For years, the UK's environmental law and policies were guided and monitored by the European Union. Brexit is the driver for redrawing the environmental framework after decades of being part of the EU, and the Environment Bill is the new legislation that redraws the rules after our departure from it. So where are we with the Bill, and are we headed for an ambitious and effective world-leading regime or a weakening of environmental protections?
The Environment Bill was first introduced into Parliament on 15 October 2019 – this means it has been more than 600 days since it was first introduced! It was then re-introduced in January 2020 following the general election. Slow progress was made throughout 2020 with a Public Bill Committee considering the Bill over several months. It returned to Parliament in January 2021, but the government quickly postponed consideration of it again, on the basis that the Bill would be unlikely to complete its passage in the Lords before the end of the last Parliamentary session. Fast forward to the 2021-22 session of Parliament, and the Environment Bill is back on the table: it featured heavily in the Queen's Speech on 11 May 2021 and the indication that it would be high up on the government's legislative agenda proved to be the case this week.
Where has the Bill got to?
The Bill has now completed its Report Stage and had its Third Reading in the House of Commons. This means it has now moved to the House of Lords where it will continue its progress. The Environmental Audit Select Committee previously reported that the environmental principles which guide EU legislation and policy have been "severely downgraded" by the proposals in the Bill.1 While there have been significant changes to the Bill, based on the current draft, the scope of change is still radical and highly controversial, so it will take time to take it through Parliament and is unlikely to get Royal Assent before the Autumn. To be seen as a global leader on the environment, the government will want to have the Act in place prior to the UK's hosting of UN Climate Change Conference COP26 in November.
The Bill was subject to lengthy debate at Report Stage with many opposition MPs and back benchers still arguing that the protections it contains simply do not go far enough. Particular concerns were raised about how it will interact with the proposed Planning Bill (as yet unpublished). Questions were raised about how the Planning White Paper's suggestions to increase development really fit with the apparent intention of the Environment Bill to offer widespread protections. Defra Minister Rebecca Pow tried to offer reassurance and explained "the Environment Bill lays the foundations for environment protection that will be supported by the Planning Bill"2. That sounds like the Minister is saying we shouldn't worry if the Environment Bill doesn't offer the environmental protections people were looking for because it will all be in the Planning Bill, i.e. a Bill which hasn't yet been published and will be promoting widespread development (which isn't traditionally known for being directly aligned with environmental protections).
The main change in substance in the second part of the Report Stage was the introduction by the government of two new clauses in relation to the Conservation of Habitats and Species Regulations 2017 (the "Habitats Regulations"). These regulations were not mentioned in previous versions of the Bill.
A new clause 105 gives the Secretary of State the power to amend the Habitats Regulations. Such amendments must have the purpose of requiring relevant persons to exercise their functions to comply with new requirements under regulations, instead of to ensure compliance with the EU Directives on which the Habitats Regulations were based. Such new requirements may relate to biodiversity targets set under this Bill or other improvements to the natural environment relating to biodiversity which are set out in an environmental improvement plan.
A new clause 106 gives the Secretary of State a power to amend Part 6 of the Habitats Regulations which is the Part which deals with the assessment of plans and projects. No indication has been given on when or how the Habitats Regulations might be updated other than an intention to publish a Green Paper later this year on how to "refocus the Habitats Regulations towards our objective to conserve and enhance biodiversity"3. Developers will want to keep a close eye on this as it has the potential to impact how they carry out the Habitats Regulations Assessments for their developments.
The new clauses do both provide a saving to say the Secretary of State may only make such regulations "if satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations". However, some MPs did express concerns during the Report Stage that replacement Regulations might "risk losing vital protection for wildlife"4.
Office for Environmental Protection
One area of ongoing criticism for the Bill relates to the creation of the Office for Environmental Protection ("the OEP"). As per our previous blog posts, an Interim Environmental Governance Secretariat ("the IEGS") was set up as a non-statutory body from January 2021 to gather information on any environmental complaints which it can then pass on to the OEP once it has statutory powers. Its complaints report for 1 January – 31 March 2021 shows it received 13 complaints5. Of these 3 have been closed, 7 are awaiting further information and 3 remain open. None have been escalated for the attention of Defra Ministers. The IEGS is expected to be replaced by an Interim OEP with effect from 1 July this year but there are still ongoing debates surrounding the scope of its powers.
Other expected amendments
The Government has announced two other areas in which further amendments to the Bill can be expected. An amendment is to be put forward in the House of Lords to add "a new, historic, legal binding target on species abundance for 2030, aiming to halt the decline of nature"6. Additionally, amendments are expected to deal with sewage discharges from storm overflows.
It is also likely that many non-government amendments will be put forward in the House of Lords, where members not affiliated with the Conservative Party number 531 to the government's 259, although how many of them will be successful remains to be seen.
The Bill has now had its First Reading in the House of Lords with the Second Reading expected on 7 June and Committee Stage running from 21 June. Whether it turns out to be the world-leading regime that the government has said it will be is dependent on any amendments to the Bill throughout the remaining stages and on other Bills that come forward. We'll be closely monitoring its progress...
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