CIWM CEO’s Blog: Environmental Governance After Brexit

CIWM’s CEO, Dr Colin Church, looks at how environmental legislation might be governed post-Brexit, following Michael Gove’s announcement that Defra intends to consult on the issue…

In a previous blog I highlighted some of the reasons many in the environment sector are worried about environmental accountability and governance in the UK after Brexit. It is good to hear recently that the Defra Secretary of State Michael Gove has heard the arguments from us and others about this and is planning to consult on options to address this issue.

But what are we talking about, and how might it be addressed?

First of all, what does being part of the EU give us by way of environmental accountability and governance? There are three main elements, alongside a plethora of more specific bodies with particular roles:

Monitoring and reporting – The European Environment Agency (EEA)

The Copenhagen-based EEA collects, compiles and shares environmental information across 33 member and six co-operating countries (although it is an agency of the EU its membership is much wider). Outputs range from the comprehensive and regular state of the environment reports to briefings on specific topics such as municipal waste management or hazardous waste. Its information informs the development of EU environmental policy and provides the European Commission with insights into Member State adherence to existing EU law.

Investigating and criticising – The European Commission (EC)

From its offices in Brussels and Luxembourg, the EC has two relevant roles for environmental legislation. The first is that of proposer of new EU legislation – only it can place draft laws in front of the European Parliament and Council of Ministers for them to amend and adopt. The second is as ‘guardian of the Treaties’ – the body responsible for overseeing Member State compliance with legislation.

Leaving the EU does not necessarily mean the UK must break its ties with the EEA, and indeed I propose the UK seek to remain part of that network and process

In this role, it can look at Member States plans to implement EU law, investigate complaints from individuals, companies or NGOs, react to EEA advice and information or media reports, or pursue issues on the basis of implementation reports and its own experience. On the back of this, the EC questions countries and, if not satisfied with the answers, eventually refers them to the Court of Justice of the EU, with the potential for significant fines for non-compliance.

Judging – The Court of Justice of the European Union (CJEU)

The CJEU (in Luxembourg, and not to be confused with the European Court of Human Rights in Strasbourg, an entirely different body) is the arbiter of EU law and the body to apply fines – which for the UK would be tens of millions of pounds or more – to Member States for persistent failure to comply with EU law. Currently, as an EU Member State, UK courts must follow its rulings, as must our Parliaments and Assemblies.

How could the UK replace these three functions post-Brexit, in a world in which the CJEU no longer has jurisdiction here? Here’s my proposal for discussion and debate.

Monitoring and reporting

Leaving the EU does not necessarily mean the UK must break its ties with the EEA, and indeed I propose the UK seek to remain part of that network and process. The role of this body in monitoring and reporting would therefore remain. Alongside that, the various provisions in retained EU law on environmental monitoring and reporting would need to be kept, and therefore be subject to the oversight of the NEAO (see below). These would ensure a continued flow of information to the EEA and to the UK public.

Investigating and criticising

In our constitutional arrangements post-Brexit, Westminster is the supreme power in the land. However, in ‘normal’ circumstances, the party of Government has a majority in the House of Commons so the ability of Parliament to hold the Government to account can be limited. Despite some recent changes to the select committee regime, the people resources available to MPs and Lords are also limited, further constraining Parliament’s oversight capacity. Whilst the details may vary in Holyrood, Senedd and Stormont, the same issues essentially apply as in Westminster.

CIWM has already raised some of these ideas with Government and other stakeholders and will continue to do so going forward

My proposal therefore is to create an environmental analogue to the National Audit Office (NAO). Like the NAO, this body – let’s call it the National Environmental Audit Office (NEAO) – would be established and its head appointed by Parliament, not Government. Given the devolved nature of environmental law, the NEAO might report to all four Parliaments and Assemblies in the UK and receive funding from all of them.

The NEAO could develop from an existing body – the NAO itself already looks at environmental issues in support of Parliament’s Environmental Audit Committee, the Natural Capital Committee could evolve in this direction – or be entirely new. It would have the power to investigate how central, devolved and local governments and agencies were implementing environmental law (whether originally EU in origin – so-called retained EU law – or domestic), either on its own initiative or on the basis of complaints from citizens, companies or NGOs.

It would look at the adequacy of government plans to meet environmental obligations and to demand (and then make public if not already published) reporting on environmental issues. The NEAO would have the right to refer cases to the courts for legal judgement and remedy. It would certainly have the power to seek fines against devolved and local governments, and perhaps even central government departments and agencies.

Judging

This function can continue to be played by our own courts, though when it comes to matters of interpretation of EU law, they will continue to need to make reference to the rulings of the CJEU. It may also be the case that we need to look again at the rights of third parties to bring a case, alongside that of the NEAO. In the fullness of time, we might also find we need to put in place a specialist environmental court.

One of the uncertainties of Brexit is the shape of the future relationship between the EU and the UK. In some models, there would be a dispute resolution mechanism to enable disagreements about the meaning or implementation of retained EU law in the UK to be resolved. That might cover some or all of these functions.

This model, though, would need a right for individuals, companies and NGOs to complain directly to the mechanism in a manner similar to their current ability to complain directly to the EC, otherwise a significant route to accountability would be lost. And even so, it isn’t clear this would be as good a solution as the NEAO option I propose above.

CIWM has already raised some of these ideas with Government and other stakeholders and will continue to do so going forward. Please do therefore post your comments so we can reflect on them and further improve the idea!

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  1. Good discussion and thoughtful ideas. One word of warning, however. The Government of the day and its supporting civil servants have a wonderful habit of chipping away at the independence of arms length bodies appointed by Parliament. You only have to look at the Environment Agency to see how Government undermines independent advice.

    The organisation that controls the budget of these bodies controls what they are able to do. If such an organisation gives advice a Government does not want to hear the elastic that connects it to Government snaps and it either gets abolished (Nature Conservancy Council, Sustainability Development Commission etc) or effectively gagged (Environment Agency).

    Unless we set up a body Independent of Government to adjudicate Government failures (such as air pollution control or missed targets for waste and resource management) with independent funding mechanisms we will simply see a watering down of the current role of the CJEU. It is also interesting to suggest that what I am highlighting is the need to duplicate a body that already exists and with which we will have to maintain a working relationship if we want to Trade with the EU. Why spend scarce resources replacing what we already have unless it is to subvert the intention of that organisation and allow Government to avoid their obligations in national and international relationships.

    It seems to me that “take back control” means make sure you contain and control criticism of Government actions for electoral advantage, regardless of the administrative and environmental cost.

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