Policy paper

September 2021: Environmental governance factsheet (parts 1 and 2)

Updated 1 April 2022

This was published under the 2019 to 2022 Johnson Conservative government

Headlines

1. We will set long term targets to improve the environment - on air quality, water, biodiversity, and resource efficiency and waste reduction. It will be a legal requirement upon the government to meet these targets.

2. The Environmental Principles will guide future policymaking to protect the environment.

3. The government will have to report on whether new primary legislation has an impact on existing environmental protections.

4. The Office for Environmental Protection (OEP), will be established to support environmental protection and hold public authorities to account. People will be able to submit a complaint to the OEP if they think the government, their council, or any other public authority has broken environmental laws.

Context

The Environment Bill sets a new and ambitious domestic framework for environmental governance as we maximise the opportunities created by leaving the European Union. It responds to a clear and urgent scientific case, and growing public demand, for action to address environmental challenges including biodiversity loss, climate change, waste and pollution.

We recognise that the environment, unlike many areas of law where there are more clearly defined legal and economic interests, is often un-owned, and environmental harms can be diffusely spread, creating a need for appropriate environmental governance to hold public authorities to account on environmental law.

Having left the EU, the UK has the autonomy and ability to set its own future environmental protections, allowing us to deliver the most ambitious environmental programme of any country on Earth.

What does the Bill do?

We will transform our environmental governance by creating a new system which is tailored specifically to a UK context. Our new system of environmental governance will include the following elements created by the Environment Bill.

Environmental Targets

The Environment Bill will give the Secretary of State a power to set long-term, legally binding environmental targets of at least 15 years in duration, across the breadth of the natural environment. It will specifically require the government to set at least one target each in four priority areas: air quality, biodiversity, water, and resource efficiency and waste reduction.

The Bill will also require the government to set a target for fine particulate matter (PM2.5), and a target to halt the decline in species abundance by 2030. The species abundance target will not only benefit our species, but will also help to drive wider environmental improvements.

We are taking a system-based approach to the setting of targets, as far as possible, so that we consider the targets collectively and understand their interdependencies with the wider environment. We want to pursue targets that have mutual benefits, for example, setting water quality targets that also help deliver biodiversity objectives. Aspects of the natural environment (such as water quality) may respond slowly to even very ambitious interventions which underscores the importance of a longer-term approach.

The government has an explicit duty under the Bill to ensure long-term targets are met. This ensures the government can be held legally accountable, including by the Office for Environmental Protection (OEP).

The Bill’s statutory cycle of monitoring, planning and reporting ensures that government will take early, regular steps to achieve targets and can be held to account with regular scrutiny from the OEP and Parliament. The statutory cycle creates a ‘triple lock’ to drive short term progress:

1. The government must have an EIP which sets out the steps it intends to take to improve the environment, and review it at least every 5 years;
2. the government must report on progress towards achieving targets every year; and
3. the OEP will hold us to account on progress towards achieving targets and every year can recommend how we can make better progress. The government must respond.

Targets will be set following a robust, evidence-led process that includes a statutory requirement to seek independent expert advice, and a role for stakeholders and the public. We expect a number of sources of evidence will inform these considerations, including scientific data and models, historical datasets, and assessment of what is feasible from a socio-economic perspective.

Long-term targets will be set by regulations subject to the affirmative procedure (requiring a binding vote in both Houses of Parliament). The statutory instruments for the first set of targets must be brought forward by 31st October 2022 at the latest.

A policy paper outlining our principles and objectives for the Environment Bill targets programme can be found here.

Environmental improvement plans (EIPs)

The Environment Bill requires the government to publish an Environmental Improvement Plan. In the EIP, the government will set interim targets for each five-year period and lay out the steps it intends to take to improve the natural environment. The 25 Year Environment Plan will be adopted as the first Environmental Improvement Plan.

The government must report on progress towards achieving targets as part of its annual report. Every five years, the government must also review its Environmental Improvement Plan and consider whether further measures need to be adopted to achieve its targets. Where progress has been too slow, the government may need to develop new policies to make up for the shortfall and get us back on track.

The OEP will hold the government to account on progress towards achieving both interim and long-term targets and every year can recommend how it can make better progress. The government must respond to those recommendations.

Environmental Principles

Five internationally recognised environmental principles, embedded in law through the Environment Bill, will promote policy-making that seeks to prevent or minimise environmental damage. These five principles comprise the integration principle, prevention principle, precautionary principle, rectification at source principle and polluter pays principle.

The ‘Environmental Principles Duty’ created by the Bill requires that Ministers must have ‘due regard’ to the Environmental Principles Policy Statement when making new or updating existing policy.

The Environmental Principles Policy Statement outlines to Ministers of the Crown how the principles should be proportionately interpreted and applied. Clear guidance will be provided on implementation, through this statutory policy statement and a package of training and support for policy-makers, ensuring these principles are factored into policy development in a clear and evidence-based manner.

UK Environmental Protection

The Government will be open and transparent about the impact of future primary legislation on environmental protection. Where future primary legislation contains a clause which is about environmental protection, the Minister responsible for the legislation will be required to make a statement to Parliament. In that statement the Minister will need to confirm whether the legislation maintains the levels of protection which exist at the time the Bill is introduced.

We will keep abreast of global environmental developments in driving forward our environmental standards by preparing and publishing a report every two years on significant developments in international environmental legislation. The report will be published and laid before both Houses of Parliament.

The Office for Environmental Protection (OEP)

The Office for Environmental Protection will have the principal objective of contributing to environmental protection and the improvement of the natural environment. It will provide the necessary legal authority to implement long-term environmental governance. The OEP will be built on international best practice and tailored to our domestic context, with a structure and functions specific to our needs.

The OEP will provide scrutiny and advice on the implementation of environmental law. It will also monitor and report on progress against Environmental Improvement Plans and targets.

OEP enforcement powers

The OEP will have powers to investigate potential serious breaches of environmental law by public authorities and take enforcement action where necessary. It will engage with public authorities to seek a solution before considering court action, which the OEP will take via a bespoke mechanism of environmental review in the High Court.

In urgent cases where it is necessary to do so in order to prevent or mitigate serious harm to the natural environment or human health, the OEP may also apply directly for Judicial Review (JR) within normal JR time-limits.

The independence of the OEP

Ministers will have no powers of direction over the OEP’s work programme or decision marking. The OEP will be provided with safeguards to ensure its operational independence from government, without affecting ministerial accountability.

• There will be a legal duty on Ministers to have regard to the need to protect the OEP’s independence.
• There will be a duty on the OEP to act objectively and impartially.
• The OEP will be required to provide an annual assessment of whether it is receiving sufficient funding from government.
• The OEP will have an indicative multi-annual 5-year budget (ringfenced within any given spending review period).
• Any guidance issued by the Secretary of State in relation to the OEP’s enforcement policy will be subject to scrutiny, as a draft must be laid before Parliament before it can have effect. Government amendments tabled at Lords Report stage will mean that the Secretary of State must respond to any resolutions or recommendations made by Parliament and Parliamentary Committees before issuing the final guidance and laying it again before Parliament, when it would then take effect.

Territorial jurisdiction of the OEP

The environment is a devolved matter, subject to a small number of reserved areas. Therefore, the OEP’s remit will cover England and reserved matters. The Environment Bill includes an option to extend the OEP to cover devolved matters in Northern Ireland, subject to approval from the Assembly. The Scottish Government has passed legislation covering environmental governance in Scotland, while the Welsh government has set out its intention to establish a Commission for the environment. We are therefore confident that there will be governance arrangements in force across the whole of the UK.