Environmental amendments to European Union (Withdrawal) Act 2018, House of Commons Environmental Audit Committee report on mandatory climate risk reporting, the future of environmental law
Welcome to our environmental law news podcast produced in partnership with Christopher Badger, Barrister, 6 Pump Court.
In this podcast, we consider some of the key legal developments in environmental law during June 2018, including:
The environmental amendments made to the European Union (Withdrawal) Act 2018 at bill stage during ping pong
The House of Commons Environmental Audit Committee report on mandatory climate risk reporting
The future of environmental law, as discussed at the United Kingdom Environmental Law Association annual conference over the 22 -23 June, 2018
To listen to the podcast, press play below or to download and perhaps listen on the go, click here.
Environmental amendments to European Union (Withdrawal) Act 2018 – listen from 0.28 secs
Christopher takes us through some of the critical environmental amendments that were made to the European Union (Withdrawal) Act 2018, prior to it receiving Royal Asset on 26 June 2018. These are the amendments dealing with how environmental principles and standards will be protected after the UK leaves the European Union.
House of Commons Environmental Audit Committee report on mandatory climate risk reporting – listen from 4.08 secs
On 4 June 2018, the House of Commons Environmental Audit Committee published its Seventh Report of Session 2017-19, ‘Greening Finance: embedding sustainability in financial decision making’.
Christopher discusses the report’s key proposals, which aim to engage the UK investment chain with the impact that climate change and other environmental problems pose to the economy.
The future of environmental law – listen from 7.10 mins
On the 22-23 June 2018, the United Kingdom Environmental Law Association held its annual conference at the University of Kent, Canterbury, under the title ‘Past Reflections and Future Horizons: Environmental law in a post-Brexit World’.
A number of significant issues were discussed that are likely to heavily influence the development of environmental law over the coming years and Christopher takes a moment in this podcast to consider these.
In ICI v Merit Merrell[2018] EWHC 1577 (TCC), Fraser J in the Technology and Construction Court warned against the use of biased expert evidence and reminded experts and legal advisers of important points to bear in mind in this regard:
There are some jurisdictions where partisan expert evidence is the norm. For the avoidance of any doubt, this jurisdiction is not one of them.
The judgment
Following an earlier judgment determining that an employer had been in repudiatory breach of contract, the court considered issues around quantum. In doing so, the court found that it was not bound by the Project Manager’s assessments of compensation events (under the NEC3 contract), that the burden of proof was on the employer to show that the contractor had been overpaid, and that the contractor was entitled to recover losses caused by the negative impact which the breach had had on its financial position.
In parts of the (lengthy) judgment, the court was critical of some of the expert evidence. For example, it noted that one of the experts had:
valued work at actual cost rather than using the agreed rates, despite there being no contractual basis for this
opined on causation, which was a matter for the court
not taken account of specific findings made in the liability judgment
In fact, Fraser J was generally concerned by the preponderance of partisan experts called by one of the parties, and stressed the need for experts and instructing legal advisers to take careful note of the principles governing expert evidence.
Points to bear in mind
In addition to reminding experts to read CPR PD 35, the court noted six points about an expert’s duties which should be borne in mind (para 236):
1. Experts of like discipline should have access to the same material. No party should provide its own independent expert with material which is not made available to his or her opposite number.
2. Where there is an issue, or are issues, of fact which are relevant to the opinion of an independent expert on any particular matter upon which they will be giving their opinion, it is not the place of an independent expert to identify which version of the facts they prefer. That is a matter for the court.
3. Experts should not take a partisan stance on interlocutory applications to the court by a particular party (almost invariably the party who has instructed them). This is not to say that a party cannot apply for disclosure of documents which its expert has said he or she requires. However, the CPR provides a comprehensive code and it may be that disclosure is not ordered for reasons of disproportionality. However, if documents are considered to be necessary, and they are not available (for whatever reason), then an opinion in a report can be qualified to that extent.
4. The process of experts meeting under CPR Part 35.12, discussing the case and producing an agreement (where possible) is an important one. It is meant to be a constructive and co-operative process. It is governed by the CPR, which means that the Overriding Objective should be considered to apply. This requires the parties (and their experts) to save expense and deal with the case in a proportionate way.
5. Where late material emerges close to a trial, and if any expert considers that is going to lead to further analysis, consideration or testing, notice of this should be given to that expert’s opposite number as soon as possible. Save in exceptional circumstances where it is unavoidable, no expert should produce a further report actually during a trial that takes the opposing party completely by surprise.
6. No expert should allow the necessary adherence to the principles in The Ikarian Reefer* to be loosened.
*The Ikarian Reefer is a 1993 decision which summarises the principles concerning expert evidence, including that expert evidence should be independent and that an expert should never take on the role of an advocate.
David Savage, partner and head of the construction and infrastructure team at Charles Russell Speechlys, examines the final report of the Independent Review of Building Regulations and Fire Safety. Controversially, while recommending a complete overhaul of the current building system for residential tower blocks, the report did not recommend a ban on flammable cladding.
First published on LexisPSL Construction. Click here for a free trial.
What is the purpose of the report?
The report was commissioned by the government with the remit to conduct an independent, in-depth review into building regulations and fire safety, in the wake of the Grenfell fire tragedy in which 72 people died in the greatest loss of life in a fire in a century.
The review focusses on regulations which currently apply to high-rise buildings, and identifies key areas for change. The report’s interim findings were reported in December 2017 (see News Analysis: Interim report on building regulations and fire safety published) and the final report was published on 17 May 2018.
What key issues are identified in the report?
Dame Judith Hackitt’s report identifies ignorance, indifference, lack of clarity on roles and responsibilities, inadequate regulatory oversight, and inadequate enforcement tools as the key culprits for the system’s failures.
The report states that the bar for compliance with building safety requirements is too low, with weak processes, poor record-keeping and change control in many cases. It notes that levels of competence are inconsistent, and that current ‘Approved Documents’ can be ambiguous and inconsistent. Finally, it also identifies the product testing, labelling and marketing regimes as a key issue, with current practices being insufficient, and finds that the voices of residents often go unheard, even where safety issues are concerned.
Dame Hackitt recommends moving away from dictating requirements to responsible duty holders. Her report looks to place those responsible in a position to take ownership and make intelligent decisions about the layers of protection required to keep high-rise residential tower blocks safe.
What key recommendations are made?
The report recommends a complete overhaul of the current system for residential tower blocks. Dame Hackitt recommends that government set up a ‘joint competent authority’ (JCA), comprising local authority building standards, fire rescue authorities and the Health and Safety Executive. A system of mandatory occurrence reporting to the JCA should then be put in place. Non-reporting should be regarded as non-compliance and sanctioned appropriately.
The new framework would include a new, independent body (essentially, a rebranded local authority Building Control) which would approve building safety at design stage and at regular intervals thereafter, and which would have the power to levy hefty fines, issue ‘stop’ notices and even impose prison sentences for non-compliance. Limitation periods for prosecution would be extended. The report also recommends that any private building inspectors used should be independent of builders.
The new regime that Dame Hackitt proposes would only apply to buildings of ten storeys or more. This means current requirements for buildings between six and nine storeys would remain in place, with the changes proposed being relevant only for buildings of ten storeys and above. New buildings should be identified by the local planning authority (LPA) and notified to the regulator, while existing buildings in scope should be identified through other means.
The report also recommends that the new framework treat buildings as a single entity and proposes the publication of a new, ‘over-arching approved document’ which would describe the system as a whole.
Other key recommendations made include:
that the government identifies the key roles that will be most important in initiating, overseeing or influencing activity throughout the procurement, design and construction phase to ensure increased accountability, and
where a planning application is made for a high-risk building, the LPA should be required by law to undertake a consultation with the JCA. The same process should apply where planning is sought for another building in the near vicinity (where such building might impact fire service access)
Does the report go far enough?
The review provides a powerful critique of the current regulatory framework and practices within the English construction industry. It identifies key issues with the current system and industry culture, and calls for systematic change and a new regulatory body.
Yet, in many instances, Dame Hackitt has stopped just short of expressly condemning practices which many consider are at the root of the industry’s problems. Notably, the report fails to specifically condemn practices or call for urgent action in respect of combustible materials, desktop studies and materials testing, which many consider essential measures to improving safety.
Despite widespread calls for a ban on combustible materials in cladding systems, the report does not call for this. Dame Hackitt justifies this by stating that a ‘totally prescriptive system’ would create over-reliance on the system and discourage ownership and accountability. She did however indicate that, should the government proceed with a complete ban, she would support this.
Her failure to come down firmly on this matter, alongside other issues, has tainted the report’s reception. The government has now responded by announcing a consultation on the subject of combustibles (see: LNB News 17/05/2018 84), which many find encouraging, but which raises the question—why not recommend a complete ban in the first place? When questioned about exactly this point, Dame Hackitt explained her position as follows:
If people feel that I have not gone far enough, and that for this system to work in the future requires, in addition, that there is further clarity or indeed banning of some of the materials that are being used, I don’t have a problem with that.
What I would be very disappointed about, however, is if people think that simply banning cladding is going to fix this problem—it won’t. It is a broken system and banning cladding on its own will not fix it. If we change the system and implement the new regulatory framework, and take further steps on what cladding is or is not allowed, I don’t have a problem with that at all.
The report does not call for additional oversight to the large-scale cladding testing regime. While it calls for annual reports on tests carried out, it does not suggest that these should be made public. It therefore stops short of a ban which would prevent ‘desktop studies’ from being carried out, but recommends instead that these studies should only be carried out by organisations who are accredited to do so.
The report also stops short of recommending a ban on product substitution, recommending instead a ‘significantly reduced scope for substitution of any products used in a system without further full testing’.
Finally, despite criticism of the current system in place, Dame Hackitt also does not recommend changes to the practice of carrying out ‘category one’ fire risk assessments. Her view is that professional bodies, not government, should decide what a ‘competent person’ is for the purposes of these assessments—although she stops short of recommending compulsory certification.
What do you expect will happen next?
Interested parties seem encouraged by the announcement of the combustibles consultation, though many are frustrated that the report has not included outright condemnation in respect of many of the practices listed above. There are concerns that without the implementation of a ban, further decisive action will fail to follow and the report will be relegated to a pile of previous recommendations without ever effecting serious change in the industry.
It has also been suggested that some of the report’s proposals underestimate the complexity of the task ahead, which would affect the likelihood of their implementation, and Dame Hackitt has provided no clear guidance on how long it would take to bring in this new system.
However, within 24 hours of the report’s publication, James Brokenshire MP, Secretary of State for Housing, Communities and Local Government:
committed to bringing forward legislation that delivers ‘meaningful and lasting change, and ensures that residents have a much stronger voice in an improved system of fire safety’
made clear that his Department was consulting on significantly restricting or banning the use of ‘desktop studies’ to assess cladding systems, and confirmed his view that inappropriate use of desktop studies was unacceptable
indicated that he would not hesitate to ban the use of desktop studies if his Department’s consultation—which closed on 25 May 2018—did not demonstrate that they could be used safely
confirmed he was working with industry to clarify building regulations fire safety guidance, and would be publishing proposals in this regards for consultation in July 2018
DEFRA launches environment watchdog consultation, Public Accounts Committee’s damning assessment of DEFRA’s Brexit preparations, EU infringement proceedings for air quality
Welcome to our monthly environmental law newscast produced in partnership with Christopher Badger, Barrister, 6 Pump Court.
In this bulletin, we consider some of the key legal developments in the environmental law field in May 2018, including:
DEFRA launches environment watchdog consultation;
Public Account Committee’s damning assessment of DEFRA’s Brexit preparations; and
EU infringement proceedings for air quality
To listen to the audio file, press play below or to download as audio only, click here.
DEFRA launches environment watchdog consultation – tune in from 0.33 secs
DEFRA has launched a 12-week consultation in which it states that a new Environmental Principles and Governance Bill will create a ‘new, world-leading, independent environmental watchdog to hold government to account on the UK’s environmental ambitions and obligations’ once the UK has left the EU.
Christopher takes us through some of the key issues raised in the consultation and highlights some of the criticisms these proposals are facing.
Public Account Committee’s damning assessment of DEFRA’s Brexit preparations – tune in from 3.07 mins
On 4 May, the House of Commons Public Accounts Committee published a report roundly criticising DEFRA’s preparations for Brexit. The Committee took evidence in preparing its report on 7 March 2018.
In this Newscast, Christopher summarises the findings of the report, outlining its stark recommendations and conclusions, which highlight just how much more work DEFRA must do to prepare for Brexit.
EU infringement proceedings for air quality – tune in from 6.12 mins
On 17 May, the European Commission confirmed that it has referred the UK, together with France and Germany, to the European Court of Justice for failure to respect limit values for nitrogen dioxide and for failing to take appropriate measures to keep exceedance periods as short as possible.
Christopher discusses these infringement proceedings in the context of the new Clean Air Strategy, published on 22 May.
Angus Evers, a partner at Shoosmiths, considers the government’s consultation on a new Environmental Principles and Governance Bill to ensure that protection of the environment will not be weakened after Brexit.
This Analysis was originally published on Lexis®PSL Environment. Discover how Lexis®PSL can help you stay on top of the latest developments and find the answers you need fast: click here for a free trial to access.
What is the background leading up to the launch of this consultation?
The government has recognised that, after the UK leaves the European Union (EU), the environmental principles currently contained in Article 191(2) of the Treaty on the Functioning of the European Union (TFEU) will no longer apply in the UK, as the EU treaties will not be retained as part of domestic law under the European Union (Withdrawal) Bill. The monitoring and enforcement functions currently carried out by the EU Commission and the Court of Justice of the European Union will also be lost following the UK’s departure from the EU.The government has repeatedly stated its ambitions to ensure that it leaves the environment in a better state than when it inherited it and to ensure that new mechanisms are put in place to not only maintain, but also strengthen, protection for the environment after the UK leaves the EU. The Department for Environment, Food and Rural Affairs (Defra) therefore published a consultation on 10 May 2018 that seeks views on incorporating environmental principles into the policy and legal framework in England, and on the creation of a new, independent and statutory body to hold the government to account for the environment.
What are the key proposals made in the consultation?
The consultation is divided into three parts, which include environmental principles, accountability for the environment and overall environmental governance.
Environmental principles
The consultation notes that there is no single agreed definition of environmental principles, but that a number of internationally recognised principles (for example, the precautionary principle and the polluter pays principle) have been developed that help shape environmental policy around the world. The TFEU also sets out environmental principles as general objectives for the EU. Article 191(2) of the TFEU requires EU environmental policy to be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
Where the environmental principles set out in the TFEU are contained in specific pieces of EU legislation, the government proposes to maintain them as part of the UK’s domestic legal framework through the European Union (Withdrawal) Bill. However, the government notes that while environmental principles are central to government policy, they are not set out in one place. The consultation therefore proposes two possible options for creating a new policy statement setting out the environmental principles which will guide environmental policy-making and legislation.
Option one involves the environmental principles being listed in the Environmental Principles and Governance Bill, with a statutory policy statement being made under that legislation to explain how they should be interpreted and applied. Under option two, the Environmental Principles and Governance Bill would not list the principles itself, they would be set out and explained only in the statutory policy statement.
For both options, the government would be required to consult on the draft policy statement and on future changes to it, and present the draft statement to Parliament for scrutiny. The new environmental body (see below) would be given functions relating to the policy statement, including scrutinising how government has had regard to the policy statement, periodically advising departments on possible improvements and, if necessary, taking action to ensure that the legal requirement for government to have regard to the policy statement has been met.
Accountability for the environment
To fulfil the roles which are currently played by the EU Commission and the Court of Justice of the European Union, the consultation is proposing the creation of a ‘new, world-leading, independent environmental watchdog to hold government to account on our environmental ambitions and obligations once we have left the EU’. The consultation considers the current EU and national arrangements for environmental oversight, enforcement and accountability. At an EU level these comprise:
the EU Commission
the European Environment Agency
the European Parliament
the Court of Justice of the European Union
At a domestic level these comprise:
parliamentary committees (the House of Commons’ Environment, Food and Rural Affairs Committee, the House of Commons’ Environmental Audit Committee, the House of Lords’ EU Energy and Environment Sub-Committee and the House of Lords’ Select Committee on the Natural Environment and Rural Communities Act 2006)
the National Audit Office
advisory committees (the Natural Capital Committee, the Joint Nature Conservation Committee, the Committee on Climate Change and the Adaptation Sub-Committee)
ombudsmen (the Parliamentary and Health Service Ombudsman and the Local Government and Social Care Ombudsman)
judicial review
enforcement by bodies such as the Environment Agency and Natural England
The consultation proposes three main functions for the new environmental body—providing general scrutiny and advice, responding to complaints and enforcing government delivery of environmental law. While the consultation considers a range of enforcement mechanisms for the new environmental body, such as powers to issue advisory notices requesting compliance, binding notices brought by others and the ability to agree environmental undertakings with government authorities that have failed to meet their environmental responsibilities, there are no proposals that the new body should have the power to bring court proceedings against the government on its own initiative.
In regards to the subject matters covered by the new environmental body and its remit, the consultation proposes that it should cover EU environmental law retained under the European Union (Withdrawal) Bill and domestic environmental law not based on EU legislation, but international environmental law. The main area proposed to be excluded from its remit is climate change (which would remain within the remit of the Committee on Climate Change).
Overall environmental governance
In terms of overall governance on the environment for England, the consultation proposes that the new environmental body:
could provide independent advice and recommendations to government on setting environmental policy, but would not be responsible for setting environmental policy
would not be responsible for the delivery or monitoring of environmental policy measures, but could scrutinise and potentially enforce delivery and use monitoring information from others in its activities
would not be responsible for undertaking implementation reporting, but could use implementation reports from others in its activities
would not be responsible for reporting on the delivery of the 25–year environment plan, but could conduct independent scrutiny of the progress reported
could be responsible for investigations in response to complaints or concerns over environmental law delivery
could be responsible for taking action to require government delivery of environmental law
The consultation proposals apply to England only. What is the position in regards to the devolved administrations?
The government’s starting point is that the subject matter covered by the new environmental body should comprise England and environmental matters that are not devolved. However, the consultation also states that the statutory statement of environmental principles and the new environmental body could, subject to the ongoing framework discussions with the devolved administrations, apply more widely across the UK.
In your view, will the proposals adequately meet the various concerns that have been raised about maintenance of environmental standards post-Brexit?
The consultation is a welcome move to try to allay the concerns expressed by environmental groups and members of the public that the UK will lower its environmental standards after leaving the EU. Filling the governance gap left by the EU Commission and Court of Justice of the European Union will be difficult and the consultation’s proposals are a bold attempt to try to seize the once-in-a-generation opportunity to improve and enhance environmental policy and environmental law in the UK. However, it appears that the proposed new environmental body would not have any powers to take court proceedings against the government on its own initiative to hold the government to account and would be reliant on intervening in court proceedings brought by others against the government. Such court proceedings would usually be judicial review proceedings, which can be expensive to bring, require the claimant to have sufficient interest in the proceedings and do not allow for any examination of the merits of the decision being challenged.
What are the next steps and proposed timings?
The consultation closes at midday on 2 August 2018. Depending on the responses received, the government is then proposing to publish a draft Environmental Principles and Governance Bill in the autumn of 2018, and to introduce the Bill into Parliament early in the second session of this Parliament.
Angus Evers leads Shoosmiths’ environmental practice. He is one of the Convenors of the UK Environmental Law Association’s waste working party and a fellow of the Royal Society of Arts. He is also a member of the British Standards Institution’s Committee on Sustainable Resource Management.
Brexit developments, EU tackles more emissions, Environment Agency enforcement and sanctions policy
Welcome to the fourth edition of our monthly environmental law newscast produced in partnership with Christopher Badger, Barrister, 6 Pump Court.
In this bulletin, we consider some of the key legal developments in the environmental law field in April 2018, including:
• Brexit developments;
• EU tackles more emissions; and
• Environment Agency enforcement and sanctions policy
To listen to the audio file, press play below or to download as audio only, click here.
Brexit developments—tune in from 0.29 secs
Michel Barnier, the EU’s chief negotiator, recently stated that to hold the UK to EU environmental standards, Brussels may insist on a ‘non-regression’ clause in any future deal after Brexit, rather than rely on Michael Gove’s pledges over the environment.
Christopher takes us through these latest Brexit developments and discusses what the implications of a ‘non-regression’ clause might be – for example in terms of how such a clause would be policed and what this could mean for the development of UK environmental policy in the future.
EU tackles more emissions—tune in from 3.36 mins
On the 17th April 2018, at a plenary session of the European Parliament, two draft laws with binding national emission targets were adopted.
Christopher explains which sectors, not covered by the current EU Emissions Trading Scheme, will be caught by these new laws - essentially agriculture, transport, building and waste and forestry and land-use.
Environment Agency enforcement and sanctions policy—tune in from 6.05 mins
On 11th April 2018, the Environment Agency published their enforcement and sanctions policy, combining and amending previous published documents.
Christopher discusses this new enforcement and sanctions policy, and picks up some of the points raised in the consultation response document, for example on the use of variable monetary penalties.
If you are a Client and we have made a contract with you by electronic means you may be entitled to use an EU online dispute resolution service to assist with any contractual dispute you may have with us.
This service can be found at ec.europa/consumers/odr
Our email address is glg@hardwicklegal.com.
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