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RTPI response to joint EFRA and EAC call for evidence for pre-legislative scrutiny of the draft Environment Bill

January 2019

 

This is the RTPI's response to the 2019 joint Environment, Food and Rural Affairs and Environmental Audit Committee call for written evidence for pre-legislative scrutiny of the draft Environment (Principles and Governance) Bill [1] . You can read our response below or download it in PDF here.

About the RTPI

The RTPI champions the power of planning in creating prosperous places and vibrant communities. As learned society, we use our expertise and research to bring evidence and thought leadership to shape planning policies and thinking. As a professional body, we have over 25,000 members across all sectors, and are responsible for setting formal standards for planning practice and education.

General comments

We welcome the chance to respond to this inquiry and more generally we welcome the move towards proactive, strategic environmental planning.

The Environment Bill covers issues which will certainly have impacts outside of the remit of the Department for Environment Food and Rural Affairs (DEFRA) and on the planning system in particular. Therefore, we especially want to encourage government and those scrutinising the bill to look beyond the traditional environment sector to consider other groups who will now be increasingly central to this discussion. In particular local government and the planning community.

Last week we published research on the future interface between planning and the environment , responding to the legacy of EU Directives. [2] This research is highly relevant for the subjects considered in this bill. Amongst other findings, it presents two tools for decision-making around moving on from EU Directives to design UK (or devolved) structures for environmental planning. One focuses on what is causing problems at the planning-environment interface – is it EU legislation, domestic transposition, or implementation in the field? The second pulls together issues relevant to any moves to simplify EU-derived environmental legislation, by asking: how precautionary should we be?; who decides?; what are the checks and balances?; what are the merits of a consistent framework?

From this research, the overall sense we get is that planners want to see the rigour, ambition and clarity of EU environmental governance re-created in the UK but with greater procedural flexibility on how outcomes are achieved. We believe this Bill represents an opportunity to contribute to this. The current draft has not yet seized this opportunity.

Does the proposed constitution of the oversight body provide it with enough independence to scrutinise the Government?

Absolutely not. Schedule 1 states that the non-executive members (which include the chair) are to be appointed by the Secretary of State.

In addition please see our statement regarding transnational operation below. A transnational body with its members appointed by the UK Parliament is a far better way to secure independence.

Does the proposed oversight body have the appropriate powers to take 'proportionate enforcement action'?

The proposals say that the OEP can:

"Take enforcement action, including serving information and decision notices and, if necessary, referring the matter to the High Court for judicial review, if satisfied on the balance of probabilities that a Minister has failed to have regard to the statement of principles as required, and it considers that failure to be serious."

This would seem to be a similar process to the European Commission being able to refer breaches to the European Court of Justice. However it does not say what will then happen. If a judicial review process is commenced this would merely mean that the decision by a Minister was quashed. It would fall short of the ability to impose fines. Experience under the EU regime shows the prospect of fines is a very powerful incentive for Ministers to comply with environmental policy. If there is only judicial review the incentive to comply would be much reduced.

Are there any conflicts of interest or overlap with existing government bodies?

The Committee on Climate Change is the other body in this space. We think the possibility of overlap exists but it should be manageable.

As drafted are the principles legally enforceable? What will need to be included in the National Policy Statement to interpret the application of the principles?

The terminology is confusing. National Policy Statements currently are documents approved by Parliament which are then used by the Planning Inspectorate and subsequently Ministers to determine applications to build Nationally-Significant Infrastructure Projects under the Planning Act 2008. As such these NPS are not legally binding – they are more like the National Planning Policy Framework. It should be possible to construct legally binding principles, but the worry is that the OEP may not interpret them in a way which is actually in line with the underlying principles, especially given that its membership is in the gift of the Government. So a complaint might be made to it regarding Ministers' decision making in relation to the principles but the OEP might not uphold it.

Are there any conflicts with other legislators or legislation, for example the Scottish Continuity Bill?

It is unfortunate that the UK Government has pressed on with this process unilaterally. It would have been preferable for the three sitting Governments in the UK to have jointly come to an agreement on how they wish to replace the European Commission and then consulted their peoples accordingly. Whilst understanding the rights and needs of individual nations to set environmental policy separately (as they do now-in the EU) the absence of any common principles and a common enforcement body across the whole of the UK would be most regrettable.

There needs to be a common framework on environmental matters across the whole of the UK for several reasons:

  • Environmental matters transcend national boundaries within the UK (a point rather quietly acknowledged by DEFRA but not acted on).
  • The continued trade relationship with the EU may still depend on demonstrating sound principles of environmental governance – either with a deal or without a deal but with a deal in future. The EU will wish to see that these are satisfactory in all UK nations (with particular reference to Northern Ireland) and the easiest way to demonstrate this is having a common framework (agreed by unanimity between Nations)
  • From a citizens' rights (and an environmental) perspective what replaces the EU should be of equal value to what we have now, which crosses boundaries
  • Structures which are set by individual national parliaments/assemblies would be much easier to alter with changes of government in any of those forums: structures agreed across the UK would endure much as those agreed across the EU have . And a "watchdog" needs to be able to hold any government to account and not be effectively the "pet" of any one of them.

The statement in the policy paper that "we continue to welcome the opportunity to co-design with the Devolved Administrations [sic] should they wish to join any proposals" falls far short of the kind of cooperation which should have taken place before any proposals reach the light of day and falls short of the kind of cooperation which would effectively replace the role of the EU.

Does the Bill meet the government's commitment to non-regression from EU environmental standards?

We are gravely concerned by:

  • the inclusion of "proportionately" in Clause 1(2);
  • the reference to "other considerations" in Clause 1(3) and
  • the reference to "disproportionate to the environment benefit" in Clause 4(2)

It would appear that by comparison to the current situation in the EU this is a regression. We do not see why there are on the face of the bill such apparently disabling clauses. Surely if an issue is the subject of judicial review it would be for the Court to consider whether this Environment Act was being applied proportionately. To write that in at the beginning is a major weakness.

Is there anything else missing that should be included to meet the enforcement, governance and other gaps in environmental protection left by leaving the European Union?

See our reference to the need for transnational operation of governance above.