Environmental Principles and Governance after the United Kingdom leaves the European Union

January 31, 2019

By Peter Dixon

Whilst land-use planning in England is the responsibility of the Ministry for Housing, Communities and Local Government (MHCLG) much environmental regulation is the responsibility of the Department for the Environment and Rural Affairs (DEFRA).

In 2018, DEFRA published ‘A Green Future: Our 25 Year Plan to Improve the Environment’ (aka the 25 Year Environment Plan) which included a number of proposals with land-use implications. DEFRA then consulted on proposals to place a series of environmental principles on a statutory basis and to establish a new environmental body to police their implementation in recognition that when the United Kingdom leaves the EU existing enforcement mechanisms provided by the EU Commission and EU Court of Justice will no longer be available.

The consultation was then, to an extent, overtaken by events when the Government accepted an amendment to what is now the European Union (Withdrawal) Act 2018 placing an obligation upon the Secretary of State to publish a bill reflecting the main elements of the proposals within 6 months.

Draft legislation in the form of the Environment (Principles and Governance) Bill has now been published and contains three main sets of provisions:

• requiring the Secretary of State to publish a policy statement on environmental principles, defining the environmental principles which the statement must cover and setting out the process for preparing the statement, including publishing a draft for consultation and permitting Parliamentary scrutiny
• imposing duties on the Secretary of State to prepare an environmental improvement plan setting out steps which the Government intends to take to improve the natural environment, identifying the 25 Year Environment Plan as the first such plan and setting out arrangements for monitoring and reporting on implementation and for reviewing and revising such plans
• establishing a new Office for Environmental Protection to have responsibility for monitoring and reporting on progress in improving the natural environment in accordance with the current environmental improvement plan and on the implementation of environmental law, advising on changes to environmental law and enforcing compliance with environmental law by public bodies with the power to investigate complaints and give decisions identifying failures by public bodies and to make consequent applications for judicial review.

For the purposes of the draft bill ‘environmental principles’ include the principles of sustainable development, public access to environmental information and access to justice in relation to environmental matters.

The draft bill defines ‘environmental law’ as any legislative provision “mainly concerned with an environmental matter” but subject to exclusions which include devolved legislation or legislation on matters within the competence of the devolved administrations.  The draft bill defines ‘environmental matters’ as ‘protecting the natural environment from the effects of human activity’ and ‘protecting people from the effects of human activity on the natural environment’ and ‘maintaining, restoring or enhancing the natural environment’ as well as monitoring, assessing, considering, advising or reporting on them.