It is some time since I have written a post about Brexit but the time has come to re-visit one of the issues which I identified early on as a critical to UK environment policy once we have left the EU: the role of European institutions as powerful enforcers of policy (see “Who will watch the watchmen now?”). It was a concern reflected by the House of Commons Environmental Audit Committee and others (see “(In)competent authority”), leading to Michael Gove proposing a new environmental watchdog part to “hold the powerful to account” (see “Michael Gove has made a sensible suggestion”). The document in which these ideas are laid out in detail, Environmental Principles and Governance after EU Exit Consultation Document, has just appeared and it is worth taking a closer look.
First point to notice is that this document applies only to England. Responsibility for the environment was devolved to Scotland, Wales and Northern Ireland in the 1990s; however, as the key environmental legislation has come from Europe, their activities have had a common focus until now. The UK administrations have worked together to ensure consistent application of the Water Framework Directive, in marked contrast to some other Member States (Belgium usually sends separate “Walloon” and “Flemish” representatives to meetings, for example). Take away the constraint of European law and the devolved administrations are free, in principle, to develop their own environmental legislation as they feel appropriate. There are moves towards a “common framework” for the environment but, as yet, no concrete mechanisms in place.
In many ways, this consultation document encapsulates one of the biggest contradictions of the whole Brexit process: the slow, bureaucratic and barely democratic structures of the European Union are actually rather good at managing the environment and this is precisely because they override national sovereignty. A Member State has the right to implement EU legislation as it sees fit but the European Court of Justice acts as a powerful deterrent to any that might try to sidestep their responsibilities. Taking back control from Brussels and recognising the sovereignty of Parliament means, in effect, that DEFRA are responsible not just for developing and implementing legislation but also for scrutinising the effectiveness of that implementation. The risk, recognised by Michael Gove (though not in these words), is a self-affirming circle of smugness.
So the consultation document makes two important suggestions: first, that a new policy statement is made in which the environmental principles that guide policy-making and legislation are set out, and second, a new independent watchdog is set up to ensure that governments adhere to these. The environmental principles might be set out in primary legislation or in a separate policy statement. The former would have more teeth whilst the latter would be more flexible, allowing the evolution of these principles as scientific and technical knowledge improve.
The watchdog – “a new independent and statutory body holding government to account for the environment” – sounds like a good idea except, of course, that it is funded by, and must answer to the same government that it is holding to account. The Government, in turn, must balance “… environmental priorities with delivering economic growth and other policy priorities such as housing” (paragraph 83) and, as a result, this new regulator would be primarily advisory, and would lack enforcement mechanisms. It would not be an insignificant force but, at the same time, it would lack teeth. If economic growth, for example, depended on trade agreements with the USA and China, for example, will the government be prepared to sacrifice stringent domestic environmental targets?
The irony is that one of the best indicators of the UK’s performance in any area of environmental policy is a comparison with that of other countries and the EU – via the European Environmental Agency – already provides a framework for doing this. If the rhetoric is that the UK will perform even better after we leave then EU then, it follows, the UK’s relative position in the many “league tables” that the EEA produces should improve*. A confident Michael Gove would, therefore, ensure that his new regulator worked as closely with the EEA as possible and, importantly, produced indicators that enabled such comparisons to be made. My concern, again, is that, restoring UK sovereignty in these areas will create greater headroom for political meddling and spin.
Michael Gove’s appointment as Secretary of State for Environment, Food and Rural Affairs was greeted with caution by many working in the environment, given his mixed track record in his previous roles. We were, however, cautiously optimistic as, for the first months of his tenure, he made all the right noises. He is a politician who likes the big picture and is not afraid of a grand rethink of entrenched ideas. However, the environment is a sphere of policy where grand rhetoric is cheap and the devil lies in the detail. The consultation on environmental principles and accountability for the environment shows up the weakness of the UK’s muddled thinking on Brexit: the EU has many faults but handing back control of the environment to a parliament whose members are slaves to short-term cycles of public opinion is unlikely to deliver a greener future any time soon.
* in practice, of course, the four administrations of the UK may need to report separately in the future. England might well drop a couple of places whist Scotland and Wales could improve, simply due to the differences in population density.
The blog on the www.brexitenvironment.co.uk website is well worth a visit if you want to learn more about this topic.