Environment Bill: Legislative Consent Motion

Part of Executive Committee Business – in the Northern Ireland Assembly at 8:00 pm on 30th June 2020.

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Photo of Rachel Woods Rachel Woods Green 8:00 pm, 30th June 2020

From the outset I reiterate and emphasise that no formal public consultation took place in Northern Ireland around the environmental plans, principles and governance elements of the Environment Bill. Consultation happened UK-wide while Northern Ireland was without an Executive and with no sitting Assembly. It should then come as no surprise that the legislation is designed for England. The Bill is not tailored to the needs and aspirations of Northern Ireland and nor do the provisions extending to Northern Ireland adequately address the major issues that we face in environmental protection and the huge governance and enforcement gaps that lie ahead.

The legislative consent motion before us asks if we endorse the principle of the extension of the provisions. Like many others in the Chamber, I understand the urgent need to plug the legislative gap that leaving the EU will create with regard to environmental protection, but, unlike many here, I will not endorse the extension of the provisions of the Environment Bill as they stand. The Environment Bill in its current form and its provisions relating to Northern Ireland are insufficient and wholly inadequate to enable us to protect our environment.

Clauses 45 and 46 and schedules 2 and 3 deal with environmental governance and the office for environmental protection. Those parts of the Bill do not address the potential for overlap between the work of an OEP, as proposed, and, indeed, an independent environmental protection agency, as was promised in the 'New Decade, New Approach' document and that the Assembly voted for five months ago. Let us be clear: the OEP, as proposed, will have no powers to issue fines. Even though fines from the EU are rare, this removes the threat of fines, which is a highly effective tool. It will simply have no teeth.

The Bill attempts to address the concerns over the OEP's independence by requiring:

"The Secretary of State ... have regard to the need to protect" the OEP's independence. However, that could easily be eroded in practice. The Secretary of State plays a major role in the appointment of members. They will appoint non-executive members who will then appoint the executive members. With regard to funding, paragraph 12 of schedule 1 states that the OEP will receive:

"Such sums as the Secretary of State considers are reasonably sufficient to enable the OEP to carry out its functions."

None of those provisions adequately ensure or protect the independence of the proposed body.

There is provision in the Bill for a specific Northern Ireland member to be appointed to the OEP board, but the Northern Ireland member would be appointed by DAERA. No provision is made for the appointment to involve or to allow involvement and oversight from the Assembly. Part 1 of schedule 3 provides for the OEP to report on environmental improvement plans, and part 2 provides for the OEP to report on monitoring and reporting of environmental law. Those reports are to be laid before the Northern Ireland Assembly, and yet, for some reason, the reports on environmental law are optional. I ask the Minister why that is. Paragraph 3 of schedule 3 provides for the OEP to offer DAERA advice on changes to environmental law, but there is no automatic requirement that that advice be communicated to the Assembly; instead, DAERA:

"may, if it thinks fit, lay [the advice] before the Assembly".

That is simply not good enough.

A crucial element of environmental enforcement is the ability of ordinary individuals to provide information and to help initiate actions by an enforcement body. That process is currently facilitated by a complaints procedure to the European Commission. The Bill provides for complaints by individuals to the OEP but includes an unnecessary restriction through excluding individuals who exercise "functions of a public nature". That will surely limit the number of admissible complaints and, therefore, enforcement. Judicial review is an option only where there will be serious damage to the environment and/or human health. It remains the strongest tool for the OEP and is very insufficient.

Schedule 3 does not refer to the interim environmental governance arrangements in the time following the transition period, so the OEP must be operational by 1 January 2021 to a avoid gap. Paragraph 4 of schedule 1 gives powers to DEFRA to appoint an interim chief executive until the OEP becomes operational, but there is no provision for an interim NI member, something that has been suggested by the Northern Ireland Environment Link. However, overall, having a token member on the OEP will not suffice. An office based in Northern Ireland would be required with appropriate staff and the resources to ensure effectiveness. Reporting restrictions on individuals who exercise "function of a public nature" should be removed, and there should be an alternative enforcement to judicial review with at least the power to issue fines.

Our core objective for environmental governance in Northern Ireland should be to establish an independent environmental protection agency that supersedes all other bodies. That was agreed in 'New Decade, New Approach' and voted for by the Assembly, I reiterate, five months ago.

I turn now to the governance gaps. As it stands, DAERA does not have any plans to take forward an environment Bill for Northern Ireland. If the UK Environment Bill does not go forward, it says that it is unlikely that there will be governance arrangements in place in time. We may end up with a gap at the end of this year where we do not have environmental principles or oversight. DAERA has also indicated that, if the Bill gets legislative consent and is implemented, that will not prevent Northern Ireland making changes to it or doing additional things that it wants to. However, while the Bill offers opportunities to address governance gaps that may arise as a result of leaving the EU, gaps may still arise; for example, during the period it that takes to develop an environmental improvement plan for Northern Ireland or until an OEP is established here to take over the functions currently performed by the EU.

If the Bill passes in its current form, there will still be governance gaps in places where EU institutions have exercised governance functions, such as preparing legislation, conducting evaluations, sharing data or overseeing enforcement. The OEP proposes to address the gaps that will emerge in relation to enforcing EU law, but it does not do so in a complete fashion. Other gaps, such as the lack of sharing of environmental information through membership of the European Environment Agency, remain unaddressed. There may be governance gaps in terms of the independence of the OEP and Northern Ireland's limited representation on that. A number of stakeholders have expressed their desire for greater emphasis to be placed on the Assembly's oversight and scrutiny role over aspects of the Bill such as the OEP. COVID-19 and time pressures resulting from the pandemic may also impact on the time frame required to make provision to deal with potential governance gaps.

I turn now to the environmental improvement plan. Clause 45 and schedule 2 contain provisions on environmental improvement plans that require DAERA to take forward a policy statement on environmental principles. Unlike England, Northern Ireland does not have a current environmental improvement plan. Paragraph 1 of schedule 2 provides for a plan to be created within 12 months of the Bill coming into force with the provision that, until then, the current plan is the default. However, as I say, Northern Ireland does not have a plan. This risks an immediate governance gap.

Clause 7 states:

"An 'environmental improvement plan' is a plan for significantly improving the natural environment" but there is no indication of what "significant" means or how improvement will be measured and against what benchmark. Lack of specificity — I will move on, as I cannot do that word — in the wording allows scope for trade-off, weakening or poorer performance in some sectors against better performance elsewhere so long as the vague overarching goal of improvement is achieved. Improvement from a low benchmark would satisfy the requirements of the Bill but arguably fail to deliver the environmental improvement that is required to meet the Government's commitment to a net zero by 2050, amongst others. This is particularly relevant for Northern Ireland, as it comes in a context of poor environmental history and considerable environmental issues. Northern Ireland needs to improve, but, more than that, it needs to be ambitious.

I turn now to the environmental targets and principles. No specific targets are provided for in the provisions for Northern Ireland, nor are any timelines specified. Without targets and timelines, the system of environmental governance proposed for Northern Ireland will be significantly weaker than that for England. It will leave Northern Ireland's environmental governance architecture incomplete and potentially ineffective. Clause 1(2) only requires that at least one matter within each priority area be addressed, which leaves open the possibility of a piecemeal approach. The Secretary of State is responsible for ensuring that the targets are met and can also revoke or lower them where costs are deemed inappropriate. If a similar approach were taken in Northern Ireland, the already weak approach to environmental protection would not improve, especially if political will in favour of environmental protection declines. Greater reference should be made to the international standards based on expertise with minimum standards and more aspirational targets such as the UN sustainable development goals. Part 1 of schedule 2 leaves it up to the Department to decide what data it considers appropriate for the purposes of monitoring environmental improvement, but that should not be done without requiring coordination with other parts of the UK, the Republic of Ireland and the European Environment Agency.

Where is Northern Ireland's environmental improvement plan? The Department must bring one forward as soon as is feasible. The draft Northern Ireland environment strategy could be developed into a Northern Ireland environmental improvement plan if it contained clear targets and addressed some of the core concerns highlighted in the consultation. The Department has already indicated that the environmental strategy could be redesigned and redesignated as an environmental improvement plan without the need for further consultation.

Northern Ireland must introduce specific targets, not a copy-and-paste from the Bill proposed for England but targets that address the core issues for Northern Ireland. The Minister and Department should, therefore, identify suitable priority areas, building on those in the Bill for England and extending them to include Northern Ireland's core issues. Northern Ireland should then, at a minimum, set legally binding environmental targets for those priority areas.

The Bill fails to include priority areas such as soil quality. Soil health is an essential element of our environment and should be included in environmental targets. The lack of EU-derived legislation on that issue makes the role of targets here even more important.

Ideally, targets should be time-bound and front-loaded. Any review of an environmental improvement plan should be undertaken by an independent regulator or statutory nature conservation body. Policy statements developed on the environmental principles should not be subject to vague proportionality reasoning that allows for a trade-off between environmental principles and economic considerations.

DAERA should commit to working with the UK Government, the Republic of Ireland and the European Environment Agency to ensure that a common approach to data is adopted and enable effective, cross-cutting solutions to be devised on the basis of a shared understanding of the problem and consistent measurement approaches. The Northern Ireland Act 1998 provides for cross-border cooperation in environmental protection, so we already have it there.

The question before us today is a simple one: will we accept a future outside the EU with fewer environment protections? We, as Greens, will not accept that. The Bill and its provisions relating to Northern Ireland are not good enough. The proposed office for environmental protection will never fulfil the potential of the independent environmental protection agency that the Executive parties agreed to and the Assembly voted for. The governance gaps, the lack of an environmental improvement plan, targets and principles all need to be addressed. The Bill's architecture is not suited to the Northern Ireland context. It is not tailored to Northern Ireland's needs, so we call on the Minister to fix those problems through engaging with Westminster or bringing forward a Northern Ireland environment Bill. We need substantive commitment to non-regression. When it comes to our environment, we must not accept less protection or risk the erosion of our current standards. We must demand more. For those reasons, I will not support the LCM.