A new watchdog to enforce environmental laws after Brexit will have little power to hold the government to account, thereby allowing them to break green promises, sanction environmental damage and undermine the rule of law, according to an alarming analysis by a leading law body.
Furthermore, the creation of the watchdog as part of the government’s Department for Environment, Food and Rural Affairs (Defra), means it will not be independent, will have its board decided by Defra ministers, its budget set by the government, and the extent of its oversight also set by government, the experts warned.
The plan for the new watchdog, called the Office for Environmental Protection (OEP), was originally set out by former environment minister Michael Gove in 2017, and he said it would be “independent of government, able to speak its mind freely”.
Before Brexit, environmental laws in the UK were ultimately enforced by the European Commission and then, in the most serious cases, the Court of Justice of the EU (ECJ).
Major EU rulings have resulted in cleaner bathing waters and better protection for marine life, more recently, the ECJ ruled against the Polish government on logging in an ancient forest, and against the UK for persistently breaching air pollution limits.
Despite these important successes, Mr Gove suggested a powerful, independent UK watchdog could “do a better job”.
However, according to the Bingham Centre for the Rule of Law, which has analysed the creation of the OEP, as set out in the government’s Environment Bill, there are now “significant concerns over the power of the new body and the High Court to do anything meaningful on the most important cases, let alone do a ‘better job’ than the European Commission and ECJ.”
Ruth Chambers of the Greener UK coalition worked alongside the Bingham Centre on the report. She said: “Peers, NGOs and businesses agree that the OEP’s powers and independence are absolutely vital.
“This issue will either underline the UK’s ability and determination to hold polluters to account, or it will undermine it for years to come.”
She added: “We urge the government to show leadership and remove provisions from the bill that stop the OEP from doing its job.”
In a House of Lords debate on Monday, peers argued the OEP must be given more independence from the Defra “family”, and suggested it could operate like the mafia.
The Bingham Centre analysis warns that unlike the EU bodies, the OEP will not have any independent power to issue binding judgments or remedies on cases, and furthermore, the High Court will be put in a position where judges are only be able to issue a condemnation of any breaches of environmental law, but not do anything to resolve or address it.
According to the lawyers, this not only significantly weakens protections for the environment, but goes against the fundamental concept of the “rule of law”.
The Bingham centre summarised its findings with an analogy: “If a public authority does something wrong: (i) there ought to be a way that someone can bring them to court, (ii) the court ought to be able to make a finding of unlawfulness, and (iii) the court ought to provide an effective remedy for it.
“Like a three legged-stool which balances when all three legs are present, the Rule of Law only works if these three legs are present: right of access to court, ability for court to make a finding, and right to an effective remedy.
“In plain English, if a public authority breaks the law, can it be brought to a court, and can the court correct the wrong?”
A Defra spokesperson said: “We are committed to building back greener, which is why we are leading the world by setting ambitious goals for nature and biodiversity in our landmark Environment Bill.
“The Bill will ensure the independence of the Office for Environmental Protection so the new body will have the power to scrutinise environmental policy and law, investigate complaints and take enforcement action against public authorities where necessary. The Environment Secretary will not be able to intervene in decision making about specific or individual cases.”