Response to the Environmental Audit Committee’s call for evidence on the Government’s 25-Year Plan for the Environment.

  1. The UK Environmental Law Association aims to make the law work for a better environment and to improve understanding and awareness of environmental law.
  2. UKELA’s members are involved in the practice, study or formulation of environmental law in the UK and the European Union. UKELA attracts both lawyers and non-lawyers and has a broad membership from the private and public sectors.
  3. UKELA prepares advice to government with the help of its specialist working parties, covering a range of environmental law topics. This response has been prepared with the help of the Environmental Litigation Working Party, the Wales Working Party, the Water Working Party and the Nature Conservation Working Party and broadly follows the terms of reference of the call for evidence.
  4. UKELA takes the position that:

“The development of a post-Brexit framework of environmental legislation presents a unique and critically important opportunity for the UK Government and devolved administrations to explore ways of improving and strengthening environmental regulation.”[1]

  1. UKELA welcomes the publication of the 25-year plan for the environment (‘the Plan’) and its focus on the longer term future of the environment. The implementation of a long-term strategy to protect and enhance our national environment beyond the five-year Parliamentary cycle, taking account of the longer-term needs of the environment, is welcome. It must however strike a balance between achieving strength through the consistent articulation and application of aims and objectives, whilst remaining flexible enough to incorporate evidence-based feedback from pilot projects and data arising from international scientific research.

Ambition and Reporting

To what extent does the Plan set a sufficiently ambitious agenda across Government? How far do the objectives, targets and indicators set out in the plan reflect a higher level of ambition than existing targets (including European Union targets and the Sustainable Development Goals) and current performance? Are there any major gaps?

  1. The plan gives the strong impression of being a DEFRA plan for England rather than a fully integrated plan incorporating the four separate environmental jurisdictions of the United Kingdom and the different governmental departments and layers of government from national to local. In the latter respect it compares unfavourably with existing policy documents in Scotland and Wales.
  2. It is difficult to determine precisely the extent to which objectives, targets and indicators reflect a higher level of ambition than existing targets set by the EU as the document does not clearly distinguish between those targets derived from the EU - and that should therefore be retained by the EU (Withdrawal) Bill - and those that are innovative. The Plan does not explain how it will interact with the Bill and UKELA would welcome a clearer commitment, for example, to retaining and building on Natura 2000, via continued acceptance and enforcement of the EU Birds and Habitats directives. Those policy statements that are included are vague and leave far too much ‘wiggle room’.
  3. The Plan’s suggested approach to environmental policy and management based on the protection of ‘natural capital’ is very similar to the system of Strategic Management of Natural Resources (SMNR) set up under the Environment (Wales) Act 2016. However, it is suggested that the existing notion of SMNR is broader and more ambitious than the notion of ‘valuing natural capital’ since SMNR is formally linked to the well-being of future generations (WBFG), through the inclusion of a ‘Resilience’ goal (including ecological resilience) in the Well-being of Future Generations (Wales) Act 2015. Arguably therefore this aspect of the Plan is less ambitious than provisions that already exist in the UK.
  4. UKELA welcomes the suggestion of setting up a cross-Whitehall Sustainable Development Forum, answerable to the EAC. However, experience suggests that such forums are susceptible to government interference and departmental rivalry. UKELA would have preferred an arrangement where an independent statutory body with reporting powers (at least) has responsibility for oversight of the implementation of the SDGs, rather than a more generalist Commons committee.
  5. In terms of specific proposals, much of what is proposed for nature conservation already exists in one form or another. The Nature Recovery Network initiative is already provided for under the Habitats Regulations in the form of ecological networks, wildlife corridors, stepping stones etc.
  6. Catchment scale conservation and management also exists under the provisions of the Water Framework Regulations and model provisions for local natural resource management already exist in The Environment (Wales) Act 2016. The code and best practice guidelines for assessing reintroduction of species are also available in Wales.
  7. The Law Commission Report on Wildlife Law[2] recommended the introduction of conservation covenants (already available under Scottish Law). In our view other recommendations in the Law Commission’s report should also be implemented, including the rationalisation and consolidation of species legislation.[3]
  8. The Plan aims to “deliver effective management of our seas to make sure they are resilient to climate change while delivering the full range of goods and services” (p. 104). This is a good ambition but only achievable if backed up by appropriate monitoring of the environment to enable us to disentangle anthropogenic causes of change from natural/seasonal ones. The current UK Good Environmental Status (GES) assessments for the Marine Strategy Framework Directive (MSFD) indicate we are a long way from this.

What would success or failure look like for the Plan? To what extent will the Government’s proposals for reporting on the Plan allow for proper scrutiny of its performance against its objectives? Are the commitments to legislative action in the Plan sufficient to ensure it will endure beyond the current Parliament?

  1. There is a brief mention[4] of the proposal to update the Plan at least every five years, following progress reviews, but little further explanation. In contrast the EU’s 7th Environmental Action Programme sets out a review mechanism that includes consultation with stakeholders, the requirement to report to the Parliament and Council and the use of this evaluation as a basis for the next programme. This also contrasts with the more robust review mechanisms in recent Welsh legislation concerned with well-being and sustainable natural resource management.
  2. UKELA expresses disappointment with chapter 2 of the Plan, Recovering nature and enhancing the beauty of landscapes. Rather than any proposals to advance biodiversity conservation the Plan merely states ‘we will publish a new strategy for nature’. Under existing provisions overall biodiversity has been declining at alarming rates[5]. We would ask why the Plan does not contain any proposals for biodiversity conservation.
  3. The aim to provide 500,000 hectares of wildlife-rich habitat outside the existing protected area network[6] is a splendid target but action to bring it about is deferred to an unknown date and hedged around by vague intentions such as ‘we will investigate’ and ‘we will look for opportunities’. The Plan would have more credibility if it had taken the step of announcing proposals for one network to start the process. Similar obscurity surrounds the proposals for the Reintroduction of lost species,[7] and forInternational biodiversity conservation,[8] (an aim which would have more credibility if effective biodiversity conservation measures were already in place in the UK).
  4. In summary, in terms of reporting and accountability mechanism the Plan is deficient in firm proposals and timetables for action and targets. Accountability mechanisms appear largely to be restricted to codes and guidance. It is UKELA’s view that accountability and the securing of performance is best achieved under a framework of legislation, preferably by means of an Act of Parliament. To ensure implementation and to hold Government to account, changes to the statutory framework are required in order to ensure sufficient endurance from one administration to another. Any such framework would need to pay detailed attention to the devolution of responsibilities between the UK and devolved governments to ensure the continuance of the EU principle of subsidiarity which has been of such great importance in ensuring that, within common frameworks, action is focused at the lowest appropriate level of government.

Implementation

The Plan sets out a natural capital-led approach and a principle of “environmental net gain” when undertaking development. What are the risks and benefits of adopting these approaches? What steps need to be taken during development and implementation to ensure they lead to positive environmental outcomes, especially in respect of biodiversity?

  1. The natural capital approach sets out to provide economic values for components of the environment. There are some merits in adopting this philosophy, though value judgements based on cost benefits are not always in the interest of environmental protection in the round. Previously Parliament has previously expressed concerns over metrics for biodiversity off-sets.[9] Having said that natural capital valuation can form part of a multilateral approach provided it is based on sound scientific and socioeconomic principles.
  2. Broadening the net gain principle from biodiversity to environmental net gain must not lead to a trade-off of biodiversity for other environmental gains such as improved water and air quality. Biodiversity should be considered first, and gains secured before consideration of these other environmental gains. The system should fit within a national framework to avoid an unequal playing field between local authorities. Government could show its commitment by including it in the forthcoming national policy statement on environmental principles.
  3. For the net gain approach to work for biodiversity there must be adequate metrics that can determine the quality before and after development and this must include species - both on site and those which rely on the site for connectivity - as well as habitats. An increase in ecological expertise in local authorities will be needed to underpin the approach. The Plan makes reference to “expand[ing] the net gain approaches used for biodiversity to include wider natural capital benefits, such as flood protection, recreation and improved water and air quality. Those approaches will sit alongside existing regulations that protect our most threatened or valuable habitats and species. They will enable local planning authorities to target environmental enhancements that are needed most in their areas and give flexibility to developers in providing them”.[10] In UKELA’s experience local planning authorities do not have surplus resources to cover the implementation and monitoring of new initiatives and quite often do not have adequate resources and/or expertise to implement and monitor existing environmental protection strategies. Careful thought must therefore be given to how local planning authorities will be supported when new initiatives are announced, particularly given the loss of ready access to European expertise which might be consequent on Brexit.
  4. UKELA has already agreed in principle with the Environment Agency’s proposal in its recent consultation on Enforcement Sanctions Guidance to introduce a natural capital calculator to assess the harm caused by a pollution of a watercourse (albeit with the caveat that these are currently rather simplistic and liable to inaccuracy). This initiative accords with the increased focus on natural capital in the Plan and in UKELA’s view might be a model that could be extended to the assessment of other types of environmental harm providing that they were based on sound scientific and socio-economic principles. Environmental economics has been used for many years in the United States for natural resource damage assessment and for the last decade the ecosystem services concept has underpinned the Environmental Liability Directive (ELD) approach to damage and compensatory assessment.

To what extent does the Plan set out effective delivery mechanisms to ensure DEFRA, other Government departments and public bodies have the resources and responsibilities to implement it? Where should the Government seek agreement with the Devolved Institutions to ensure a common approach across the UK?

  1. In contrast to Britain’s 1990 Environmental Strategy (“This Common Inheritance”), which was signed off by a broad range of Government departments, including Environment, Trade and Industry, Health, Education and Transport, the current Plan is DEFRA owned and led. While it mentions its “sister document” the Clean Growth Strategy, and some of the Plan’s actions point to collaboration with other Ministries such as MHCLG and Health, there is no overarching mechanism to check on delivery across government, such as the standing committee of Cabinet Ministers or a nominated Minister in each Department as envisaged in the 1990 White Paper.
  2. The Plan is short on detail about funding and although there will be the opportunity to redirect CAP payments to delivery of the new land management system, the EU’s other funding streams, such as LIFE and INTERREG, which have been important sources of project funding, will need to be replaced. Domestic funding sources such as the Heritage Lottery Fund and the landfill tax are experiencing reduced revenues and cannot be expected to compensate for the loss of EU funding. Cuts to DEFRA and its agencies have already reduced their capabilities and hence the Plan’s frequent references to investigating “new and innovative funding mechanisms” are unconvincing.
  3. The need for common frameworks for the UK to replicate the role currently played by the EU is not addressed but these will need to be in place before Brexit. Long term planning for the environment should occur in each of the countries of the UK.
  4. In relation to devolution, the four nations of the UK will necessarily need to work together in the interests of environmental protection given that there are few challenges in this field that do not require a multi-level governance approach. Several models for joint governance have been suggested by which this might be brought about.[11]
  5. The Plan advocates an integrated approach to the operation of the Environment Agency, Natural England and the Forestry Commission across 14 areas in England. We would point out that in Wales, the functions of these different organisations have already been amalgamated in one organisation – Natural Resources Wales (NRW). Moreover, the Plan’s suggested involvement of other partners in local environmental management such as Local Enterprise Partnerships, Local Nature Partnerships, businesses and utility companies is similar to the way that NRW works with local authorities, local health boards and others in Public Service Boards to achieve well-being objectives that include ecological resilience.

Principles and Oversight

The Government has proposed an independent statutory body to “champion and uphold environmental standards as we leave the European Union”. What role, legal basis and powers will it need to ensure the Government fulfils its environmental obligations and responsibilities? How do these compare to the role of the European Institutions in the existing arrangements? What standard would it have to meet to be “world leading”?

  1. DEFRA proposes an independent statutory body to champion and uphold environmental standards (in England). UKELA’s welcomes this initiative. Apart from climate change, there is no independent specialist scrutiny body on government and the public sector that can assist Parliament, the public and government in improving environmental law and policy. The new statutory body would be in an ideal position to carry out oversight functions previously undertaken by the European Commission, and thereby to ensure proper environmental enforcement and the accountability of Government in respect of its environmental obligations. In UKELA’s view such a body ought to be accountable to Parliament - possibly the Environmental Audit Committee - and its funding directly voted by Parliament instead of being at the mercy of vulnerable departmental budgets. Moreover, the investigative powers of this body ought to extend to cover all departments of government not just DEFRA.
  2. A further important consideration going forward is whether this body’s remit should extend only to EU-derived environmental law or should also include responsibility for purely domestic law. Alternatively, there might be a staged evolution of the body’s jurisdiction to allow for the inevitable blurring of EU-derived and domestic law post-Brexit.
  3. The loss of the policing roles of the European Commission in ensuring that EU environmental legislation is correctly transposed and implemented is irreplaceable. The Commission also has an equally important dispute resolution role where member states cannot agree on implementation or standards. There are numerous examples of this but we would point to the role of the Commission in resolving disputes between states under the terms of the Water Framework Directive. This instrument gives effect to several international obligations and some customary international law obligations which will continue to apply domestically post-Brexit, but there is no equivalent dispute resolution mechanism outside of the Directive to resolve disputes between states, analyse scientific research and update standards as relevant, and incentivize the protection of national water resources. Any such equivalent mechanisms will have to be replicated domestically, particularly as environmental standards already diverge between devolved governments.
  4. In UKELA’s view the Plan does not give sufficient weight to the loss of access to expertise in several supranational environmental bodies in the EU and the consequences for environmental protection in the UK and the resolution of transboundary disputes – a consideration likely to be particularly pertinent to the reinstated border between Eire and Northern Ireland. Where possible the UK should consider continued membership of these bodies in order to ensure the maintenance of standards of environmental protection (not least as these affect the ability to trade with the EU) but also to guarantee the UK continued access to expertise and to mechanisms for dispute resolution. Obvious institutions include the European Environment Agency (which permits the participation of non-EU members) but negotiated membership or observer status of other institutions concerned with water quality, fisheries, marine conservation, chemical regulation and registration and so on, should be considered too. This aspect is consistently underplayed in the Plan and in our view underestimates the difficulties that will otherwise arise.
  5. It is not clear how the new body will interact with the devolved administrations, assuming that its remit will be for England only. The governance gap that will result from our leaving the EU will need to be filled across the four countries, not just in England, so they will need to work together to create a body/series of bodies that will replicate the lost powers. Also care will have to be taken to ensure that principles already established in the devolved regions (such as well-being principles - including ecological resilience - in Wales, and a commitment to higher water quality standards in Scotland) are not undermined.

The Plan sets out a series of objectives and the Government says it will consult on a policy statement on environmental principles to underpin policy-making after leaving the European Union. What principles should the Government include as part of that consultation? What legislation might be needed?