Why the government must rethink its approach on environmental principles

Our dynamic, living planet is on a journey: the UK government has made it clear it wants the destination to be an environment in a better state than we found it, a welcome ambition which is embedded in the government’s long term environment strategy. But clear signposts will be needed to ensure that we don’t lose our way and we can navigate the choices and challenges that lie ahead.

Following the first debates in 2017 on how our environmental governance system should function outside the EU, the government said environmental principles would provide such signposts, fundamental to the achievement of our ambitions on the environment “…because they offer direction to policy-making”. As the then Brexit Secretary Dominic Raab assured parliament, “Leaving the EU will not diminish our commitment to environmental principles. Indeed, it is an opportunity to reinforce them”.

Ministers also saw the new system as the chance to “…give the environment a voice in this time of national renewal”, an aspiration which remains extremely resonant as we seek to “build back better”.

We have been waiting patiently since 2017 to see how these lofty ambitions would bed down into law and policy. Then, the government promised to consult on a policy statement “imminently”. It was a full year before an information paper on environmental principles was published and a further two and a quarter years before the eagerly awaited consultation arrived.

Environmental principles must drive, not dilute, policy
The policy statement covers five environmental principles. The ‘integration principle’ should require environmental protection requirements to be built into policy development, including at early stages, leading to more holistic policy making. The ‘precautionary principle’ must require policy makers to assess environmental risk through a science based approach and to take appropriate action, depending on the level of uncertainty. The ‘rectification principle’ requires environmental damage to be addressed at source to reduce the impact of damage by delaying remediation, while the ‘prevention principle’ requires action to avoid environmental damage before it occurs. Finally, the ‘polluter pays principle’ should ensure that policy makers always factor the pollution costs into their thinking.

The draft policy statement starts off encouragingly. The Greener UK coalition of environment organisations supports its aim of “…a system that places environmental considerations at the heart of policy-making, so that we can protect and enhance our environment and preserve England’s unique natural assets”. But, as presented, the draft statement is not clear or confident enough to deliver it. It misses an opportunity to put the environment at the forefront of policy making and, left unamended, the environment is at risk of being perceived as an after thought or an inconvenient hurdle.

It is rife with get out clauses
As leading academics, Professor Maria Lee and Professor Eloise Scotford, have argued, the power of environmental principles “…comes in setting symbolic, overarching visions for environmental policy, and, as such, multiple carve outs to their application are inherently problematic”. There are already several such carve outs in the Environment Bill, which is the legal backdrop for the principles. These include sweeping exclusions for some government departments (the Treasury and defence) and an ability for future governments to change the policy statement and sideline the principles with relative ease.

The draft policy statement would exacerbate this position. Its insistence that the principles guide policy making “whilst supporting innovation and economic growth” misses an opportunity to give the environment a much needed leg up on the policy making ladder. There is already a plethora of existing statutory and fiscal rules, guidelines and requirements to boost the prospects of economic growth and innovation, for example the growth duty, innovation test, plan for growth and government economic priorities. This is the environment’s chance to be given priority and greater traction in policy development processes.

Lacking clear signposts, the draft statement is also awash with caveats. There are constant reminders that the principles only apply “where relevant”, “proportionately”, weighing up the “costs and benefits” of action. In bending over backwards not to interfere with ministerial discretion, it comes across as apologetic and its tentativeness is likely to lead to ministers second guessing its application, and to inconsistent and piecemeal policy making.

The government has repeatedly said it wants a world leading system, but if these principles are applied more weakly than the EU, and if guidance to ministers lacks the clarity and direction of other domestic policy areas such as equality, then the dream of global leadership will rapidly fade away.

The precautionary principle is at risk
Historically the UK has taken a more cautious approach to regulation via the precautionary principle. This principle is well established in international environmental law. It stipulates that when there is a risk of harm, such as from a project or substance, governments and policy makers should act with care and caution. Its benefits are visible on those occasions where precaution either was or was not exercised. For example, precaution was instrumental in reducing chlorofluorocarbon (CFC) usage in the 1980s, arresting precipitous damage to the ozone layer.

Despite its benefits, the precautionary principle is a favourite target of those who want to deregulate. Its opponents try to weaken it in three ways: by misrepresenting its scientific credentials, by redefining its ‘proportionate’ application and by adopting a principle of ‘innovation’ to counter it. While the policy statement does not go as far as introducing a new innovation principle, it does introduce unhelpful framing in which a precautionary approach is more likely to fall victim to an overly zealous fixation on new technologies.

Last week, a debate in the House Commons highlighted the scope for confusion, when the Environment Secretary George Eustice appeared to interpret the precautionary principle as meaning ‘we’ll use damaging chemicals as a precaution’ as opposed to ‘we won’t do/use things until there is strong evidence that they’re safe.’ Such comments do not fill us with confidence that the government has a full grasp of how the principles work, or that it is set to maintain or strengthen their application.

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