Quis custodiet ipsos custodies? - or the Draft Environment (Principles and Governance) Bill 2018

The latin phrase found in the work of the Roman poet Juvenal translates as ‘Who will guard the guards?’ Looking closely at the Draft Environment (Principles and Governance) Bill 2018, it was as though someone asked that question but in relation to the Government and environmental legislation post Brexit.

The Environment Bill aims to:

  • Establish a new system of green governance
  • Improve air quality
  • Restore and enhance nature
  • Improve waste management and resource efficiency
  • Improve surface water, ground water and waste water management

Depending on the sort of Brexit that happens, then the current environmental principles underpinning environmental legislation and policy-making, as well as the mechanisms that ensure compliance with environmental law, will no longer apply. Before Brexit, the EU Treaties and the European Commission can take action if it considers that EU law is not being properly implemented by referring cases to the Court of Justice of the European Union (CJEU) where necessary.

After Brexit some form of statutory governance is required, which is what this Bill aims to provide by establishing a new system of green governance in a statutory and independent environment body – the Office for Environmental Protection (OEP). This body is there to scrutinise the environmental policy and law, investigate complaints, and take action to ensure that environmental law is properly implemented.

If there are set specific measurable targets all underpinned by clear milestones – which the OEP then ensures are followed, this would be a good thing. If complaints can also be heard by the OEP and dealt with rather than coming to court, then this will free up court time. Once in legislation, these goals can then be used to shape environmental policies and provide long-term policy direction for businesses.

In Jan 2018 the Government produced a 25-year Environment Plan. This sets goals for:

  • Clean and plentiful water
  • Thriving plants and wildlife
  • Reducing the risks of harm from environmental hazards
  • Using resources from nature more sustainably and efficiently
  • Enhancing beauty, heritage and engagement with the natural environment
  • Mitigating and adapting to climate change
  • Managing exposure to chemicals
  • Enhancing biodiversity

It would be good to see these targets set in a legally binding way with the OEP as watchdog to ensure they happen. However, the OEP is not an organisation to rival Defra or the Environment Agency but one which will watch over the Government to ensure that they enact Environmental law correctly. This a laudable aim – but for the OEP to have the environmental enforcement owners of the European and Commission and Court it needs to have some power and here there are three is issues.

Power to bring legal proceedings – the OEP can issue information and decision notices but there is no legal requirement on public Bodies to comply with the decisions of the OEP. In fact, a public body could refuse to accept a decision. The OEP will be able to ask the courts to enforce its decision notices using a modified form of judicial review but, if the OEP’s decisions were legally binding this would give them more power.

Independence – the OEP’s funding and Board membership will be under the control of the Government – this is the same Government it is trying to hold to account. It will be interesting to see the OEP trying to hold to account the source of its funding.

No fines – the European Courts can impose fines on members states and this is a powerful incentive to ensure compliance. However the draft Bill makes no provision for the OEP to impose fines on public bodies that fail to comply with the watchdog’s decisions notices.

There is no doubt that there needs to be a body like the OEP, hopefully providing the important independent oversight which is needed – but it should be remembered that In the Dr. Seuss book, Did I Ever Tell You How Lucky You Are?, a lazy bee is watched by a watcher so that it will work harder. When the bee doesn’t work any harder, it was assumed the bee-watcher wasn't watching hard enough and they themselves needed to be watched. Eventually the entire town of Hawtch-Hawtch is employed as watchers watching over other watchers leading to the first watcher who is watching the ‘lazy town bee’ so it will work harder. Let’s hope this isn’t the fate of the OEP to be a ‘watching watchdog’.

Louise Smail is one of the authors of HSE and Environment Agency Prosecution: The New Climate. 

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