Policy paper

Environment (Principles and Governance) Bill: Memorandum from Defra to the Delegated Powers and Regulatory Reform Committee

Updated 23 July 2019

A. Introduction

1) This memorandum has been prepared for the Delegated Powers and Regulatory Reform Committee by the Department for Environment, Food & Rural Affairs (“the Department”) to assist with its scrutiny of the draft Environment (Principles and Governance) Bill (“the draft Bill”). The Bill was published in draft on 19 December 2018. This memorandum identifies the provisions of the draft Bill that confer powers to make delegated legislation. It explains in each case why the power has been taken and the nature of, and the reason for, the procedure selected.

2) The draft Bill contains four individual provisions that include delegated powers.

3) The draft Bill contains measures on environmental principles and governance only. The publication of draft clauses on environmental principles and governance at this time fulfils a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018, which received Royal Assent on 26 June 2018. The full Environment Bill will include these environmental principles and governance measures alongside a broader set of measures on environmental protection and improvement and is due to be introduced in 2019.

4) The Department has considered the use of powers in the draft Bill as set out below and is satisfied that they are necessary and justified.

B. Purpose and effect of the bill

5) The draft Environment (Principles and Governance) Bill clauses will create a new framework for long-term environmental policy and accountability after the UK leaves the EU. It will provide for a new, consistent, principles-based approach to the consideration of environmental issues in the development of government policy, coupled with the establishment of an independent body to hold this government and future governments to account on our environmental ambitions and obligations once we have left the EU.

6) The implementation of UK environmental law and policy is currently monitored and enforced by EU mechanisms and institutions, mainly the European Commission, as provided for by the EU Treaties. When we leave the EU, UK environmental law and policy will no longer be subject to the oversight of EU institutions and the Court of Justice of the European Union. The draft Bill will create a new, independent environmental body – the Office for Environmental Protection (“OEP”) – to hold government to account on our environmental ambitions and obligations.

7) The draft Bill clauses will also create a strong, long-term, economy-wide incentive for action on the government’s 25 Year Environment Plan (“the Plan”), published on 11 January 2018. The draft Bill clauses will set the Plan on a statutory footing and require the publication of an annual progress report on the Plan and future plans.

8) The clauses in this draft Bill were informed by a 12-week public consultation, launched by the Secretary of State for Environment, Food and Rural Affairs, entitled “Environmental Principles and Governance After EU Exit”. This consultation ran from 10 May 2018 to 2 August 2018.

9) The draft Environment (Principles and Governance) Bill will:

• require 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

• create a new, statutory and independent environmental body, the Office for Environmental Protection (“OEP”), to hold government to account on the implementation of environmental law after the UK leaves the EU

• define the scrutiny, complaints and enforcement functions of the OEP and their scope

• define the nature of the OEP, including considerations of membership, remuneration, staffing, powers, reporting, funding, accounts and other issues

• require government to have a plan for environmental improvement

• require government to produce an annual report on the current environmental improvement plan. The 25 Year Environment Plan will be the first environmental improvement plan upon which the government is required to report

• require government to publish a set of environmental metrics and measure progress in improving the environment

Summary of delegated powers

Clause	Power conferred	Parliamentary procedure
Clause 1(1)	A delegated power to allow the Secretary of State to publish a policy statement on the environmental principles.	Set out in clause 3 of the draft Bill
Clause 1(6)(c)	A delegated power to allow the Secretary of State to add by statutory instrument additional policies that the policy statement on environmental principles may not deal with.	Affirmative
Clause 31(5)	A delegated power to allow the Secretary of State to clarify the meaning of “environmental law” by statutory instrument.	Affirmative
Clause 34(3)	A delegated power to allow the Secretary of State to bring the Bill into force by statutory instrument.	None

C. Delegated powers

10) The Bill confers four delegated powers on the Secretary of State, the majority of which are required primarily to ensure that our environmental governance system will continue to function in the long term, by providing some flexibility to accommodate future changes in evidence, approaches, policymaking, industries or technologies which are not necessarily predictable at this time.

11) The first delegated power is to require the Secretary of State to publish a policy statement on the environmental principles listed in clause 2 of the Bill (clause 1(1)). The second enables the Secretary of State to set out in regulations any exemptions for policy areas which should not be covered by the policy statement on environmental principles (clause 1(6)(c)). The third enables the Secretary of State to specify further legislative provisions (other than devolved provisions) which are or are not “environmental law” as defined under this Bill (clause 31(5)). The fourth delegated power is a standard power for the Secretary of State to bring provisions of the Bill into force by commencement regulations (clause 34(3)).

12) The Bill confers on the Secretary of State a duty to publish a statement setting out the kinds of data to be obtained in order to monitor whether the natural environment, or aspects of it, are improving in line with the environmental improvement plan (clause 7(2)). The Bill also places the OEP under a duty to prepare a strategy document setting out how it will exercise its functions (clause 12(2)). They are included in this memorandum for completeness with an explanation of why we do not consider them to be delegated legislative powers.

Analysis of delegated powers by clause

Clause 1, subsection (1): Power to publish a policy statement on environmental principles

Power conferred on: Secretary of State

Power exercised by: Laying before Parliament

Parliamentary Procedure: The process for laying the draft and final policy statements before Parliament is set out in clause 3 of the Bill. The Secretary of State must lay the draft before Parliament and either House of Parliament may pass a resolution in respect of the draft or a committee may make a recommendation on the draft. The Secretary of State must produce a response to any resolution or recommendation made within 21 sitting days, and lay it before Parliament before laying the final statement.

Context and purpose

13) The policy objective of this power is to ensure that Ministers publish a policy statement on environmental principles. The purpose of the statement is to provide clarification on how the environmental principles are to be interpreted and applied by Ministers in the policymaking process. Ministers are under a duty to have regard to the policy statement on environmental principles, when dealing with policies covered by the statement (clause 4(1)). This will be a significant new legal duty to apply across government policymaking.

Justification for taking the power

14) The policy statement will provide a full explanation of how the environmental principles should be applied and interpreted by Ministers in the policymaking process. This document will provide a level of detail that would be inappropriate to set out on the face of the Bill. In addition, as the policy statement relates to a new statutory duty placed on Ministers, it is possible that the statement will need to be updated after some post-implementation experience of the duty, to fully incorporate emerging best practice or case law.

Justification for the procedure

15) In the development of the policy statement, it is proposed that Ministers will follow the procedure established in clause 3. Under this procedure, Parliament will be given 21 sitting days in order to pass a resolution in respect of the draft statement, or, within the same timeframe, a parliamentary committee may make recommendations in respect of the draft statement. Should such a resolution or recommendations be made, the Secretary of State must produce a response and lay it before Parliament. The final policy statement must not be laid and published until either a response has been laid, or else until 21 sitting days have passed without such a resolution or recommendations being made. If the Secretary of State wants to amend the policy statement, any amended statement will follow the same procedure. This allows for rigorous Parliamentary scrutiny of the policy statement. In addition there will be further scrutiny as the draft statement is subject to statutory consultation requirements set out in clause 3(2). These safeguards are necessary because the policy statement will govern how the environmental principles are considered across a wide range of government policymaking and therefore has the potential to have a significant effect on the environment.

Clause 1, subsection (6)(c): Power to add exemptions to the policy statement on environmental principles

Power conferred on: Secretary of State

Power exercised by: Regulations made by Statutory Instrument

Parliamentary Procedure: Affirmative procedure

Context and purpose

16) The policy statement on environmental principles will not apply to some areas of policy where the Secretary of State is of the opinion that there will be no significant environmental benefit in applying the environmental principles or that the environmental principles are not relevant to those policies. Clause 1(6) already provides that the policy statement on environmental principles may not deal with the armed forces, defence, national security and taxation. In the future, it may be necessary for the Secretary of State to add additional exemptions. Therefore, the policy objective is to ensure that the Secretary of State has the ability to specify additional policy areas that the statement may not deal with.

Justification for taking the power

17) The Secretary of State needs to retain flexibility to ensure that if there is a new policy area or emerging policy that should not be covered under obligations imposed under the policy statement, it is possible to make the necessary provision.

18) This will continue to ensure that the policy statement on environmental principles does not apply to policy areas where its application is not appropriate. It is important that the Secretary of State is able to incorporate new exemptions to accommodate a changing policymaking environment.

Justification for the procedure

19) It is proposed that exemptions may be added by way of a statutory instrument under the affirmative resolution procedure. The proposal to exempt a policy area by specifying it in regulations could have environmental consequences, including potentially unforeseen ones. Therefore, it is prudent to ensure that Parliament has the opportunity to fully scrutinise and pre-approve any additional exclusions.

Clause 7, subsection (2): environmental monitoring

Power conferred on: Secretary of State

Power exercised by: Laying in Parliament

Parliamentary Procedure: None

Context and purpose

20) We have taken into account paragraph 27 of Appendix 4 to the DPRRC 7th Report of Session 2014 – 2015 that where a power is considered not to be legislative in character, the memorandum should explain why this is thought to be the case. Clause 7(2) requires the Secretary of State to publish and lay before Parliament a statement setting out the kinds of data to be obtained for the purpose of monitoring whether the natural environment, or aspects of it, are improving in line with the environmental improvement plan. This is not a delegated power to legislate. The statement will not be overly prescriptive or constrain the Secretary of State in making arrangements for data collection: it will set out “the kinds of data” to be obtained, rather than specifying that data with precision. By publicising the statement, the Secretary of State will not be legislating, but simply being transparent about how they intend to exercise their discretion under subsection (1). It is not thought necessary for this power to be subject to a particular parliamentary procedure as the requirement to publish the statement and lay it before Parliament will fulfil the objective of transparency.

Clause 12, subsection (2): Exercise of the OEP’s functions

Power conferred on: OEP

Power exercised by: Laying before Parliament

Parliamentary Procedure: None

Context and purpose

21) Taking into account paragraph 27 of Appendix 4 to the DPRRC 7th Report of Session 2014 – 2015 – that where a power is considered not to be legislative in character, the memorandum should explain why this is thought to be the case. In this regard, the Department does not consider clause 12(2) to be legislative in character. Clause 12(2) places the OEP under a duty to prepare a strategy which sets out how it intends to exercise its functions. The strategy must set out how the OEP will have regard to the need to act in an objective and impartial manner, as well as proportionately and transparently. The strategy must also set out how the OEP plans to avoid any overlap between its functions and those of the Committee on Climate Change, and also how it will deal with complaints and enforcement.

22) The Bill sets out the OEP’s remit but it is the OEP’s responsibility to determine how it should carry out its functions in line with its statutory duties. The complaints and enforcement policy which will form part of the strategy will be operational in nature. The strategy will not have the status of statutory guidance (which is capable of being a delegated power). In sum, this is a policymaking power, rather than being legislative in nature. Nevertheless, the requirement to lay the document in Parliament and publish it will ensure transparency. In addition, as a safeguard, the OEP is under a duty to consult persons it considers appropriate, before it prepares, reviews or revises the strategy. The statutory process will ensure that expert input to the strategy can be obtained, and will ensure that the OEP can be held to account in relation to how it carries out its functions in accordance with its strategy.

Clause 31, subsection (5): Meaning of “environmental law”

Power conferred on: Secretary of State

Power exercised by: Regulations made by Statutory Instrument

Parliamentary Procedure: Affirmative procedure

Context and purpose

23) There is no universal definition of “the environment” or “environmental law”. Therefore, the draft Bill has defined the “natural environment” in clause 30, for the specific purposes of the functioning of the Office for Environmental Protection (OEP). Building on this definition, clause 31(1) defines “environmental law” as meaning any legislative provision (other than devolved legislative provisions) which is mainly concerned with one or more of the matters in clause 31(2), and is not excluded by clause 31(3). Clause 31(2) then sets out a number of environmental matters which are expressed by reference to the definition of the “natural environment”.

24) The consequence of this approach is that if a legislative provision is concerned with one or more of these defined matters (for example, protecting the natural environment from the effects of human activity), then the legislative provision in question will fall within the definition of “environmental law” for the purposes of the OEP. The OEP would therefore be able to investigate complaints about, and take enforcement action in relation to, that legislative provision.

25) Clause 31(3) outlines matters that are excluded from legislative provisions which may be considered “environmental law”, for example the armed forces, defence or national security. Where a legislative provision is concerned with an excluded topic, therefore, there is no need to consider whether it addresses one or more of the matters in clause 31(2), since it will not in any case be “environmental law” for the purposes of the OEP.

26) The objective of this power is to ensure that Ministers have the ability to specify further legislative provisions (other than devolved provisions) which are or are not “environmental law” as defined under this Bill. This would be done through either describing or identifying them in a statutory instrument.

Justification for taking the power

27) The approach outlined above offers an overall framework for the OEP to consider whether or not any specific legislative provision constitutes “environmental law” for its purposes, subject to certain specific exclusions. In most cases, it is anticipated that it will be clear through the application of these provisions whether or not a legislative provision is “environmental law”. However, at the margins there may be cases where there are questions over whether certain legislative provisions are or are not environmental law. This could be the case where, for example, a legislative provision addresses multiple objectives and it may not be immediately apparent whether it is mainly aimed at one or more of the matters concerned with the “natural environment” in clause 31(2), or with other policy objectives (for example concerned with economic or social policy).

28) It is expected that the new body and the government will discuss any such uncertainties at the margins of the definition, and come to a resolution between them. Should that not be possible, clarity can be provided through judgments of the court in the event that the OEP applies for judicial review (clause 25). However, it is also considered desirable to provide a legislative mechanism to clarify any such uncertainties if necessary. Otherwise, it may not be clear to the OEP if it has a locus to act, or to a public authority whether its implementation of a particular legislative provision is subject to oversight and investigation by the OEP.

29) Therefore, clause 31(5) provides for the Secretary of State to make regulations specifying legislative provisions which are, or are not, environmental law. The Secretary of State could do this either by describing the legislative provisions (for example, legislative provisions concerned with a defined subject matter) or more precisely identifying particular provisions.

30) The intention of this clause is to allow the Secretary of State to clarify the definition of “environmental law” in this way, without the need for new primary legislation or court proceedings, so that the remit of the OEP is clear to the OEP itself, public authorities and other stakeholders.

31) To help ensure transparency, and that this power is exercised where there is a genuine need, subsection (6) of clause 31 requires that the Secretary of State must consult the OEP and any other appropriate persons before making any regulations under this clause.

Justification for the procedure

32) It is proposed that that the procedure for specifying legislative provisions (other than devolved legislative provisions) which are or are not “environmental law” should be by regulations made under the affirmative resolution procedure. The regulations would be approved by a resolution of each House of Parliament and would therefore be subject to a high degree of parliamentary scrutiny.

33) The definition of “environmental law” affects the fundamental ability of the OEP to exercise its functions, particularly in responding to complaints and undertaking enforcement action, so it is necessary that the procedure followed to define legislative provisions which are or are not “environmental law” is actively approved by Parliament. Whilst this level of scrutiny requires more parliamentary time, it is considered that the environmental law definition is sufficiently important to justify this.

Clause 34, subsection (3): Power for the Secretary of State to bring the Bill into force

Power conferred on: Secretary of State

Power exercised by: Regulations made by Statutory Instrument

Parliamentary Procedure: None

Context and purpose

34) Clause 34(3) contains a standard power for the Secretary of State to bring the Bill into force by commencement regulations. The regulations can specify that different provisions of the Bill come into force on different days.

Justification for taking the power

35) This power will enable the Secretary of State to commence the provisions of the Bill at an appropriate time. It will also enable parts of the Bill to be commenced at different times. This power will allow the Secretary of State to take account of the time stakeholders may need to prepare for the Bill’s commencement, and to allow for any transition arrangements that may be appropriate.

36) There are numerous examples of powers to make commencement regulations for the substantive provisions of a Bill, without a parliamentary procedure applying. An example would be section 44 of the Enterprise Act 2016.

Justification for procedure

37) The Department considers that the power to make commencement regulations does not need to be subject to any parliamentary procedure as the power only sets the date on which the new provisions will come into force. The substance of those provisions will be scrutinised during the passage of the Bill through Parliament.