Environment, Food and Rural Affairs Committee
Oral evidence: Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill, HC 1893
Wednesday 13 February 2019
Ordered by the House of Commons to be published on 13 February 2019.
Members present: Neil Parish (Chair); Alan Brown; John Grogan; Dr Caroline Johnson; Kerry McCarthy; Mrs Sheryll Murray; David Simpson.
Questions 142 - 183
Witnesses
I: Ruth Chambers, Senior Parliamentary Associate, Greener UK; Debbie Tripley, Director of Environmental Policy and Advocacy, WWF-UK; Dr Tom West, Law and Policy Advisor, ClientEarth; Ali Plummer, Senior Policy Officer, RSPB.
Written evidence from witnesses:
- WWF
- RSPB
Examination of witnesses
Witnesses: Ruth Chambers, Debbie Tripley, Dr Tom West and Ali Plummer.
Q142 Chair: Good afternoon. Thank you very much for joining us for this panel. As you know, we are looking into pre-legislative scrutiny of the Environment Bill and of the OEP, the Office for Environmental Protection. As we go through this afternoon’s evidence, bear in mind that I am happy for you to dissect the Bill, but it would be quite nice to have some ideas on how we might put it back together, strengthen it and so on. That is the whole idea of pre-legislative scrutiny, so I thought you might like to bear that in mind as we go through. Ali, would you like to start and introduce yourself, then we will go across the panel and start?
Ali Plummer: I am Ali Plummer, a senior policy officer at the RSPB.
Debbie Tripley: I am Debbie Tripley and I am director of environmental policy and advocacy at WWF.
Dr West: I am Tom West, law and policy adviser and UK environment lead at ClientEarth.
Ruth Chambers: Good afternoon. I am Ruth Chambers, representing Greener UK, a coalition of environmental NGOs.
Q143 Chair: Thank you very much. The first question is: what are the drawbacks of setting up the OEP as a non-departmental public body? How could the OEP be designed to ensure greater independence? That is quite a big question; who wants to start with that one?
Ruth Chambers: I do not mind kicking off, and then I am sure colleagues will be able to add some detail and colour. If we think back to November 2017 when the Secretary of State first talked about what kind of body we could expect to replicate and replace the role currently played by the Commission and the courts, he used the words that he wanted to create and establish a “world-leading body to give the environment a voice and to hold the powerful to account”. That body would be “independent of Government” and able to speak “freely”. That is the bar by which we measure independence or not within the draft clauses.
A non-departmental public body, by its nature, militates against independence in a number of ways, and the practical ways in which independence is constrained are that NDPBs, like the way in which the OEP is currently proposed, receive their money from Government directly. That money, both in quantum and the route by which it is delivered, will pretty much be entirely decided by Ministers. Secondly, the senior appointments of an NDPB—the chair and other non-executive members—are also generally appointed by the Secretary of State, often with very little oversight by or involvement of Parliament. Those are two key weaknesses.
Chair: You are saying that is really stymying its independence.
Ruth Chambers: It would count against the body being able to be the independent body that the Government have talked about, that we all want, and that is needed for the OEP to do its job effectively, so that is what we do not like. What would we like instead, Chair? Your challenge to us was how we can dissect the Bill but also put it back together again. The first thing is about the funding mechanism for the OEP at the moment in the schedule. It is clear that the Secretary of State wants to control that entirely, but we think that needs to be done much more independently.
Secondly on appointments, the chair of the body needs to be appointed with much greater involvement from parliamentarians. There are good examples of how this is done at the moment, so it is not without precedent. For example, the chair of the Office for Budget Responsibility is appointed by the Chancellor, but only with the consent of the Treasury Select Committee. There are other devices that Parliament can use to ensure it has a greater say on appointments.
Thirdly, the OEP could benefit from having a general purpose. At the moment, the functions are specified on the face of the Bill, but there is no general purpose to give meaning or context to those. A general purpose would also speak to the body’s independence. This Bill is on a fast track, but Brexit is on an even faster track, so the OEP will need to be set up alongside the parliamentary passage of this Bill, so some parliamentary oversight of the setting up of the OEP would also be helpful.
Finally on the status of the body, we would encourage Government to think outside the box a little bit and along the lines of bodies like the National Audit Office, rather than the bog-standard NDPB that is on the table. Would you like me to say anything more about funding now?
Q144 Chair: No, we will probably drill down on that in a minute, I expect, but that was a very good opening. Thank you. Tom, do you want to add anything?
Dr West: First, at a general level, what we have here is a constitutional Bill. We are looking to overhaul the law, so some constitutional innovation will be needed at times and we see that most strongly in setting up the OEP. That is true of its independence, the powers it has and the laws it is enforcing. This independence is key and, as we are setting out, moving those key links it has from Government, which is where they are at the moment, towards Parliament is the crux of it.
In some ways, the task we have here is to replace the European institutions—the Commission and Court. They are supranational entities, and so you cannot replace them and their independence entirely. That is an impossible task, but we can do better than the Bill has at the moment. On things like funding, let us think about what is in the Bill now that can be improved. There is a provision in the schedule in which the OEP must issue a report on whether it thinks its level of funding is sufficient, but that occurs after the event, so it is retrospective. There is actually no guarantee that Government, Parliament or anyone will have to take that into account.
Q145 Chair: There is a major issue where the OEP might be tackling the Government. If the Government starve the OEP of resource, then it is not going to be able to take it.
Dr West: Quite. We have seen problems with the influence that Government can have on lots of other environmental bodies recently. If you frontload this funding provision instead and allow the OEP to produce what it feels is an appropriate budget, yes, you would have negotiation with Government. If they cannot agree, the two would be presented, which allows Parliament to look at both and the difference, and see what is happening. There is also a need for multi-annual benefits. Obviously environmental matters are long term, and that long-term security is important. It might be difficult to lock multi-annual budgets into the Bill itself.
Chair: We will talk about the funding model in the next question.
Dr West: There are ways to improve what is in the Bill now. That is the point I am making. There are things in there, but we need to improve them and get those links to Parliament.
Q146 Chair: I can understand that the Government should not have the power to starve it for cash, but nor can the OEP necessarily have a limitless source of cash. How do you see getting that balance right?
Dr West: You are right; there has to be a transparent process in which that happens, but make the OEP’s view public, so that what is needed can be clearly seen and reviewed openly, so that, once the deal has been done, it is not too late.
Q147 Chair: It is almost as though Parliament could see the books, for want of a better expression, and see exactly what it needs the money for and what funding it might need, rather than it just being a role for the Secretary of State to decide, whoever he or she might be at the time.
Dr West: If there is a disagreement, the reason for it can be seen.
Ali Plummer: If I could interject, within the draft Bill the OEP currently has requirements to set its own strategy. Exactly as Tom is saying, if the OEP is already setting its own strategy and setting out how it is going to operate, in particular how it is going to work transparently, it will need a view on what its budget is in order to do that. It seems sensible at that point to frontload. The OEP will need to take a view on what resources it has to carry out its strategy. To put it at the tail-end of the process does not seem particularly logical. As part of the transparent process for how the OEP operates, it should give a view on the resources it needs to do that.
Q148 Chair: Recently we had the retiring chair of Natural England in here, Andrew Sells. He was talking about the fact that there no longer a press officer for Natural England. Natural England is not exactly the same body as the OEP would be but, if you start to take away the facilities and the funding, you could soon curtail a lot of its activities.
Ali Plummer: Tom is right that we cannot replicate exactly the role of the Commission and the CJEU exactly, but we need a body that can be as robust and effective as possible. Unfortunately, in the manner in which it is being set up at the moment, it is being compromised, because that ability to erode it over time, no matter the intentions under which it has been set up, is there.
Debbie Tripley: I have a few random things. The IfG submission talks about some bodies negotiating with the Treasury in terms of their budget, and then coming back before Parliament for that to be audited. That might be another way, just on the funding point. When the House of Lords committee looked at Natural England and the NERC issue, it felt that the funding, as you have alluded to, had been so depleted over time that it was not able to carry out its enforcement provisions or functions, which are important. Public approval and trying to get the public to feel that this is a body they have a sense of are really important.
The EU (Withdrawal) Act 2018 itself says that a public authority can take proportionate enforcement action “where the authority considers that a Minister of the Crown is not complying with environmental law”. To me, Parliament has already agreed that this must be an arm’s-length body that is accountable to Parliament, and “where the authority considers” means it must be clear that it is not susceptible to bias or interference by the Government. In everything we see at the moment in the drafting of the Bill, we cannot say that that is the case, and therefore the perception of the public is important in relation to independence and its enforceability.
Other aspects I want to touch on are issues about independence. We touched on it needing a purpose, but purpose is really important, because there is no significant role defined for this body, which means that it could change over time, so purpose is key. Look at the Commission and its purpose; it is seen as a guardian of EU laws and that is enshrined in the treaty. We should be thinking about this body in a similar way. If we think about it as enshrining and being the guardian of our environmental laws to a high standard, which we understand is the ambition of the Secretary of State for this Bill, it would help to ensure its independence.
Another aspect I will touch on is its advisory function. At the moment, its independence in terms of advice is quite weakly drafted. If that was bolstered, perhaps under clauses 15 and 16, to be more like the Committee on Climate Change in the way that it goes about providing advice to Government—that committee must lay that advice before Parliament so that Parliament has an opportunity to look at it, and the Secretary of State has to come to Parliament to say why he does not approve or want to follow the advice, and give his reasons for that—it would strengthen its independence as well. Those are the bits I would touch on.
Q149 Chair: Most of the second part of this question has been covered, but you may have some last points. Assuming the Government decide to keep the body as a non-departmental public body, what can be changed within the proposed framework to ensure greater independence? We have talked about that quite a lot. Is there anything else you would particularly like to add to ensure its independence?
Ruth Chambers: I will have an opening bash at that. Sometimes the status is proving to be a slightly unhelpful distraction. I suggest it is important to focus on the underlying principles that guide how this body operates in terms of independence, and I will highlight how the body should be funded. We have covered it, but there are three critical ingredients if this body is to be properly and independently funded. The first Tom has mentioned, which is the need for a strong and visible commitment to multi-annual budgets for the OEP. That could be suggested, implied or included in the legislation, but it could be done visibly and publicly as a political commitment.
The second is for the OEP to determine what is sufficient funding for it, rather than Government. There is a ready-made mechanism for it to do that, which is for it to prepare and publish its own supply estimate, as the National Audit Office and various other parliamentary bodies do. That would give more transparency over what the OEP is seeking to spend and how it is seeking to spend it. It may need the creation of a little bit of new parliamentary infrastructure, such as the way the Public Accounts Commission oversees the National Audit Office, but having that would also give Parliament a greater role in overseeing that budget. Publishing its own supply estimate would give it meaningful independence in a way that the draft Bill does not currently do.
Q150 Chair: If that were coupled with greater independence on who is nominated and how, it could help a lot with the present OEP. Is that how you interpret it?
Ruth Chambers: That would go a long way to addressing concerns that the body is not going to be independent. For example, if it had an independent funding mechanism along the lines we have just discussed, or if the chief exec was appointed by the OEP and by nobody else, and if the non-exec members were appointed by the chair—then you can have a discussion about the appropriate balance for the appointment of the chair, and the right role for the Secretary of State and for Parliament. At the moment, it is weighted too far towards Government and the Secretary of State, but I am sure there would be a way to conceive of a system that is more independent, in which everyone has some involvement. Again, the OBR option is a good model to look at there.
Q151 John Grogan: We have probably dealt with funding, but this drills down into some of the comments that were made in written evidence. The first question is to Dr West and Debbie Tripley. There are clear difficulties in replicating the EU’s current enforcement mechanisms, which you drew our attention to, including the power to issue fines in cases of non-compliance. What can be added to the Bill, around clauses 17 to 29 and that sort of area, to ensure the OEP has equivalent powers to what is currently there, and an appropriate enforcement procedure?
Dr West: The Bill demonstrates a clear attempt to mirror some of the Commission’s processes, even down to some of the timeframes, but unfortunately you do not get the same effect and legal bite that the Commission has because crucially, when it comes to the end of the process, you essentially have a weaker procedure. The current model of the OEP works by going through the notices and, at the end, you are essentially left with traditional JR, whereas with the Commission, you are left with processes that have quite powerful things. Not only do you have the court, which undertakes a more thorough review, but also penalties, which are clearly a strong deterrent.
What we need for the OEP is an improved bespoke enforcement procedure. There are various ways to do that that have some merit, but let me talk about one that is particularly robust, which is to build on the decision notices that are already in the Bill, and make them binding. At the moment, these decision notices can set out the steps that a public body must take to comply with the law, which is useful, but as they are non-binding it is possible to sidestep those at the moment. If you make them binding, you have a much stronger remedy for the OEP to access. It both is a legal remedy and can be an environmental remedy, because it remedies the problem; it sets out how you comply with the law.
The key idea and the reason that we think this process is needed is that we need to create a forum where you can review the quality of decision-making. This is necessary and to do with some of the vague natures of environmental law duties and the inability of JR to look at them and say how to exercise these functions in the best and most effective way. Let us create a forum in which that can take place. The OEP gives us an opportunity to do that. It gives us an opportunity to be ambitious with this and create something that really could be world-leading. While we will need lots of other bits around the outside to make sure this enforcement process is working well as a whole, the binding notices are the centrepiece to that and give meaning and effect to the rest of the OEP’s functions. As well as the OEP being independent, which is hugely crucial, it needs to have this legal punch.
Debbie Tripley: This is one of the most misunderstood bits of the Bill because, superficially, it looks like it mirrors the EU Commission. We go back to what we are trying to achieve with this Bill. In part, we are trying to achieve equivalence to what we have at the moment with the EU Commission. We know that the EU Commission is able to receive complaints from citizens at no cost. It can look at those complaints, both in terms of the facts and the law, and can then issue reasoned opinions, which look very much like the decision notices in this Bill. If those reasoned opinions are not complied with, it can take a member state to court. Then we have the remedies or enforcement provisions of the court. On the face of it, it looks as if this mirrors that type of equivalence.
I will try to explain why we are concerned that it is not equivalent, which comes back to what Tom has talked about, which I call the standard of review. We have a system of judicial review in this country, as we know, but the way the CJEU and the Commission work are slightly different in their standard in two respects. First, although the Commission’s reasoned opinion is not legally binding, it is in all but name. It is the substance of that reasoned opinion that the CJEU then looks at; it is not the decision or the discretionary approach that someone has taken to that issue. For instance, the CJEU says that a member state must challenge in substance and detail the data produced by the Commission. That is the sole question for the CJEU. The member state has failed to discharge its obligations and it is as the Commission alleges in its reasoned opinion that is reviewed, not the original way in which the member state came to its decision.
Judicial review differs in that when you take something to court by way of judicial review, it is the Minister’s discretion that is reviewed, whether it was procedurally irregular or irrational. That largely means that the substance of the decision is not reviewed at all. We have a slightly incoherent mechanism in this Bill, in that the OEP will be looking at the substance in the decision notice, but that will not be reviewed when it gets to judicial review. We have no idea how that decision notice will be taken into account by the court, because the court will be reviewing the original decision that the Minister made. It gives considerable deference—I am not saying that is wrong, but it is our system. In our system, the court will give considerable deference to the discretion of the Minister. A Minister may make a decision on the facts in, say, a town and country planning case.
Q152 Chair: He will not under the present legislation, because it is not included, is it? It is one of those things that is excluded.
Debbie Tripley: We will come back to that. It will not review the weight or how it came to determine the facts of that town and country planning case, which could be an important point in relation to how it came to its view. That is why we feel that something more needs to be done in relation to decision notices.
Q153 John Grogan: Thank you for that full explanation. Dr West, you mentioned wanting to increase interim and emergency powers. Can you expand on that?
Dr West: Like I said, while there is a need for these binding decision notices as the centrepiece, you need other stuff around the outside. There may be times when the process unfolds too slowly to stop what could be an environmentally damaging thing from happening now. The ability for the OEP to issue interim measures, stop notices, or something that is able to quickly and nimbly respond to the problem at hand will make sure you do not end up having a regretful situation, where down the line you rule that that is not what should have happened, but the damage has been caused. There are things like that, such as the ability for the OEP to intervene and make general guidance and recommendations pre-emptively, on the back of the clause 15 investigations it can do. It could issue general guidance and recommendations to stop the damage happening in the first place.
Of course, these binding notices are a last resort; we do not want this to be happening. We want things to be resolved beforehand, but the way to make sure the mechanisms you have allow things to be resolved beforehand is to make sure that you have that legal punch at the end. That infuses the process and means that things are taken more seriously earlier on.
Other things are really valuable. At a general level, this comparison with the Commission’s process is really useful. We are saying there is that read-across, but it does not quite work. If you think about all the steps you go through with the OEP at the moment, you end up where you started with the JR. That is not same as for the EU process; you end up with something different.
It is also worth thinking about how we can improve on how the Commission does things. It is not perfect and we need to be realistic about its limitations. In particular, it is not satisfactory when it comes to transparency and accountability. There is little communication from the Commission about the cases it is taking or dropping, where there are perhaps some political considerations to that. What could be designed with the OEP is a body that is open, iterative and deliberative in its processes, involving stakeholders throughout. That will not just keep us happy but, actually, if you involve the affected stakeholders throughout the process, you get better results. You end up with something that people buy into and have agreed to, as they have been part of the process. It is valuable to look to the Commission—not only how to improve learning from the Commission in a good way, but also how we can improve on it.
Q154 Dr Johnson: I understand the difference that we are moving from a system of purely legal accountability to more political accountability. You have talked about the comparison with the Commission, but the Commission is essentially external. It is something that the public cannot vote in or out and, if it makes a decision, it can tell our Government what to do and our Government might have to follow it. When we have left the European Union, we will be creating a new system and Ministers will be held accountable for the decisions that they make, but more of it will be political than legal. If the Commission takes the UK Government to court and fines it, what happens to that money? It becomes outwith the Government’s control. If the Government are fining themselves, it just recycles, does it not? It then becomes more about the public saying, “We do not like what the Government have done. We are going to vote for a different one next time”.
Dr West: Having just said that the Commission is a good model to look at, which is true—we are building a world-leading body here, so we have to see what else is out there—it is impossible to recreate the Commission entirely, because of the different structures involved. We need to think about something that will work at a domestic level here in the UK.
Q155 Dr Johnson: I may have misunderstood, but what I heard from you was about an external body that would tell the Government what decisions to make. I can understand why it would advise the Government about what decisions to make but, when it comes down to it, it is up to the Minister—whoever he or she is—to decide, based on priorities for expenditure or others that may trump that advice, and then to be politically accountable for that decision. He or she cannot do something that is illegal, because the law officers will not allow it and JR would tell you if that was an illegal decision, as opposed to just a wrong decision, from that point of view.
Dr West: There is a difference between political accountability for political decision-making versus legal accountability for legal decision-making.
Q156 Dr Johnson: Does the new system not give you both?
Dr West: Do you mean the current system in the Bill?
Dr Johnson: It gives you political accountability because, in a democracy, you can vote out the people you do not like and do not want to represent you anymore. You have legal accountability, because you can judicially review whether the Minister’s decision was legal.
Dr West: Judicial review is the ultimate endpoint for the OEP here, but that is not an equivalent replacement to the Commission’s current legal powers to review actions by the Government here and whether they have complied with the law. Yes, political accountability is a crucial part of this and the ability to resolve matters in other forums before you take the hard-edged legal route. If things can be done that way, making sure the process is designed in such a way that that process takes place first is incredibly helpful.
Q157 Dr Johnson: I am sorry to interrupt, but are you asking for an unelected body that will then make decisions and tell Ministers what to do, in the way the Commission does?
Dr West: We are asking for the creation of a constitutionally innovative body, which would work to make sure that public bodies are complying with the law. In cases where they are not, it would find the most appropriate remedy.
Kerry McCarthy: The law is set by the Government.
Dr Johnson: Exactly; the law is set by the Government and it could potentially be changed by the Government.
Q158 Kerry McCarthy: All they are doing is enforcing the law that the Government set. It is not them creating the laws.
Debbie Tripley: Can I see if I can help? This body can only act, in terms of its enforcement, if there is a breach of law. It is all about compliance with law. Tom was referring to the decisions. The way that Tom is expressing it is that, in terms of the decision notices, where the OEP has found a breach of law, it sets out a number of recommendations to remedy those breaches. That is the idea. It may be that one objects to the OEP itself having that binding-ness, but another way to do that would be to have a First-tier Environmental Tribunal review that notice for its legality. We are not talking about enforcing political decisions; we are talking about enforcing discretion within legal matters.
Q159 Dr Johnson: You talked about the Committee on Climate Change and how that publishes advice into Parliament for parliamentary scrutiny. How does this work differently?
Debbie Tripley: The way I see it, as I started saying, this body is the guardian of our laws. We know the Secretary of State, Michael Gove wants us to have very high environmental standards, so we need a body that will monitor and advise Government on those high standards, and the Commission does that. To a large extent, it advises all member states and has a very active role in relation to that. We need to create our own body that has the ability to do that. Now, this body has advisory powers but, at the moment, it can only advise when asked to by the Secretary of State. My view is that, to make it truly independent, it should be able to advise on its own in the way that the Committee on Climate Change does, perhaps on a set of targets in the Bill or an overarching objective.
Chair: They are very good answers, but we need to keep them a bit tighter, as we are taking a very long time.
Q160 Dr Johnson: Basically, you want these people to set their own policy direction, rather than it being set by the Secretary of State.
Debbie Tripley: It would not be policy; it would be advising on the law or the implementation of law. It is up to the Secretary of State how he wants to implement policy, but this is on our laws and how we ensure we achieve the outcomes that our laws want.
Q161 Chair: Before you come in, Tom, I want to ask you a direct question on this. If we take your cases that you have taken against the Government on air quality, the Government have to meet certain targets. They have not met them in 40-odd hotspots around the country, so the Commission then says they are in breach of the court and they have to come back with policies that would rectify that situation. Would the OEP be able to do that as it stands? Does it need to be done through a tribunal? I do not want the Government to be fined, but I do want the Government to have to come back again and say what they are going to do. It is not what Caroline is saying, because the Government will have already set its policy, so we are not expecting the OEP to make the policy, but we want the OEP to be able to say to the Government, “You have not met your policy. You have to come back to us with how you will meet the policy that you have already set”. How would that work?
Dr West: The air quality cases give a good example of what you can and cannot do with JR. Through our challenges, air quality policy has improved, but not quick enough or to a deep enough extent. We still have illegal levels of air pollution, so how do we build on it? That is where thinking about how to give some bite to these notices is crucial. Especially in a situation like here, where we have a repeated failure to comply with the law, we need a forum where you can look at Government decision-making, look at the evidence—including the scientific evidence, but also from working with stakeholders—and look at the best, most effective way to comply with the law. Here, for example, we know that clean air zones are the most effective way to achieve legal compliance. With the right powers, the OEP can put some more pressure on for those to be applied.
Back to this world-leading point, a country such as Germany again has air quality laws being breached, and courts there require things like vehicle restrictions and clean air zones. Those sorts of measures, where the OEP can be an ally, are crucial if we want to improve the quality of our environmental governance framework to have this world-leading system.
The other point I was going to make is on this thing about the Government changing the law. Of course it can, which is why the OEP is only ever as good as the laws it is enforcing. We have half or some percentage of a Bill here, so we need the new binding environmental objectives to be in there, and they are overarching objectives to restore and maintain a healthy environment, but also policy-specific ones, such as binding objectives for WHO guidelines on air quality. The Government have said it wants to do those, so let us have a legal commitment in the Bill to do them. They need to be binding objectives on the Government, but also think about how other Government Departments will work with them. Your joint committee on air quality showed how important it is to have cross-Government action, so it is key to make sure that other Government Departments are also keyed into those environmental objectives.
Chair: This OEP is not just about holding Defra to account, for instance; it is across the piece. Caroline, I will indulge you, very quickly, once more.
Q162 Dr Johnson: Thank you. I was also on the air quality committee, so will ask about that. In the event that the Government do not meet their legal target, if this was your OEP that you were designing, would it be able to say to the Government, “You didn’t meet it. You are accountable for that. We are going to tell everyone that you did not meet it”? Would it be advising the Government on what it should do to meet that target, would it be giving it options on how it could potentially meet that target or would it be telling it how it must meet that target?
Dr West: The OEP would go through a process. That is why I say we have to think about these binding notices as being the last resort, having gone through this discussion of the ways in which the target can be met. When they are not working effectively, if you have legal force at the end, you increase the chance of those discussions being more fruitful. Then the OEP can look at what the best ways are, in consultation with affected stakeholders and Government, to improve and achieve compliance.
Q163 Dr Johnson: Ultimately, it would take decision‑making out of the hands of Government, but only eventually.
Dr West: When you have long-term and repeated failures to comply with the law—for example illegal levels of air quality—then yes, we think we need measures that go beyond those that are currently available to us.
Q164 David Simpson: This is a very short question. We have touched on the issue about tribunals, but what would be the role of the Environment Tribunal in the OEP’s enforcement procedures? What would its role be, Debbie?
Debbie Tripley: At the moment it does not have a role, but we could give it a role if we want to. We could give the First-tier Environmental Tribunal a role to review the decision notices. For instance, let us say the OEP issues a decision notice in the air quality case; the Government have failed to meet their targets, so the OEP says, “That is a breach of the law. We have looked at the facts and at the law, and we have issued a decision notice. We want you to do X, Y and Z”. The Government say, “No, we do not agree with you”. That could go before the First-tier Tribunal, which looks at the decision notice and says, “Yes, the Government do need to comply with the decision notice”, or, “No, you do not”. There remains an important public interest point of law there, which would have to go to the Upper Tribunal, which has a judicial review function.
Q165 Chair: I am sorry to come in. Do not forget, as you are answering David’s question, that we are doing pre-legislative scrutiny. Therefore, the powers for the tribunal may not be in here now but, if there are ways to put them in, please say so.
Debbie Tripley: We would need to put everything I am describing into this Bill because, at the moment, the tribunal does not feature in this Bill at all. The route is decision notice; the Government do not or a public authority does not take any notice of the decision notice. It does not have to be the Secretary of State; it could be a public authority. Then the OEP has to go to the High Court and ask for a judicial review.
David Simpson: The procedure is First-tier and then Upper Tribunal.
Debbie Tripley: It could be, if you want to put that into this Bill.
David Simpson: It could be, and then it would be to the High Court.
Debbie Tripley: No, you would not have to go to the High Court, because the Upper Tribunal has a judicial review function, so it could carry out that function.
Q166 Mrs Murray: Do you see the Environment Tribunal having an arbitrator role? For instance, if Government refuse to move and the OEP is saying, “Actually, Government have breached the regulations”, it could be the middleman and arbitrate.
Debbie Tripley: I do not know whether the tribunal does mediation across its regulatory functions. Maybe it does. I know it does immigration cases and social security cases. Those are all sorts of cases that go into the general regulation chamber, but I do not know whether there is a mediation function there. I agree with you that mediation is really important at this stage and that is one of the effective parts of the Commission, in that it mediates with member states for a long time. It does not want to take member states to court. There is a long process of discussion about how to reach a conclusion and a solution and, quite often, civil society and ourselves as NGOs are brought into that process, which we also appreciate, because we do not want to go to the court and exercise judicial review applications. I agree; some mediation forum would be quite innovative for our constitution, but would be welcome.
Q167 David Simpson: Ruth, you were nodding in agreement. Do you want to finish off the question?
Ruth Chambers: I pretty much endorse everything that has been said but would add two general points on enforcement. One is that the OEP will be required to prepare and publish its own enforcement strategy. That is important, because it will not be enforcing in a black box. That will need to be done according to good enforcement principles. They should be consulted on and be freely available, and there should probably be some parliamentary oversight of that. Some of the questions we have been discussing should be clearer once we have all seen what that enforcement strategy says.
To build on a point one of my colleagues made about some of the missing powers, we see the OEP as not being a serial litigator but a strategic litigator, so picking the cases where the most serious breaches of environmental law might be. In many cases, there might be underlying reasons or causes for those, so it is very important that the body has the power to undertake inquiries into some of the more systemic issues that might be behind some of the individual breaches. It is not apparent in the Bill that it is able to do that at the moment, so that is a helpful feature that could be added.
Dr West: The Environment Tribunal is often suggested as a potential forum here and I can see why, because it involves a range of experts, including from the sciences where necessary. That allows the sort of review that Debbie and I were talking about earlier, where you can look at some of the details, which is crucial for environmental law. It potentially provides that sort of forum to look at the issues at hand. Yes, there is lots of merit in investigating the Environment Tribunal as a route available to the OEP.
Q168 Chair: If a case was coming before the OEP, could it direct it towards a tribunal, because then the tribunal could give more advice and perhaps solve things more quickly, before it lands up as far as the High Court? We are embarking on something that we will probably put to the Bill team and others, which is why we are drilling down on this heavily, so how do you see it working?
Debbie Tripley: I do not know about Tom, but I see it reviewing the decision notice. One has to assume that, by this time, the OEP has a lot of expertise to carry out its functions. One assumes that it could come to good decisions on the facts and law. One would want and expect that of it. Once it has reached a decision that something must be done and what that could be, and has had discussions with the public authority about what that should be, the hope in the Bill is that the authority would do that. If the authority decides not to, it is because there has been a falling out.
Chair: There could be a resource implication that it does not want to meet or whatever.
Debbie Tripley: At that point, the tribunal could be helpful in reviewing the decision notice. If it then comes to the conclusion that there is a serious point of law here and it is not to do with the recommendations at all, it could take it to the Upper Tribunal.
Q169 John Grogan: I want to talk about what safeguards can be added to the Bill to ensure the Secretary of State does not use the delegated powers in the Bill to rein back on commitments to protect the environment. In relation to delegated powers, are there any particular clauses that you think should be taken out of the Bill and what should they be replaced with, if you think that?
Ali Plummer: There are a number of powers within the Bill, in particular on principles. That is a clear example, as currently the principles have legal standing in the way they sit in the treaties. They have been downgraded in the way they have been brought over and given a policy role, as opposed to a legal role. That then gives a lot of power to the Minister to draft a policy statement about how they would be applied. The duties around the principles themselves are also quite weak and we have a demonstrably poor duty on the principles policy statement itself. There is no duty on the principles, and only Ministers of the Crown have to apply the principles themselves. There is an example there of a lot that can be done within the Bill to strengthen not only the duty itself, but to put the duty on the principles and ensure that they apply across the board, not just to Ministers of the Crown on public bodies.
Specifically on the principles, there are a number of get-out clauses within the Bill, particularly 1(6)(a), (b) and (c), and 4(2)(a) and (b). They remove the need to apply the principles on taxing, spending, allocation of resources and the caveats of anything else that the Secretary of State can think of. There are things that can be done to strengthen the application of the principles in particular. We have covered the OEP quite well, but again adding some real independence to that body to ensure that it is able to act in an independent manner and is properly resourced would help with that. We might cover the definition of the environment later, but there is a clause in the Bill that allows the Secretary of State to redefine what environmental law is. Some strengthening around why that would be used would ensure that further down the line environmental law is not redefined to provide an opportunity for a get-out.
I will briefly touch on what Tom covered on the environment improvement plans. There is some good stuff in there on reporting and monitoring of how the Government will better understand the state of the environment and bring forward policies to improve it, but again it is a creature of policy. The environmental improvement plans are policy statements. While there is a duty on Government to produce them, there is nothing there to compel action at all. A system that puts overarching objectives and sets up a mechanism to set targets and milestones would better allow the Government to have to take action. There is nothing at the moment that would compel action to improve the environment. Setting up a system that would set legally binding targets that the Government would have to report on and take action to achieve would go a long way to help make the Bill what it currently is not.
Dr West: What we are seeing in general here is a clear movement towards an approach heavily reliant on policy, policy statements and secondary legislation. We do not just see that here; we saw it in the EU (Withdrawal) Act 2018, the Fisheries Bill and in other places too. There are risks and problems with this approach. We lose scrutiny from people like us and Committees like yours. There are direct problems with that, in that you potentially end up with worse legislation, but indirect problems in that you have law or policy that has appeared from nowhere and does not have any buy-in or sense of where it has come from. It is also legally problematic because it is less secure. If this law can be changed—at a whim might seem a bit extreme, but very easily—it does not give that long-term stability and security. That is particularly important for environmental law, with its long-term frameworks, but it is important to other actors too. It is important to businesses, for example. The Climate Change Act 2008 shows the value of that long-term objective sat there in law. As I said, that is why we need the Bill also to enshrine those long-term objectives into law.
More directly on the safeguards you need for the use of these, of course secondary legislation is needed at times. Yes, we need much stronger duties applying on the principles for sure, but the policy statement gives the opportunity to give some details, which is valuable, but we need substantive procedural safeguards on those. Make sure that there is enough consultation and scrutiny, and the appropriate role for Parliament and parliamentary committees, and substantive safeguards. Make sure that these powers are not exercised in a regressive way. Put in that safeguard to make sure that you cannot regress these environmental standards. Make sure that they are in line with environmental concerns as a whole. You need both the procedure and the substance to safeguard against the use of these powers but, in general, having things in primary legislation gives us security, which is more valuable.
Ruth Chambers: May I add a practical suggestion about the policy statement on environmental principles? As we have heard and from examination of the draft Bill, Government are placing a great deal of store on how public authorities and Government Ministers are able to interpret those principles, because the policy statement will be all-powerful. However, Parliament may be asked to sign off on this Bill in a final form, before it even has sight of what that policy statement says, which creates a significant risk to us. It may be a matter that you might want to discuss with the Secretary of State: when is Parliament and when are stakeholders going to see a draft of the policy statement, so we can all understand what Government are seeking to put in that? If it is going to be the all-powerful document that this Bill suggests, the sooner we see it the better, otherwise we will be asked to sign off on something that does not yet exist.
Q170 Alan Brown: Ali touched on this slightly in answering the previous question, but is the definition of “environmental law” in clause 31 sufficiently comprehensive and clear, especially when it has a reference to legislation “mainly concerned with” an environmental matter?
Ali Plummer: The short answer is no. The definition as it stands is quite confusing. There are a lot of carve-outs within it and, as you say, it is defined as things “mainly concerned with” environmental law, which gives a lot of scope to carve things out. It does not match existing definitions of environmental law that we have, for example the definition of environmental information that has come from the Aarhus Convention and the definition that we have for the environmental impact regulations.
It is a confusing definition as it stands. There are some clear exclusions that we do not agree with—climate change being the primary one, but also planning. We have seen in the explanatory notes that town and country planning is excluded, and it is not particularly clear why. That seems to be a real exclusion. Also for things like flooding or forestry it is not particularly clear. If those things are going to be excluded or if there are examples of where the Government feel they should not be covered, the Bill needs to be clearer as to why that is the case.
Q171 Chair: Can you see any logic for why flooding and forestry are not included?
Ruth Chambers: I do not think it is the case that they are not included, but that they fall into that category of accidental confusion. They are included to a degree but, because the definition has a number of flaws within it and the explanatory notes are not clear in the way they are drafted, it is not clear to stakeholders where those two areas sit. There are also accidental confusions. Ali mentioned planning just now, but there are deliberate exclusions such as climate. Also, there are plain old-fashioned mysteries. One that does not make sense to us is why international laws are excluded from the definition of environmental law. That seems to be a rather startling omission on the face of it. We suggest that international laws should very much be part of that definition, so that the OEP can include them and factor them in.
Chair: Does that include Scottish law as well?
Ali Plummer: We already have definitions of environmental law that we use, as I mentioned. One of the concerns about the Bill is that it does not follow those definitions. As Ruth says, there are either meaningful exemptions or quite confusing ones. There may be aspects of flooding or forestry law that do not fall under that remit, but it is not clear what they are in the Bill at the moment. To my mind, as a result, it does not clear up the definition and risks potentially opening up a lot of legal challenges, even just on what the definition of environmental law is, before you start on whether or not there is compliance with it. To my mind, because it is so unclear, the Bill needs to be much more specific about the definition. Otherwise, you risk quite a lot of legal challenge before you have started bringing in challenges on compliance.
Dr West: I will add on the international law point that there is an opportunity here to be quite ambitious. While you could not give the OEP the same enforcement role it has over domestic law with international law, there is a chance to incorporate international law into what the OEP is doing. We are losing the overarching framework of EU law. International law is not as robust as lots of EU law, but it has something like that effect. Giving the OEP role there can be valuable.
Q172 Alan Brown: Ruth, can I come back to you? You were saying that it is almost like there are partial or accidental exemptions. I would like further clarity on that, because is it not the case that there is an explanatory note that states that legislation relating to forestry, flooding, navigation, and town and country planning would be outside the scope of the OEP? Is that not effectively saying that these matters are outside the OEP?
Ruth Chambers: It is very confusing. I know that this is pre-legislative scrutiny and not line-by-line scrutiny but, were we going through the Bill line by line, these particular lines on the definition of both environmental law and the natural environment, in the next clause, need some very careful scrutiny. They are certainly not very clear in the way they are drafted at the moment.
Q173 Chair: Would you like to give us some ideas on how you would like this bit altered, line by line, because we will go back to the Bill team?
Ruth Chambers: We can certainly send you a follow-up note in writing, if that would be helpful.
Debbie Tripley: The only thing I would add is that we would like to see climate change in the definition.
Q174 Chair: That is the next question. I am not going to steal that one from Kerry. She has had everything else stolen from her this afternoon. On the principle of this, forestry, flooding, navigation and what else do we have here? I can see what the Government’s argument might be on planning, to some degree. You have animal welfare or sentience, animal or plant health, health and safety at work, people’s enjoyment of or access to the natural environment and cultural heritage. There is a hell of a lot that seems to be semi-excluded or semi-included. It depends on whether your glass is half-full or half-empty, I think. Is there anything that the panel can give us in writing on how we could clear that up?
Ali Plummer: I will add one thing, which comes back to thinking about the role of the OEP to start with. We are not looking for this body to replicate existing oversight functions. However, as Ruth said, there will be a clear role for strategic or significant implications. In particular on things like planning, you could see that there may be times when there is a need for the OEP to step in, where there have been systemic failures, for example to implement certain aspects of environmental law or clear strategic issues that need to be looked at. Again, these are the sorts of clarifications that would be helpful, but we are not looking for the OEP to step in on every planning application and form some sort of sense-check. That does not mean that planning is therefore out. There are ways you could tighten it up to make clear what the function of the OEP is with regards to that sort of issue.
Q175 Alan Brown: I will just ask again about the submissions. Obviously they will be stating the advantages and why the regulations should be tidied up, but you have also touched on the potential court threats to the Government if the legislation is not tightened up. It affects that as well.
Ruth Chambers: We will let you have a short note, if that would be helpful. It is not just the threats to the Government, because remember that, if the public want to make a complaint about a breach of environmental law, they will be doing it based on this definition. If the definition is not clear, it will not be clear to the public where their rights start and end either.
Chair: Kerry, get on to climate change before somebody else steals it. Off you go.
Q176 Kerry McCarthy: On the last point, mulling over where the planning system would fit in, you can understand that you would not have a role in a quasi-judicial system. For something like biodiversity offsetting, just the concept of it being in place, the fact that it does not generally work well and so on, if there were planning conditions that said you had to do biodiversity offsetting it would be a matter for local enforcement. Perhaps the overarching approach to that is something you are able to take on. Would the OEP have that role as drafted?
Debbie Tripley: We are planning or thinking about net gain going into this Bill. It could have a role in relation to that, because how that is applied by local authorities is going to be really important, but there would obviously have to be a breach of law. There is a huge amount of discretion of policy in that, but perhaps that would form part of its advisory function, rather than its enforcement function. It might have an important role there, working with Natural England to advise Government on the implementation of net gain.
Q177 Kerry McCarthy: I had better get on to climate change, as instructed. The Committee on Climate Change, at one point last May, said it ought to be under the OEP’s responsibility, but they may have rowed back on that a little now. Now they are talking about perhaps giving advice to the OEP, and then the OEP could have an enforcement role. Am I right in saying that you all think climate change should be in there? Everyone is nodding. Why?
Ruth Chambers: Quite simply the Government have said that, after the UK leaves the European Union, they intend to close the environmental governance gap. At the moment, climate change should be part of that environmental governance gap. The Committee on Climate Change does not have enforcement powers, nor is it bidding to gain them. If the OEP is not able to enforce any potential breach of climate law in the future, there will be a gap in relation to the body that is going to do that. It is almost a basic principle of natural justice. The way to fix this is by including climate change within the definition of environmental law and, by extension, that would fall within the remit of the OEP and the public would be able to make complaints about any potential breaches of climate law.
Q178 Kerry McCarthy: When you say “climate law”, do you mean not meeting the carbon budgets and that sort of thing?
Ruth Chambers: That is where the main gap would be at the moment. Climate law comprises many different things, but the area of contention lies with the Climate Change Act, domestic legislation and the carbon budgets. Without that falling within the enforcement remit of the OEP, there would be no body that is able to hold Government to account. We are seeking to future-proof this system. Yes, the UK is doing a good job at the moment in terms of being on a journey to meet those carbon budgets but, as we get towards the fourth and fifth budgets, it is only going to get harder. When it gets harder and compliance becomes more difficult, what is going to happen then? That is why we need to see this within the remit of the body at the moment.
Q179 Kerry McCarthy: What would you see as the role of the Committee on Climate Change if it were brought over? Would it still have an advisory function?
Ruth Chambers: Absolutely, it would. I do not think anything we are suggesting or anything that I have read in other people’s responses is suggesting that the remit or the role of that committee needs to change. In fact, people have generally recognised that there is a need for the two bodies. There is a duty of co-operation proposed in the draft Bill, so they need to work closely together in a complementary manner, through a memorandum of understanding, as Mr Stark suggested last week to the Environmental Audit Committee, to ensure that they work in a way that means they do not undermine each other and they work together side by side, rather than in a competitive manner.
Q180 Kerry McCarthy: Is there a distinction between mitigation and adaptation? At the moment, adaptation is covered although, if flooding and things like that are not included, there are a lot of things on the adaptation side that would be in a grey area. You have a departmental split between them; does that cause problems? If you were trying to keep a clear distinction between them for the purposes of the OEP, would that cause problems?
Ali Plummer: Trying to carve out environmental law in that manner could either create gaps or it not being particular clear. A lot of environmental law is linked.
Q181 Kerry McCarthy: Planting trees is adaptation in a sense, if you are trying to stop flooding that may be caused by certain changes, but it is also mitigation in the longer term. Soil might be a better example.
Debbie Tripley: You have to remember the OEP only has a role in non-compliance of law or implementation of law. The CCC has a wider brief than that, in terms of its advice under the Climate Change Act. In the co-operation agreement, we would want some drafting to say exactly what that is, because there could be some incoherence in that the OEP gives some advice on the Climate Change Act that is inconsistent with what the Committee on Climate Change gives. We would not want that result at all. The Committee on Climate Change is the holder of advice. I see it as the adviser on the Climate Change Act so, in my view, we would not want the OEP trying to step into that role. As it is drafted at the moment, it could step into some of that role, so we need some coherence in the drafting to bring in climate change. Perhaps this is one reason why the Government have not incorporated climate into the legislation at the moment, but that is not insurmountable. It is not a reason not to have climate change there; it is just a drafting issue.
I also think it is quite difficult to see how Governments are breaching laws around carbon budgets, even though they might not be doing what we want. I see the role of the OEP as much more in renewable obligations, ETS and other areas of the environmental system. There is climate-related law other than under the Climate Change Act, where the OEP would have a role.
Kerry McCarthy: That broadens the scope in terms of you bringing in energy and transport. That goes a long way beyond the natural environment.
Debbie Tripley: I guess it does.
Dr West: On the point about different Departments, as I have said, the OEP has powers over all public bodies, which is a good thing, because it is not just Defra that has responsibilities towards the environment. There is another way in which the Bill could be improved in a similar vein. Right now, you have the environmental principles, which we know need strengthening in many different ways, but you could put a requirement in there for Government Ministers to produce reports explaining how they have applied the environmental principles each time, and to make sure that the environmental principles are having some effect on the thinking of other Departments as well. That is just a way to think about how the Bill could be improved in terms of that cross-departmental focus.
Ruth Chambers: The Government’s response to the public consultation into environmental principles and governance in the summer is quite instructive here. The responses that the public made were of a record-breaking number—176,000. If you analyse them, there were three things the public said they wanted to see from this Bill. One was a watchdog with teeth, one was a watchdog that was independent and the other that came out very strongly was the need for proper enforcement of our climate laws after exit. It is something there is a strong public interest in and appetite for.
Q182 Chair: I have one final question, which is a wide one. We have not actually seen the whole Bill yet. What would you like the environmental conclusions to this Bill to be? I imagine that is a Pandora’s box but, further to Tom’s point, air quality is one for which Defra is the Department responsible, but most means of achieving it are beyond Defra to local government, transport and so on. A lot of it is vehicles, which is why it has to work across Departments. What would you like to see come out as the direction for the rest of the Bill? I only want a few brief ideas for the record.
Ali Plummer: I am happy to start. We have an opportunity to put in place something transformative. Although this as an opportunity to fill gaps as we leave the EU, it is an opportunity for us to do much better than that and to address what are, at the moment, alarming declines in species and habitats. It is to do more than protect what we have left, but to put in place a piece of legislation that will allow us to recover nature and to restore our environment. We need legislation that has that overarching objective in mind and that has that on the face of the Bill, as something that really looks at environmental restoration.
Then it is getting high-level objectives in the Bill and a mechanism to set targets, milestones and metrics to make sure that, when the environmental improvement plans are published, there is a clear mechanism for delivery of them. That includes putting in place a spatial framework for nature recovery, so a nature recovery network that allows us to map, resource and deliver recovery on the ground.
Q183 Chair: We need metrics in particular and a plan for where we want to travel to, and then we can work out how far we have travelled, if at all.
Ali Plummer: That is exactly what we want: a directional piece of legislation that allows us to drive towards recovery and restoration.
Debbie Tripley: I echo what was said. We have always seen the ambition of this Bill to be something like the Climate Change Act, with hard targets for outcomes, so we start to restore and recover nature, which we have not been doing, even with some of the fantastic laws we have. We have fantastic laws, but we are still ranked 189th and one of the most depleted countries in the world. Global populations of wildlife are crashing—down by 60% since 1970. All the figures for nature are terrible, globally and in the UK. This is an opportunity for us to show the leadership that the Secretary of State wants. This Bill does not do it, but we have an opportunity to do it if we really want to.
Chair: We do not have the whole Bill, which is why the question is what you would like to see included in the rest of the Bill.
Dr West: You will be pleased to hear I agree we need binding legal environmental objectives in this Bill. They need to be objectives with results. You need to achieve these objectives and that is key.
Chair: It is no good just having objectives. It is how we get there.
Dr West: That is true of all of these issues and of WHO guidelines on air quality. We need them in there. To go back to your point, we need to clarify the roles of different Government bodies to achieve these objectives and act compatibly with them, setting out the framework for that. As I say, this Bill is an overhaul of environmental law, so there is an opportunity here and we need to get it right.
Lastly, we need a binding non-regression provision in the Bill too. We have heard a lot of talk about this and we can see it in the backstop agreement, but we need it in domestic law. The French have recently changed their environmental law to include one of those. We can do it here too to make sure that we are heading in the right direction.
Ruth Chambers: I very much echo what my colleagues have just said. The Secretary of State has said he wants to see a “pioneering new system of green governance”. This Bill needs to give meaning and effect to those words. At the moment, we are seeing parts of that—the OEP, environmental principles and environmental improvement plans—but we need to see it as a complete system, with the high-level objective, a statutory basis with metrics and targets, plans for nature’s recovery and so forth, but we need to design that together, not in isolation from each other.
Secondly, I know we do not have time to talk about it today, but this Bill is forging ahead on an England-only path. What are the arrangements for addressing these issues in Scotland, Wales and Northern Ireland? I know you have covered that in previous sessions, but this needs to be given urgent attention, because this matter is pressing across the UK and not just in England.
Chair: Water and air flow across borders, do they not? Thank you very much. We have asked for various bits in writing from you, as we have gone through the afternoon. That was a good evidence session, thank you, with some really good ideas. If there are other thoughts you have and anything you would have liked to include that you did not, when you think back on it, please do not hesitate to let us have that in writing. We take evidence all the way along until we publish our report. This pre-legislative scrutiny is interesting and we very much want to try to improve the Bill where we can, so we appreciate all the evidence you have given today. Thanks very much.