Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill Contents

2The policy statement on environmental principles

Environmental principles

11.Environmental principles are currently enshrined in European law to help protect the natural world and provide guidance to policy-makers, legislators and the judiciary. They are used by governments and public authorities across the EU to take decisions that could impact on the environment.19 Environmental principles in the UK stem from a number of different sources, including international agreements, EU Treaties, or both.20 Articles 11 and 191 to 193 of the Treaty on the Functioning of the European Union (TFEU) set a legal basis for the principles of precaution, prevention, rectification at source, and polluter pays in EU law.21

12.When the UK leaves the European Union, the UK Government will no longer be under a legal requirement to ensure these environmental principles guide policy-making.22 The explanatory notes in the draft Bill state that although environmental principles are central to UK government policy, and are already enshrined in some domestic legislation, such as the Natural Environment and Rural Communities Act 2006, they are not currently set down or defined in one place at a national level .23 The explanatory notes further state that this may lead to “potential confusion as well as a high risk of reducing standards on environmental decision-making, owing to the removal of the foundational environmental principles”.24

13.Clauses 1–4 of the draft Bill outline provisions for environmental principles and a requirement on the Secretary of State to publish a policy statement.25 The principles to be included in this statement are intended to serve as a foundation for the future development of UK environmental policy and law.26 Clause 2 provides a list of principles which the UK has committed to carry across from European law in the EU (Withdrawal) Act 2018:

The explanatory notes explain that the policy statement produced by the Secretary of State under Clause 1 will include a fuller definition of each of the environmental principles included in Clause 2.28 The explanatory notes also state that the “principles cannot be changed without primary legislation”.29 Further information on the Government’s intended meaning and application of each principle was set out in an accompanying information paper.30

14.Nigel Haigh, an Honorary Fellow of the Institute for European Environmental Policy, told us that that the nine general environmental principles listed in Clause 2 “all deserve to be included” in the Bill.31 However, he also called for the objective of “a high level of protection and improvement of the environment” to be added to the list.32 He noted that this objective is currently included within Article 191(2) of the Treaty on the Functioning of the European Union which states that EU policy on the environment “shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union”.33 Nigel Haigh stated that the absence of the “high level of protection” objective from Clause 2 was both “striking and surprising”. “Striking” given that “high level” as a principle is prominently stated in the TFEU and “surprising” because the principle is consistent with the Secretary of State’s own admission that “all eyes are on us to prove that our standards will remain high”.34 Greener UK, an umbrella group of 14 environmental organisations, also called for the Bill to include an overarching environmental objective and ensure that the principles aim for a “high level of environmental protection”.35 Greener UK considered that linking the principles listed in Clause 2 to an overarching objective would “give them coherence and […] elucidate what it means to apply them proportionately”.36 Similarly, Professor Colin Reid, representing both the UK Environmental Law Association (UKELA) and the Brexit and the Environment group, supported the inclusion of a “high level of protection” objective as a “general aim to go to” to address any possible tensions between the other principles listed.37

15.In response to the Government’s consultation on environmental principles and governance, stakeholders had also suggested additional principles for inclusion in the new legislation; however, none were included in the draft Bill.38 Nigel Haigh called for the “prudent and rational utilisation of natural resources” principle to be included on the grounds that it was an important point “not covered by the other principles”, and for the inclusion of a subsidiarity principle given that environmental policy is carried out at different levels of government and across the devolved administrations.39 In order to avoid conflict he argued that “there must be a principle to guide the allocation of tasks”.40 The Chemical Industries Association called for the inclusion of an “innovation principle” and noted that the European Commission was already implementing such a principle.41 They argued that its inclusion would help to enable the UK to “develop world-leading new technologies that are often of significant benefit to the environment and our society”.42 The National Farmers’ Union (NFU) also stated that an innovation principle was needed to help “balance the precautionary principle” and to ensure an “appropriate balance is struck between protecting the environment and allowing business expansion and the development of new technology”.43

The legal status of the policy statement

16.Clause 1 places a duty on the Secretary of State to prepare a statement that “must explain how the environmental principles are to be interpreted and proportionately applied by Ministers of the Crown in making, developing and revising their policies”.44 The accompanying information paper explains that the policy statement on environmental principles will be a statutory document, and that it will be a legislative requirement that it be prepared and published, as set out in clauses 1 and 3 of the draft Bill.45

17.Commenting on the provisions for environmental principles and the policy statement, Professor Maria Lee argued that it fell “very far short of what we were promised” and fell “very far short of the situation we currently enjoy”.46 This position was reflected by Greener UK who considered the provisions for the policy statement on environmental principles to be a “significant step backwards from the status quo”.47 Professor Maria Lee told us that the proposed policy statement would not match the legal protections currently granted by EU equivalents. She went on to explain that:

In EU law, as listed in the treaty rather than as listed in the draft Bill, the environmental principles have legal status. […] They are legally binding on all public authorities, not just Ministers, in all of their functions when relevant, so not just on high-level policy. What the Bill does is take that legal provision, that legal settlement, and turn it into a pure policy settlement.48

18.Professor Eloise Scotford pointed out that the environmental principles “have prominent places in the EU treaties” which in turn provide them with “legal prominence and legal priority”.49 These principles “inspire and inform what the equivalent is to primary legislation in environmental areas in EU law”.50 Dr Viviane Gravey, a lecturer at Queen’s University Belfast, similarly outlined to us the difference between legal and political commitments relating to environmental principles, explaining that via EU law the UK has “a constitutional commitment to go for increased environmental protection”.51 She suggested that the policy statement represented a shift to just a “political” commitment, which was much weaker.52 Daniel Greenberg, Speaker’s Counsel for Domestic Legislation, explained that a policy statement was ultimately “miles away” from law.53

19.When we asked how the legal force of the policy statement could be strengthened, Professor Maria Lee stated that it would be “completely plausible” to have a provision in the Bill that said, “all public authorities shall apply the environmental principles in the exercise of their functions”.54 She argued that this would give the policy statement a “proper legal underpinning” and would be “closer to what we have currently as members of the European Union”.55 Professor Lee also called for “stronger provisions for consultation and Parliamentary approval” of the policy statement.56 Overall, she concluded that the draft Bill, taken at face value, suggested “an intention to reduce the legal and strategic effect of the existing EU environmental principles, so that they are less protective of the environment, less constraining of government and administration, and do not apply in difficult cases”.57 She argued that “if that is not the intention, major changes to the draft Bill are necessary.”58

20.The Chartered Institution of Water and Environmental Management (CIWEM) considered that it was difficult to assess the effectiveness and legal enforceability of the principles without sight of a draft policy statement alongside the draft clauses on principles and governance.59 CIWEM also expressed concern that the ability of the Secretary of State to revise the policy statement at any time provided 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)”.60 Greener UK also called for the power of revision for the Secretary of State to be narrowed, and suggested that, as drafted, the Clause gave “the Secretary of State carte blanche to amend the statement in any way at any time, with no requirement for stakeholder consultation or parliamentary scrutiny”.61 They further suggested that the timescales and processes for drafting, consulting on, publishing and reviewing the policy statement needed to be clarified on the face of the Bill, to avoid the risk that the policy statement’s timings “could slip” and its processes “be weakened by stealth”.62

21.In contrast, the National Farmers’ Union (NFU) was satisfied that the principles were “legally enforceable” and interpreted Clause 4(1) to mean that Ministers “should be able to demonstrate that the policy statement was considered in the design and development of policy”.63

22.The Environment Agency commented that as the application of principles was “indirect” through the policy statement, much depended on “what that policy statement says”.64 However, it welcomed the commitment to consult on the policy statement and considered that the statement would need to explain how the principles should be applied, “including appropriate checks and balances, for example in relation to other policy objectives”.65 Emma Howard Boyd, Chair of the Environment Agency, expressed her support for the inclusion of an overarching “high level of protection” objective in the Bill, stating it could “set the tone of Act” and make clear “what we are trying to achieve for nature”.66

23.The Secretary of State did not comment specifically on the omission of an overarching objective for a high level of protection for the environment from the draft Bill, but stated that “if people think that there are ways in which we are going to have regard to those principles which are insufficiently rigorous, we are open-minded”.67 He disputed the claim that the current provisions in the Bill were too weak but stated that he would be willing to look at “a specific case about what we should add or alter”.68

24.It is essential that environmental principles continue to guide environmental policy making and legislation after the UK’s departure from the European Union. We therefore support the list of principles included in Clause 2 of the draft Bill. However, the Government has not included within the list of principles a clear overarching objective for the UK’s future environmental governance. Notably, the Government has not carried across the objective of “a high level of protection for the environment” as currently stated in Art 191(2) of the Treaty on the Functioning of the European Union. This is a surprising omission given the Secretary of State’s clear commitment to improving the state of the environment.

25.We are also concerned that the Bill turns what are currently legal provisions for environmental principles into a policy statement which will be much weaker and easier to revise. In reducing the legal status of the principles, the draft Bill therefore marks a significant regression on the current levels of protection guaranteed under the European Union treaties.

26.We recommend that Clauses 1–4 of the draft Bill are redrafted to provide a stronger legal commitment to the protection of the environment. An overarching objective to ensure a “high level of protection for the environment”, as is currently outlined in the Treaty on the Functioning of the European Union, should be inserted into the draft Bill to underpin the other environmental principles. The interpretation and application of the environmental principles in Clause 2 should not be left to just a policy statement but should be further outlined on the face of the Bill. Given the importance it has placed on the policy statement, the Government should also clarify and reinforce in the draft Bill the timescales and process for drafting, consulting on, publishing and reviewing the statement. This is essential for effective public and parliamentary scrutiny.

The effect of the policy statement

“have regard to”

27.Clause 4(1) states that Ministers “must have regard to” the policy statement when “making, developing or revising policies dealt with by the statement”.69 The explanatory notes further clarified that “policy-makers must consider the environmental principles policy statement and follow the approach which is set out in the statement”.70

28.The Law Society of Scotland explained that Clause 4(1) allowed a Minister to “have regard to” the principles but “choose to attach little or no weight to them”.71 Professor Richard Macrory QC, Emeritus Professor of Law at UCL, went further and stated that “it is all too easy to dismiss this as completely meaningless”.72 Alan Law, Deputy Chief Executive of Natural England, highlighted that a Lords Select Committee review of the Natural Environment and Rural Communities (NERC) 2006 Act, had concluded that a similar “have regard to” duty in that Act was “a somewhat toothless responsibility”.73

29.Professor Maria Lee suggested that:

What would be more familiar and closer to what we have currently as members of the European Union, would be a legal obligation in statute to apply, act in accordance with or comply with the principles, and then there would be, in addition, statutory guidance, the policy statement, which you would have regard to, but the “have regard to” duty would not sit alone as it does at the moment. It would be underpinned by a statutory obligation to comply with the principles.74

The Aldersgate Group, an alliance of businesses, academic institutions and civil society organisations, expressed that businesses would like to see “continued robustness and consistent application of the environmental principles”.75 For that reason they similarly argued that “the drafting of the Bill should be amended so that Ministers are required to ‘act in accordance with’ (or wording of equivalent strength) the environmental principles and the policy statement on environmental principles.”76 Emma Howard Boyd, Chair of the Environment Agency supported a revision of the wording from “have regard to” to “something like ‘acting in accordance with the principles’”.77 The Law Society of Scotland also considered the alternative formulation of “act in accordance with” to be stronger but recognised that it still might “limit the flexibility sought for the application of the principles”.78

30.The Secretary of State stated that the duty to “have regard to” was a “well-understood” term used widely across legislation, and referred to an example of being challenged on the basis of a similar duty from his time as Education Secretary.79 In written evidence further to the Secretary of State’s appearance, Defra reaffirmed its assertion that the duty to “have regard” placed “substantial, clear duties on Ministers of the Crown” and that case law had shown that these duties were strong enough to confer “clear legal expectations”.80 Defra therefore stated that duty in the draft Bill was “broadly equivalent” to the practical effect of the principles in Article 191(2) of the Treaty on the Functioning of the European Union.81

Ministerial discretion and application

31.Clause 4(2) states that the policy statement does not require Ministers to consider the environmental principles where the action would have “no significant environmental benefit” or would be “in any other way disproportionate to the environmental benefit”.82

32.Professor Maria Lee suggested that Clause 4 gave Ministers a “very generous discretion not to take action” and “should be removed”.83 UKELA argued that the overall proportionality limit in Clause 4(2) was “unnecessary” and created scope to “avoid applying environmental principles where this requires considerable cost or systemic change to meet environmental standards”.84 They also said that there needed to be clear definitions of the terms “environmental benefit” and “significant environmental benefit” within the Bill.85

33.Professor Colin Reid pointed out that the Bill as currently drafted took a “narrow view” that the principles should only apply to Ministers and not all public authorities.86 He suggested that “if you are trying to integrate the principles to make sure they apply across the whole, having all public authorities take account of them would seem the obvious thing to do”.87 Professor Maria Lee similarly argued that, rather than just applying to “Ministers of the Crown” and only to “policy”, the principles should apply to all public authorities and to all relevant administrative decisions, as is currently the case.88 UKELA further argued that there should be an obligation for written confirmation from Ministers that the principles had been considered in making policies.89

34.The draft Bill requires Ministers to merely “have regard to” environmental principles. This places too weak a duty on the Government and risks a possible regression on current standards of environmental protection. The duty to “have regard to” is also fundamentally undermined by Clause 4(2) which gives far too much discretion for Ministers to not act to protect the environment.

35.The Government should amend Clause 4(1) to replace the duty to “have regard to” environmental principles with the stronger wording of “act in accordance with”. Clause 4(2) should also be redrafted to reduce the level of discretion for Ministers to not act to protect the environment.

36.The principles should not just apply to Ministers of the Crown and policy decisions but to all public authorities and all relevant administrative decisions, as is currently the case. The Bill should be amended so that the effect of the policy statement extends to all public authorities when making any decisions. There should also be an obligation on all public authorities for written confirmation that the principles have been applied in their decisions.

Exemptions from the policy statement

37.At present, under Clause 1(6), the policy statement would not deal with:

(a) the armed forces, defence or national security;

(b) taxation, spending or the allocation of resources within government;

(c) any other matter specified in regulations made by the Secretary of State.90

Clause 1(6)(c) is a delegated power. The explanatory notes states that this sub-clause “may be necessary to provide the Secretary of State with flexibility to ensure that inappropriate policy areas are not covered by environmental principles”.91 The Delegated Powers Memorandum further notes that the policy statement “will provide a level of detail that would be inappropriate to set out on the face of the Bill”, and that as the power relates to a new statutory duty, it may require updating to “fully incorporate emerging best practice or case law”.92

38.William Wilson, an environmental lawyer and former legal manager of government bills, told us that the policy statement approach was “riddled with very curious exceptions”.93 He argued that the “armed forces, defence and national security” exemption would “take environmental law back about 70 years, when any mention of ‘defence’ led to blanket exclusions”.94 He suggested that this exemption went against the Ministry of Defence’s current position on the environment, which allowed for compliance with “almost all environmental law, with no obvious detriment to defence or national security”.95 William Wilson also considered the exemption under Clause 1(6)(b) of “taxation, spending or the allocation of resources within government” to be “almost equally absurd”, and suggested that it was an exemption that had been inserted by the Treasury.96

39.Dr Viviane Gravey suggested that Clause 1(6)(c) was a “get out of jail free” card by which the Secretary of State could decide not to abide by the principles.97 The Institute of Environmental Management and Assessment (IEMA) stated that the ability of the Secretary of State to exclude policies if they were deemed to be “not relevant” was one of several “loopholes” that were “open to interpretation and potential abuse by future Secretaries of State”.98 William Wilson argued that Clause 1(6)(c) showed how “uncomfortable Whitehall feels when faced with the declaration in statute of any kind of principle”.99

40.Overall, Daniel Greenberg, Speaker’s Counsel for Domestic Legislation, questioned the need for exemptions at a “high level” and suggested that Clause 1(6) should be revised.100 He told us that he would expect exemptions “once we come down to the statutory instruments and specific obligation level”.101

41.Emma Howard Boyd, Chair of the Environment Agency, told us that the exemptions in Clause 1(6) caused her concern.102 She considered that the defence exemption was problematic given the amount of land owned by the Ministry of Defence.103 Emma Howard Boyd also highlighted the “taxation, spending or the allocation of resources within government” exemption as a concern.104 The Environment Agency stated that policy decisions relating to public expenditure and taxes can have significant direct and indirect impact on the environment.105 It explained that specific environmental taxes and tax incentives, such as encouraging drivers to purchase and use diesel cars, require HM Treasury approval and are therefore an area where Ministers can be held to account with respect to environmental principles.106 Emma Howard Boyd cautioned us that if the provisions on environmental principles were really about “putting the environment at the heart of government decision-making” careful thought was needed to “make sure that we capture all the tools that exist in different parts of government.”107

42.We are very concerned by the exemptions to the policy statement listed in Clause 1(6). The exemptions relating to defence and general taxation are too broad and could lead to significant gaps in environmental protection within the Ministry of Defence and HM Treasury. The delegated power also offers a “get out of jail free card” for a future Secretary of State to disapply environmental principles from any particular policy area.

43.Clause 1(6) should be redrafted to ensure that any exemptions necessary are more narrowly defined, with their implications in practice clarified in the explanatory notes. The Government should seek to substantially minimise the scope of the exemptions and to reduce their generality of application. Clause 1(6)(c) should be revised to ensure that the Secretary of State cannot exclude further policy areas from the scope of the Policy Statement without public consultation and notifying the relevant parliamentary committees.


19 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, paras 18–19

20 Environmental Principles and Governance: the draft Bill, Briefing Paper CBP-8484, House of Commons Library, 30 January 2019, p 5

21 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, para 19

22 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, para 22

23 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, paras 21–22

24 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, para 22

25 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, Clauses 1–4

26 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, para 54

27 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, Clause 2

28 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, para 55

29 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, para 57

30 Department for Environment, Food and Rural Affairs, Information paper on the policy statement on Environmental Principles, December 2018, pp 10–15

31 Mr Nigel Haigh (DEB0019) para 4

32 Mr Nigel Haigh (DEB0019) para 4.1

33 Mr Nigel Haigh (DEB0019) para 4.1

34 Mr Nigel Haigh (DEB0019) para 4.1

35 Greener UK (DEB0027) paras 1, 32

36 Greener UK (DEB0027) para 32

38 Environmental Principles and Governance: the draft Bill, Briefing Paper CBP-8484, House of Commons Library, 30 January 2019, p 19

39 Mr Nigel Haigh (DEB0019) paras 4.2–4.3

40 Mr Nigel Haigh (DEB0019) para 4.3

41 Chemical Industries Association (DEB0022) para 4

42 Chemical Industries Association (DEB0022) para 4

43 National Farmers’ Union (DEB0067) p 3

44 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, Clause 1

45 Department for Environment, Food and Rural Affairs, Information paper on the policy statement on Environmental Principles, December 2018, p 4

46 Q2

47 Greener UK (DEB0027) para 28

48 Q8

49 Oral evidence taken before the Environmental Audit Committee on 27 February 2019, HC (2017–19) 1951, Q85

50 Oral evidence taken before the Environmental Audit Committee on 27 February 2019, HC (2017–19) 1951, Q85

53 Q9

54 Q8

56 Professor Maria Lee (DEB0006) para 23(b)

57 Professor Maria Lee (DEB0006) para 24

58 Professor Maria Lee (DEB0006) para 24

59 Chartered Institution of Water and Environmental Management (DEB0010) para 44

60 Chartered Institution of Water and Environmental Management (DEB0010) para 46

61 Greener UK (DEB0027) para 34

62 Greener UK (DEB0027) para 33

63 National Farmers’ Union (DEB0067) p 3

64 Environment Agency (DEB0080) para 5.1

65 Environment Agency (DEB0080) para 5.1

69 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, Clause 4(1)

70 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, para 65

71 Law Society of Scotland (DEB0072) p 4

72 Emeritus Professor of Environmental Law Richard Macrory (DEB0094) para 10

75 Aldersgate Group (DEB0060) para 19

76 Aldersgate Group (DEB0060) para 19

78 Law Society of Scotland (DEB0072) p 5

80 Department for Environment, Food and Rural Affairs (DEB0096) p 3

81 Department for Environment, Food and Rural Affairs (DEB0096) p 1

82 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, Clause 4

83 Professor Maria Lee (DEB0006) para 23(e)

84 UKELA (DEB0048) para 2

85 UKELA (DEB0048) para 2

88 Professor Maria Lee (DEB0006) para 23(c)

89 UKELA (DEB0048) para 6

90 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, Clause 1

91 Department for Environment, Food and Rural Affairs, Draft Environment (Principles and Governance) Bill, Cm 9751, December 2018, explanatory notes, para 52

94 WYESIDE CONSULTING LTD (DEB0001) para 20

95 WYESIDE CONSULTING LTD (DEB0001) para 20

96 WYESIDE CONSULTING LTD (DEB0001) para 20

98 IEMA - Institute of Environmental Management and Assessment (DEB0028) para 24

99 WYESIDE CONSULTING LTD (DEB0001) para 20

105 Environment Agency (DEB0098) p 2

106 Environment Agency (DEB0098) p 2




Published: 30 April 2019