Barristers warn of ‘toothless’ environmental protections post-Brexit

Posted On: 
9th August 2018

The Bar Council has criticised government plans on environmental protection in its response to DEFRA’s consultation on environmental principles and governance (EP&G) after EU exit.

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In its response, the Bar Council said that the government’s proposals for an environmental regulator would limit the body’s ability to hold government to account as the body would only be able to take legal action against ministers of the Crown, not statutory bodies or public authorities. The Bar Council also said the proposed watchdog would lack a range of environmental regulation enforcement tools which are currently available to the European Commission.

A Bar Council spokesperson said:

“The devil is in the detail. While our response takes account of the EUWA, DEFRA’s consultation outlines what amount to much weaker powers for this new environmental watchdog. Those include powers to investigate environmental complaints and, subject to its findings, “give recommendations which would be expected to be strongly persuasive”. It adds that the new body would have powers to ‘supervise’ government delivery of environmental law and that any such legal powers around enforcement of environmental laws ”would only be expected to be used rarely”.

 “Even when there are continued and serious failures to effectively implement environmental law despite previous scrutiny and advice, DEFRA’s proposals suggest that the next step for this new watchdog would simply be issuing advisory and/or binding notices; seeking undertakings from the government following a finding and acceptance of fault and “the power intervene in legal proceedings brought by others in relation to the government bodies and subjects within its remit”. These are inadequate powers for holding the government to account, especially when compared to the current sanctions under the EU, such as the ability to issue fines, stop orders, remediation notices, binding notices, the power to initiate proceedings against public bodies, and the power to compel the rescinding of permissions, consents and licences.

“If something more direct than these measures is intended to be reflected in the Bill by the terms in s16  “proportionate enforcement action” and “legal proceedings” then this would of course be welcome. However, it is not clear, and the question remains whether the new body will have the equivalent powers as the existing EU bodies.”

The Bar Council’s full consultation response can be found here.