The next Prime Minister will immediately be beset by the problems of managing a minority government, and aiming to deliver whatever form of Brexit is achievable. One of the many issues competing for the new Prime Minister’s attention will be the choices that really matter for environmental policy, and whether or not to aim for continuity with existing policy.
The environmental policy of Theresa May’s government was to enact the European Union (Withdrawal) Act 2018, and to undertake that the whole body of European Union law, known as the acquis communautaire, would be brought into UK law, and that following Brexit, Parliament would decide whether, and if so how, to adapt environmental and other laws.
Theresa May’s government also featured Michael Gove as Secretary of State for the Environment, Food & Rural Affairs, (who may, or may not, be welcome in a Johnson administration), publication of a 25 year plan for the Environment, and a commitment to be ‘the first generation to leave our environment in a better state than that in which we found it’.
In many areas of environmental law, the May government demonstrated a willingness to follow the development of EU laws closely, either where this was necessary for trade, or desirable in itself – for example with the EU REACH chemicals Regulation, or the EU’s laws and policies on the Circular Economy and reduction of waste.
When Michael Gove published clauses of an Environment (Principles and Governance) Bill as the first instalment of a major new Environment Bill, many commentators giving evidence to House of Commons committees, including William Wilson, Barrister-Director, Wyeside Consulting Ltd, were highly critical of the limited independence and powers of the proposed new Office for Environmental Protection, and the proposed wide exceptions to the application of Environmental Principles.
The House of Commons Environment, Food & Rural Affairs Committee took up these criticisms when it introduced its report on 29 April 2019 with the headline
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‘New environmental watchdog needs greater independence and sharper teeth’-
and the Environmental Audit Committee on 25 April 2019 reported in similar vein with the comment –
‘MPs call for urgent action to plug gaps in environmental protection’-
When a newly constituted minority Conservative government is assembled after 22 July 2019, with a new leader, the actions that it takes in response to these detailed criticisms will be closely watched for signs of its policy towards key environment protections, and in particular the effective monitoring, implementation and enforcement of environmental laws after Brexit.
Early decisions for the new government will also include how to take forward the promised Environment Bill with its key provisions on ‘air quality, protection and enhancement of landscapes, wildlife and habitats, more efficient handling of resources and waste, and better management of surface, ground and waste water.’ That is what has been promised: how much will be delivered?
On climate change, the May government was a leading exponent of the Paris Agreement, legislated to enact several carbon budgets from the Committee on Climate Change, and most recently introduced a net zero emissions target by 2050 as a matter of law for the UK. This was a landmark moment, and part of Theresa May’s political legacy, although the continued reliance by the UK on international carbon credits, and the extent to which the emissions to produce the goods which the UK then imports are created elsewhere, will continue to attract critical scrutiny.
It is unclear how committed Boris Johnson would be, if he becomes Prime Minister, to any of this. The environment has scarcely featured at all in the debates that have taken place in the Conservative leadership contest. Boris Johnson himself has been criticised by opponents for a lack of attention to detail, and an unwillingness to answer difficult questions. Assessment of the new administration’s environment policy, if led by Boris Johnson, will therefore have to be based not so much on what Boris Johnson says, as on what he does, in some key areas and early decisions.
First, the appointment of the Secretary of State for the Environment, Food and Rural Affairs will be a key early indicator of any significant changes in current policies. The Secretary of State will articulate the new government’s attitude towards the aims and objectives of environmental regulation.
Secondly, any administration that is serious about environmental improvement is going to need a better and more effective way of working in collaboration with the Devolved Administrations within the UK, which mostly have responsibility for the environment as part of their legislative responsibilities. The last three years have seen real strains in developing effective coordination, to the detriment of fully effective environmental laws.
Thirdly, a new administration will be judged on its own domestic legislative programme, including its conduct of the Environment Bill, its response to House of Commons Committee criticisms of the Environment (Principles and Governance) Bill, the Agriculture Bill and the Fisheries Bill, and its support, or lack of it, for regulators such as the Environment Agency.
Fourthly, a new administration will be judged on its actions on climate change, both in response to the new demands of the Committee on Climate Change for more urgent action, but also in terms of international leadership, with major conferences on Climate, Biodiversity, Sustainable Development and Oceans all due to take place in 2020.
Fifthly, if the new administration finally achieves its stated goal of Brexit, with or without a deal, there will be fundamental choices to be made as to how to handle divergence from EU environmental standards, and what sort of regulatory alignment may be demanded from any new or remaining trade agreements. Alignment with, or divergence from, EU environmental standards will become a key issue, both on the merits – whether EU law on an issue is the right way to go – and structurally – where significant divergence can make it harder for UK businesses to trade.
For further information, or to discuss the work being undertaken in these areas, please contact William Wilson, Barrister – Director, Wyeside Consulting Ltd on +44(0)1225-730-407 or email info@wyesideconsulting.com