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Does the Environment Bill ‘enshrine’ environmental principles in English law?

Does the Environment Bill ‘enshrine’ environmental principles in English law?

Environment Bill

The Queen’s Speech of December 2019, i.e. that of the second Johnson government, announced a new Environment Bill, which would ‘enshrine in law environmental principles and legally-binding targets’. It was notable modification of the earlier statement about the same Bill made in October 2019 in the Queen’s Speech of the first Johnson government, which had stated that: ‘for the first time, environmental principles will be enshrined in law’. The correction was necessary. The UK has had environmental principles before. They were enshrined in EU law and had been effective in the UK through the European Communities Act 1972. 

Does the Environment Bill (currently at Committee Stage in the House of Lords) recognise environmental principles in a way comparable to EU law? The Bill, both in its original and in its current slightly amended form, introduces the idea of environmental principles in clause 16. At clause 16(5) it is stated that the term ‘environmental principles’ means (a) the principle that environmental protection should be integrated into the making of policies (integration principle)  (b) the principle of preventative action to avert environmental damage (prevention principle) (c) the precautionary principle, so far as relating to the environment (precautionary principle) (d) the principle that environmental damage should as a priority be rectified at source (rectification at source), and (e) the polluter pays principle. So there is more or less good fit between these principles and those protected under European Union law. 

Yet, the way in which these ‘environmental principles’ are to be protected is surprisingly intricate. The principles could have been part of the Bill itself as broad duties of principle, in the way perhaps of the ‘public sector equality duty’ in s. 149 of the Equality Act 2010 or the provisions of the Human Rights Act 1998. But this option, which had been put out to consultation back in 2018, was not the approach adopted by the Environment Bill. Instead, the Bill provides that the Secretary of State is given the task of preparing a ‘policy statement on environmental principles’ (clause 16(1), which will then set out the relevant principles by way of statutory guidance (under the special process of clause 17).  

The Bill goes on to define ‘policy statement’ at clause 16(2) and determines that a policy statement on environmental principles is:

‘a statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown when making policy’. 

In other words, this provision makes the interpretation and application of environmental principles dependent not on the natural meaning of the terms used by Parliament in the text of the Act, but conditional on a future government policy, which will give those terms a precise meaning. This means that the principles are not statutory requirements. 

This is made even clearer at clause 18, which further specifies how the ‘principles’ are to be given effect. Under clause 18(1), a Minister of the Crown ‘must when making policy, have due regard to the policy statement on environmental principles currently in effect’. This clause limits the role of environmental principles in two ways. First, it determines that they are only matters to which the minister must have ‘due regard’. Second, he or she must do so only when ‘making policy’. Presumably, the principles do not apply when a minister is exercising particular decision-making powers, for example in determining planning appeals. It follows that the environmental principles are not intended to be clear guides to action. They are merely standards to be given due regard, as with other statements of policy. 

Clause 18(2), as it currently stands, introduces a further limitation: 

(2) Nothing in subsection (1) requires a Minister to do anything (or refrain from doing anything) if doing it (or refraining from doing it) -

(a) would have no significant environmental benefit, or
(b) would be in any other way disproportionate to the environmental benefit. 

The meaning of this ‘proportionality’ clause is not immediately clear. The Explanatory Notes to the Bill do not offer much in the way of clarification. They introduce the following sentence: ‘This means that, when making policy, Ministers of the Crown must have the correct level of regard to the content of the environmental policy statement’.     

Even though the Bill has not yet been passed, the Department for Environment, Food and Rural Affairs published its draft statement on environmental principles and launched consultation in March 2021 (which raises the question of whether a future s.17 of the Act which concerns the process of making the policy statement on environmental principles can be respected, if the process it determines takes place before the section has even been created). The consultation closed on 2 June. The draft paper makes it perfectly clear that the principles merely ‘empower’ ministers and do not ‘dictate’ policy decisions: 

This policy statement does not seek to dictate a set formula for how environmental principles should be applied to policy-making; instead, it aims to empower Ministers and those working on their behalf to think creatively and use environmental principles in an innovative and forward-thinking way to protect and enhance the environment whilst supporting innovation and economic growth (p. 5). 

The overall impression is that the government’s intention is not to introduce environmental principles as legally binding standards. Instead, they are to serve as requirements of policy. This is, however, to weaken the role of environmental principles in comparison to their role before the UK withdrew from the EU. The role of principles in EU law is much simpler. The principles are set out in Article 191 TFEU and they are applied directly to the EU and to the legal orders of the member states informing both policy and regulatory or executive decision making.  For example, in the well-known Case C-127/02 Waddenzee [2004] ECR I-07405 the Dutch Secretary of State issued licenses to engage in mechanical cockle fishing in the Waddenzee, a Special Protection Area (SPA). The Court of Justice of the EU interpreted art 6(3) of the Habitats Directive on the need of ‘appropriate assessment’ with the assistance of the precautionary principle: 

‘44. In the light, in particular, of the precautionary principle, … a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned’  

I do not believe that the environmental principles of the Environment Bill can have such a direct impact on environmentally significant decisions. Under the current plans, environmental principles will not be robust legal safeguards of environmental protection. They are progressive but ambiguous and essentially flexible statements of policy, softly bending to the needs of the executive. 

Pavlos Eleftheriadis is a barrister at Francis Taylor Building and a professor of public law at the University of Oxford