Environment Bill: Legislative Consent Motion

Part of Executive Committee Business – in the Northern Ireland Assembly at 7:45 pm on 30th June 2020.

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Photo of Justin McNulty Justin McNulty Social Democratic and Labour Party 7:45 pm, 30th June 2020

I thank the Minister for his statement on the LCM. I welcome parts of his statement.

Unless we act strategically and in harmony across these islands and, indeed, across the continent, we are facing a climate and ecological crisis, and the North of this island's unique and iconic environment will be under significant threat. Decades of insufficient environmental governance have led to significant environmental damage. The 'State of Nature 2019' report clearly demonstrates that our terrestrial, air quality, water and marine environments are suffering, with species and habitats being lost at an alarming rate.

Extensive regulatory dysfunction and unacceptable levels of disregard and the non-compliance of environmental law have resulted in substantial degradation to our environment and have had significant social and economic costs. Environmental NGOs have long argued for regulatory reform and the need for independent regulatory and statutory nature conservation body, as the Northern Ireland Environment Agency is an Executive agency within DAERA and not an independent body and only has limited functions. We are the only part of these islands without an independent public body charged with protecting and enhancing the environment.

The majority of environmental law here comes from the EU, and we have benefited from the further environmental governance provided by the European institutions, particularly the European Commission and the CJEU. The significance of this oversight is highlighted within national UK law and does not sufficiently enforce environmental law nor provide effective remedies and sanctions for breaches.

Following the transition period, the loss of oversight from EU institutions such as the EU Court of Justice risks further weakening of the environmental protection across the North where the threat of fines from the EU has long provided the greatest deterrent. There is a clear and urgent need to replace the lost oversight of the EU institutions. Brexit cannot be allowed to be used as an instrument to reduce environmental standards. It is more important than ever that we seek to proactively protect, recover and enhance the environment to ensure that nature is in better condition for future generations. We have responsibility for the stewardship of our environment: a clean healthy and well-protected environment that supports a sustainable society and economy. It is our duty to protect and improve the environment, as it is a valuable asset for the people of Ireland, and to protect all ecosystems, animals and ecology from the harmful effects of pollution.

I, therefore, welcome the introduction of the Environment Bill and its provisions. However, I strongly recommend technical and substantive changes to the Bill to include more detailed and rigorous protective measures to ensure that it effectively protects and enhances the environment. The proposed office for environmental protection will monitor and report on environmental progress. This includes environmental improvement plans and targets, report and advise on changes to environmental law and take enforcement action on potential breaches of environmental law by public authorities, with its principal objectives being environmental protection and the improvement of the natural environment.

If the Environment Bill is enacted unchanged, the OEP will be responsible for monitoring the implementation of environmental law and taking action when public authorities are not implementing it properly. The OEP will be able to receive and investigate complaints from the public and initiate their own investigations into breaches of environmental law. The OEP will be able to provide advice and decision notices that inform the relevant public authority of its failure to correctly implement environmental law. In instances in which there is a serious failure or need for urgent action to comply with environmental law, the OEP can apply for judicial review of the public authority's action or lack thereof. Unlike the EU, however, the OEP will not have the enforcement power to impose penalties such as fines in instances in which public authorities continue to fail to comply with environmental law. That is obviously a major worry, as, if there are no consequences to breaches of standards, we may be open to major environmental exploitation.

DEFRA has said that it has plans for the OEP to be operational immediately following the end of the transition period, on 1 January 2021. Given the pandemic, is that date achievable and realistic? That is part of the reason that our party has strongly sought an extension to the transition period. The Environment Bill does not sufficiently clarify issues surrounding resource and interim arrangements for the OEP here in the North.

Subject to the NI provisions in the Environment Bill being commenced, a dedicated member from here will be appointed to the board of the OEP, yet that appointment process lacks involvement of or oversight by the Assembly. The Bill does not clarify the timescale for when the OEP is expected to become operational here. No interim governance arrangements are proposed, so the OEP must be operational by 1 January 2021 to avoid any gap in governance. If the OEP does not receive legislative consent and no other governance mechanisms are established for Northern Ireland, the only mechanism for challenging the legality of public authority decisions would be for civil society to apply for judicial review, which is a resource-intensive process. There is therefore a significant risk of a widening governance gap in the North in the case of a no-deal Brexit. Although the OEP will provide oversight of the implementation of environmental law as it is currently established in the Environment Bill, there remain limits to both remit and enforcement powers.

Also of concern is the fact that the OEP will be responsible for monitoring the actions of public authorities and that it is limited to providing decision notices. There is therefore a clear need for the establishment of an independent statutory nature conservation body for Northern Ireland that will monitor the actions of individuals and organisations and that can take enforcement actions that can include, amongst others, financial penalties and civil sanctions.

An independent environmental protection agency could be responsible for implementing environmental law through, for example, licensing, monitoring the implementation of environmental law and taking enforcement action when individuals or organisations are in breach of the law.

The Bill provides a framework on which the Assembly could work to ensure the protection and enhancement of the environment. That work must commence apace. The environment cannot wait. The environmental principles, including integration, prevention, precaution, rectification and polluter pays, as well as the duty on the Minister to prepare a policy statement on the need to apply proportionally the principles in the development of policy, are to be welcomed. Enforcement is key. The Bill requires DEFRA, in the process of introducing new environmental regulations, to lay before Westminster a statement indicating that Ministers view the proposed Bill as not having the effect of reducing the level of environmental protection currently afforded by existing environmental law. That provision does not extend to the North but will apply to Northern Ireland as a reserved matter. That demonstrates a lack of environmental ambition. No regression is not enough. In the Bill, there are currently no provisions relating to targets or time frames for Northern Ireland.

The Bill in its current form does not achieve what has been promised, namely gold standard legislation, global leadership for responding to the environmental crisis and a world-leading watchdog. The Minister should set out a straightforward and substantive commitment to no regression on environmental law and to enhancement of environmental standards in the Northern Ireland provisions in the Bill. The duty to apply that and environmental principles should be strengthened to apply to Ministers and public authorities in the development of legislation, policy and decision-making.

The Assembly and DAERA should legislate for NI-specific environment, agriculture, climate change and fisheries Bills that provide for the protection and enhancement of nature, with standards that set the bar high and that can harmonise across this island and this continent. The Minister should develop the environment strategy to function as a long-term environmental improvement plan. That should be underpinned by an independent environmental protection agency and time-bound targets, covering terrestrial, air, water and marine environments. Without those, the government system here will be incomplete and less effective. Subsequent secondary legislation policies or strategies that come from those Bills — for example, the environmental strategy — should be shaped not around the principle of non-regression but around enhancement and ensuring that environmental protection is not watered down.

A robust Northern Ireland environment Bill, with sufficient associated funding, will deliver a significant benefits for the environment, our health and well-being, the economy and the prosperity of future generations. We support the LCM but qualify that support. There are too many gaps and too few protections.