Back in June last year, when everyone was still reeling from the outcome of the vote to leave the EU, I wrote a post entitled “Who will watch the watchmen now?” In it I suggested that not only did the UK get strong environmental legislation from the EU, it also benefited from collective oversight that ensured that Member States actually enforce this legislation. This is exercised, ultimately, by the Court of Justice of the European Union, a body whose jurisdiction will cease once we leave the EU. That was what prompted the title of my post: good environmental legislation needs independent scrutiny. Where will that come from once we leave the EU?
I was pleased to see this point being made forcefully in reports from the House of Commons Environmental Audit Committee and the House of Lords European Union Committee recently, as well as in a very useful report by Green Party MP Caroline Lucas. One recommendation of the Environmental Audit Committee is that the Government should introduce a new Environmental Protection Act to maintain and enforce environmental standards after we leave. One of the witnesses to the Committee made it clear that the terms of reference of the UK’s Supreme Court meant that we could not assume that it would fill the legal void left once the European Court of Justice no longer had authority. Even assuming that the Supreme Court could play a role, however, there would still need to be an organisation that scrutinised the activities of government agencies responsible for the environment and initiated the legal actions. I suggested in my earlier post that this body must be wholly independent of government.
The Government’s aim, as stated in their white paper on Brexit, is that all EU legislation will be transposed into UK law in the first instance via the Great Repeal Bill, after which Parliament (and, where appropriate, the devolved assemblies) will be able to decide which elements of that law to keep, amend or repeal (clauses 1.1 – 1.3 in the Brexit white paper). However, Caroline Lucas points out that much of the new legislation is likely to be in the form of Statutory Instruments rather than Acts of Parliament, which will mean that there will be less scope for intense scrutiny by Parliament. If she is correct then this is an important – and worrying – loophole that those of could be exploited to water down future legislation.
One point that Caroline Lucas makes (and which I touched upon in my earlier post) is that the European Commission grants a degree of flexibility in the implementation of legislation in the form of “derogations”. Does this mean that the UK governments will transpose into UK law the right to give themselves lower targets or extended deadlines? Again, who will hold the governments to account? DEFRA and their counterparts in the devolved administrations will continue to talk the talk, but the devil will lie in the detail and only the eagle-eyed are likely to notice when the sharp edges of current legislation are quietly eroded away.
Another possible fate of transposed legislation, highlighted in the Environmental Audit Committee report, is that it will simply be ignored, again without the oversight of the European Commission and the European Court of Justice. The result will be “zombie legislation”, either not enforced or not updated to the latest scientific understanding. An unspoken question hovering behind much of this report is “is DEFRA up to the task?” The overall tone of the report suggests that the Committee is not yet convinced that it is. The question remains: who will watch the watchmen?
I have worked with the UK’s environment agencies for 25 years now, and my travels around Europe convinced me that they were amongst the most effective at translating the fine words of EU environmental legislation into positive outcomes. Results in many cases are impressive (see “The state of things, part 1”). However, I have felt for a number of years that their effectiveness has been slipping. This started roughly when the coalition government introduced austerity measures after the 2010 general election, leading to substantially less money being available for the public sector. As the Environment Agency tightened its belt, it was noticeable that activities that were driven by EU legislation were less affected than most. The fear of the European Commission bringing infraction proceedings trumped almost all other factors when determining budgets (with the exception, perhaps, of flood protection). Chris Smith, Chairman of the Environment Agency adds in a recent blog that is well worth reading that this period also saw the Agency’s ability to speak publicly in defence of the environment being limited by the coalition government.
The answer to this worrying situation is a body that can engage the government at the highest level in informed debate. This will almost certainly not be performed by yet another DEFRA-funded agency. But if not this, then what? I believe that the charity sector, professional bodies and environmental and wildlife charities may have to step in to fulfil this brief. Anglers already do this via the organisation Fish Legal (formerly the Anglers Co-operative Association); the time may have come for the rest of the environment and conservation sectors to learn from this well-organised lobby group. Perversely, if the “people” now have control of their own destiny (as the Brexiteers claim), then the government must be ready for those same people to ask the hard questions about their performance that we had previously delegated to Brussels.
(The photograph at the top of this page shows Cracken Edge in the Peak District, in November 2016)