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Farming & land use

June - September 2017


Environment Secretary Michael Gove’s speech at WWF headquarters was encouraging, particularly the intention to put the “environment first” in future farming and land use policy, and his recognition of the importance of restoring, not just protecting, the natural environment. A new Agriculture Bill was announced in the Queen’s Speech, with one of its primary aims being to protect the natural environment. However, as yet there is little clarity on the overall environmental focus of the bill, how it will relate to environmental legislation and strategies across the UK, and its geographic extent. 

The secretary of state also noted an opportunity, outside the EU, for designing more effective, rigorous and responsive institutions and new means of holding individuals and organisations to account for environmental outcomes.  While this ambition is welcome, there remains uncertainty as to how it would be achieved in practice.  

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Principles & strategies
The government intends that the EU Withdrawal Bill will “ensure that the whole body of existing EU environmental law continues to have effect”. However, as currently drafted, the bill fails to carry across the general principles in the EU treaties that underpin environmental policy, such as the goals of sustainable development and a high level of environmental protection, the precautionary principle and the polluter pays principle. The bill also fails to carry across the directives that set the policy frameworks, and the strategies that set out trajectories for achieving policy goals.

The extent to which the 25 year environment plan will frame and inform future farming and land use policy is not yet clear. Given the importance of agriculture to the environment, integration between the aims and milestones of the environmental plan and the Agriculture Bill will be a key test. The Agriculture Bill could provide the opportunity to include clear principles and strategies for delivering sustainable land management.
The announcement of the Agriculture Bill in the Queen’s Speech was a milestone in providing some clarity on future legislative timelines and direction. Although it is positive that protecting the natural environment was identified as a major aim of the bill, an aim to restore the natural environment would be more appropriate. Addressing this, and making sure clear and ambitious environmental objectives are included in the upcoming Agriculture Bill and associated white paper, will be essential in matching the scope of the legislation to the secretary of state’s early ambition.

A series of statutory instruments were laid in May 2017 to transpose the requirements of the EU’s 2014 Amending EIA Directive. It remains uncertain how the changes will be fully implemented after the UK leaves the EU.
Capacity & funding
Defra is due to see a 15 per cent reduction in its resource spending between 2015 and 2020, although more civil servants are being drafted into the department. The EU environment, agriculture and fisheries acquis are extensive, and it is unclear whether Defra will be able to cope with any additional workload associated with, first, the transposition of that body of EU law into domestic law, and then the monitoring of existing policy and creation of new policy. Most of this effort has happened at EU level thus far.

It is not clear whether additional resources have been identified for Defra agencies. Although the Conservative manifesto committed to increasing the resources available to Natural England to provide advice to farmers, there has been no indication from Defra as to when, or if this, will be honoured.

The Department for Communities and Local Government (DCLG) has been instructed to make overall resource savings of 29 per cent by 2019-20, compared to 2015 levels, through better financial management and further efficiencies. DCLG is the principal department in respect of EU-derived planning legislation including Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA), and resourcing is expected to remain challenging in terms of converting that body of EU law into domestic law and effectively implementing changes arising from the EU 2014 Amending EIA Directive.  For example, in England there are 35 regulations pertaining to EIA, administered by a range of different government departments and agencies.
Devolution remains a major sticking point, and an area of uncertainty in terms of how an Agriculture Bill will be progressed. The geographic extent of the Bill is unclear, and there are significant concerns that the politics of this issue could derail what should be a once in a generation opportunity to reform agriculture policy.

The EU Withdrawal Bill envisages that existing EU case law will remain applicable by domestic courts. However, the role currently played by the European Court of Justice (ECJ) together with other EU institutions in providing the monitoring, oversight, accountability and enforcement functions required to ensure the effective implementation of agriculture and land use legislation will no longer exist.  Although the government has proposed several options to replace the ECJ’s role in resolving cross-border disputes, its eventual position will depend to some extent on what sort of future relationship is negotiated with the EU. And the options paper does not set out an adequate plan for filling the domestic governance gap. Environment Secretary Michael Gove has declared his ambition for the UK to “design potentially more effective, more rigorous and more responsive institutions, new means of holding individuals and organisations to account for environmental outcomes.” His department must set out soon how it plans to do so.  
Co-operation between the UK and the EU, and the UK and devolved administrations in the development of future farming policy is vital to avoid a race to the bottom with regard to standards and regulation. To date, there has been little or no clarity on how this will be achieved, or whether the UK government is engaging meaningfully on this issue. Whilst there is some existing differentiation in Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA), for example, in how the legislation is implemented, there is a need for the co-ordination as Brexit progresses to avoid significant divergence.

Co-operation on projects’ transboundary environmental impacts is likely to continue as the UK has ratified the Espoo Convention, which lays down the general obligation of states to notify and consult each other on all major projects under consideration that are likely to have a significant adverse environmental impact across boundaries. The Prime Minister’s speech in Florence stated that the UK and EU share a commitment to high environmental standards, and outlined her preference for a new economic relationship that is underpinned by those standards. There will need to be co-operation between Westminster and the other devolved administrations and between the UK and the Republic of Ireland on transboundary matters.