The fourth and final part of the government’s new environmental governance system goes live today: it is the duty on government ministers to take account of a policy statement on five environmental principles in their policy making. This will join the other elements of the system: legally binding targets, the Environmental Improvement Plan and the new oversight body, the Office for Environmental Protection. Given the recent concerns about waning government environmental ambition, this new legal duty could not be timelier.
In 2017, the Greener UK coalition identified and successfully campaigned for the environmental governance gap, created by the UK leaving the EU, to be filled with a legal replacement. EU environmental policy rests on the principles of precaution, prevention and rectifying pollution at source, and on the ‘polluter pays’ principle. In the EU, multiannual environmental action programmes set the framework for future action in all areas of environment policy. They are embedded in horizontal strategies and inform the bloc’s international environmental negotiations.
The UK government opted to replace this with a less direct approach, simply requiring policy makers to have “due regard” to a policy statement on the principles. The impact of this difference on environmental protection will not be known immediately but is being monitored by the Office for Environmental Protection and others.
It’s taken six years to reach this point
Debates on environmental principles began in earnest during the passage of the first Brexit legislation, the EU (Withdrawal) Act (EUWA) 2018 and they have continued ever since. A pivotal moment was the EUWA debate in which a cross party consensus was forged on the importance of strong environmental principles, with the then Justice Minister Dominic Raab concluding that “Leaving the EU will not diminish our commitment to environmental principles. Indeed, it is an opportunity to reinforce them”.
Deft campaigning by parliamentarians, supported by environmental groups, ensured meeting this commitment was not left to chance. The government was required to publish draft legislation on environmental principles and governance within six months of the EUWA passing. The environment was the only policy area that secured this sort of commitment.
A 2018 Department for the Environment, Food and Rural Affairs’ (Defra) consultation on the principles demonstrated strong public interest when it attracted 176,746 responses, one of the highest ranking consultations ever at that time.
Greener UK’s response however warned the principles were “at risk of being watered down”. The draft legislation did nothing to allay these concerns so we persisted in calls for various ‘get out’ clauses to be removed. Worryingly, expert academics argued that the draft bill did not maintain the legal status of environmental principles as they apply through EU law.
These concerns were echoed by parliamentary select committees which concluded that the clauses on principles were “not fit for purpose”. The government accepted some of these failings and upgraded the legal duty, removed the most egregious of the exclusions and strengthened the consultation arrangements. The legal duty on ministers was to be set out in the Environment Act and, throughout its passage, parliamentarians continued to argue that the environmental principles should meaningfully inform policy making.
A further consultation on the draft policy statement on environmental principles ran from March to June 2021. Unfortunately, this ignored steers from parliamentarians and stakeholders and was a clear product of cross government wrangling. It was heavily caveated and incapable of fulfilling the government’s intended purpose to put environmental protection at the heart of its policy making. We called for a rethink, and the Environmental Audit Committee, which had doggedly tracked progress since 2017, called for “rapid implementation” of the principles.
Meanwhile, over in the House of Lords, special attention was drawn to the problems with the statement, and the Lords Environment and Climate Change Committee called for it to be stronger. It was now so behind schedule that the Office for Environmental Protection had been set up in the meantime and could now offer its advice to the government. Which, unsurprisingly, was that the statement needed to be strengthened.
The final statement, eventually published in January 2023, was somewhat improved, although with some problematic drafting. Policy makers were still guided to be proportionate in their application of the statement and there was a shift towards a less rigorous interpretation of the precautionary principle. Departments were given until today, 1 November 2023, to prepare their implementation plans.
The new duty should make ignoring environmental principles harder
Given the amount of time the government has had to prepare, it’s expected that the new duty will make an instant difference. Its broad reach will apply to new policies, as well as the revision or repeal of existing policies. It will also apply to strategies and frameworks prepared by public bodies that ministers are required to approve.
It could include proposals that lead to legislation, so bills announced in the forthcoming King’s speech, for example, will need to take these principles into account. The government has already committed to apply them when it uses its powers in the Retained EU Law Act 2023 (although its laissez faire approach to retained EU case law will need to be rethought).
Recent examples where the government tried to ditch environmental principles – such as on nutrient pollution, which would have seen consumers not polluters pay – should not be so possible in future.
Much will depend on how enthusiastically ministers and officials embrace their new responsibilities. A ‘glass half full’ approach could see environmental principles penetrate deep into policy making. But a lack lustre attitude could consign them to a tick box exercise.
Effective cross government implementation is needed. The principles should be included in important mechanisms such as the HM Treasury Green Book, Cabinet Office Guide to Making Legislation and other cross government frameworks and templates to help them to endure beyond their initial bounce. Defra minister Rebecca Pow committed to include them in the Green Book more than three years ago. Now the legal duty has gone live, this needs to happen.
Defence, tax and spending loopholes exist
The government insisted on excluding defence, spending and taxation policy from the legal duty which regresses from the EU system that has no such exemptions. It is now incumbent on the Treasury and the Ministry of Defence to make sure these carve outs don’t lead to perverse environmental outcomes under their watch, and that opportunities are not missed to embed environmental protection into their policy making.
Civil servants are already working hard to implement the principles. For example, Defra has developed a cross government toolkit which includes online training, case studies, templates to assess policies against the principles and advice notes.
A policy statement on environmental principles is also being developed in Northern Ireland. Unfortunately, this has not been published for public consultation (although the Office for Environmental Protection has seen and commented on the draft) and its implementation timescale is unknown, due to the ongoing lack of clarity on when the Northern Ireland Assembly will resume its work.
It shouldn’t be underestimated how powerful the impact of the environmental principles policy statement could be on systemising and promoting greater consideration of environmental protections in policy making. But, for this to succeed over the long term, sustained commitment is needed across all the UK’s governments, removing the loopholes for spending and defence policy, and repositioning of the environment as a top priority in cross government plans.