Executive Environmental Law
| Author | Elizabeth Fisher |
| DOI | http://doi.org/10.1111/1468-2230.12456 |
| Date | 01 January 2020 |
| Published date | 01 January 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12456
LEGISLATION
Executive Environmental Law
Elizabeth Fisher∗
The Draft Environment (Principles and Governance) Bill published by DEFRA in late 2018
is part of a process of reimagining environmental law in light of Brexit. The Draft Bill creates
frameworks for policy statements on environmental principles and environmental implemen-
tation plans, as well as creating a new enforcement body – the Office for Environmental
Protection. This Draft Bill is, at the very least, an ineffectual response to the challenges of en-
vironmental law post-Brexit. More alarmingly, it raises the possibility of a legal future in which
the executive dominates how the norms, ambitions, and accountabilities of environmental law
are defined. These are matters of concern for environmental and public lawyers alike.
In a speech in July 2017, the Secretary of State for Environment, Food and
Rural Affairs of the United Kingdom, Michael Gove stated in regards to Brexit
and environmental protection, that ‘in this unfrozen moment new possibilities
occur’.1He is not alone in thinking this. Whatever one thinks of Brexit
and whatever comes of it (which at the time of writing is still unclear), the
2016 Referendum catalysed discussion not just about how to replace the legal
processes that no longer apply on leaving the EU, but also how leaving leads to
‘new possibilities’ for UK law and government. Given the significant role that
the EU has played in environmental protection, it is natural that environmental
law has been a specific focus of this debate.2
It has also been an area where ‘new possibilities’ are in the process of be-
coming new realities. In January 2018, the Department of Environment, Food
and Rural Affairs (DEFRA) put forward a vision for a ‘Green Brexit’3in a
range of policy documents. In late December 2018, they published the Draft
∗Professor of Environmental Law, Faculty of Law, University of Oxford. I would like to thank
Roderick Bagshaw, Sanja Bogojevi´
c, Mark Freedland, Ben Pontin, Eloise Scotford and two anony-
mous reviewers for comments on a previous draft. Any errors or omissions remain my own.
1 M. Gove, ‘The Unfrozen Moment - Delivering A Green Brexit’ (Speech, 21
July 2017) at https://www.gov.uk/government/speeches/the-unfrozen-moment-delivering-a-
green-brexit (last accessed 10 February 2019).
2 For example, R. Lee, ‘Always Keep a Hold of Nurse: British Environmental Law and Exit from
the European Union’ (2017) 29 JEL 155.
3 DEFRA, A Green Future: Our 25 YearPlan to Improve the Environment (London: DEFRA, January
2018) (DEFRA, A Green Future).
C2019 The Author.The Moder n Law Review C2019 The Modern Law Review Limited. (2020) 83(1) MLR 163–189
Executive Environmental Law
Environment (Principles and Governance) Bill (hereafter the Draft Bill).4The
Draft Bill, along with the associated documentation, is a dramatic imagining of
a ‘new’ framework for environmental protection. The Draft Bill, Gove tells us
in the Foreword, ‘will establish a robust new system of green governance’.5The
goals, the then Prime Minster stated, are simple: ‘cleaner air and water; plants
and animals which are thriving; and a cleaner, greener country for us all’.6In
the policy paper accompanying the Draft Bill it is pronounced that the ‘Bill
will put environmental ambition and accountability at the very heart of gov-
ernment’.7A regular refrain is that different aspects of this approach are ‘world-
leading’.8
This rhetoric is deeply appealing, particularly in regards to a Cinderella sub-
ject like environmental protection that rarely receives the priority it should.9
But even at its most innocuous, the Draft Bill is unlikely to deliver on these
stirring aspirations. This is because it does not create a robust legal framework
for ‘green governance’, accountability, or environmental quality. More wor-
ryingly, the Draft Bill has the potential to usher in a legal future in which
there is a presumption that the executive dominates how the norms, ambi-
tions, and accountabilities of environmental law are defined. It is a legal future
in which ironically law and public reason have potentially little role to play.
More significantly, the Draft Bill is inadequate in its engagement with the na-
ture of environmental problems, the benefits of legislation, and the importance
of constitutionalism. In this ‘unfrozen moment’ thus lies a risky post-Brexit
future – a future that not only environmental lawyers, but also public lawyers
should be alert to.
This article is structured as follows. First, I consider the background to the
Draft Bill. Second, I examine the Draft Bill itself. Third, I evaluate the Draft
Bill and in doing so identify the challenges involved in assessing legislative
reform in times such as these. In the final section, by exploring the Draft Bill’s
inadequacies, I also identify some touchstones for a more constructive way of
engaging with this ‘unfrozen moment’.
Three points should be made before starting. First, this article may appear
premature. At the time of writing (late March 2019), the Draft Bill is not
even a Bill. While it is being subject to pre-legislative scrutiny,10 it is not
yet a formal legislative proposal. Moreover, DEFRA states that the Draft
4 The documentation for the Bill can be found at https://www.gov.uk/government/
publications/draft-environment-principles-and-governance-bill-2018 (last accessed 12 Febru-
ary 2019).
5 DEFRA, Draft Environment (Principles and Governance) Bill (December 2018) 3 (DEFRA, Draft
Bill).
6 Prime Minster, ‘Foreword’ in DEFRA, A Green Future n3above,4.
7 DEFRA, Environmental Bill: Policy Paper (December 2018) at https://www.gov.uk/government/
publications/draft-environment-principles-and-governance-bill-2018/environment-bill-policy-
paper (last accessed 18 February 2019).
8 For example,ibid, and DEFRA, Draft Bill n 5 above 3. DEFRA, A Green Future n 3 above contains
14 examples of the use of the term.
9 See the response of Professor Andrew Jordan in Environmental Audit Committee (EAC), The
Government’s 25 Year Plan for the Environment HC 803 (2018) 7 (The Government’s 25 Year Plan).
10 Both by the House of Commons Environment, Food and Rural Affairs Committee and the
Environmental Audit Committee.
164 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2020) 83(1) MLR 163–189
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