Scrutiny of the Draft Environment (Principles and Governance) Bill Contents

2Environmental Principles

7.European Union (EU) environmental law and policy is informed by environmental principles which are reflected in various international instruments and are set out in the EU treaties.15 Environmental principles act as guidelines for policymakers to consider how the environment can be improved and environmental harm avoided or minimised. The principles “inspire and inform” the European equivalent of primary legislation and aid the interpretation of the law by the European Court of Justice (CJEU).16

List of principles

8.Nine environmental principles are listed in clause 2 of the Bill and the explanatory notes detail their meaning in this context (see Annex for list).17

A high level of protection

9.We previously recommended that the Government should include “a principle in UK law that policy and all public bodies will seek to ensure a high level of environmental protection and a presumption that environmental protection will not be reduced”.18 This principle, which currently applies to the UK under the Lisbon Treaty,19 has not been included in the list of principles in clause 2.20 Nigel Haigh, previously of the Institute for European Environmental Policy (IEEP), said that absence of a high level of protection from clause 2 is “striking and surprising” given a ‘high level’ principle is consistent with the Government’s 25 Year Plan and the Foreword to the draft Bill.21 The Environment Agency also supported its inclusion to drive positive change and set the tone of the Act.22

10.Liz Fisher, Professor of Environmental Law at the University of Oxford, said that a commitment to a high level of protection should be in primary legislation because it would bind the Executive and bind the courts.23 She cautioned that it should not be included in the list in clause 2 as it would then be subject to interpretation by the policy statement.24 Eloise Scotford, Professor of Environmental Law at University College London, agreed it should be in primary legislation. She added that it was important to guide the other principles in a similar way to the Treaty of the Functioning of the European Union.25

11.We remain convinced that the Bill should include an objective to achieve a high level of environmental protection to guide the application of the principles. We recommend that a high level of environmental protection is put on the face of the Bill. This should be inserted at the start of clause 2, as an overarching guiding objective rather than a principle, in the same way as Article 191(2) of the Treaty of the Functioning of the European Union, for example: “Environmental policy shall pursue a high level of protection and it should be based on the principles”.

Aarhus rights

12.The final three principles listed in the Bill (the principles of public access to environmental information, public participation in environmental decision-making and access to justice in relation to environmental matters) are rights derived from the Aarhus Convention.26 The UK Environmental Law Association (UKELA) said that including the three Aarhus Convention rights as environmental principles “is legally inaccurate and problematic” because Ministers (and public authorities generally) are bound to apply and recognise such rights, not simply have regard to them (as is the case in the draft Bill).27 Dr Viviane Gravey from the Brexit and Environment academic network explained that they are rights that every citizen in the UK has, not principles that bind the Secretary of State.28

13.Professor Scotford recommended that they should not be included in the Bill explicitly as ‘principles’.29 Greener UK said a way to do this could be to include a requirement in the Bill for the Government better to secure and give further effect to the Aarhus Convention.30 The Environment Agency said it would be sensible to separate true environmental principles from environmental rights.31

14.The Bill has confused the three Aarhus Convention rights as environmental principles under clause 2. These rights should be kept separate from the principles.

15.We recommend that the Bill does not include the three Aarhus convention rights explicitly in the list under clause 2 as this would reduce their current effect by putting them on a qualified basis. The Bill should better secure and give further effect to the Aarhus Convention, for example, by ensuring access to justice in relation to environmental matters by providing an adequate standard of review through its enforcement and complaints mechanisms, in cases within the scope of the Aarhus Convention.

Policy statement on environmental principles

16.The Bill requires the publication of a statutory policy statement on the interpretation and application of the principles (clause 1), which Ministers will have a duty to “have regard to […] when making, developing or revising their policies” (clause 4).32 The Government expects that this policy statement will be read alongside other Government documents such as National Policy Statements and considered alongside other aspects of policy-making, such as cost benefit analyses, to ensure a balanced and comprehensive approach.33

17.Professors Lee and Scotford said that the principles have become “creatures of policy” and not law which undermines their legal influence “to the greatest extent possible, despite their statutory foothold”.34 Tim Buley QC, Barrister at Landmark Chambers, explained that the principles had been “downgraded” in many ways through the Bill:

They are to be defined and expanded upon by the Secretary of State. They are only relevant to policy formation and not decision making. They do not apply in any direct way to anything other than central Government and so on and so on.35

18.Professor Scotford noted that as the draft Bill stands it does not inform the courts of specific legislative measures,36 or inform legal review of public action and decision making.37 She added that the Bill is “utterly isolated” from all other parts of environmental law and it is unlikely to connect to any other pieces of environmental legislation.38 Others suggested that the OEP should have some of the responsibility for the implementation of the principles.39

Application of the principles

19.Following the Government’s consultation on the principles we concluded that the wording to “have regard to” the principles was too weak, and their application was too limited (to central Government, rather than including all public bodies). We recommended that the Bill must include provisions for “all public bodies to act in accordance with the principles”.40 The Government rejected our recommendation, which is of great concern when it stated that a key theme in in the responses to its consultation were “concerns that the requirement for Government to have regard to the policy statement is not strong enough”.41 We heard these concerns reiterated many times during our inquiry, even from the Environment Agency who suggested stronger language was needed.42

20.The Government’s justification for the application of the principles being limited to central Government is that it “has primary responsibility for developing the majority of high-level and strategic environmental policies and legislation”.43 It considered that central Government sets the strategy and approach for policies developed by other public bodies. Professor Scotford said that it was “slightly weird” making the Government accountable and is the reverse of what happens in EU law.44 Dr Vivianne Gravey highlighted that it will be important to have a duty that goes further than Ministers, particularly in the case of Northern Ireland where there currently is no Executive. She said it would help public bodies in Northern Ireland when they are implementing environmental policies, to try to meet the principles directly.45

21.Georgina Holmes-Skelton, Head of Government Affairs at the National Trust, said she was concerned with Ministers only having to comply with the policy statement, and not the principles themselves:

quite a lot of weight is placed on this policy statement in terms of the way the principles are being upheld and moved into domestic law, because there is no duty to adhere to or apply the principles, but rather the policy statement specifically.46

Wildlife and Countryside Link highlighted the precedent in the Equality Act 2010, that “a public authority must, in the exercise of its functions, have due regard to the need to … “.47 Professor Maria Lee from University College London, explained that the Bill could easily give the principles statutory status with a provision in the Bill that “all public authorities shall apply the environmental principles in the exercise of their functions”.48

22.The Secretary of State for Environment, Food and Rural Affairs, Rt Hon Michael Gove MP, said that he considered the language around ‘have regard to’ was a “well-understood legal term” and highlighted that he had been judicially reviewed before for not having regard to a set of criteria when he was Education Secretary. He considered it was “a perfectly well-understood form of wording”.49 When challenged further on whether he would consider a change to “act in accordance with”, he agreed:

Caroline Lucas: Just to be really clear, in Section 4.1, where at the moment it says, “A Minister of the Crown must have regard to the policy statement on environmental principles” are you saying that that will change to, “A Minister of the Crown will act in accordance with the environmental principles”?

Michael Gove: Will act in accordance with the policy statement and the policy statement will lay out what the principles are.50

23.We have heard a great deal of concern over the way the environmental principles and their application have been set out in the Bill. We remain convinced that the requirement to ‘have regard to’ the policy statement on principles is so vague that every decision could result in litigation. The Bill downgrades the principles’ legal effect and does not connect to the rest of the Bill or other pieces of environmental legislation. This aspect of the Bill is not fit for purpose.

24.We recommend the environmental principles are put on an unqualified legal basis in relation to environmental policy. All public bodies should have a duty to apply the principles as is currently the case under EU law. We welcome the Secretary of State’s consideration of the wording in clause 4(1) and recommend it should be amended so that, “all public authorities will act in accordance with the policy statement and have due regard to the environmental principles in the exercise of their functions”.

25.One of the Office for Environmental Protection’s principal duties should include the application and promotion of the principles. This should be included in clause 12(3) on the exercise of its functions.

Exclusions to the application of the principles

26.Clause 1 sets out that the policy statement on principles will be subject to several exclusions, e.g. policies that in the opinion of the Secretary of State are “not relevant”,51 or where they have “no significant environmental benefit”.52 It also may not deal with policies relating to “the armed forces, defence or national security”, “taxation, spending or the allocation of resources within Government”, or “any other matter specified in regulations made by the Secretary of State”.53 The explanatory notes explained that this final clause is needed to provide flexibility to ensure that “inappropriate policy areas” are not covered by environmental principles.54

27.The Environment Agency said there was a risk that the exclusions may mean that the principles do not continue to have “a meaningful influence on the development and application of environmental policy and law after EU Exit”.55 Its Chair, Emma Howard Boyd, said taxation was important to embedding the polluter pays principle across Government and preventing environmental harm,56 while Alan Law, Deputy Chief Executive at Natural England was particularly concerned about the exclusion of defence as the Ministry of Defence owns and manages a lot of land.57 William Wilson, barrister and environmental lawyer, considered these exclusions to be “absurd” and Tim Buley cautioned that the lack of clarity on what is and is not included will result in litigation cases and the Court of Appeal having to decide.58

28.Clause 4(2) sets out further exclusions for the policy statement. Ministers have the option to take (or not take) action that “would have no significant environmental benefit”.59 The National Trust described this as a “proportionality test”, stating that it is unclear “how such a judgement would be made, or how environmental benefit would be calculated, or over what period”.60 Professor Scotford said this clause was “particularly problematic” and likely to be immune from judicial review.61 Professor Fisher said it seemed “quite a serious limitation on the application of the environmental principles” and there is no equivalent in EU law.62 She was concerned that in both clause 1 and clause 4 the onus would be put on the need to show that there was a significant environmental benefit from applying the principles when making, developing or revising policies.63

29.Professor Scotford said the approach assumed that environmental problems “are easily carved off from everything else in society”, whereas it is in all these excluded matters that environmental issues and their regulation really count.64 She considered that the exclusions have come about from a misunderstanding of the role of the principles as they currently apply:

… they are [not] a rule that might stop a particular decision. […] That is not what they are about. They are about expressing a policy vision that will inform how environmental law works.65

30.Daniel Greenberg, Counsel for domestic legislation at the House of Commons, suggested that there must be an underlying reason for the exclusion of taxation, spending or the resources within Government from the application of the principles.66 He said this could be refined before being put into statute.67 We asked Michael Gove about the exclusions, suggesting that it could perversely increase the amount of litigation associated with them. He acknowledged our concerns:

We will look at it on a case by case basis. If cases are put to us as to why the exclusion of certain policy areas creates particular problems, then we will certainly do so.68 […] we would be grateful for your recommendations about where you think the strongest arguments have been made.69

31.Michael Gove added that in the case of the Ministry of Defence, it would be subject to the full weight of environmental law as a landowner, but there would be certain areas of national security and defence where it would be unnecessary for the OEP to have a role.70 On the exclusions on taxation, spending and resource allocation, he considered that the Treasury could choose to ensure that the tax system can produce environmental goals and benefits and did not think they should be bound by environmental principles:

… it is the case that almost every Finance Minister across the world would think that in its allocation of resources, particularly in extremis, it has to have the freedom to be able to allocate resources as the Finance Minister sees fit.71

32.The principles should be broadly applied to have their intended effect. The exclusions set out in the Bill are so broad that the principles will not continue to have a meaningful influence on the development and application of environmental policy and law. It is likely that the exclusions set out in clause 4(2) will be immune from judicial review.

33.Any exclusions to the application of the principles ought to be very narrowly defined. The Bill should specify that the Ministry of Defence as a landowner is not excluded, nor should general taxation or spending be omitted since many environmental measures depend on changes to the tax system. We welcome the commitment that the Secretary of State will look again at the exclusions to the principles and recommend that:

Scrutiny of the Policy statement on environmental principles

34.We previously cautioned that successfully establishing the principles in law and policy making will largely be determined by the Government’s policy statement and that scrutiny of this will be key. We recommended that the policy statement should be included as a schedule to the Bill itself - allowing it to be scrutinised fully by Parliament and that substantive amendments should only be made after a debate on the floor of the House.72

35.Witnesses were concerned by the lack of scrutiny of the policy statement that clause 3 provides.73 Georgina Holmes-Skelton was concerned that the Bill does not allow for “active approval” of the statement by Parliament and that the Secretary of State could amend the policy statement later.74 The Chartered Institution of Water and Environmental Management (CIWEM) also noted that the Bill allows Ministers considerable discretion when revising the policy statement:

… the fact that the Secretary of State may at any time revise the policy statement adds in the potential for it to be amended according to the priorities of the Government at a given point in time (which may not necessarily be best for the environment).75

36.We are disappointed that we have not had sight of the policy statement on principles and this limits our ability to comment. Clause 3 should be amended to require Parliament to approve the policy statement and any subsequent revisions to it. The provisions of the Planning Act 2008 which require public consultation and scrutiny of policy statements by Select Committees should also apply.

15 A number, but not all, of the principles are set out in Article 191 of the Treaty of the Functioning of the European Union (TFEU). One group of environmental principles has been used in EU policy-making since the 1970s, and a wider set of principles were agreed globally at the 1992 Rio Declaration on Environment and Development (the Earth Summit). POSTnote: 590, November 2018; Q85

16 Q85; Dr Mary Dobbs & Dr Ludivine Petetin (DEB0068)

17 The European Union (Withdrawal) Act 2018, section 16 required nine environmental principles to be included in the Bill

18 House of Commons Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, 24 July 2018, HC803

19 The Treaty of Lisbon is an international agreement that amended the two treaties which form the constitutional basis of the European Union (the Treaty on European Union and the Treaty on the Functioning of the European Union).

20 Mr Nigel Haigh (DEB0019); Brexit and Environment (DEB0008); Professor Maria Lee (DEB0076)

21 Mr Nigel Haigh (DEB0019); Brexit and Environment (DEB0008); Professor Maria Lee (DEB0076)

23 Q97 [Professor Fisher]

24 And hence the proportionality test outlined in clause 4(2) to show that there is a significant environmental benefit before taking action.

25 Q97 [Professor Scotford]; see also Qq256–257 [Emma Howard Boyd]

26 The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001.

27 UKELA (DEB0048)

28 Q87; see also Professor Maria Lee (DEB0006)

29 Professor Eloise Scotford (DEB0065)

30 Greener UK (DEB0027)

31 Environment Agency (DEB0080)

34 Lee, M and Scotford, E. Environmental Principles after Brexit: the draft Environment (Principles and Governance) Bill (Working Paper), Jan 2019

35 Q96; see also Q77 [Georgina Holmes Skelton] and Q79 [Ruth Chambers]

36 E.g. specific provisions of the Environmental Liability Directive are interpreted in light of the precautionary principle

37 E.g. informing what constitutes lawful decision making taken on the basis of the precautionary principle. Professor Eloise Scotford (DEB0065)

39 Mr Victor Anderson & Dr Rupert Read (DEB0036)

40 House of Commons Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, 24 July 2018, HC803, p39

41 Environmental Principles and Governance after the United Kingdom leaves the European Union, Summary responses and Government’s response, p8

42 Q252; see also Q104–105; 107; Aldersgate Group (DEB0060); Chartered Institution of Water and Environmental Management (DEB0010); ClientEarth (DEB0039); National Trust (DEB0018); Environment Agency (DEB0080); Natural England (DEB0023); Professor Eloise Scotford (DEB0065); Professor Maria Lee (DEB0006); WWF (DEB0063); Wyeside Consulting Ltd (DEB0001)

43 Environmental Principles and Governance after the United Kingdom leaves the European Union, Summary responses and Government’s response, p14

47 Equality Act 2010, Section 149; Wildlife and Countryside Link (DEB0035)

48 Q8

50 Q176; see also The Department for Environment, Food and Rural Affairs (DEB0096)

51 Clause 1 (5)(a)

52 Clause 1 (5)(b)

53 Clause 1 (6)

54 Draft explanatory note 1

55 Environment Agency (DEB0080)

58 Q96; Wyeside Consulting Ltd (DEB0001); see also Greener UK (DEB0027) and Chartered Institution of Water and Environmental Management (DEB0010)

59 Clause 4(2)(a)

60 National Trust (DEB0018)

61 Q91; Professor Eloise Scotford (DEB0065)

66 Clause 1(6)(b)

72 House of Commons Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, 24 July 2018, HC803, p39

73 Aldersgate Group (DEB0060); National Trust (DEB0018); Professor Eloise Scotford (DEB0065); The Woodland Trust (DEB0054); Wildlife and Countryside Link (DEB0035); WWF (DEB0063)

75 Chartered Institution of Water and Environmental Management (DEB0010)

Published: 25 April 2019