Environment Bill (published) Parts 1&2 (UK Brexit)

Exit day is 31st October (this date is set out in a Statutory Instrument)

The Bill is here. 130 Clauses in 8 Parts, and 20 Schedules.

The Explanatory Memorandum is here.

The Environment Bill (“the Bill”) is comprised of two thematic halves.

(1) A legal framework for environmental governance once the UK leaves the EU.

This was earlier published in part as the draft Environment (Principles and Governance) Bill on 19 December 2018, fulfilling a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. The measures published at that time related only to environmental principles and governance, and placing the government’s 25 Year Environment Plan on a statutory footing.

(2) Provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

Part 1 – the Environmental Governance Part of the Environment Bill – includes –

– allowing the government to set long-term targets (of at least 15 years duration) in relation to the natural environment and people’s enjoyment of the natural environment via statutory instrument;

– requiring the government to meet long-term targets, and to prepare remedial plans where long-term targets are not met;

– requiring the government to set, by October 2022, at least one long-term target in each of the priority areas of air quality, water, biodiversity, and resource efficiency and waste reduction;

– requiring the government to set and meet an air quality target for fine particulate matter in ambient air (PM2.5);

– requiring the government to periodically review all environmental targets to assess whether meeting them would significantly improve the natural environment in England;

– establishing the process by which a long-term target is set and amended, as well as an enhanced process where a long-term target is lowered or revoked;

– requiring the government to have, and maintain, an Environmental Improvement Plan, a plan to significantly improve the natural environment, which sets out the steps the government intends to take to improve the natural environment, and which sets out interim targets towards meeting the long-term targets;

– requiring the government to produce an annual report on the Environmental Improvement Plan, to consider progress towards improving the natural environment and meeting the targets;

– requiring the government to review the plan periodically, to consider progress and whether further or different steps are needed to improve the natural environment and meet the targets, and if appropriate revise the plan;

– requiring the government to collect and publish data used to measure progress in improving the natural environment and meeting the targets;

– requiring the publication of a policy statement on environmental principles setting out how environmental principles specified under the Bill are to be interpreted and applied by Ministers of the Crown during the policymaking process;

creating a new, statutory and independent environmental body, the Office for Environmental Protection (OEP), to hold government to account on environmental law and its Environmental Improvement Plan once the UK leaves the EU;

– defining the scrutiny, complaints and enforcement functions of the OEP and their scope;

– establishing an OEP enforcement process of environmental review in the Upper Tribunal; and

– defining the nature of the OEP, including considerations of membership, remuneration, staffing, powers, reporting, funding, accounts and other issues.

Part 2 – the Environmental Governance: Northern Ireland Part of the Environment Bill – includes –

– extending the application of the OEP to Northern Ireland, and making separate provision for Environmental Improvement Plans and environmental principles in Northern Ireland.

Delegated Powers Statement is here. [Environment is a delegated responsibility in the UK]

The delegated powers in the Bill fall into five thematic categories.

(1) there are powers that are needed as a result of the UK leaving the EU;

(2) there are provisions which modify, or are based upon, existing delegated powers;

(3) there are provisions which create new delegated powers to give effect to new environmental policy;

(4) there are powers for devolved administration ministers to make equivalent provision to UK Ministers;

(5) there are general provisions which are required for the Bill to have effect.

Provisions falling into the first category are intended to avoid a governance gap and to ensure the government can deliver on its environmental ambition when the UK leaves the EU.

All of the powers in Parts 1 and 2, plus six other powers fall into this category, as below:

– Existing environmental targets are largely derived from EU law and when the UK leaves the EU it may wish to set its own targets that differ and go beyond those of the EU that will have been retained for the time being in domestic law.

– Clauses 1 and 2 provide for regulations to set targets for matters relating to improving the natural environment or people’s enjoyment of it, and an air quality target in respect of the pollutant fine particulate matter (“PM2.5”).

– Environmental principles are reflected in various international instruments and are set out in the EU treaties. However, a clear articulation of these principles has never been laid out clearly at a national level. The Environment Bill will change this through requiring the publication of a statutory policy statement (clause 16) on the interpretation and proportionate application of the principles, to which Ministers will have a duty to have due regard when making policy. (This is not a delegated legislative power but it is included in Annex A. Northern Ireland has the same power in paragraph 6 of Schedule 2.)

– Clause 40(5) would allow the Secretary of State to set out in secondary legislation which legislative provisions come within the definition of “environmental law”, if required, in order to ensure that there is clarity about the scope of that definition (which in turn will define the scope of the OEP’s enforcement function). Northern Ireland would have the same power in paragraph 18(6) of Schedule 3. The aim of this power is to provide certainty to the OEP, public authorities and the public about the OEP’s remit, in the unlikely case that uncertainty cannot be resolved by other means.

– A number of regulation-making powers (clauses 56, 58, 79-81, 122 and Schedule 20) allow Ministers to make changes in relation to regulations made under section 2(2) European Communities Act 1972. This will, for example, ensure that the lists of priority substances for surface waters and groundwater and their environmental quality standards do not remain fixed and therefore potentially out of date or unsuitable for domestic conditions after the UK has withdrawn from the EU. Tying the UK’s standards to those set historically in the EU could increase risks to the water environment. A further example is a power that would ensure the regulation of international waste shipments can respond to the changes in the methods and practices of those engaged in illegal waste shipment activity.

Further Blog posts will cover the other parts of this important Bill.

Environment Bill (England & UK Brexit)

Exit day is 31st October (this date is set out in a Statutory Instrument)

Today, the announced new Environment Bill was given its First Reading. This Bill encompasses the governance aspects already announced by the previous administration (Bill that lapsed) and covers a range of matters, including Waste and Air Quality.

The Policy Statement is here. The Bill generally extends to England only, but its provisions are intended to create a UK wide approach, and some provisions clearly directly extend to the UK (e.g. UK REACH, below) –

On UK REACH – the Environment Bill gives the Secretary of State the power to amend two pieces of legislation regulating the use of chemicals in the UK.

(1) The REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) Regulation regulates the manufacture, placing on the market and use of chemicals. This is a Retained EU Law.

(2) The REACH Enforcement Regulations 2008 set out how the requirements of the REACH Regulation are enforced. This is a domestic UK Law.

Both of these laws are amended by Brexit Law effective from Exit day. Subscribers will find them in the Brexit Consolidated Law List in EHS Legislation Registers & Checklists.

The Policy Statement asserts the powers will enable the Secretary of State to take further steps where necessary to ensure a smooth transition to a UK chemicals regime following the UK’s exit from the EU.

The Policy Statement asserts it will also make it possible to keep the legislation up to date and respond to emerging needs or ambitions for the effective management of chemicals.

The Bill text is not yet public. I will issue further Blog posts once the text is public.

Exit day changes (update) (UK Brexit)

Exit day is 31st October (this date is in a UK Statutory Instrument that is commenced)

This post updates a post I wrote a few days ago, of similar title.

Today, the House of Lords agreed (without amendment) the Bill – the European Union (Withdrawal) (No. 6) Bill 2019 – brought by persons other than the Government of Johnson-DUP. This Bill now gains Royal Assent by a matter of course.

The Act (therefore duly enacted) will oblige the Prime Minister to seek to extend the Exit day to 31st January 2020 by letter in the form set out in the Schedule (and to accept immediately any EU agreement to extension – and to accept any other EU proposed extension in two days unless the House of Commons rejects it) –

unless by 19th October Parliament consents to Exit without a deal or it agrees to a new deal with the EU.

The Act will also oblige the Government to make regular reports to Parliament on the progress of negotiations with the EU.

The bill was amended in committee in the House of Commons. The amendment added a statement to the bill setting out that the intention of the request for an extension to article 50 would be to pass a withdrawal agreement bill.

This, however, does not create a legal duty to pass a withdrawal agreement bill.

The Johnson-DUP administration already has Crown powers (available to it) to suspend Parliament during dates in September and October. It is expected to suspend Parliament on Monday, after a second request of Opposition Parties to dissolve Parliament so that a General Election may be held. Opposition Parties this morning agreed to oppose the Johnson-DUP administration in this request.

The Prime Minister said today that he would not extend the Exit day. The EU appears to signal that it could regard enactment of the Act as a legal request, even if it’s not made by the Prime Minister.

It is also possible a deal is agreed with the EU that is accepted by Parliament, by the 19th October, but this looks remote.

I will next issue a Blog post on the matter of Exit day changes in mid October, on the assumption that (1) Parliament is not dissolved to hold a General Election, and (2) Parliament is suspended until then.

Environment Bill (UK)

I posted months ago about HMG proposal for a new Environment Bill. There has not been an Environment Bill since 1995.

Progress to date has been weak, and the aspects that were published so far related only to the Governance and Principles aspects.

Today, 23rd July, the DEFRA Secretary has published an updated Policy Statement (of intentions) – here.

Note : Environment is a policy area that is devolved to the regional nations, so the legislative proposals below would apply in England only. Scotland, Wales and Northern Ireland would decide themselves whether and what to follow.

Note : this Statement identifies the Environment Bill will be introduced in the second Parliamentary Session (we are still in the First).

Air quality

(1) Legislation on key measures in the Clean Air Strategy – sharing responsibility for tackling air pollution (across local government structures and with relevant public bodies), plus enabling local government to tackle emissions from domestic burning.

(2) Powers for government to mandate recalls of vehicles and machinery, when they do not meet relevant legal emission standards.

Nature

(3) Nature policy to have a local community focus – a mandatory approach to biodiversity net gain requiring developers to ensure habitats for wildlife are enhanced, with a 10% increase in habitat value for wildlife compared with the pre-development baseline (national infrastructure projects excepted – we will continue to work to establish potential approaches to achieving biodiversity net gains for nationally significant infrastructure projects and marine development, which remain out of scope of biodiversity net gain in the Bill).

(4) Re net gain, planning and the future Environmental Land Management system (replacing agricultural land subsidies) – a new statutory requirement for Local Nature Recovery Strategies. The aim is for these strategies to help to map out important habitats and opportunities for the local environment to be improved, linking communities’ knowledge and priorities with national environmental objectives.

(5) A new duty on local authorities to consult with local communities to ensure that consultation takes place when a street tree is to be felled.

(6) Legislation on conservation covenants – voluntary agreements between a landowner and others (for example, a conservation charity) to help deliver positive local conservation.

Waste

(7) A series of measures that will fundamentally change the way government, businesses and individuals produce and consume products (this will be a big change).

(8) New legal powers to allow government to set resource-efficiency standards for products, driving a shift in the market towards products that are lasting, can be repaired and can be recycled. Plus clear labelling to enable citizens to make fully informed purchasing decisions.

(9) New powers to introduce Extended Producer Responsibility schemes – for packaging, producers will pay the full net cost of dealing with their packaging waste to incentivise recyclability in its design (this is in line with other countries). At the moment, producers currently only pay about 10% of these costs. This will be a fundamental change to the Packaging and Packaging Waste Producer Responsibility Law.

(10) Legislation to modernise the government’s powers to set producer responsibility obligations, extending them to prevention and redistribution of waste, in particular tackling food waste where there is no Legislation in England.

(11) A simplified approach to recycling across local authorities, making it simpler for the public to recycle. A consistent set of materials will need to be collected from all households and businesses in England, with clearer labelling on packaging.

(12) New powers to enable deposit return schemes, particularly dealing with plastic waste. Plus a new power to be able to introduce charges for specified single use plastic items. (Note, there is new EU Law in this area, I posted about recently).

(13) The Litter Strategy commits to review the mechanism by which councils and other land-managers can be held to account for maintaining their land to the standards set out in the Code of Practice. This includes the current section 91 Environment Protection Act process and other options, taking into account the impacts on local authority prioritisation and costs, the court system and the exchequer.

(14) A series of measures unspecified) to improve the management of waste, enabling better use of resources and to reduce the risk of economic, environmental and social harm.

Water

(15) Legislation to strengthen Ofwat’s powers to update water companies’ licences – in particular bringing the way in which water companies appeal Ofwat decisions in line with that for other utility regulators.

(16) New powers to direct water companies to work together on how they will meet current and future demand for water; making planning more robust, even in drought conditions and/or in areas of water stress, for example by working jointly to transfer between catchments when needed.

(17) A new power to enable future updates to a list of harmful chemicals which must be tackled to protect the aquatic environment.

EU (Withdrawal Agreement) Bill (UK Brexit)

Exit day is 31st October 2019

On the evening of 14th May (two days ago), the UK Government said it would bring the EU (Withdrawal Agreement) Bill to Parliament in the week beginning 3rd June 2019 (two weeks time).

The EU (Withdrawal Agreement) Bill is not published. The Bill is needed to implement the EU-UK Withdrawal Agreement that is signed but not ratified by the UK.

This Institute for Government explainer sets out information about the Bill – here.

It is unlikely that Parliament will enact the Bill. There are a number of reasons for this, covered in the Institute for Government explainer and publicised almost daily in the media. I will issue a new Blog post if it is; and if it is, it will be a major change to the going forward arrangements.

The Exit day is the day the UK leaves the EU, unless Article 50 is revoked in which case there is no Exit day.

The arrangements for conducting trade with the EU and other matters regulated presently by EU law, after Exit day, will be as set out in ‘No Deal’ Notices and other instructions, and may be subject to change as these arrangements firm up, or new arrangements created. This Blog contains many posts drawing attention to these new arrangements (please check the different Blog categories). I update the posts online if there are updates. Or I issue new Blog posts.

Changes in the date of the Exit day must be agreed between the EU and the UK, and are not in the gift of one side unilaterally. By decision of the European Court, Article 50 may be revoked by the UK on its own.

[The Exit day may change, please keep following this Blog]

Water Abstraction Plan (UK)

UPDATE : the DEFRA Report to Parliament (see timeline below) is here

The UK Government has a Water Abstraction Plan. This was updated on 11th April 2019 – here.

I posted before about this.

Most businesses taking more than 20,000 litres of water a day directly from rivers or groundwater require an abstraction licence.

The Plan states that the current approach to managing abstraction has three main issues:

* some older licences allow abstraction that can damage the environment

[and indeed the decision in what became the Catfield Fen test case established this – see this useful Blog account of the issues and what happened – here]

* the current approach is not flexible enough to cope with the pressures of increasing demand for water and climate change in the long term, or to allow abstractors access to additional water when it is available

* the abstraction service is outdated and paper-based

The Plan document states – The Government published a range of approaches to address these issues in January 2016 following formal consultation. This plan explains how these will be implemented over the coming years. Our approach to addressing these issues has three main elements:

(1) making full use of existing regulatory powers and approaches to address unsustainable abstraction and move around 90% of surface water bodies and 77% of groundwater bodies to the required standards by 2021

(2) developing a stronger catchment focus – bringing together the Environment Agency, abstractors and catchment groups to develop local solutions to existing pressures and to prepare for the future. These local solutions will:

* protect the environment by changing licences to better reflect water availability in catchments and reduce the impact of abstraction

* improve access to water by introducing more flexible conditions that support water storage, water trading and efficient use

(3) supporting these reforms by modernising the abstraction service, making sure all significant abstraction is regulated and bringing regulations in line with other environmental permitting regimes

The Plan document states – We will report to parliament by May 2019 on progress made on abstraction reform.

The Plan document states – the Environment Agency will publish updated abstraction licensing strategies for 10 catchments by 2021.

The Plan document states – We are planning to move abstraction and impoundment regulations into the environmental permitting regulations. The move will provide a more modern and consistent legal framework for the day to day management of abstraction. We expect to consult on the detail of the move in early 2020.

The Plan document key milestones :

• January 2018 – start testing digital abstraction licences

• January 2018 to 31 December 2019 – application process for previously exempt abstractors open

• April 2018 – Environment Agency begins work in 4 priority catchments to test the approaches to improve access to water and begin to address local pressures

• By end of 2018 – Environment Agency to have revoked around 600 unused abstraction licences

• During 2019 – Defra reports to parliament demonstrating progress on abstraction reform

• By end 2019 – majority of licences available digitally and approach to submitting records online is improved

• Early 2020 – consult on moving water resources licensing to Environmental Permitting Regulations

• 2020 – Environment Agency publish 4 updated abstraction licensing strategies from initial catchments

• March 2020 – Environment Agency completes restoring sustainable abstraction programme

• 2021 – Environment Agency publish an additional 6 updated abstraction licensing strategies

• 2021 – 2,300 time limited licences reviewed by 2021

• 2021 – Environment Agency will report on progress against environmental targets

• 2021 – abstraction licences become environmental permits (subject to consultation)

• 31 December 2022 – all previously exempt abstractions will be permitted

• By 2027 – Environment Agency will have updated all abstraction licensing strategies

Following Catfield, and in accordance with this Plan, the Environment Agency has begun reviewing and withdrawing time limited abstraction licences in the Fens.

Brexit Law List (UK Brexit)

Civil servants across the UK Government have now laid all the Statutory Instruments (SIs) necessary under the EU Withdrawal Act.

Over 10,000 new pages of legislation are created.

We are updating the Brexit Law List as these are available in the public domain. It is a relief to know that the production of new instruments has now finished, and we await enactment of all instruments.

As I said in a Blog post yesterday or the day before, we will commence processing these Brexit Laws shortly into the EHS Legislation supplies in the Registers and Checklists, and before 12th April.

Given the size of the task, we expect this job to take at least 2019.

Please keep following the Blog posts for information. I have created a new Blog Category in the Archive – UK Law Deficiency Correction Process.