Will ecology be the first casualty of Brexit?

| 19th February 2019
Michael Gove and his dog, Snowy

Michael Gove, the Environment Secretary, at home with his pet dog Snowy.

The Telegraph
Reflections on the draft Environment Bill. A dog's dinner?

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Most of the laws which protect our environment come from Europe. In order to plug some of the gaps which Brexit will create - if it happens - the government has promised to bring in a new Environment Bill.

Although that is not yet ready, the Conservatives feel under pressure to be seen to be doing something, and so the government recently published a Draft Environment Bill. The draft and responses to it will provide the basis for the bill itself, although the timing for that is unclear.

Draft bills don’t have to go through the whole parliamentary process that real bills have, which normally entails scope for amendments in both the Commons and the Lords.

Principles

In this case, instead, the ‘pre-legislative scrutiny’ consists of a joint inquiry by two committees of MPs: the Environmental Audit Committee and the Environment Select Committee.

There are many aspects of the Draft Bill which worry environmentalists and others. For instance, and very importantly: the Draft proposes setting up a new Office for Environmental Protection, but there are concerns about its independence from government and the adequacy of its resources and powers to enforce the laws.

However in this short article we will come from a different angle: the unsatisfactory way in which the government is proposing to deal with the “environmental principles” it lists, principles inherited from EU law.

The principles themselves are generally agreed to be sound: for example polluters should pay for the pollution they create, action should be taken to prevent environmental damage, and we should be cautious when we don’t have all the evidence relevant to making a decision (“the precautionary principle”).

What is worrying about the Draft Bill is principally the limits it imposes on the application of these principles, which are its own principles, set out in Clause 2 on the first page of the Bill.

Green taxation

The principles are to be “proportionately applied”. What this would probably mean in practice is that they won’t be applied at all if they cost the Treasury or business money.

 The principles are also to be something for government to “have regard to”: another get-out clause which implies actually applying the principles only when there is nothing else government wants to do which conflicts with them, such as building new motorways and runways.

The principles — especially the preventative principle and the precautionary principle, which keep us safe — need instead to be duties, unavoidable, sacrosanct.

Similarly concerning is the exclusion of “taxation, spending or the allocation of resources within government” from the scope of the principles.

This is effectively the Treasury opting out of having the principles applying to anything it does, and appears to ignore the ongoing debate about “green taxation”, and even apparently rules out any idea of how environmental considerations might impact on the allocation of public expenditure for example, for flood defences.

Policy

Even stranger than what is in the bill itself is one comment in the official "explanatory notes".

Paragraph 52 states  that “it may be inappropriate to consider the environmental principles in an area of policy that changes or is novel”.

It is obviously precisely in such cases that a consideration of environmental principles, and especially the precautionary principle, is required.

However, perhaps the worst limitation of all comes later in the Draft Bill. We find that the new Office for Environmental Protection (OEP) is going to be responsible for applying the environmental principles only to “environmental law”, which is a far more limited category.

This, it would seem, exclude the full range of government policy – the planning system for example, or transport, or economic policy, energy, infrastructure, agriculture.

It is also worth noting that, crucially, emissions of greenhouse gases are explicitly excluded from the remit of the OEP, a strange limitation in view of the enormous impact of anthropogenic dangerous climate change across the environment.

This is only a Draft Bill. There is plenty of time and opportunity to improve on it, and several of the environment NGOs are hard at work trying to do that. But if they don’t succeed, the environment really will join the list of the casualties of Brexit.

These authors

Victor Anderson is a research fellow at the Centre for the Understanding of Sustainable Prosperity (CUSP), and used to be a Green member of the London Assembly. Rupert Read is a reader in Philosophy at the University of East Anglia.. The terms of reference for the inquiry are online.

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