NI Environmental Improvement – Brexit

Part 2: Environmental Governance: Northern Ireland

Section 48: Improving the natural environment: Northern Ireland

Section 48 introduces Schedule 2, which includes provision for environmental improvement plans and policy statements on environmental principles in Northern Ireland.

Section 49: The Office for Environmental Protection: Northern Ireland

Section 49 introduces Schedule 3, which makes provision for the functions of the OEP in terms of its activities in Northern Ireland, as well as amendments to this Act to reflect those

Schedule 2: Improving the natural environment: Northern Ireland

Part 1: Environmental Improvement Plans

1200 The duties included in Schedule 2 provide a statutory basis for future environmental improvement plans relating to Northern Ireland. These duties are intended to work together for the purpose of seeking to significantly improve the natural environment. Specifically, Schedule 2 requires the Department, in consultation with other relevant departments, to: produce and maintain an environmental improvement plan which is reviewed and, if appropriate, updated at least every five years; publish a statement on the data it will obtain to determine whether the natural environment (or elements of it) are improving; and report progress towards environmental improvement to the Northern Ireland Assembly on an annual basis.

Environmental Improvement Plans

1201 Paragraph 1 introduces a duty on the Department to prepare a plan for significantly improving the natural environment. It states: what the plan must do; what the plan must contain; who must be consulted; and enables the plan to relate to a specified time period or to be of no specified duration.

1202 Sub-paragraphs (1) and (2) introduce the requirement to have an environmental improvement plan for significantly improving the natural environment.

1203 Sub-paragraph (3) enables the environmental improvement plan to relate to a specified time period or to be of no specified duration.

1204 Sub-paragraph (4) specifies that the environmental improvement plan must set out the steps that the Department and other Northern Ireland departments intend to take to improve the natural environment.

1205 Sub-paragraph (5) allows the environmental improvement plan to include measures that any Northern Ireland department intends to take in order to improve people’s enjoyment of the natural environment. Enjoyment may be increased through education and public awareness of the natural environment both past and present, natural systems and processes through which organisms interact with their surroundings.

1206 Sub-paragraph (6) requires the Department to consult with such other Northern Ireland departments as it considers appropriate as part of the process of preparing an environmental improvement plan. These may be departments who are taking steps to improve the environment or those whose policy remits might be impinged upon by those taking steps.

1207 Sub-paragraph (7) requires the Department to publish an environmental improvement plan and lay this in the Northern Ireland Assembly within 12 months of paragraph 1 coming into force.

1208 Sub-paragraph (8) states that all references in Schedule 2 to the current environmental improvement plan are to the environmental improvement plan that is in effect at the time.

Annual reports on environmental improvement plans

1209 Paragraph 2 establishes a duty on the Department to produce annual reports on the implementation of the environmental improvement plan and on whether the environment is improving. It explains when and how these reports should be published.

1210 Sub-paragraph (1) requires the Department to prepare annual reports on the implementation of the current environmental improvement plan.

1211 Sub-paragraph (2) requires that these reports must describe what has been done to implement the plan and consider whether the natural environment (or aspects of it) is improving during the period to which the report relates. Consideration as to whether the environment (or aspects of it) has improved must have regard to information gathered under paragraph 5.

1212 Sub-paragraph (3) specifies the period of time annual reports on an environmental improvement plan must relate to, which is 12 months.

1213 Sub-paragraph (4) requires the Department to lay each annual report in the Northern Ireland Assembly within four months of the end of the period to which it relates.

1214 Sub-paragraph (5) requires the Department to publish annual reports laid before the Northern Ireland Assembly under Paragraph 2.

Reviewing and revising environmental improvement plans

1215 Paragraph 3 provides for the review and revision of environmental improvement plans. It establishes a duty on the Department and a timeline to complete a review (and, if appropriate, to revise the plan), in consultation with other relevant departments. It also specifies what must be considered in undertaking this review.

1216 Sub-paragraph (1) establishes a duty on the Department to review the plan and if it considers it appropriate then to revise the plan.

1217 Sub-paragraph (2) specifies that the first review of an environmental improvement plan must be completed within five years of its publication (in respect of the first plan) or its start date (in respect of any other plans). This is considered to be sufficient time for: progress to be made against the plan; the monitoring of the environment to assess improvement; and early results to be obtained. This time should also allow for any weaknesses and gaps in the plan and required policy changes to be identified which may require a revision to the plan.

1218 Sub-paragraph (3) provides that further reviews of an environmental improvement plan must be undertaken within every five-year period.

1219 Sub-paragraph (4) specifies what the Department must consider when reviewing an environmental improvement plan. These are: the steps that have been taken to deliver the plan; improvements in the natural environment (or aspects of it); and what else should be done to improve the environment. The Department must have regard to the data obtained under paragraph 5 and reports from the Office for Environmental Protection when considering whether the environment (or aspects of it) has improved. The Department will be at liberty to consider other relevant information, reports or commentary in completing its review.

1220 Sub-paragraph (5) requires the Department to consult with such other Northern Ireland departments as it considers appropriate as part of the process of reviewing or revising an environmental improvement plan. These departments may be those who are taking steps to improve the environment or those whose policy remits might be impinged upon by those taking steps.

1221 Sub-paragraph (6) requires that when the Department has completed a review and determined it appropriate to revise the plan, then this revised plan must be laid in the Northern Ireland Assembly along with a statement explaining what revisions have been made and why.

1222 Sub-paragraph (7) requires that if the Department completes a review but does not consider it appropriate to revise the plan then it must lay in the Northern Ireland Assembly a statement to this effect and the reasons for this. Whilst the Department is required to complete a review within the five-year timeline there is no duty to revise the plan if a revision is not considered appropriate. This allows for a revision to the plan to be delayed if the Department considers it appropriate, but such a decision must be justified to the Northern Ireland Assembly.

1223 Sub-paragraph (8) requires the Department to publish any documents laid in the Northern Ireland Assembly under sub-paragraphs (6) and (7) following a review of an environmental improvement plan.

1224 Sub-paragraph (9) specifies that a review is to be considered completed when the documents prepared under subsections (6) and (7) have been laid in the Northern Ireland Assembly and published. This is the completion date for the purpose of meeting the requirement to complete a review within five years of a plan being published or previous review. It also becomes the start date for the next five-year time period for completing the subsequent review.

1225 Sub-paragraph (10) clarifies that when the environmental improvement plan is revised in accordance with this paragraph, then references to an environmental improvement plan in this Schedule include the now revised environmental improvement plan.

Renewing environmental improvement plans

1226 Paragraph 4 provides for the Department to, in consultation with other relevant departments, replace the environmental improvement plan with a renewed version in such circumstances where the environmental improvement plan relates to a specified period as stated in the plan itself.

1227 Sub-paragraph (1) specifies that paragraph 4 applies where an environmental improvement plan relates to a period specified in the plan itself.

1228 Sub-paragraph (2) requires the Department to prepare a new environmental improvement plan before the point at which the current plan comes to an end.

1229 Sub-paragraph (3) requires the new plan to start no later than the end of a previous plan, ensuring there is no gap between plans.

1230 Sub-paragraph (4) sets out what the Department must consider before the current environmental improvement plan can be renewed. These are the steps that have been taken to deliver the current plan; improvements in the natural environment since the beginning of the period to which the old plan relates; and what else should be done to improve the environment after the end of the period to which the previous plan related. The Department must also consult such other Northern Ireland departments as it considers appropriate as part of the renewal process. The Department must have regard to the data obtained under paragraph 5 and reports from the Office for Environmental Protection when considering whether the environment has improved and is at liberty to consider other relevant information, reports or commentary.

1231 Sub-paragraph (5) requires the Department to publish and lay all new environmental improvement plans in the Northern Ireland Assembly at or before the end of the period to which the previous plan relates.

1232 Sub-paragraph (6) refers to the replacement of the plan and specifies when the previous plan ends and the new plan begins. At its earliest, this will be when the plan has been laid in the Northern Ireland Assembly and published, but if the period to which the new plan relates is specified in the new plan it will be the start of that period. Sub-paragraph (3) requires that the new plan begins no later than the end of the previous plan.

Environmental monitoring

1233 Paragraph 5 establishes a duty on the Department to obtain and publish data for the purpose of environmental improvement. The metrics will measure outcomes achieved through the implementation of the environmental improvement plan and inform updates to the plan.

1234 Sub-paragraph (1) establishes a duty on the Department to ensure that appropriate monitoring data is obtained to assess whether the natural environment (or elements of it) is improving in line with the current environmental improvement plan.

1235 Sub-paragraph (2) requires the Department to publish and lay a statement in the Northern Ireland Assembly explaining the types of data to be collected for the purposes identified in sub- paragraph (1).

1236 Sub-paragraph (3) requires the first statement under sub-paragraph (2) to be laid within four months of this Paragraph coming into force.

1237 Sub-paragraph (4) allows for changes to be made to the statement at any time. This may be necessary if it becomes clear to the Department that additional data is needed or that current measures do not adequately assess environmental improvement. Such a revised statement must also be published and laid in the Northern Ireland Assembly.

1238 Sub-paragraph (5) requires the Department to publish any data that it obtains under sub- paragraph (1).

Part 2: Policy statement on environmental principles

1239 Part 2 of Schedule 2 makes similar provision for Northern Ireland as sections 17 to 19 do for England.

Policy statement on environmental principles

1240 Paragraph 6(1) requires the Department of Agriculture, Environment and Rural Affairs (“the Department”) to prepare a policy statement on the environmental principles. This means that the Department must draft the policy statement in line with requirements in paragraphs 6 and 7.

1241 Sub-paragraph (2) provides specific information on what the environmental principles policy statement must include. The policy statement will provide information for Northern Ireland departments and Ministers of the Crown on the interpretation and proportionate application of the environmental principles when developing policies. Proportionate application means ensuring that action taken on the basis of the principles balances the potential for environmental benefit against other benefits and costs associated with the action.

1242 Sub-paragraph (3) sets out that the Department may explain in the statement how other considerations should be taken into account by Northern Ireland departments and Ministers of the Crown when they are interpreting and applying the environmental principles. For example, it may be necessary to balance the application of a specific environmental principle with other considerations, such as economic and social benefits.

1243 Sub-paragraph (4) details two aims that the Department must be satisfied that the statement will contribute to. These are:

The improvement of environmental In this context, this means ensuring that the policy statement can be used to shape policies in a way that contributes to protection of the environment.
Sustainable development. Sustainable development can be summarised as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It involves trying to achieve

environmental benefit alongside economic growth and social progress. Therefore, the policy statement will require Northern Ireland departments to consider needs of future generations when developing policies. This means that a Department should consider the environmental impact of their policies together with economic and social factors and, as much as possible, ensure each policy achieves all three aims.

1244 Sub-paragraph (5) sets out the list of environmental principles the policy statement will cover.

These principles are drawn from a number of sources, including, for example, the Rio Declaration on Environment and Development (1992). There is no single agreed definition of the environmental principles. The policy statement will explain in more detail how these are to be interpreted and provide information as to how they should be applied.

1245 The meaning of the individual environmental principles are as follows:

The principle that environmental protection should be integrated into the making of policy: Environmental protection must be embedded in the making of policies.
The principle of preventative action to avert environmental damage: Preventive action should be taken to avert environmental damage.
The precautionary principle, so far as relating to the environment: Where there are threats of serious irreversible environmental damage, lack of full scientific certainty

shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The principle that environmental damage should as a priority be rectified at source: Environmental damage should as a priority be rectified by targeting its original cause and taking preventive action at source.
The polluter pays principle: The costs of pollution control and remediation should be borne by those who cause pollution rather than the community at large.

1246 Further direction on these environmental principles will be set out in the policy statement.

These principles cannot be changed without further primary legislation.

Policy statement on environmental principles: process

1247 Paragraph 7 establishes the process by which the Department will develop and publish the environmental principles policy statement.

1248 Sub-paragraph (1) requires the Department to prepare a draft policy statement on environmental principles. This will be an initial version of the statement before public and Northern Ireland Assembly (“the Assembly”) scrutiny.

1249 Sub-paragraph (2) requires the Department to undertake a public consultation on the draft policy statement. In particular, the Department is required to consult the other Northern Ireland departments and the Secretary of State for the Environment, Food and Rural Affairs.

1250 Sub-paragraph (3) requires the draft to be laid before the Assembly for its consideration. This must take place before the policy statement is finalised.

1251 Sub-paragraph (4) sets out provisions for cases where the Assembly chooses to respond to the draft policy statement by passing a resolution in respect of the draft. The Assembly has a period of 21 sitting days after the draft statement has been laid to pass a resolution if it deems this necessary. The Department is required to lay a response to any resolution passed by the Assembly.

1252 Sub-paragraphs (5) to (7) require the final environmental policy statement to be laid before the Assembly and published. If a response is required under sub-paragraph (4), the Department must not lay and publish the final statement before laying this response. Otherwise, the Department must not lay and publish the final statement before a period of 21 sitting days has passed since the draft statement was laid. This is intended to allow the Assembly sufficient time to scrutinise the draft policy statement. The final statement comes into effect when it is laid before the Assembly.

1253 Sub-paragraph (8) provides a definition for the term “21 day period”.

1254 Sub-paragraph (9) details what a sitting day is in this context.

1255 Sub-paragraph (10) enables the requirements in subsections (1) and (2) as to preparation of the statement and consultation to be met prior to the coming into force of the relevant provisions of the Act.

1256 Sub-paragraph (11) allows the Department to revise the policy statement at any time, and requires the process set out in sub-paragraphs (1) to (9) to be followed each time that the policy statement is revised.

Policy statement on environmental principles: effect

1257 Paragraph 8 sets out the legal duty on Northern Ireland departments and Ministers of the Crown in respect of the environmental principles policy statement, where the duty applies. It also details the relevant exemptions to the duty to have due regard to the policy statement.

1258 Sub-paragraph (1) requires the Northern Ireland departments to have due regard to the environmental principles policy statement when making policies included in the scope of the duty (that is, policy that is not excluded). This means that when making policy, departments must have consider the environmental principles policy statement with substance, rigour and an open mind.

1259 Sub-paragraph (2) places the same duty on Ministers of the Crown when they are making policies relating to Northern Ireland.

1260 Sub-paragraph (3) sets out that the policy statement does not require departments or Ministers of the Crown to do, or refrain from doing, anything if doing something (or not doing it) has no significant environmental benefit or would be in any other way disproportionate to the environmental benefit. In this context:

No significant environmental benefit means that the policy statement does not need to be used to change a policy direction if the environmental impact would be negligible.
Disproportionate indicates situations in which action would not be reflective of the benefit or costs, environmental or otherwise. Action taken must reflect the potential for environmental benefit as well as other costs and For example, there is no

need for a Department to change a policy in light of the principles policy statement if the cost of this change would be very high and the benefit to the environment would be very low. Equally, if the potential environmental benefit is high, then it is proportionate to take a more significant action based on the policy statement.

1261 Sub-paragraph (4) sets out which policies are excluded from the requirement to have due regard to the policy statement during the policy-making process. In the equivalent provision for England – section 19(3) – the armed forces, defence, and national security, taxation, spending and the allocation of resources within the government are excluded. These matters are similarly excluded for Ministers of the Crown when making policy in relation to Northern Ireland.

However, armed forces, defence, and national security do not need to be specifically excluded for Northern Ireland departments as they are excepted matters and, on that basis, Northern Ireland departments have no powers to make policies relating to these subjects.