27/10/2022

Environmental regulations – have we cause for concern?

Allerton (2)

By Henrietta Appleton, GWCT Policy Officer (England)

4 minute read

The Retained EU Law (Revocation and Reform) Bill – often termed the Brexit Freedoms Bill – and the Levelling-up and Regeneration Bill (LURB) have caused much consternation amongst environmental NGOs as both have mechanisms that will result in the current EU-derived environmental legislative framework changing. But is this cause for concern? Surely it’s what was expected from Brexit?

If you listened to Craig Bennett of the Wildlife Trusts on Radio 4’s Today programme on Monday 24th October you might conclude that our environmental regulatory rule book was being torn up and the future bleak. Concerns expressed by the Wildlife Trusts and a number of other eNGOs e.g. RSPB and National Trust were fanned by the growth orientated Truss administration’s rush to relax planning restrictions.

However, at Second Reading debate of the Brexit Freedoms Bill on 25th October, the Sunak administration emphasised that “We will use the powers in the Bill to ensure that our environmental law is functioning and able to drive improved environmental outcomes, with the UK continuing to be a world leader in environmental protection”.

Comfort should also be taken that Government will “take the necessary action to safeguard the substance of any retained EU law and legal effects required to operate international obligations within domestic law”. It is also worth noting that Government has been meeting many in the environmental network to discuss their concerns and so this reassurance at the Dispatch Box should help quell their concerns.

The intention of the Brexit Freedoms Bill (and Part 5 of LURB) is to create a domestic environmental legislative framework, rather than rely on the existing EU based one, and in so doing move to a less prescriptive and more flexible approach to regulation. This move to ‘soft’ law with policy guidance and statements providing the detail to guiding framework legislation has already started e.g. the Environment Act 2021 but it causes alarm amongst those who consider that the only way is to protect our environment through designations and other legal prescriptions.

But this does not necessarily mean that environmental legislation will be weakened. The carrot rather than the stick approach is likely to be more engaging to land managers and, let us be honest, the EU is not always a gold standard. A good example of this is the EU’s decision to ban the only effective herbicide for bracken control, based on residue data submitted when the chemical was used on spinach. That treated bracken might be eaten seems highly unlikely, yet there are many other negative impacts of uncontrolled bracken including Lymes Disease and contamination of drinking water from toxic spores. In the UK we are seeking a managed approach, balancing the up and downsides.

So rather than bemoan the changes being proposed, we would encourage Government to consider how existing EU-derived legislation could be converted into appropriate domestic frameworks so that the unique environmental challenges faced by the UK are directly addressed and not diluted by the consideration of 26 other nations as was the case with the EU.

Consequently we also take some comfort from a recent answer to a parliamentary question in which Trudy Harrison, Parliamentary Under-Secretary at Defra, stated “My department is carefully considering the scope of the delegated powers in the Retained EU Law (Revocation and Reform) Bill, and whether they can be used to deliver a better, bespoke British system of nature protections to replace the provisions in the Conservation of Habitats and Species Regulations 2017 (as amended).”

However we recognise that there is a genuine concern about how long the process of reviewing and replacing over 2,500 pieces of EU-derived legislation will take. The Brexit Freedoms Bill still must become law and so the sunset date of end 2023 does not look that far away , especially if one considers that economic and employment EU-derived legislation is likely to receive precedence. In addition, the Bill permits retained EU legislation to simply cease to exist at the sunset date with no parliamentary input unless Ministers take action.

But perhaps of most concern is that Ministers will be able to amend law by Secondary Legislation (rather than Primary) if they so wish. This makes it harder for Parliament to scrutinise and challenge as this method of law making can only be agreed or rejected by Parliament and cannot be amended, unlike Primary Legislation which can be amended during the passage of the Bill. That could pose problems if a Secretary of State wanted to change legislation which was not based on best available science. In addition, there is concern that the lack of consultation on the replacement domestic legislation could result in mistakes and unintended consequences.

So it is not all plain sailing clearly and there is still much to consider as we seek to balance a reduction in red tape with world leading environmental standards and achieving Environment Act targets. But I would argue that the role of organisations such as the GWCT is to engage with Government and to seek a collective outcome - not to cause alarm.

[1] https://questions-statements.parliament.uk/written-questions/detail/2022-10-17/64376

[2] We note that a power to provide for an extension to the sunset to 23rd June 2026 has been included in the Bill should a lack of parliamentary time, or external factors, hinder progress.

Comments

Bracken spraying ban.

at 14:52 on 01/11/2022 by Edward Williams

Each major political party, prior to the last general election, tried to trump one another with , probably unrealistic, targets promised regarding tree planting, to give green credentials to their environmental policies. If DEFRA, with its considerable army of clipboard wielding operatives, went out to the country and knocked on landowners’ doors, using its existing detailed maps of every land parcel. offering fencing grants and tree planting /management agreements for every acre covered in bracken, many, currently near useless agriculturally, sporting or environmentally beneficial, piece of land under such agreement, could be enhanced, with nothing but winning outcomes all round. Planting/ management of hitherto neglected areas, with landscape appropriate species, would bring work, species recovery, water quality improvements, even some carbon capture calculations benefit? among many other environmental goals, political or real. The acreage, possibly far larger than needed for the millions of trees promised. Like building on brown field sites, without having to clear up pollution. There would still be much land dominated by bracken where some landowners might decide it was not for them. Does anyone have a good reason why this should not be promoted? Would this not be a most worthwhile government employee task, rather than some nit-picking in the offices of Whitehall, over the tenth of a hectare here or there not registered or under an incorrect heading on the annual form? Food producing acres could continue to feed the nation, without pressure for every single farm to identify and manage wildlife plots where inappropriate.

Regarding concerns on environmental regulations & "soft" rules vs "hard" rules

at 14:17 on 01/11/2022 by John Buchanan

Two points ref your review of changes to environmental legislation. One major reason why GWCT is likely to have reasonable discussions with DEFRA on the new legislation is precisely because the outcry from all the environmental NGOs has forced the government to pay more attention to the subject. Soft rules work well with landowners and farmers who are keen to do the right thing for our environment. Unfortunately less enlightened landowners and develeopers may have other motives and hence legislation is needed.

retained european law bill

at 12:29 on 01/11/2022 by david jones powell

great to see your measured article on this subject . we are engaged with replacing a redundant post-war farm building which is home at best to 4 bats . now, nearly 3 years after submitting our planning application we are nearing the final successful conclusion but again for a second time are being held up by a bat problem--namely the "european" protected species licence . if this is at least ameliorated by the bill as drafted ,more strength to its ( and your ) elbow; keep an eye open in this respect ;it will be widely popular with the economically active part of the rural population who, in any case ,are not inimical to bats ,only to b-ureaucr-ats.

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