5Principles
101.The other aspect of the Consultation covered environmental principles.186 The EU Withdrawal Act requires DEFRA to publish an Environmental Principles and Governance Bill by December 2018. The draft bill must include a set of environmental principles, a statement of policy relating to how these principles shall be applied and interpreted. There was near unanimity from our witnesses that the principles established in international law and the European Union treaties should be legislated for into UK law and listed in the Bill.187 As Professor Jordan noted, the UK Government signed up to them in the 1992 Rio Declaration as well as through the European Union Treaties. He argued that there was no reason for the Government to avoid legislating for them, given its commitment not to lower standards.188 Professor Lee from University College London, noted that the principles should continue to play their current role and this “would not be novel or disruptive”.189
102.Some referred to the underlying approaches set out in the European Union treaties and other international commitments. Living Law argued that the principles should include one of “non-regression”, in line with the International Union for the Conservation of Nature, to ensure environmental protection does not go backwards.190 Professor Burns pointed out that there was “one obvious one missing”, which is the principle of protection, included in Article 191(2) of the Treaty of the Functioning of the European Union, that requires the EU to pursue a high level of environmental protection.191
103.Professor Owens from the University of Cambridge, told us that she was uncomfortable with the principles being chosen through a ‘popularity contest’. She also said that they should not need regular updating, supporting that they should be set out in statute:
It seems to me that if the principles are suitably sparse they should not have to be changed in the light of new scientific knowledge, for example. New science might help you decide when it is appropriate to apply the precautionary principle but it should not change the principle in itself.192
104.The amended EU Withdrawal Act includes provisions for a Bill to include a set of environmental principles and a duty for the Secretary of State to publish a statement of policy relating to their application and interpretation in the making and development of policies by Ministers of the Crown. There is also to be a duty which ensures that Ministers must have regard to the policy statement in connection with the making and development of policies by Ministers. The Act specifies the principles to be included, adding a further three to the Consultation’s six. The principles identified in the European Union (Withdrawal) Act are:
(a) the precautionary principle so far as relating to the environment,
(b) the principle of preventative action to avert environmental damage,
(c) the principle that environmental damage should as a priority be rectified at source,
(d) the polluter pays principle,
(e) the principle of sustainable development,
(f) the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,
(g) public access to environmental information,
(h) public participation in environmental decision-making, and
(i) access to justice in relation to environmental matters.
Like the Consultation, they do not include a principle of a high level of environmental protection.
Interpretation
105.Professor Lee explained that under current arrangements the principles go beyond guiding environmental policy making and legislation. They also “guide policy implementation, the interpretation of legislation by administrators and courts, and the exercise of discretion by public authorities […] in some cases they provide a standard for judicial review.193 She considered that the Consultation “understates” the role of the principles in EU law, which often guides decisions through the application of case law:
The most striking example may be the way in which the Habitats Directive is said to give expression to the precautionary principle: Planning Inspectorate decisions are often notable for their careful, but pragmatic, application of a very demanding judicial approach to the precautionary principle. And note that the precautionary principle is not contained in the language of the Habitats Directive.194
106.The Consultation indicates that pre-exit Court of Justice of the European Union (CJEU) case law general principles will apply in principle to EU retained law.195 It is also the case that UK courts can “have regard” to post exit CJEU case law when interpreting EU retained law. Once the principles are legislated for in post-exit UK law then there will be a duty ensuring that Ministers of the Crown must have regard, in circumstances provided for by the legislation, to the interpretive policy statement published by the Government.196 Some witnesses acknowledged that there were differences of opinion around the interpretation of some principles - particularly the precautionary principle.197 These arguments may play out as the policy statement is developed. Professor Lee indicated that scrutiny of the policy statement would be “absolutely crucial” as this is what the courts would be applying. She suggested how this scrutiny should be undertaken:
The language of the national policy statement should be subject to very wide consultation, and it should also be subject to parliamentary approval. The only way to ensure that, is to have those procedural commitments in the Principles and Governance Bill that we are promised.198
Application
107.Some witnesses considered that neither of the options in the Consultation document maintain current protections. The Government’s preferred approach is for the policy statement to only apply to central government policy making, rather than to other public bodies. Greener UK considers that public authorities must be under two clear legal duties with respect to the principles, “one that applies directly to the principles and one relating to the policy statement”. Professor Lee indicated that she was not comfortable that the measures in the Consultation would meet existing protections:
The principles should apply to all public bodies, not just central government but to all public bodies. That is exactly what happens at the moment within the European Union. It is a routine part of administrative decision-making at all levels, right down to the street level, to apply the environmental principles. The first thing is the who. The second is the how, and “having regard to” is very weak. Government could have regard to the environmental principles, conclude that they stop Government doing what they want to do and simply not comply.199
108.Professor Lee also indicated that there is litigation over how the ‘have regard to’ duty to protect biodiversity, under the Natural Environment and Rural Communities Act, has been interpreted. The meaning of the clause is so vague that every decision could result in court cases.200 The RSPB also explained that the application of the principles is particularly important where public bodies are responsible for policy creation and decision making without the need to refer matters back to central Government. Wildlife and Countryside Link believes that “by requiring only ‘regard’ for the proposed policy statement, the proposal makes it too easy for Government to prioritise trade concerns and deregulatory pressures over the environment”.201 Professor Lee’s preference is for “legislative language requiring all public bodies to act in accordance with the principles”.202
109.The Government is now obliged to include key environmental principles in draft legislation. However, the wording in the governance consultation and the EU Withdrawal Act, that Government should ‘have regard to’ the principles and that their application is limited to central Government, rather than including all public bodies is too weak. It is likely that the principles will be contested once the accompanying policy statement is produced and scrutiny of this will be key to successfully establishing the principles in law and policy making.
110.The Government should put into law the environmental principles that the UK has signed up to in international law and those which are embodied in the EU Treaties. 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. The Environmental Principles and Governance Bill must include provisions for “all public bodies to act in accordance with the principles” and should consider micro-duties aimed at specific public bodies that reflect their individual remits.
111.What the principles will mean will largely be determined by the Government’s statutory statement of policy. In some areas their interpretation may be fiercely contested. We are not convinced that principles need regular updating, but the interpretative statement needs robust scrutiny and - if the Government’s pledge that protections will not be lost as result of leaving the EU is to be kept - a clear baseline set in primary legislation. The Government must consult widely on the interpretive policy statement. The original policy statement should be included as a schedule to the Bill itself - allowing it to be scrutinised fully by Parliament. Substantive amendments to the statement should only be made following a debate on the floor of the House.
186 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). There is no equivalent general statement of environmental principles in UK law
187 Q28 EGI; Aldersgate Group (EGI0014); Brexit and Environment (EGI0006); Chartered Institute of Ecology and Environmental Management (EGI0019); Chartered Institution of Water and Environmental Management (EGI0008); ClientEarth (EGI0013); Environmental Industries Commission (EGI0033); IEMA - Institute of Environmental Management and Assessment (EGI0016); Professor Maria Lee (EGI0010); Energy UK (EGI0015); Wildfowl & Wetlands Trust (EGI0027); WWF (EGI0018)
195 But the Supreme Court and the High Court of the Judiciary (in certain cases) would not be bound in circumstances where in equivalent domestic circumstances it would have decided to depart from its own case law; section 6 of the European Union (Withdrawal) Act.
196 Section 16 of the European Union (Withdrawal) Act.
200 Q33 EGI [Professor Lee]. See also EFRA Committee Pre-legislative scrutiny Draft Animal Welfare (Sentencing and Recognition of Sentience) Bill 2017, HC 709, Para 30
Published: 24 July 2018