Earlier this week @susanlivinglaw was privileged to be amongst a panel of UK experts giving evidence to the House of Commons Environmental Audit Select Committee on the Government's 25-Year Plan for the Environment. Reflecting on the evidence, Living Law is setting out a '10-Point Summary Action Plan' that we believe the Government needs to take to set us on course to realise the once in a generation opportunity provided by the Plan and to ensure it can live up to its stated ambition to be "world-leading".
The 25-Year Plan has been hailed by civil society for the ambition and recognition that "our natural environment is our most precious inheritance" and commitment to "pass on to the next generation a natural environment protected and enhanced for the future". It is not often that UK Prime Ministers give big environmental speeches and that the environment is given its deserved prominent policy platform in Government. Nonetheless, lawyers at Living Law have expressed serious concern that the Plan may quietly return to dusty shelves in Defra once the political furore over Brexit quietens unless further steps are taken to bolster it's high ambition with legal underpinning and meaningful targets.
Following our evidence and that of other civil society actors, we are making a series of recommendations that we believe the Government needs to take to help turn the Plan and its vision into one that can truly live up to its own stated ambition: to be 'world-leading'. By implementing these simple recommendations, the Government will help to ensure that the Plan becomes a living document that will provide the strategic framework needed to protect our environment (both at home and playing our part on the global stage) and to transition to societies within Planetary Boundaries for the sake of present and future generations. And crucially, provide the necessary assurances that it is indeed serious about stepping-up to these challenges.
The Plan must be enshrined in primary legislation, including the requirements for timely future consultation with stakeholders and devolved administrations (regardless of the eventual outcome of discussions on any common frameworks). The requirements for consultation must be clearly specified in the legislation with a requirement for timely consultation on the envisaged future 5-yearly 'refreshing' of the Plan and for this to be undertaken mid-planning cycle. The objective of ratcheting up ambitions overtime should also be clearly specified. This will ensure that the updated Plan is subject to requisite levels of scrutiny, comments are brought in from civil society in a constructive manner and that Plan is overall compliant with the UK's legal obligations under Article 7 of the Aarhus Convention;
The 'Principle of Non-regression' is enshrined in domestic law on leaving the EU (ideally within the Repeal Bill itself). This is a key test of the Government's stated ambition that it will not water-down environmental protections now or in the future after exit-day, if leaving the EU. There is no sound legal reason for the Government not to follow through on this simple formalisation of its already stated policy intentions. But they merit legal certainty;
For a more outward-focussed, global (and less insular) focus in the Plan and the UK's overall approach to the environment when we leave the EU recognising also the global environmental footprint of our actions and in-actions at home. Whilst this undoubtedly involves extremely complex and difficult questions, such as the improved regulation of transnational corporations operating from the London stock-market and integrity of their supply-chains, we need to embrace these challenges and complexity if we are to rise to the challenges of the Anthropocene. This clear shift in narrative would be an important diplomatic signal of the UK's intentions post-Brexit. It would also help to recognise and mitigate risks of 'environmental problem-shifting' in the implementation of key transformative policy strategies (such as in relation to the future siting of renewables projects and in relation to natural resources, such mining of cobalt required in the electric vehicles revolution). This is also a matter of international peace and security when the UN estimates that, since 1989 alone, more than 35 major armed conflicts have been financed by natural resource conflicts;
For the Plan to be owned and legally embedded across Government - for example, by introducing a duty in any new Environment Act to have regard to it when making any policy decisions (similar to the concept behind the UK Equality Act duties). This would help extend the Plan beyond the traditional view of 'environmental issues' and recognise the reality that today many of the 'solutions' to key environmental challenges rest within other Whitehall Departments (such as on transport, energy policy and so forth);
To enshrine the requirements of existing EU Environmental Legal Principles (such as the Precautionary Principle) in UK Law to provide a robust framework for decision-making (i.e. no cherry-picking). To the extent possible, to also build towards a world-leading approach based on the IUCN World Declaration on Environmental Rule of Law to keep principles updated to scientific understandings and technological progress. The Environmental Principles should be embedded within the Repeal Bill itself or a new Environment Act;
Continuing recognition of the approach of the EU Law Principle of Subsidiarity in UK environmental issues after Brexit, thereby helping to respect the devolution settlement with Scotland and the higher levels of environmental protection and governance arrangements that have traditionally been in place there and other devolved administrations - but within a clear, strategic planning framework (again, this is regardless of the eventual settlement of the debates on common frameworks);
For the UK Government to urgently clarify its own legal interpretation of the status of various existing international treaty obligations on leaving the EU (i.e. so-called mixed agreements). This clarity is now urgent and of central importance;
A commitment to learn lessons from the past through better Strategic Spatial Planning post-Brexit and to robust Strategic Environmental Assessment so that major infrastructure projects are guided away from sensitive sites before major capital investments are made. This will deliver an environmental protection framework that is strategic, need-based, supports subsidiarity in decision-making and community involvement, whilst allowing development to progress efficiently and in harmony with the natural environment. Where option considerations are involved, these can be implemented on an evidence-basis;
To develop towards truly world-leading science as the foundation of future planning and of our environmental law and policy by building resilience in social-ecological systems thinking and recognising that the environment does not respond to disturbance in a linear manner, as well as the importance of polycentric governance structures for sound decision-making. This should also be a key feature of debate around any future 'watchdog' for the environment to ensure it has real independence and adopts good governance approaches;
For greater ambitions to prioritise and tackle immediate, urgent but readily solvable environmental challenges ('easy wins'), such as the action in relation to plastic straws. These actions should be based on a principled hierarchy approach (such as 'Efficiency First' as now recognised in policy terms in relation to energy etc and as the existing waste hierarchy is founded on the Principle of 'Reduce'). This Principled approach is logical and would again help to mitigate 'environmental problem-shifting' (mitigating or solving one environmental problem, such as plastic waste, only to create or replace it with another). It is essential that we embed this 'system-level thinking' approach into actions that we take today, the consequences of which may subsist for several decades, and the prospect of creating pressure on other natural resources.
Our original submission to the EAC is available online and via the PDF on our website.
Reflecting on the evidence session, Living Law's Managing Partner, Susan Shaw commented:
"We applaud the work of the Environmental Audit Committee to hold the Government to account in this space and thank the Committee for the opportunity to appear before its Members to highlight our concerns earlier this week.
While we may be planning to leave the EU, we are concerned that throughout this entire debate the Government has consistently underestimated the scale and enormity of the task that lies ahead to even maintain the status quo of protecting our environment after Brexit: that is, both in terms of the legal and governance gap. But there has also been a failure to highlight that we are not leaving the international legal order in the sphere of the environment.
EU Law often simply 'fills the gaps' of broader international legal obligations arising from both treaty and customary international law. While the manner in which sometimes broader international obligations are enforced may differ, the simple fact is that if we fail to live up to our international duties it makes it more difficult for us to require others to also live up to their obligations and for us to enforce our rights as a nation under international law. That is why it is essential that we ensure that the full ambit of environmental protections are given proper and full effect in domestic law without gaps and 'zombie legislation' being left.
While we do welcome the broad rhetoric and level of ambition in this plan, as well as the prominent platform it has been given, the terms of legislation are the real marker of Ministerial ambition. It is clear to us from the evidence we have heard that while progress has been made, the Government still has some way to go to allay concerns within civil society that there will not be a race to the bottom after Brexit. Further, it remains to be seen actually how we are going to fulfil the 'expertise gap' that leaving the EU will bring, such as in the writing of long-term EU Action Plans and Strategy Road-maps - recognising also that these issues do not respect political boundaries. These are crucial questions that remain unanswered.
It is now of the utmost urgency that we see from the Government the draft legislation and other proposals that have been promised as key underpinning planks of its Brexit plans (and which are promised by the 25 Year Plan). The detail here is absolutely everything and recent developments, as well as the extremely challenging timescales involved, do not instil us with huge confidence. These are issues of legal certainty which we cannot afford to get wrong.
It is essential that sufficient time is allowed to enable meaningful consultation with civil society around these outstanding issues, including engagement on the design options, so that the Government can fulfil its legal obligation to protect the environment, as also mandated by international human rights law.
We will be monitoring this space closely and look forward to reading the EAC's forthcoming Report on these key issues."