The suspension of the passage of the Environment Bill 2019-21 through Parliament due to the Covid-19 pandemic provides an opportunity for more in-depth consideration of some of the key issues the Bill aims to address. The Bill is still at a very early stage in its passage through Parliament and so there is scope for amendments to be introduced. In each of this series of articles, we will explore an area of interest and the approach the Bill takes towards it.
Environmental targets, improvement plans and principles
Chapter 1 of Part 1 of the Bill is entitled ‘Improving the natural environment’ and sets out a seemingly complex list of targets, plans and principles to be identified and monitored to achieve this aim. The role of monitoring many of these will fall to the newly formed Office for Environmental Protection, introduced under Chapter 2 of Part 1 but in this article we will try to unpack the different forms of policy and principles at play.
Under clause 1(1) of the Bill the Secretary of State is given the power, not obligation, to use regulations to set long-term targets on any matter relating to “the natural environment” or “people’s enjoyment of the natural environment”. However, under clause 1(2), the Secretary of State is under an obligation to set at least one target within each of the four priority areas listed in clause 1(3): air quality, water, biodiversity and resource efficiency and waste reduction.
Clause 4 states that it is the duty of the Secretary of State to ensure that such targets are met. One might question the practicality of such a broad duty but it does indicate an intention for the accountability in relation to such targets to rest at the highest level. The Bill also contains requirements for the Secretary to publish interim reports for targets and to formally review them to consider whether they would significantly improve the natural environment in England.
Environmental improvement plan
In addition to, and separate from, the environment targets, clause 7 of the Bill requires the Secretary of State to prepare an environmental improvement plan (“EIP”). This is to be a plan “for significantly improving the natural environment in the period to which the plan relates”, such period to be not less than 15 years. The Secretary of State’s function in relation to the EIP does not cover the natural environment in Wales.
Interestingly, the first EIP is already in existence despite the Bill not yet being in force. Clause 7(7) states that “A green future: our 25 year plan to improve the environment” published by the Government in January 2018 is to be treated as an EIP prepared under this section.
The Bill provides a framework for review, revision and renewal of the EIP. The reviews are to take place at least every five years with the first review having to take place before 31 January 2023.
Policy statement on environmental principles
Distinct from the environmental targets and EIP, under clause 16 the Secretary of State must prepare a policy statement on environmental principles. Such statement is defined under 16(2) as “a statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown when making policy”.
The principles themselves are set out at 16(5) as:
- the principle that environmental protection should be integrated into the making of policies;
- the principles of preventative action to avert environmental damage;
- the precautionary principle, so far as relating to the environment;
- the principle that environmental damage should as a priority be rectified at source; and
- the polluter pays principle.
Under clause 18, a Minister must have due regard to the policy statement when making policy. However, this general duty is then diluted slightly by 18(2) which makes it clear that a Minister is not required to do anything (or refrain from doing anything) if it would have no significant environmental benefit or be in any other way disproportionate to the environmental benefit.
Statements about Bills containing new environmental law
The final element in Part 1 of Chapter 1 is set out in clause 19. Where a Minster introduces a Bill which contains a provision which would be “environmental law”, they must make one of two forms of statement:
- firstly, a statement that in their view the Bill “will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”; or
- a statement that they are unable to make the first form of statement but the Government wishes the Bill to proceed anyway.
The meaning of environmental law is set out at clause 43 as “any legislative provision to the extent that it…is mainly concerned with environmental protection, and…is not concerned with an excluded matter”. The excluded matters relate to disclosure of or access to information, national security and taxation.
The strength of environmental protection being provided by this clause might be questioned given that is possible for the Minster to simply make a statement that they wish to proceed regardless of a negative environmental impact.
Overall, the Bill provides for a large number of policy documents, regulations and targets to be produced by the Secretary of State and followed by the Government. It will be interesting to see how this works out in practice and whether the duties will be enforced.