Written evidence submitted by the All-Party Parliamentary Group on Air Pollution (DEB0004)

Author: Dr Robin Russell-Jones (Scientific Advisor, APPG on Air Pollution)

INTRODUCTION

1. The All Party Parliamentary Group on Air Pollution is a cross-part group is made up of MPs and peers who work together to promote measures to tackle poor air quality. Through its meetings, study tours and advocacy, the Air Pollution APPG is working to raise the profile of both the problem and its solutions in Parliament.

2. Environmental protection and consideration of the environmental impact of government policies is enshrined in EU law and formulated in numerous international agreements such as Agenda 21, the Paris Agreement on Climate Change, the UN Convention on Long Range Trans-boundary Air Pollution and the Convention on Biological Diversity. However UN Conventions are not currently enforceable under UK Law and cannot therefore be used as a substitute for EU legislation. In order to compensate for the loss of EU scrutiny post Brexit, the UK government has proposed a set of environmental principles, which should be taken into account in formulating government policy and decision making.  Furthermore, the Bill proposes to establish an Office for Environmental Protection (OEP) which will advise government, monitor performance and, if necessary, initiate enforcement measures against public authorities or ministers of the crown, if the breach of environmental principles is considered sufficiently serious.  The remit of the OEP includes ‘clean air’ and is therefore of concern to the APPG on Air Pollution.

3. These proposals could represent an important development for the UK and has the potential to reinforce environmental protection and sustainable development for the future of this country and civilisation generally.  However, there are a number of weaknesses in the draft bill which need to be clarified or addressed before the bill can be considered an effective instrument for protecting public health and the environment. It needs to be remembered that the UK has previously created ‘watchdogs’ with responsibility for the environment but they have not proved particularly effective.  For example, the Sustainable Development Commission was a government advisory body that was axed by the coalition government in 2010.  The main difference is that the OEP has enforcement powers. Nevertheless, we have major concerns about the constitution of this body and serious doubts as to how effectively it will be able to scrutinise government policy.

4. Firstly, statements of intent may sound reassuring but they are of little value if they are not supported by specific measures or legally binding standards.  For example, the government published a 25 Year Plan to Improve the Environment in January 2018 which stated, ‘We will take all possible action to mitigate climate change whilst adapting to reduce its impact.’[1]  This statement sounds very reassuring from an environmental perspective but it sits uncomfortably with government policy, which includes unequivocal support for fracking and the development of a domestic shale gas industry. Since the publication of the 25 Year Environment Plan, HMG has decided to abandon the Swansea Bay Tidal Lagoon, discontinue the feed-in tariff for solar power and reduce subsidies for electric vehicles, so statements of intent are largely meaningless if government policy is taking the country in the opposite direction.

5. Second, the government’s record on air quality does not give grounds for optimism, even when legally binding targets are in operation. For example, the UK has been in breach of EU air quality standards for nitrogen dioxide since 2010 and has suffered three defeats in the high court over its failure to implement effective action and to comply with EU standards. A high degree of scepticism is therefore justified when considering government proposals to establish an environmental watchdog. Having resisted legal judgements and failed to comply with EU air quality standards for more than 8 years, is it credible that the government would now seek to create an even more effective domestic system for scrutinising government policy?

6. Between 2003 and 2016, the EU Commission started 753 actions against the British Government, of which 120 related to the environment. That equates to nine environmental actions every year. Most were settled, but 29 cases reached the European Court of Justice. In order to replicate this level of scrutiny at a domestic level, the OEP will need to be truly independent: it will need significant resources, as well as sufficient powers to investigate, gain access to relevant data, issue enforcement notices and monitor compliance.  Ultimately, it will need the power to take the government to court, but court actions should not become the main or only mechanism by which the OEP enforces compliance.

7. A third concern is whether the OEP will have responsibility for climate change. A report in the Observer in September 2018 indicated that climate change would not be included in the remit of the OEP as this is the responsibility of the UK Committee on Climate Change under the auspices of Lord Deben. Clause 31 (3a) the Draft Environment Bill specifically excludes “emissions of greenhouse gases” However, the Committee on Climate Change only has an advisory role; it has no legal powers to challenge government policy. Thus, in 2018, it warned that the UK was on course to miss its carbon reduction targets for 2025 and 2030, but has no mechanism for rectifying this situation. A further complication is that climate change was previously the responsibility of the Department for Energy and Climate Change (DECC) and was then passed to the Department of Business, Energy and Industrial Strategy (BEIS) when DECC was dissolved in 2016. Few observers regard BEIS as the appropriate destination for the most important environmental issue of the century. There is clearly a huge conflict of interest between climate change and the continued generation of energy from fossil fuels and this balance should not be within the remit of a Department which does not have ‘environment’ or ‘climate change’ in its title.

8. The Draft Environment Bill requires the OEP to

Set out how it intends to avoid any overlap between the exercise of its functions under sections 14 and 16 (Monitoring reporting and advising) and the exercise by the Committee on Climate Change of that Committee’s functions.[2]

9. This leaves open the more important question as to whether the OEP can take action against the government if its policies are unlikely to meet its climate change commitments, whether these result from international agreements such as the Paris accord, are transported via EU Directives, or contained in domestic legislation, such as the Climate Change Act of 2008.

10. A particular concern is that the UK commitments under the Paris Agreement on Climate Change are part of the EU’s commitment. If the UK leaves the EU, it may or may not choose to remain part of the EU commitment, or it may be necessary for both the EU and the UK to renegotiate their Nationally Determined Commitments (NDCs). This would undermine the ability of the OEP to enforce our current international obligations. These uncertainties need to be clarified.

11. It is the view of the APPG on Air Pollution that all aspects of environmental policy should be within the remit of the OEP including climate change and that the Committee on Climate Change should be able to refer areas of concern to the OEP for a decision notice to be issued.

12. In any event, it is impractical to treat climate change as a separate entity as there are so many areas where climate change overlaps with other air pollution issues. For example, it has recently been recognised that black carbon (the building block for small particulates known as PM2.5) absorbs sunlight and exerts an important short-term global warming effect. Total emissions of small particulates from the UK are governed by the National Emissions Ceiling Regulation (2018) (which derives from an EU National Emissions Ceiling Directive (2016/2284 EU) and contains progressively stricter emission limits for both 2020 and 2030. Since the UK Government is not committed to banning new diesel vehicles until 2040, it will likely not meet the 2030 reduction target and might well decide that the 2030 EU limits for PM2.5 do not apply post-Brexit. This would be of concern to both the Committee on Climate Change and the OEP. Similarly, in December 2018, the EU Parliament mandated a reduction in CO2 emissions from new cars compared with 2021: 15% by 2025 and 37.5% by 2030. These commitments have not yet been transposed into UK Law.

13. This raises a fourth issue of concern to the APPG on Air pollution. Where an EU Directive specifies future limits that are stricter than those which currently apply, will those future limits always be retained in UK legislation? Second can the OEP take legal action if it has good evidence that these limits are unlikely to be achieved? Like PM2.5, UK emissions of ammonia are also controlled by the National Emissions Ceiling Regulation (2018) and stipulate stricter limits for 2020 and 2030. Annual emissions of ammonia from the UK (295,000 tons) are currently above the 2020 limit of 283,000 tons. The EU Directive proposes a further reduction of 21 per cent, compared with 2005 levels, by 2030. This has been described by the National Farmers Union as “overambitious”. so there will certainly be resistance from the agricultural sector to implementing the 2030 EU limits for ammonia. Ammonia is one of the sources of secondary particulate pollution and contributes to background levels of PM2.5 throughout the UK. It would therefore be helpful to know what action the OEP could take in this situation and whether an enforcement notice could be issued in advance of the relevant date.

14. The UK Government is also a party to the UN Convention on Long Range Trans-Boundary Air Pollution which also governs emissions of PM2.5, ammonia and other toxic pollutants under the Gothenburg Protocol which contains targets for 2020, but not 2030. However UN Conventions are not legally binding under UK Law and cannot substitute for EU law.

15. Finally, the government, in its recently published Clean Air Strategy (2019) is committed to halving the number of people exposed to toxic levels of air pollution by 2030. The target level is the WHO annual limit for small particulates (PM2.5) of 10 microgrammes per cubic metre of air. Unlike the EU limit of 25, the WHO limit is not legally enforceable and there is nothing in the Environment Bill to suggest that HMG is proposing to make it a legally enforceable standard. The Clean Air Strategy commits the government to “halving the number of people exposed to levels above the WHO limit”. We are doubtful whether such a vague commitment has any legal weight. A more effective approach would be for the Government to recognise the right to breathe clean air as a fundamental human right. As there is no safe level for small particulates, and no safe level for carcinogenic agents such as Benzo-a-pyrene (BaP),  the Government should mandate progressively stricter levels for both PM2.5, and  BaP resulting in legally enforceable WHO limits by 2030. For PM2.5, this equates to 10 microgrammes per cubic metre of air. For BaP the target level should be 0.12 nanogrammes per cubic metre of air as detailed in the British Medical journal, 2017 (Ref 4)

16. We will now address the specific areas of concern detailed by the Environment Audit Committee

QUESTION 1

Does the proposed constitution of the oversight body provide it with enough independence to scrutinise the government?

17. Section 11 of the Environment Bill stipulates that the OEP will consist of a Chair and between two and five non-executive members, all of whom are appointed by the Secretary of State.  In addition, there will be a Chief Executive who is appointed by the Chair after consultation with the Secretary of State, and between one and three executive members.  However, a majority of state appointed members of the OEP is insured by Section 1(10) of the Schedule, which states that the number of non-executive members is at all times greater than the number of executive members.  This indicates that the Secretary of State has established a system which provides a permanent majority of state-appointed members.  This does not indicate any genuine independence for the OEP.  Our suggestion is that the Chair should be appointed by a select committee of the Houses of Parliament, preferably the Environmental Audit Committee with input from the devolved assemblies. Further that all other members should be appointed by the Chair.  Secondly, at least two non-executive members should represent environmental advocacy groups and there should be a scientific advisory board supporting the OEP. Finally that funding should be determined by Parliament rather than DEFRA.

QUESTIONs 2 and 4

Does the proposed oversight body have the appropriate powers to take ‘proportionate enforcement action’?

As drafted are the principles legally enforceable?  What will need to be included in the National Policy Statement to interpret the application of the principles?

18. As currently drafted, the principles are aspirational. It is not clear under what circumstances they would be legally enforceable.  Government strategy on environmental issues, and air pollution in particular, is to commit themselves publicly to improving the situation, but in practice to resist the implementation of Directives by the European Commission and to contest court cases brought by environmental groups such as ClientEarth. The true test of the Environment Bill is whether such a strategy can be legally challenged on environmental grounds. 

19. One problem is the wording. For example, Paragraph 31 of the explanatory notes states that

Ministers of the crown will consider the environmental principles in developing policy by “having regard” to a corresponding environmental principles policy statement published by the Secretary of State.

20. This is itself a vague statement of intent but legally the term “have regard” is a weaker legal requirement than terms such as “have special regard”, “have due regard”, or “act in accordance with”.

21. It is also the same terminology drawn up in the Companies Act of 2006 by the now defunct Department of Trade and Industry. Section 172 of that Act requires boards of directors to “have regard” to the impact of company policy on the environment, but this has never proved to be an effective method of influencing company policy and no prosecution has ever been brought against a company’s corporate policy on environmental grounds. It is therefore of concern that the same term is being used in the Environmental Bill. 

22. A particular danger is that energy policy is now within the remit of BEIS whose priorities align with those of company boards of directors.  If a minister was required to defend his support of fracking as an energy source, then under the terms of the Draft Environment Bill, an effective defence would be to argue that he had taken into account or “had regard” to the environmental impact of fracking in his decision-making and that he had decided that the economic benefits outweighed the environmental costs.  This defence is stated more explicitly on page 12 of the Information Paper on the policy statement on environmental principles, which reads:

The precautionary principles should be considered where there are reasonable grounds for concern and used in a proportionate manner taking into account the available scientific evidence, and the associated costs and benefits of action and non-action.

23. In other words, the application of the precautionary principle becomes a trade-off where financial costs can be cited by the responsible minister as an excuse for inaction. Second the precautionary principle only applies to environmental issues, and not to human health. This is a major weakness as new medical data on the adverse health effects of air pollution appears on a regular basis, not least in relation to neurocognitive effects and mental health. Furthermore the manner in which the precautionary principle is applied should be clarified. A weak interpretation is to argue that “uncertainty does not justify inaction” A stronger interpretation would be that “uncertainty justifies action” and the most rigorous interpretation would require the polluter to demonstrate that a particular activity did not have a significant negative impact. The Environment Bill does not stipulate which interpretation of the precautionary principle applies but the clause quoted above from the Information paper suggests that the weakest version will be used.

24. The complaints procedure is a welcome development, but it depends upon a complaint being submitted. The OEP should have the power to initiate its own investigation. We are also concerned by the use of ambiguous terminology such as a “serious” breach of environmental law.

25. A further problem is that decision notices are not legally enforceable. A public authority is required to respond to a decision notice, but it is not bound to comply. This is a serious weakness. The OEP can request a judicial review, but this will not address the failure to comply: only the original decision by the public authority.

26. Planning applications and licenses are specifically excluded from the remit of the OEP. Since the Government has gone to considerable lengths to bypass local councils when considering fracking applications and has complete control over the issue of exploratory licenses, these exclusions reveal the government’s bias. As drafted, the Bill would also prevent the OEP from objecting to the siting of a new school within an area that breached air quality standards. It is therefore imperative that the Bill places a stronger duty on public bodies to consider health and environmental issues.

27. Clearly it will require a robust and completely independent committee to take legal action against a Minister of the Crown. It would help if the terminology “have regard” is changed to “have special regard” or “have due regard” as used in the Equality Act of 2010. If the right to breathe clean air was enshrined in UK law, then an even more exacting standard could be imposed such as “duty to comply with”. The National Policy Statement should stipulate the exact powers of the OEP.  It should allow the OEP to issue legally binding decision notices using a strong definition of the precautionary principle. It should be granted a statutory role in planning policy. It should guarantee the necessary resources and funding for the OEP to monitor compliance with environmental legislation. It should clarify the powers of the OEP in relation to international treaties and conventions that are currently not legally binding under UK law. The remit of the OEP should also include international accords such as the Paris  Agreement on Climate Change, even though it is regarded as a mainly voluntary arrangement whereby participating nations volunteer Nationally Determined Commitments. The OEP should be supported by scientific committees to advise on the latest medical and scientific data and should be allowed to make recommendations that  lead to changes in legislation.

QUESTIONS 3 and 5

Are there any conflicts of interest with existing government bodies?

Are there any conflicts with other legislation or other legislators?

28. As discussed in the Introduction, there is an overlap with the remit of other oversight committees such as the Committee on Climate Change, but this is an advisory committee only so there is no legislative conflict. There is clearly enforcement overlap with other agencies such as the Environment Agency and public authorities that employ Environmental Health Officers who are tasked with the enforcement of environmental health legislation. However they are not responsible for reviewing legislation, only its implementation. Natural England, and other statutory bodies in Scotland and Wales, have responsibility for nature conservation and channel advice to government via the Joint Nature Conservation Committee (JNCC). The JNCC can establish common standards throughout the UK, but does not have an enforcement function. Finally, there is the Natural Capital Committee whose advice was instrumental in the formulation of the Government’ 25 Year Plan. Again there is significant overlap with the advisory function of the OEP, but the Natural Capital Committee does not have an enforcement role.

29. We recognise that conflicts may arise with devolved Assemblies and Parliaments which can pass their own environmental Acts. Furthermore there may be differences between case law in Scotland and the rest of the UK However the National Policy Statement should be created as a UK-wide document and should invite contributions from all of the UK’s home nations. It is significant that all of the statutory bodies in the UK that relate to the environment are either advisory, or  enforcement agencies that are not independent of Government. That is why the OEP needs to have wide powers even if it does overlap with other legislators.

QUESTION 6

Does the Bill meet the Government’s commitment to non-regression of EU environmental standards?

30. In the foreword to the Draft Environment Bill, the Secretary of State reiterates the Prime Minister’s commitment that “our EU Exit will not see a weakening of environmental protections”. In theory, all existing law is supposedly going to be retained by the EU Withdrawal Act. On the other hand the mechanism by which retained EU law is managed will change dramatically. Furthermore, freeing the UK from Brussels’ red tape has been one of the driving motivations for Brexit. Most leading Brexiteers are also climate change deniers, so it is highly unlikely that environmental Directives will escape unscathed.

31. Some items of EU legislation cannot be easily translated into UK Law. For example in 2014, the EU agreed to generating 27% of its final energy consumption from renewables by 2030. However, largely as a result of lobbying by the UK, the commitment is EU wide, not nation-specific. This anomaly is dealt with by Section 8 of the Withdrawal Act entitled “Dealing with Deficiencies arising from withdrawal”. This enables a Minister of the Crown, by regulation to

… make such provision as the Minister considers appropriate to prevent, remedy or mitigate  --(a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the withdrawal of the United kingdom from the EU.

32. These are extremely broad powers and grant a Minister carte blanche to cancel any item of delegated legislation not directly applicable to the UK situation.

33. For legislation that is applicable, we have several specific areas of concern, as outlined in the Introduction. Will all EU environmental legislation be transported into UK Law, or will government Ministers seek to remove inconvenient items using Henry V111 powers? One particular concern is EU Directives that contain progressively stricter standards.  There is no guarantee that future commitments and emission limits contained within current EU Directives will automatically be retained within UK law? The National policy Statement should include a non-regression clause that the UK will apply standards that have already been agreed, even if those standards do not come into force until after Brexit. The Policy Statement should also clarify whether the OEP can issue a  decision notice and/or take legal action if these standards are not met. Can the OEP take legal action in advance if it determines that there is little chance of HMG meeting a future standard? Why are greenhouse gases excluded from the remit of the OEP? If EU standards are not incorporated into UK law, what powers does the OEP have to enforce compliance with current or future international agreements such as the Convention on Long Range Transboundary Air Pollution, or the Paris Agreement on Climate Change.

34. None of these questions are fully answered by the Environmental Bill as currently drafted and they need to be addressed in the Policy Statement.

QUESTION 7

Is there anything else missing that should be included to meet the enforcement, governance and other gaps in environmental protection left by leaving the EU?

35. It needs to be recognised that most UK legislation governing public health and the environment is national regulation derived from EU Directives. Even in the area of climate change, where the UK passed its own Climate Change Act in 2008, 55 per cent of legislation is EU-derived.

36. Furthermore, the EU funds the European Environment Agency (EEA) which coordinates data collection throughout the EU and produces regular reports on air quality and other key issues. These reports drive recommendations from the EU Commission and legislation by the European Parliament, such as vehicle emission limits and air quality standards.

37. There is no doubt that this process is far from perfect and subject to intense lobbying by industrial groups The furore over Diesel-gate and the failure of vehicle testing to reflect “on-road” driving conditions demonstrates why nitrogen dioxide levels did not fall in the UK and elsewhere as predicted. Even so, the EU is starting to address these concerns and has incorporated a Real Driving Emissions (RDE) test into the Vehicle emissions testing regimen from September 2018. Car manufacturers have lobbied the EU to phase in the RDE using a Conformity Factor which will be progressively tightened. It is not clear whether these tighter standards will apply in the UK post-Brexit. On the one hand car manufacturers will have to comply if they wish to sell cars within the EU, but the UK may adopt laxer standards for the home market. Again a non-regression clause in the Environmental Bill would address this concern

38. Michael Gove and other Brexiteers have tried to claim that the UK will be even more environmentally friendly once we leave the EU, but there is no real evidence to support this assertion. In October 2018, the European Parliament approved a ban on single-use plastics such as plastic cutlery, plates, straws etc. By contrast, the UK’s 25 Year Plan did not include a ban on single-use plastic items and the Prime Minister identified 2042 as the year by which plastic would be banned where it is “technologically, environmentally and economically practical to do so.” Like the 2040 ban on new petrol and diesel vehicles, this proposal is so far into the future as to be almost meaningless.

39. It has been a consistent feature of this government’s policy to express public concern over issues that affect health or the environment, but to always shirk effective remedial measures when government commitments run up against industrial interests. The failure to introduce a minimum price for alcohol, the Chancellor’s decision to delay the introduction of curbs on betting after lobbying by the industry, and the delay in introducing a sugar tax until 2018 are well-known examples of the government’s submission to business interests. In general, government policy has been to promote ‘voluntary codes’ and to resist direct legislation.

40. Without scrutiny and EU-driven legislation there is a serious danger that standards in the UK will deteriorate post-Brexit. Furthermore, new EU legislation driving up standards will no longer be transposed into UK law, so the UK will become non-compliant and fall below future EU standards. For example the EU Commission is currently reviewing the Ambient Air Quality Directive with a view to introducing stricter air quality limits for human exposure. The UK will not be bound by these new limits and has not proposed any legally binding standards of its own in its Clean Air strategy. The EU is already contemplating imposing financial penalties on the UK if it fails to meet its carbon reduction targets and could achieve this post-Brexit by imposing tariffs on carbon-intensive goods.
41. One function for the OEP could be to produce a regular review as to the main differences between environmental standards in the UK and the EU and, in particular, to compare air quality outcomes in the UK and other countries that have had the good sense to remain within the EU.

January 2019

Endnotes