The Environment Act: Ground-breaking legislation or a compromise?

For a start, the Bill was first introduced more than two years ago. It was envisaged that it would come into force to coincide with Brexit and prevent a governance gap. However, the COVID-19 pandemic resulted in a lack of Parliamentary time to discuss the Bill, resulting in substantial delays. Whilst no one could have predicted the pandemic and its impact, frustrations surrounding the slow progress of the Bill have been exacerbated by the transformation of the Bill into a weaker and less robust creature than was promised. The final phase of the Bill’s passage, known as the “ping pong” stage, saw the Bill pass back and forth between the Houses of Commons and Lords, with a series of amendments made by the latter being consistently rejected by the former.

The gulf between what the two Houses wished to achieve seemed so wide as to render agreement virtually impossible. The House of Lords appeared unwilling to budge on two areas in particular, the creation of a statutory duty on water companies to eliminate sewage discharges from storm overflows, and the creation of a completely independent Office for Environmental Protection (OEP). Whilst the House of Lords introduced amendment after amendment angled towards achieving these aims, ultimately it was forced to back down when it became evident that the Bill would not be passed if it did not cede these issues.

Storm Overflows

The Bill’s provisions in relation to storm overflows have proven to be particularly controversial. The last year has seen a crackdown on water pollution with a number of water companies receiving fines for pollution offences. In July, Southern Water was handed a record breaking £90 million fine. The issue of storm discharges has received widespread media coverage; the singer, Feargal Sharkey, has openly criticised water companies responsible for discharging sewage into the UK’s waterways and has called for greater accountability.

The Environment Bill was set to address the issue of sewage discharges and the Act as enacted goes some way to improving protection of our waterways. It places a duty on water companies to produce comprehensive statutory Drainage and Sewerage Management plans setting out how they will manage and develop their drainage and sewerage system over a minimum of 25 years. The Act also establishes a duty on water companies to monitor the water quality upstream and downstream of storm overflows and sewage disposal works.

There is, however, one point where the Act arguably falls short. It does not require any immediate action from water companies to stop sewage discharges from storm overflows. This is surprising in light of the number of pollution incidents involving sewage discharges this year and the various statements made by the Government expressing its commitment to improving water quality.
In an effort to introduce stricter measures, the Duke of Wellington proposed an amendment which would require wastewater processors to “take all reasonable steps” to prevent sewage discharges from storm overflows. This would have placed a statutory duty on water companies to be proactive and do everything they could to prevent discharges. This amendment was rejected by the House of Commons and an alternative amendment advanced by the Government.

This provision required companies to deliver a “progressive reduction” in the adverse impacts of discharges from the undertaker’s storm overflows on the environment and on public health. The wording of this provision is rather vague. It does not allude to any targets, either in terms of volume or timescale, which must be met. Arguably companies could continue to discharge sewage from storm overflows as long as those discharges are slightly reduced. Nothing in the wording appears to prevent this.

Several members of the House of Commons criticised the amendment and called for a more robust response. Despite this, the House voted in favour of the amendment. A number of peers in the House of Lords expressed their disappointment that the Duke of Wellington’s proposal had been rejected in favour of a weaker amendment. However, there was a general consensus that the House of Lords had succeeded in forcing the Government to do a U-turn in introducing an amendment which requires water companies to reduce discharges from storm overflows. It may not have been as strong as the provision proposed by the Duke of Wellington, but it was better than nothing. The House of Lords subsequently accepted the amendment.

The OEP

Throughout the progress of the Bill, the House of Lords has been adamant that in order to be effective, the OEP must remain independent of the Government. One of the main sticking points for the House of Lords was the inclusion of a provision giving the Secretary of State the power to issue guidance to the OEP on its enforcement policy with the stipulation that the OEP must have regard to that guidance. The Minister of State (Department for Environment, Food and Rural Affairs), Lord Goldsmith, argued that the measure is justified as the Secretary of State is accountable for the OEP’s performance and use of public funds. As such, “the Government considers that this accountability power…is necessary to ensure that the body continues to use public resources effectively to achieve the greatest public good.” Lord Goldsmith was eager to point out that the Secretary of State’s guidance “is limited to the areas of the OEP’s enforcement policy listed in Clause 22(6). It cannot be used to direct the OEP as to the content of any report they might produce or any advice to the Government.”

Several peers expressed disappointment at the House of Commons’ refusal to approve an amendment by Lord Krebs which would have, amongst other things, stipulated that whilst the OEP must have regard to the Secretary of State’s guidance, it did not have to follow it, and had complete discretion in the carrying out of its functions. Lord Krebs remarked that the “Government clearly have an umbilical attachment to the guidance powers.” Baroness Parminter agreed with Lord Krebs, stating that “Government seem to have an umbilical attachment to not wishing the OEP to have the independence that absolutely all in this House agree that it should.” Lord Cameron of Dillington commented that the Houses were still divided on the issue, with the House of Lords wishing “to see a strong and independent OEP” on one side, whilst “on the other side is the current Defra team, which still…wishes to guide its activities as far as is politically possible.”

Despite these reservations, the House of Lords agreed to cede to the House of Commons and approve its amendment. Lord Krebs indicated that his concession was based on comments made by Lord Goldsmith in his opening speech which suggested that it would be “inappropriate for the Secretary of State to issue guidance on specific matters relating to the enforcement of environmental law against the Secretary of State for Defra” and that the OEP “is not bound to act in accordance with the guidance where it has clear reasons not to do so.” Lord Krebs suggested that these “ministerial statements in Hansard could be used by the courts in future as an aid to statutory interpretation.” Other peers appeared to indicate that they felt they had no choice but to concede. For example, Baroness Jones of Moulsecoomb referred to feeling “under pressure, because of the primacy of the other place, to pass a Bill that is not as good as the one we amended”, whilst Baroness Parminter stated that “we are in the position of having to accept that we are where we are, given the majority of the Government on the other side.”

Compromise legislation?

The comments made in the House of Lords indicate that there are some areas of the Environment Act which do not live up to what was promised. Rather than receiving enthusiastic support, provisions in relation to storm overflows and the OEP were reluctantly approved when it became evident that the Government was not willing to shift on its position and the governance gap was growing ever more urgent. This ‘needs must’ approach is rather disappointing.

Last November theenvironmentpractice.co.uk/blog/is-the-independence-of-the-office-for-environmental-protection-already-compromised text: we wrote a blog post addressing the independence of the OEP). In that post, we commented that the most concerning thing about the draft OEP provisions is what they failed to say and the apparent gaps in the legislation. We remarked that the formation and power accorded to the OEP relied upon good faith and people doing what they ought to do. This criticism still stands.

Instead of clearly setting out duties, obligations and parameters in the wording of the legislation, an awful lot relies on the right people doing the right things, without being required to do so under the legislation. Water companies are required to progressively reduce discharges to storm overflows, but there is nothing in the legislation which stipulates the volume of reduction or the timeframe within this must be achieved. Arguably the potential of the provision is severely undermined as a result. Similarly, the OEP is supposedly free to depart from the Secretary of State’s guidance where there is good reason for this, yet this discretionary power is not included in the wording of the legislation. If Parliament intends the OEP to have this power, why is it not explicitly set out in the law?

Some have suggested that the Environment Act 2021 is a starting point, something which can be improved upon and added to as and when addition or amendment is necessary. This may well be the case, nevertheless, it is not what was promised. The Environment Act presented a rare opportunity for the creation of a bold, progressive and world-leading piece of environmental legislation. Instead, there is a sense that whilst the Act does not quite go far enough, it will do for now. In this respect, it is very much an Act built on compromise rather than ambition.