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Green Brexit: a historical perspective


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Many of the current environmental protections in the UK come from European Union (EU) legislation, covering areas like waste management, pollution and habitat protection. The government has committed to transposing all current European environmental regulation into UK law after the UK leaves the EU and to deliver a ‘Green Brexit’. The Department for Environment, Food and Rural Affairs’ (DEFRA) 25 Year Environment Plan suggested that the government would also ‘set up a world leading environmental watchdog, an independent, statutory body, to hold Government to account for upholding environmental standards’. The consultation for such a plan was launched today.

The idea of a new body is a response to widespread concern among campaigners and experts that if the UK simply transposes EU laws, without reworking institutions and structures as well, a damaging ‘governance gap’ will emerge. Greener UK, the main coordinating campaign group on Brexit and the environment, suggests there is a need for new governance arrangements to fulfil six current EU functions. They are: transparent monitoring of the state of the environment; supervision of implementation of environmental law and policy; checking compliance with environmental law; enforcing environmental law (through investigations and responding to complaints); reviewing performance against policy objectives; and publishing environmental information.

How has the UK performed in this area historically?

Environmental regulation and governance in the UK initially developed in a very haphazard way. Isolated examples stretch back to the Middle Ages - not least the Magna Carta which included a reference to managing ‘fish-weirs’. The Act of Parliament passed in 1533 ‘to avoide destruction of wilde-fowle’ has been argued to be the first enforceable piece of environmental legislation in Britain. It was in the nineteenth century, however, that more extensive government action emerged. This included attempts to mitigate environmental problems created by the industrial revolution such as the Alkali Act 1863, responses to concerns about public sanitation such as the Public Health Act 1848, and efforts to preserve nature such as the first Wild Birds Protection Act in 1872.

Despite its reputation as the ‘dirty man of Europe’ before it joined the EU, the UK has shown itself capable of ambitious, independent action in the area of environmental regulation and governance. The aforementioned Alkali Act created the Alkali Inspectorate, commonly cited as the world’s first government environmental agency. More recently, the Climate Change Act 2008, which set a statutory target for greenhouse gas emissions reductions by 2050, with five-year milestones and a committee to monitor progress, is seen by many other countries as a model for climate change regulation.

There is no room for complacency, however. The Institute for Government have highlighted that between 2003 and 2017 nearly half the cases the European Commission brought against the UK related to the environment, and the UK lost most of them. One of the key demands of environmental campaigners therefore is that any new body is sufficiently independent to effectively challenge the government of the day. Historically, much of British environmental administration was accommodative and informal in approach rather than confrontational and legalistic. Any new governance arrangements will need to lean towards the latter style to be effective.

The new body is expected to fill the roles currently played by the European Commission, which offers a complaints mechanism on environmental matters and takes its own actions in this area, and the European Court of Justice, which undertakes actions such as fines to enforce environmental regulations. An inescapable problem with trying to replicate these EU-based mechanisms domestically is the much greater freedom the UK government will have to reform and control institutions tasked with holding them to account. For example, if the government sets the funding for a new watchdog it creates an obvious power dynamic, making it easier to stifle criticism and undermine its effectiveness.

The experience of the Environment Agency (EA) is instructive in this regard. Lord Deben, who set up the EA as environment secretary in 1995, has argued that it has since been weakened by successive governments, through funding cuts and a general blurring of the lines between it and DEFRA, so that it is ‘no longer an independent body’. Lord Chris Smith, who chaired the EA until 2014, has similarly expressed concern about the organisation’s freedom to provide impartial advice to government about the state of the environment.

There is therefore an immediate need for the current consultation to design a sufficiently robust watchdog (for example through setting long-term guaranteed budgets or splitting control of budgets across departments) and an ongoing challenge in years to come to maintain its independence.

This ongoing challenge raises a further point about the continued role of environmental NGOs once new governance arrangements are in place. When the Nature Conservancy was created as a statutory conservation body in the late 1940s it was suggested that this would mark the end of the many voluntary environmental groups which had grown up by that point. In fact, the decades that followed saw unprecedented growth in the size and number of environmental groups in the UK which proceeded to work very actively with government and agencies on environmental matters.

The environmental movement now comprises millions of members, and so far these groups have been successful in drawing attention to environmental issues in the Brexit process, helped by an enthusiastic Secretary of State in Michael Gove. In future years they are likely to continue to play an important role in not just highlighting environmental concerns (including in the areas repatriated from the EU Parliament) to policymakers, but in monitoring any attempts to undermine the independence of the new watchdog by the government of the day.

Environmental watchdogs may appear a minor concern amidst the broader challenge of negotiating a Brexit deal. However, there is a longstanding consensus spanning political divides and generations that the environment is a public good which requires government action to protect it. Adapting current governance arrangements will be essential if the UK is to do this effectively after leaving the EU.

Brexit is often referred to as the biggest challenge the UK has faced since the Second World War – but even during that conflict, time was found to consider the future of the environment. The post-war rebuilding effort included the Town and Country Planning Act 1947, a significant step in the development of green belts, and the National Parks and Access to the Countryside Act 1949, which allowed for the designation of National Parks and Areas of Outstanding Natural Beauty. Much of the government-endorsed preparatory work for these pieces of legislation had taken place during the war, so lack of bandwidth is no excuse for contemporary politicians to ignore environmental considerations.

Please note: Views expressed are those of the author.

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