Government resistance to Lords amendments may see the Environment Bill further delayed

House of Lords amendments have been met with intransigence

Brexit means the loss of the environmental protections, regulations and oversight authorities, which came from the EU. It forces the UK to create afresh many of the structures we need to enforce a host of different environmental rules.

This is obviously an urgent question – with the UK long having left the EU. Unfortunately, the Environmental Bill has already been delayed three times. Now, with 14 different amendments passed by the House of Lords, the UK government is threatening to delay the Bill again, rather than accept the changes – despite having promised that the legislation would be passed by October 31^st, the start of COP26.

Post-Brexit environmental regulation: a constitutional mess?  

Brexit raises a series of constitutional issues for the UK in environmental policy because it a devolved policy area for the both the Scottish and Welsh parliaments.

As a result, most of the Environment Bill which is being discussed in the UK Parliament only concerns environmental policy and regulation in England. Scotland has passed its own legislation, which establishes a new body, Environmental Standards Scotland. The Scottish law creating this regulator includes key environmental principles and aims to maintain a form of dynamic alignment with the evolution of EU standards overtime. Meanwhile, England is set to have its own regulator, the Office for Environmental Protection.

This messy constitutional system of an England-UK parliament on the one hand, operating alongside the devolved parliaments, on the other, seems rather poorly suited to the delivery of sound environmental policy. Unsurprisingly, there has already been a dispute between the Scottish and UK parliaments over a part of the Environmental Bill. Meanwhile, Northern Ireland faces the challenging prospect of being both within the European system of environmental governance and subject to the oversight from the ‘English’/UK regulator.

So, we have a peculiar structure emerging. Scotland has actively committed to aligning with European rules, Northern Ireland is forced to, and Wales is likely to follow suit with its own regulator, leaving England to ‘go it alone’ in its refusal to commit to on-going EU alignment.  

The House of Lords amendments: uncontroversial in normal times   

Following advocacy from environmental NGOs, the House of Lords adopted a series of amendments, including on air and soil quality, regulatory independence, ending the harmful discharge of sewage into rivers (which has become a catastrophic problem in England) and stronger protections for ancient woodlands.

One amendment, in particular, speaks to the discrepancy between action and rhetoric in the national debate. The UK Parliament passed a motion in 2019 declaring a global climate and biodiversity emergency. Government ministers have also referred to “two great crises” in their motivation of the Bill. However, they have resisted putting reference to it into a piece of legislation, complaining that this is a “key demand of Extinction Rebellion”.  

Overall, the House of Lords amendments cover three broad areas:

• A stronger system of binding targets for environment policy goals.
• Mechanisms to ensure the Office for Environmental Protection is genuinely independent of government.
• Environmental review. The Lords amendment removes the restrictions on the ‘remedy-granting’ (e.g., quashing an unlawful decision) powers of the Courts in the event that they have decided a public authority has acted illegally, restoring the power of judges to use their discretion. The original government proposal would block courts from granting remedies if ‘third parties’, like a private developer or oil company, were able to show it would prejudice their rights or cause them substantial hardship.

These minimal reforms would hardly be seen as controversial in normal times. But opposition to them reflect the instincts of the UK government – which is also taking steps to limit the powers of judicial review for the courts in England and Wales and actively seeking to agree new corporate trade deals that pose a wide range of environmental threats.  

A government fearful of effective accountability and beholden to vested interests?

We wish we were surprised.