UK's 'green Brexit' watchdog lacks enforcement teeth

14 May 2018 11:11am
Union Flag in Sun

10 May 2018. By Matthew Holehouse.

The UK government has vowed to maintain enforcement of pollution and water-treatment laws after Brexit — but the authority it proposed for the task today lacks the necessary teeth.

In a key address on a “green Brexit,” Environment Secretary Michael Gove promised to fill a “governance gap” with a “more effective, more rigorous and more responsive” regime that could hold the government to account for its environmental record. This is currently under the aegis of the European Commission and the EU's highest court.

“The role which has been played in the past by the EU Commission and courts should be filled now by a UK body embedded in the UK's parliamentary democracy,” the government’s policy proposal said. It is now seeking views on how the new UK body should operate.

The proposals so far lack punch. The UK’s preference is to set up a system that will keep disputes over the adherence to environmental standards out of the courts, with compliance driven by public pressure.

Not only does such a system fail to replicate the architecture of the EU regime, it also declines to copy enforcement mechanisms that already exist in the UK.

EU system

The commission is currently in charge of monitoring whether the UK complies with laws on water treatment, factory emissions and recycling. If it fails to comply with EU law, the commission can initiate proceedings — which range from requests for information to formal notification, and ultimately a lawsuit at the EU Court of Justice. Failure to comply with the court’s findings can result in penalties running to tens of millions of pounds.

The UK has faced some scrutiny: In recent years it has been referred to the court for failing to comply with rules on sewage treatment, marine habitats and coal-fired power plants. In 2017, there were 15 open infringement cases against the UK, according to EU figures.

Today's proposal acknowledges that this process doesn’t currently exist in domestic law. “There is no public authority with a standing responsibility for bringing proceedings against government on the environment, and the process does not have the same scope or remedies as EU action,” the document said.

Powers for the new watchdog

A new UK watchdog would have a range of powers to enforce the law, the government said, and should be “more responsive and swifter” than the EU infringement procedures.

Part of its remit would involve scrutinizing proposed legislation and issuing reports on plans. It would also have the power to investigate complaints and issue a “prominent declaration” where a state body had failed to implement the law properly. The government would be free to disagree and explain why.

“Even though this declaration would not be legally binding, it would nevertheless be a powerful driver for the government to change its approach or reconsider its decision,” the government said. These could also be cited in lawsuits against the government by third parties.

The body could issue advisory notices, similar to the EU executive’s system of issuing reasoned opinions where it detects non-compliance. This would likely be the “main form” of enforcement, the government said.

Finally, the paper suggests that the agency could issue “binding notices” compelling the government to implement a “corrective action,” similar to powers granted to the UK’s data regulator.

Crucially, however, the plans fail to spell out how this would work in practice.

The threat of court action has been a critical driver for governments to resolve cases early in the EU infringements process, but the paper neither proposes powers for the watchdog to initiate legal action in the domestic courts nor for it to levy fines.

This renders the body “toothless,” said Tom West, a legal advisor to ClientEarth, a UK non-profit that has brought multiple legal actions against the UK government. “The preferred option here lacks the legal punch."

"The legal powers at the end of it are so important with infusing the [non-judicial] process with meaning and weight. If you take those away, you change the whole process,” West told MLex

Domestic precedents

This omission is particularly striking, since the paper acknowledges that such precedents exist already within the UK legal landscape.

The Equality and Human Rights Commission, which upholds laws against discrimination, has the ability to initiate legal proceedings such as judicial reviews against public bodies. It can also make applications to courts for injunctions.

The Information Commissioner’s Office can also levy fines of up to 500,000 pounds, or launch criminal proceedings.

A further precedent has been created by Brexit. Under the terms of the draft withdrawal agreement, the UK has agreed to create a new ombudsman that would monitor the treatment of EU citizens in the UK and have the power to initiate legal action before the UK courts.

The EU is watching

Gove’s initiative has been seen as a domestic exercise, aimed at reassuring voters and campaigners that Brexit need not lead to a bonfire of environmental laws.

But it is being watched closely in Brussels, too. The commission regards environmental law as a major element of any “level playing field” mechanism in a future trade agreement, to prevent the UK from rolling back laws after Brexit in order to secure a competitive advantage.

Diluting emissions laws could result in a dividend for UK industry worth up to 4.7 billion euros ($5.6 billion) while increasing pollution for neighboring states, the commission told national officials in January.

To mitigate this, any Brexit deal will likely include both substantial EU rules, plus a commitment from the UK to “build on both private and public enforcement” through domestic agencies.

The coming negotiations may force Gove's department back to the drawing board.

Rival Visions of a Brexit Deal