Plans for green watchdog seriously lacking in legal punch


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The government has launched a consultation on the creation of a green watchdog. But there are serious concerns that the latest headline-grabbing plan from Michael Gove will be seriously lacking in legal punch. TOM WEST from ClientEarth reports

The need for robust governance mechanisms is particularly important to uphold environmental law because it defends the interests of people and nature - rather than the narrow economic interests of individuals.

The long awaited plans for a green watchdog have now been released, and despite promises of a ‘gold standard’ of environmental protection after Brexit, the reality leaves a lot to be desired.

The Department for the Environment, Food and Rural Affairs (Defra) sought consultation on its first proposals for a 'Green Brexit' which included provisions for a new watchdog and plans to incorporate environmental principles into domestic law after the UK leaves the EU.

While there was some good news in the government recognising the need for a new body to protect the environment through law, the plans proposed in the consultation document would create a toothless body seriously lacking in legal punch.

New opportunity 

Strong institutional governance mechanisms are needed to properly oversee, implement and enforce environmental law. For the past 40 years, EU institutions have worked to ensure the effectiveness of the laws which defend the habitats of wildflowers and butterflies, protect the health of our children’s lungs and ensure the safety of the water we drink.

The UK’s departure from the EU opens up a governance gap in environmental law. As recognised by Michael Gove, the environment secretary, this presents an opportunity to create a new world-leading body capable of holding the powerful to account.

If done properly, it will provide greater protection to the natural world. In designing this new body, we should not be limited to simply replicating the imperfect EU model. Instead, we should build something that learns from best practices from across the world which can be truly revolutionary in its approach to enforcing environmental law.

Unfortunately, the department’s current plans do not point in that direction. The consultation suggests that the government’s preferred option is for the watchdog to be unable to initiate legal proceedings and to only have oversight roles over central government – so not over other public bodies. 

But to be truly effective, a green watchdog must have the power to take all public bodies to court when they fail in their duty to protect people and the planet.

We need a watchdog with sharp legal teeth which is able to issue meaningful orders requiring specific actions by public bodies. And it should be possible for these orders to be backed up by the courts. Without these powers, there is a real risk that environmental laws remain impotent on statute books rather than working to protect the natural world.  

Another faceless bureaucracy

The need for robust governance mechanisms is particularly important to uphold environmental law because it defends the interests of people and nature - rather than the narrow economic interests of individuals.

The beneficiaries of such laws – rivers and forests, bogs and bees - are multiple, diverse and frequently, from a legal perspective, voiceless. As such, it is crucial that a green watchdog is empowered to provide an authoritative and influential voice that can speak on their behalf. 

The plans outlined by the consultation also fail to guarantee that the new watchdog will be able to receive complaints directly from the public or that it will have oversight powers over local authorities and other public bodies.

This risks dislocating the watchdog from the people and communities that stand to benefit from its activities. Instead, it risks becoming yet another faceless bureaucracy.

The watchdog must be empowered to reach out and work with communities affected by environmental issues, involving them not only in identifying problems, but also in developing solutions to the problems they are facing.

These are key functions which are needed to ensure that the watchdog can adequately engage with people’s specific concerns and sufficiently supervise the actions and decisions of agencies which might negatively affect the environment. 

If these issues are not remedied, the watchdog will simply serve as a reminder of a missed opportunity to introduce the strong system of governance which our natural world so desperately needs.  

This Author

Tom West is a law and policy researcher for the environmental lawyers, ClientEarth.

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