayman issued a strongly worded statement, accusing the Conservative government of “ducking its responsibilities by ensuring that any legally binding targets will not have bite for nearly two decades”. 

She added: “Labour will be strengthening the Environment Bill to close this loophole and ensure all targets are legally binding and cannot be kicked into the long grass.”

For Charlotte Burns, a professor at the University of Sheffield and co-chair of the Brexit & Environment research group, the lack of binding shorter-term targets constitutes a possible pitfall in future UK-EU trade talks, which would kick off if MPs give the green light to the new Brexit deal.

“If I were the EU,” said Burns, “I might say, ‘well actually we’re not very comfortable with you having targets that you’re planning to meet in 2037, what happens in the interim?’”

The fact that the bill does not cover Wales and Scotland, and only certain areas of Northern Irish environmental policy, will also be a source of concern for the EU, she added. 

Question of principle

The list of environmental principles that ministers must have regard to when making policy decisions has disappointed green campaigners, who strongly criticised draft wording published last year that exempted whole policy areas.

Decisions relating to the Ministry of Defence, national security and tax and spending do not need to take account of the principles. “We’ve seen very little improvement on the principles part as a whole,” said Tom West, UK environment lead at environmental lawyers ClientEarth. 

For Burns, the loopholes are “disappointing but not surprising”, particularly around tax and spending decisions. “That’s something I think the Treasury just wouldn’t wear,” she said. 

The bill also builds in wriggle room allowing the secretary of state to lower an existing environmental target if “meeting the existing target would have no significant benefit” or because a change in circumstances meant “the environmental, social, economic or other costs of meeting it would be disproportionate to the benefits”.

“We’re worried this would lead to targets being legally binding so long as they’re convenient,” said West. 

‘Devil in the detail’

A major change on the draft passages of the bill published last year would grant the Office of Environmental Protection (OEP) the power to request an ‘environmental review’ of a public authority suspected of breaching environmental law. 

The mechanism, a novelty for the UK system, could lead to the creation of an environmental tribunal system, an idea that has been discussed for decades and that former environment secretary Michael Gove said DEFRA had been exploring while working on the bill. 

“But there’s a lot that needs to be put in place,” cautioned West. ClientEarth is calling for a tribunal panel with “technical experts who are appropriate to the matter at hand, who are able to assist the tribunal in looking at the substance of the matter”, he explained. “We need a judicial forum that is able to get into the details of these environmental questions.” 

The bill provides few details on how the mechanism would function - and whether it provides a real alternative to the mechanism of judicial review, which assesses whether a decision-making process was lawful rather than the merits of the final decision. 

“Let’s see what it looks like and who gets to determine what it means,” Burns said. “Is it the OEP that will be able to determine what it means? The devil’s really going to be in the detail.”

Lack of coherence

While commentators have praised the vast effort DEFRA has put into drafting the bill, there is some concern that it is lacking an overarching set of objectives on protecting the environment. 

Martin Baxter, chief policy adviser at IEMA, praised how the department had responded to suggestions on how environmental targets could be incorporated into the bill. “Having said that, there are other things where we think they could provide more coherence across the different parts of the bill in terms of the governance dimension,” he said. 

“We think there should be some overarching objectives to the bill,” he explained, such as a healthy and functioning biodiverse natural environment, good environmental quality that supports health and wellbeing, and sustainable use of resources. “That should be at the front of the bill.”

Likewise, the aim to provide “significant environmental improvement”, as set out in the bill, “seems a bit nebulous”, Baxter added. It could instead be framed in terms of those overarching objectives, he said. 

Burns went further, describing the bill as a “very odd piece of legislation” lacking “overall ambition or aspiration”.

“I recognise that the government might say ‘well we do that in the 25-Year Environment Plan and that’s what the Environmental Improvement Plans are for’. But actually, I think it would be helpful to have that in the bill: some kind of big statement about… what we’re seeking to achieve over the long term and… how we’re going to do it.”

Nevertheless, the broad consensus from business and civil society on the need for stronger environmental law means the bill seems likely to have a future, Brexit or no Brexit. 

There is a feeling among green groups that “we can do this anyway and we should do it”, Burns noted. “I don’t see that it would in any way be inconsistent with EU membership.”

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