The government is on the brink of making a mistake over environmental principles

This post is by Georgina Holmes-Skelton, head of government affairs at the National Trust.

The environmental principles set out in EU treaties and law were the bedrock of the UK’s legal framework for protecting the environment while it was a member of the EU. Now we need to decide what our own version of these crucial legal foundations will look like in UK domestic law. This presents a challenge to ensure that the protections we have are not undermined or diminished, but also a rare and crucial opportunity.

We’ve long heard from ministers their intention to be “the first generation to leave the environment in a better state than we inherited” and their commitment to “non-regression” from existing levels of protection. We, in the conservation sector, have welcomed and celebrated that ambition, which is reflected in the findings of Professor Dasgupta’s review that our economies, livelihoods, and wellbeing are all rooted in the natural environment. This is our chance to build that ambition into a world-leading legal framework to drive positive policy and decision making that benefits us all.

An event, hosted by Greener UK and the UCL Centre for Law and Environment last week, was a chance to consider the government’s proposals for the principles in the round against their stated objectives for the environment. The experts sounded some worrying warnings.

The UK’s proposals are not as robust as the EU’s
Professor Maria Lee set out the context of the environmental principles in terms of existing EU law and discussed how they compare and could potentially interact with the proposals for the UK’s domestic framework. The structural skeleton of this will be set by the Environment Bill. She highlighted that we face a necessarily complex legal situation, with a maze of retained provisions and inherited case law within which the principles will need to operate. She emphasised that this new legislation does not enforce the principles systemically or in the same legally binding way as the previous EU framework. They will apply only at a high level and ministers only need to pay them ‘due regard’.

Professor Eloise Scotford of UCL described in greater detail the draft policy statement emphasising the scale of the challenge that Defra faces, given the multi-faceted nature of the principles and the multiple functions they serve. She said there was an unanswered need for the principles to influence thinking right from the earliest inception of a policy, not just to be bolted onto the end of the process.

David Wolfe QC offered the benefit of his experience within the courts, in interpreting and applying the public sector equality duty. He noted that the Environment Bill set up the principles as process obligations for policy making in a similar way, but both the legislation and the policy statement lack the same clarity and strength of the equality duty.

A stumbling block in the government’s proposals
These insights underline the stumbling block at the heart of the government’s proposals: their lack of ambition given the opportunity at hand. All three speakers noted, in different ways, the combination of exemptions for important policy areas, such as taxation and spending, the bare minimum legal duty to apply only the policy statement (not the principles as such), and the weakly framed proposal which seeks more to reassure than challenge policy thinking.

The principles, as proposed, give ministers the room to take a decision entirely legally which will cause substantial environmental harm. This might be considered a valid choice, which ministers are entitled to make if the circumstances are extraordinary enough to warrant it. But, even at the lowest end of the scale of ambition, the principles should act as a pause on that prerogative and ensure such decisions are taken transparently and consciously.

There’s still time for more visionary ambition
A more visionary ambition would be for the principles to act as a mechanism for driving the integration of environmental thinking across Whitehall; a check to ensure all policy is made with a clear view of its impacts on climate and nature. However, under current proposals, the escape routes offered are so many that ministers will be able to proceed with almost any policy without having to give any serious thought to its environmental impact.

That said, there is hope; everyone at the event agreed that the proposals had positive scope. Jill Rutter, of the Institute for Government, talked about the range of tools available to embed the draft principles in civil service practice and truly integrate them into policy making at every level. So there is genuine potential to address barriers and create effective processes if there is political will.

And that is a vital point. To ensure these principles have the long term impact they need to have, ministers must implement them with all the passion and urgency they profess for the environment. They need to be open to check their thinking, offering supportive leadership and encouraging departments and officials to take them seriously in the course of their work.

If the Environment Bill and draft policy statement are an accurate reflection of where political will currently stands, then David Wolfe’s framing of the principles as a “toothless tiger” is true. But there is still time to give this proposal teeth as an important foundation of the UK’s future environmental governance. The government should listen to the feedback from its consultation and the experts at this event and take steps to give the environmental principles the legal and political bite they need.

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