Opinion: Anne Johnstone, UK Environmental Law Association

Anne Johnstone is Chair-elect of the UK Environmental Law Association (UKELA) — a members-based forum that aims to enhance and conserve the environment through the application and practice of environmental law. Anne has over 17 years’ experience in environmental risk assessment, due diligence auditing and environmental permitting. In this interview, she talks to John Barwise about recent changes to the environmental legal system, environmental crime and the challenges ahead in a post-Brexit Britain.

I would like to start by asking you about UKELA and its role in influencing the debate on improving environmental protection?

UKELA aims to make the law work for a better environment and to improve understanding and awareness of environmental law. UKELA’s members are involved in the practice, study and formulation of environmental law, both at a UK and EU level. We have around 1500 members, both lawyers and non-lawyers, and a wide international collaborative network. We have several Working Parties covering a range of areas of environmental law, policy and practice, including Waste, Climate Change and Energy, Nature Conservation and Water. In addition, we have committees in Wales, Scotland, Northern Ireland and across the English regions. These groups meet regularly to discuss topical issues, recent developments and proposals for reform. They prepare responses to consultations and, perhaps more importantly, proactively engage with Government and regulators. They organise events for their members and disseminate information. We have an enormous depth and breadth of experience within the organisation, a result of which is that we can make a unique contribution to debates on issues of fundamental importance to the environment, such as Brexit, by providing detailed technical analysis.

The environment hardly featured in any of the political campaigns or debates during the recent election but was included in all the main party manifestos. Why do you think the environment consistently fails to generate much public interest?

I think there is public interest in the environment, but during a general election campaign like the one we’ve just had, it was not focused on by the media as much as it could have been. For the majority of people, the environmental issues they care about most are local ones. I’m sure there is a large discrepancy between what was talked about on doorsteps to local MP candidates and questions asked to party leaders on television and in the newspapers, but I think it is fair to say that the environment does not command the level of focus and attention at a societal level as it should, except in the aftermath of a significant event such as severe flooding. The reasons for this are complex, but come down in the end to awareness. If people aren’t equipped to appraise evidence, then they can’t tell whether there is balance in reporting of an issue or determine whether they can trust what they are being told. One of UKELA’s objectives is to provide information to the public to raise awareness of environmental law and its inherent rights and responsibilities. Our “Law and Your Environment” website (www.environmentlaw.org.uk) provides plain English advice to the public on environmental law, as well as information on environmental citizenship, with numerous links to other resources.

The Coalition Government launched its Red Tape Challenge in 2011, to cut red tape and bureaucracy and reduce the burden of regulations on the business community. Two years later saw the introduction of the “one-in, two-out” rule to further reduce the regulatory burden. Has this policy worked and what are the risks of taking this approach?

The coalition’s Red Tape Challenge was launched around the same time that UKELA produced a report titled The State of UK Environmental Law in 2011–2012. The report identified significant problems in terms of transparency, coherence and integration of the law, which made it difficult for businesses to understand and comply with relevant regulatory requirements.

We welcomed the Red Tape Challenge as an opportunity to address these issues and consequent burdens on business, and indeed it has prompted some significant reforms. For example, there have been major consolidations of legislation that had been subject to frequent, complex amendments such as Smoke Control Orders, the Environmental Damage Regulations and the Nitrates Regulations. There was also quite a lot of clearing away of “dead wood” by repealing moribund legislation such as the water classification schemes that had been superseded by the Water Framework Directive.

A risk with the Red Tape Challenge is that useful detail will be sacrificed for the sake of simplicity and streamlining. One area where this has played out is the reform to environmental guidance. In the drive to reduce this by over 80%, there has been something of a “dumbing down”, with guidance now focused on setting out in plain English what businesses need to do to comply, rather than just providing guidance on the interpretation of key requirements.

Another risk is that the drive to cut red tape becomes an excuse to remove important, environmentally protective measures that are perceived as bureaucratic barriers to growth and productivity. Brexit makes this risk all the more real because after leaving the EU, the UK and devolved governments would no longer be required to retain environmental legislation that derives from EU law. Habitats legislation is an area that is particularly vulnerable given that it is widely perceived and portrayed as an unnecessary obstacle to housing expansion.

The Economic Growth Duty, which came into force on 29 March 2017 under the Deregulation Act 2015 (the “DA 2015”), requires many regulators in England and Wales to have regard to the “desirability of promoting economic growth”, alongside the delivery of protections set out in relevant legislation. How do you see these changes affecting the role of environmental regulators?

Generally, UKELA welcomes the role of regulators changing and evolving away from “end-of-pipe” regulation to a more ambitious one that brings environmental, economic and social objectives together. Regulators are in a unique position to influence behaviour and there are some significant wins for the environment to be had if they can get this balance right. Regulators should understand and consider the impact that their actions have on businesses. However, their primary objective should always be to protect and improve the environment.

Two years ago, the Independent Sentencing Council issued guidelines for sentencing those found guilty of environmental crimes. The guidelines introduce a 12-step sentencing designed to reduce inconsistencies in sentencing and ensure that sentences match the seriousness of the offence. How effective is the new sentencing regime?

The sentencing guidelines were introduced in response to concerns that the fines being passed by the courts for environmental offences were not high enough to reflect the seriousness of the offence committed nor would they have a deterrent effect. There was also an inconsistency in the levels of fines being handed out across the country.

There’s no doubt that since the introduction of the guidelines, there has been a dramatic increase in the level of fines being imposed by the courts. Fines are now more proportional to the offender’s ability to pay, as businesses are categorised under the guidelines by their size, determined by the firm’s annual turnover. The guidelines state that fines should be “sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to improve regulatory compliance”. There is evidence of the courts upholding this statement in the guidelines and ensuring that it is implemented by the judiciary. For example, the court, when sentencing in the Thames Water case that resulted in a £20.3 million fine in March 2017, held that the fine had been set at a level to meet this requirement.

By imposing such large fines, the courts are meeting the objectives of the guidelines to provide levels of appropriate punishment. However, so far there is no evidence to show that it is having a deterrent effect and is reducing the number of environmental offences. But it is still early days and more research needs to be carried out. The Sentencing Council published its first review of the guidelines in November 2016 and UKELA’s Environmental Litigation Working Party has analysed the findings.

In short, it’s not possible to conclude definitively whether the guidelines have had the intended impact, as the data used to compare sentencing before and after the guidelines came into force does not indicate the seriousness of the offence. In addition, the analysis of the types of fines imposed on offenders has been restricted to those imposed in the crown court. The sentencing data for organisations does, however, suggest that the guidelines may have had the effect anticipated, in that fines have increased for some organisations sentenced for more serious offences. On the other hand, the data relating to individuals does not indicate the guidelines have had an impact on fines imposed on them.

The theme for this year’s UKELA conference is “Cities of the Future” what do you perceive as the role of lawyers and regulators in making cities more sustainable?

That is the question that we will be discussing at the conference, which is taking place at the University of Nottingham on 7–9 July. In the UK, we tend to rely upon planning and building controls. However, there is little central co-ordination to either and “sustainable development” as a term lacks clear definition. There is a need for greater regulatory direction to tackle issues such as climate change, air quality and flooding in our cities. Lawyers and regulators have a role in demanding such direction, as well as defining and implementing new controls. The air quality litigation by environmental lawyers, ClientEarth, is a case in point. The UKELA conference will also consider the position internationally, with presentations from the USA, Denmark and UN-HABITAT, the United Nations Human Settlements Programme.

And finally, Brexit. The Government intends to retain all existing EU laws in domestic law through the Great Repeal Bill to ensure continuity and stability when the UK leaves the EU. But the House of Lords warns of post-Brexit uncertainties over the transposition of EU environmental laws into UK legislation. As Britain prepares to leave the EU, what do you see as the main challenges to environmental protection in this country?

We welcome the Government’s goal of preserving current EU-derived environmental regulation on the date of Brexit. This is important not only for ensuring stability and continued protection of the environment but also for complying with ongoing international law requirements. However, this will be no easy task. The Government envisages that, in addition to the Great Repeal Bill, some seven Bills and 800–1000 statutory instruments will be needed to ensure a smooth transition. We can expect a significant proportion of this legislation will relate to the environment. Ensuring that this legislation is properly scrutinised will be a huge challenge given the tight frame for introducing it ahead of the date of Brexit, and limits on Parliamentary time. The role of organisations such as UKELA, which can provide expert advice and input to the process, will be critically important.

One area that poses a challenge for environmental protection after Brexit is how to ensure the law is properly enforced. Currently, the European Commission and European Court of Justice play a key role through the procedure for bringing cases against Member States for infringing requirements of EU law (such as failing to meet water quality standards or introduce adequate Air Quality Plans). Other challenging areas include how to approach setting environmental standards in the future, bearing in mind the likelihood of increased divergence across the UK due to devolution; and how to replicate regulatory regimes that currently operate at EU level, such as chemicals regulation under Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH).

Brexit is an opportunity to come up with creative alternatives that are tailored to fit circumstances in the UK and across the devolved regions. On 28 June, UKELA announced the forthcoming publication of a series of reports over the next six months to illuminate crucial aspects and difficulties of the transition from EU environmental law to UK law. The first five reports will focus on exit from the Euratom treaty and its implications, the UK and international law after Brexit, enforcement and political accountability issues, environmental standard setting and the UK and European environmental bodies. In addition, we will be holding a major conference in October 2017 chaired by Lord Justice Carnwath, Supreme Court Judge and UKELA’s President, with panellists including senior government lawyers and leading practitioners, where we will debate the findings and recommendations of these reports.