Environment Bill postponed

On 26th January, the Government confirmed that the Environment Bill will be paused until the next Parliamentary session, which will commence in May 2021. The Bill was due to enter the House of Commons report stage on 26th January before moving to the House of Lords, however, due to delays caused by the COVID-19 pandemic, concerns were raised that there is not enough parliamentary time left in the current session to progress the Bill.

Faced with the possibility of the Bill failing and having to start the process from scratch, the decision was made to postpone. If the Bill is resumed in May as planned, it is expected that it will receive Royal Assent by autumn.

Impact of the delay on the OEP

The postponement means that the Office for Environmental Protection (OEP) is likely to be launched after Royal Assent is received. In the interim period, the Interim Environmental Secretariat established by Defra, will remain in place. We have previously touched upon the risks inherent in permitting the Secretary of State to mould the OEP in its infancy by establishing systems and procedures which could subsequently be adopted by the OEP. The more influence Defra has over the OEP’s workings, the more the independence of the watchdog is undermined. There is an argument that the longer the Interim Environmental Secretariat remains in place, the more likely it is that Defra will establish systems and processes for dealing with matters falling within the scope of the OEP. Whilst the Government has been eager to emphasise that the role of the Interim Secretariat will be limited, it is important to recognise that any influence, regardless of how minor it may be, has an ability to impact on the OEP’s independence.

The newly appointed Chair of the OEP, Dame Glenys Stacey, has previously addressed the importance of limiting Defra’s role in the OEP. Whilst she has acknowledged the good work it has carried out thus far, she asserted that “the sooner OEP can recruit its own board and staff and cut the umbilical cord, the better.” Those forming part of the OEP, she stated, “must develop its ways of working and its strategy and policy, rather than those within Defra who have dutifully nurtured the concept of OEP.” The news that the Bill will be delayed, and with it, the OEP’s formal enactment, will make this task all the more difficult. In response to the announcement, Dame Glenys stated that whilst the delay was “understandable” in light of the pandemic, it was also “extremely disappointing.” She has vowed her intention to forge ahead “so far as is possible” to ensure that the OEP “makes progress in the interim.”

Evidence of progress has already been seen with the announcement on the 28th January that Natalie Prosser has been appointed by Defra as the Interim Chief Executive Officer (CEO) Designate of the OEP. Ms Prosser is currently General Counsel at the Gambling Commission and will start her role in February alongside Dame Glenys. The role of the Interim CEO is time limited until December and will be focussed on setting up the new body pending the appointment of a permanent CEO. Dame Glenys has welcomed the appointment, stating, “I am delighted that Natalie will be our interim CEO. She brings an in-depth understanding of public law, regulation and enforcement, and her experience in shaping and developing organisations independent of government and with oversight functions will be invaluable.”

The appointment of an Interim CEO with the wealth of experience Ms Prosser has is encouraging. That she and Dame Glenys, who has proven herself to be a fierce advocate in the defence of the OEP’s independence, will be working together to establish the OEP bodes well for the future of the watchdog. Nevertheless, the fact that Defra will be bridging the gap for a much longer period than initially anticipated, will naturally give rise to questions over the OEP’s ability to safeguard its independence from the Secretary of State.

Reactions to the postponement

A number of environmental bodies and campaigners have expressed their frustration at the Government’s decision to pause the progress of the Bill. Rebecca Newsome, head of politics at Greenpeace UK questioned the Government’s inconsistent approach in choosing to delay the Environment Bill when “Time and time again the government tells us that ‘urgent action’ is needed to restore nature, that it will ‘build back greener’ and that we can’t afford to ‘dither and delay’. Similarly, Ruth Chambers of Greener UK lamented that “after four years of delays we are still without crucial laws to restore nature and tackle climate change.” Others urged the Government to make use of the delay to consider the introduction of amendments to strengthen the Bill and to address concerns raised about gaps and omissions in the Bill.

Signe Norberg, Head of Public Affairs and Communications at the Aldersgate Group, advised that positive steps in pursuit of this would entail “making interim targets binding to ensure continuous action to improve the natural environment, introducing an overarching target which helps guide the setting of the long-term targets, and safeguarding the Office for Environmental Protection’s independence.” Harry Bowell, director of land and nature at the National Trust, suggested that the proposal by ministers to protect 30% of the UK’s land for nature by 2030 should also be included in the Environment Bill.

A chance for improvement?

There is strength to the argument that the postponement presents an opportunity for the Government to reconsider the Bill. Recent committee debates on proposed amendments to the Environment Bill have been dogged by the spectre of the ticking clock and the need to get the Bill passed as quickly as possible. One is left with the impression that if there were more time, some of the finer details of the amendments could be explored more deeply and arguments in their favour could be made more forcefully, resulting in more amendments being approved. As matters stand, it appears few people are satisfied with the Environment Bill in its current incarnation. In November 2020, we addressed the Government’s reluctance to approve amendments to the Bill aimed at strengthening the OEP’s independence.

Since the beginning of the Environment Bill Committee consideration, MPs have proposed a raft of measures which seek to enhance the protections provided under the Bill. Second readings have been requested in relation to some amendments, in an attempt to get the Government to reconsider its position in relation to certain clauses. These efforts have been largely frustrated. In the final sitting of the committee on 26th January, the Labour MP for Southampton, Test, Dr Whitehead, indicated that he has previously warned that that the Bill has “no cohesion in terms of its overall objectives” and that subsequent to the debates, “nothing has made the Bill more cohesive.” Labour MP for Putney, Fleur Anderson, stated “I have been disappointed, so far, by the lack of agreement over the amendments proposed by Opposition Members.”

The overwhelming impression given from reading the debates is one of resigned disappointment, which is not quite in keeping with the Prime Minister’s presentation of the Bill as “a lodestar by which we will guide our country towards a cleaner and greener future.” It can only be hoped that in the intervening period, the Government will give serious consideration to the issues raised. The Bill cannot succeed if the concerns of those seeking to protect the environment are dismissed out of hand. At present, the promise that the UK will have “the most ambitious environmental programme of any country on Earth” falls rather flat.

Do you need more information on how the Environment Bill will affect you and your business? Why not contact us?