This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.
Date Published: 28 July 2022
This is the full report, read the report summary.
1. In this report we consider the draft environmental principles policy statement laid before the House on 11 May 2022 pursuant to section 18(3) of the Environment Act 2021.
2. Environmental principles inform legal and political frameworks that aim to minimise the ill-effects of human activity on the environment.1 A principles-based approach to environmental governance has been a feature of the European Union’s approach to environmental standards since the early 1970s:2 the European Council included principles for a Community environment policy in a programme for Community action on the environment in December 1973.3 The United Nations Conference on Environment and Development—commonly known as the ‘Earth Summit’— held in Rio de Janeiro in July 1992 adopted a declaration containing a number of environmental principles which was subsequently ratified by the United Nations General Assembly.
3. The environmental principles incorporated into European Union law through the Treaty on the Functioning of the European Union have been described as “guidance for judges and decision-makers, giving laws shape and meaning, and offering protection to [the] natural world […] used in a whole host of government and public authority decisions, including planning applications, management of marine protected areas and dealing with contaminated land.”4
4. Four principles were established in article 191(2) of the Treaty:
A further principle—an integration principle, requiring environmental protection measures to be integrated into all EU policies and activities, with a particular view to the promotion of sustainable development—is provided for in article 11 of the Treaty.6
5. These principles had effect in the UK through the operation of the European Communities Act 1972.7 The effect persisted until the end of the implementation period of the EU-UK Withdrawal Agreement on 31 December 2020: any right of action in domestic law arising from a failure to comply with the Treaty principles ceased on 31 January 2020 (“exit day”).8
6. The European Union (Withdrawal) Act 2018 required Ministers, within six months of Royal Assent to the Act, to publish draft legislation:
7. A draft Environment (Principles and Governance) Bill was published in December 2018.10 This Committee and the Environment, Food and Rural Affairs Committee both undertook pre-legislative scrutiny of the Bill.11
8. An Environment Bill, incorporating amended provisions of the draft Bill, was introduced to the House of Commons in the 2019 Session and received its Second Reading on 28 October of that year.12 The Bill was reintroduced to the House in January 2020, in the first session of the current Parliament, and received Royal Assent on 9 November 2021.13
9. We do not propose to rehearse here the debates on the adequacy of environmental principles and the robustness of environmental governance which took place during pre-legislative and legislative scrutiny of the provisions which are now in effect in the Environment Act 2021.
10. The Secretary of State for Environment, Food and Rural Affairs, Rt Hon George Eustice MP, discussing the draft environmental principles policy statement with us on 29 June, suggested that the five environmental principles in the Environment Act had not in fact included in the legislation to continue environmental protections available under European Union treaties. He indicated that they were incorporated in fulfilment of the UK’s obligations as a signatory to the Convention on the Conservation of European Wildlife and Natural Habitats, an international legal instrument promoted by the Council of Europe and generally known as the Bern Convention.14
We have not brought those principles into the Environment Act because they were in the EU. We put them in the Environment Act because they are in the Bern Convention, which we are a signatory to in our own right as a nation state and in fact long before the EU occupied environmental policy as something for itself.15
11. Section 17(1) of the Environment Act 2021 requires the Secretary of State to prepare a policy statement on environmental principles, defined as “a statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown when making policy.”. The statement “may also explain how Ministers of the Crown, when interpreting and applying the environmental principles, should take into account other considerations relevant to their policy.”.16
12. Explanatory notes to the Act, prepared by the Department for Environment, Food and Rural Affairs, provide the reader with an explanation of “proportionate application” of the environmental principles in this context:
Proportionate application means ensuring that action taken on the basis of the principles balances the potential for environmental benefit against other benefits and costs associated with the action. This means that a policy where there is the potential for high environmental damage would require more stringent action than a policy where the potential environmental damage is low. This consideration of the principles policy statement throughout the policy-making process may be carried out by policy-makers on behalf of Ministers of the Crown, though Ministers will retain the responsibility to have due regard to the policy statement.17
The notes also explain the interpretation of the “other considerations” provision in the Act:
Subsection (3) sets out that the Secretary of State may explain in the statement how other considerations should be taken into account by Ministers of the Crown when they are interpreting and applying environmental principles. For example, it may be necessary to balance the application of a specific environmental principle against other considerations, such as economic and social benefits, whilst taking care to ensure that these do not supersede environmental benefit but are considered alongside.18
13. The environmental principles in respect of which the statement is to be prepared are set out in the Act:
14. The explanatory notes to the Act indicate that the principles “are drawn from a number of sources, including, for example, the Rio Declaration on Environment and Development (1992)”, and suggests that “there is no single agreed definition of the environmental principles”:
The policy statement will explain in more detail how these are to be interpreted, and provide information as to how they should be applied.
Further direction on these environmental principles will be set out in the policy statement. These principles cannot be changed without primary legislation.
15. The explanatory notes offer additional guidance as to the meaning of the individual environmental principles:
16. Section 19(1) of the Act provides that, when making policy, a Minister of the Crown must have “due regard” to the policy statement on environmental principles currently in effect. The explanatory notes suggest that “due regard” means that, in policymaking, Ministers must consider the policy statement “with substance, rigour and an open mind”.21
17. Further provisions in section 19 set out instances of policymaking where Ministers are not required to have due regard to the policy statement. Section 19(2) “does not require Ministers to take, or refrain from taking, any action that would have no significant environmental benefit, or if the environmental benefit would be disproportionate when compared to other factors.”22
18. The explanatory notes suggest that “the policy statement does not need to be used to change a policy direction, if the environmental impact would be negligible”. “Disproportionate benefit” is explained as follows:
“Disproportionate” indicates situations in which action would not be reflective of the benefit or costs, environmental or otherwise. Action taken must reflect the potential for environmental benefit, as well as other costs and benefits. For example, there is no need for a Minister to change a policy in light of the principles policy statement if the cost of this change would be very high and the benefit to the environment would be very low. Equally, if the potential environmental benefit is high, then it is proportionate to take a more significant action based on the policy statement.23
19. Section 19(3) sets out the policy areas where the statement does not apply. Ministers making policy in relation to (a) the armed forces, defence or national security, (b) taxation, spending or the allocation of resources within government and (c) Wales are not required to have due regard to the statement.
20. The disapplication of the duty in respect of taxation and spending is explained thus:
“[T]axation” refers to taxes in a legal sense, and therefore does not include other regulatory schemes which involve fees and charges for purposes other than taxation, such as the plastic bag charge or the imposition of fees to cover the cost of a regulatory regime. “Spending or the allocation of resources within government” refers to decisions about how money and resources are allocated to or between government departments or agencies, including at fiscal events such as Budgets and Spending Reviews. It does not refer to individual policies on which the government funds could be spent. For example, in decisions on which departments should receive funds and how much, the policy statement will not apply. However, it would apply to policies which relate to spending this allocated funding which are decided by a Minister of the Crown, such as when setting up a new innovation scheme.24
21. In November 2017 the Government announced its outline plans to deliver environmental protection in England following the United Kingdom’s departure from the European Union. As well as consulting on a new statutory body to hold Government to account for upholding environmental standards in England, the Government announced plans to explore “the scope and content of a new policy statement to ensure [that] environmental principles underpin policy making.”.25
22. A consultation paper was issued in May 2018, announcing the Government’s intention to publish draft legislation for a statutory policy statement and an “independent, statutory environmental watchdog” in the autumn of 2018.26 The Committee responded to elements of this consultation, in particular the proposals on environmental governance and environmental principles, in its July 2018 report on the Government’s 25 Year Environment Plan.27
23. In December 2018 the Government published an “information paper” on the proposed policy statement, alongside the clauses of the Draft Environment (Principles and Governance) Bill.28 The paper was intended “as a vehicle to help [the Department] gather useful insights and comments from stakeholders and did not represent “a full or final draft of the policy statement”.29
24. In January 2021, on the first day of the Environment Bill’s report stage in the Commons, the Government announced that the Bill was not expected to complete its legislative stages by the end of the session and indicated that it would be carried over to the 2021–22 Session.30
25. In March 2021 the Government issued a draft policy statement in the form of a consultation paper intended to meet the public consultation requirements of clause 17(2) of the Bill. The paper sought views on the draft policy statement, and whether it
26. In June 2021, following closure of the public consultation period, the Minister responsible for the Environment Bill, Rebecca Pow MP, asked the Interim Office for Environmental Protection (OEP) to provide advice on the draft statement to her officials.32 The Interim OEP provided advice in early July 2021, recommending the strengthening of the draft statement in several areas.33
27. On 11 May 2022 the Government laid before Parliament a draft policy statement pursuant to section 18(3) of the Environment Act 2021.34 The draft statement sets out how policymakers should apply the environmental Principles set out in the Act. On the same date the Parliamentary Under Secretary of State wrote to this Committee, to the Environment, Food and Rural Affairs Committee and to the Environment and Climate Change Committee in the House of Lords to seek the Committees’ “thoughts and advice” on the draft statement “to ensure such a vital document meets the needs of [the Government’s] environmental commitments.”35
28. The Environment Act provides that any draft must lie before both Houses for at least 21 sitting days before it is issued in its final form. If, during this period, either House of Parliament passes a resolution in respect of the draft statement, or a committee of either House, or a joint committee of both Houses, makes recommendations in respect of the draft statement, the Secretary of State must produce a response and lay it before Parliament. The 21-day period expired at the end of Thursday 23 June.
29. The draft statement gives an overview of the environmental principles as they are to be applied in policymaking.36 It sets out the role of the policy statement, its application in reserved matters under the devolution settlement for Scotland, and its application in the policymaking process.37 It provides definitions of certain terms (“environment” and “environmental effect”) and discusses the proportionality of the approach policymakers should take to the principles.38 It provides guidance on how policymakers should understand environmental effects and opportunities, sets out criteria for taking action in pursuit of the principles, indicates a hierarchy of interaction between the principles and sets out some options for their general application.39 Each of the five principles is then described in turn, with guidance on when to use each and how each is to be applied.40
30. The draft statement was accompanied by an explanatory memorandum, and a paper setting out the Government response to the March 2021 consultation, indicating areas where the text of the statement had been amended, together with a summary of responses to the consultation.41
31. The Committee did not issue a call for evidence on the draft statement, since it was unlikely that there would have been time to complete a full Committee inquiry into the Government’s proposals within the 21 sitting day period provided for under the Environment Act. We note that the scrutiny undertaken by the two other policy committees active in this area has been achieved through a combination of correspondence and informal discussions with Ministers.
32. We received one submission addressing the Government’s draft, made on the assumption that the Committee would be exercising its statutory right to a formal Government response to recommendations made within the 21-day scrutiny period.42 In the event the Committee’s timetable did not allow a report with recommendations to be issued within the statutory period.
33. On 23 June the Chair wrote to the Secretary of State for Environment, Food and Rural Affairs indicating that the Committee wished to question him on aspects of the draft statement during an evidence session on the environmental protection policies of the Department scheduled for 29 June, and seeking an assurance that any report by the Committee relating to the draft statement would, when published, be treated as if it had been issued within that period. When discussing the draft statement with us on 29 June, David Hill, Director General for Environment, Rural and Marine at the Department acknowledged that our report was yet to be issued.43
34. On 29 June the Secretary of State was questioned on the following matters:
35. On 20 May 2022 the interim Chair of the Environment, Food and Rural Affairs Committee, Geraint Davies MP, wrote to the Minister for Nature Recovery and the Domestic Environment seeking further information on the Government’s proposed implementation of the policy statement.47 The Committee raised concerns regarding:
The Minister responded to the letter on 14 June 2022.48
36. The Minister discussed the draft statement with members of the House of Lords Environment and Climate Change Committee on 9 June. On 30 June the Chair of that Committee, Baroness Parminter, wrote to the Minister to set out that Committee’s concerns.49 She raised the following issues on the draft:
37. The Secondary Legislation Scrutiny Committee of the House of Lords, pursuant to its order of reference, treated the draft statement as an instrument subject to negative resolution and issued a report drawing it to the special attention of that House.50
38. The Committee observed that the explanatory memorandum submitted to Parliament alongside the draft statement did not contain explanations of each of the principles set out in the draft statement. The Minister for Rural Affairs (Lord Benyon) has undertaken to provide a revised explanatory memorandum when the final version of the statement is laid before Parliament.51
39. The Committee invited the House of Lords to consider the scope for “a more exacting scrutiny procedure” for future policy statements. It concluded that proper monitoring and evaluation of the “practical implementation and effectiveness of the policy statement and the environmental principles […] by all government departments in scope of the statutory duty” was essential:
Without such oversight and evaluation across Whitehall, neither the Government nor Parliament will be able to assess whether the policy statement and environmental principles have had any impact, and to what extent they have achieved their purpose.52
40. Following the report of the Secondary Legislation Scrutiny Committee drawing the draft statement to the special attention of the House, Baroness Parminter secured a debate on a ‘take note’ motion on the draft Principles, and on the statutory requirements on the Secretary of State, in the House of Lords Grand Committee on 30 June 2022.53
41. Responding to the debate, the Minister for Rural Affairs, indicated that Ministers were keen to bring the principles into effect as soon as possible:
It is important that we are able to agree on and implement the final policy statement quickly and effectively. To put environmental protection and enhancement at the heart of policy-making in government, the Government will consider all comments from within this House and beyond received during the parliamentary scrutiny period and will publish a response alongside the final policy statement in the autumn.54
42. As a result of the debate the Committee adopted the following resolution:
That the Grand Committee takes note of the draft environmental principles policy statement, laid before Parliament on 11 May, and the requirement in Section 17(4) of the Environment Act 2021 that the Secretary of State must be satisfied that the statement will contribute to the improvement of environmental protection and sustainable development.55
43. The draft statement laid before Parliament on 11 May and published on 12 May has received a mixed reception from environmental NGOs and other stakeholder groups.
44. Some acknowledged that the draft had been improved in some respects: it was now drafted more positively and recognised that the policy statement can be used to promote positive environmental outcomes in policy making as well as avoiding harm and there is a greater emphasis on embedding environmental principles right from the outset of policymaking.56
45. The draft recommends a “holistic, common-sense approach” to the application of the principles. The Chartered Institute of Ecology and Environmental Management (CIEEM) has said that this caveat “introduces significant subjectivity and does not recognise the need for evidence-based input”.57
46. Stakeholders appeared apprehensive over the potential downgrading of the precautionary principle. A commonly-held interpretation of the principle—set out in the 1992 Rio Declaration—is that “where there are threats of serious or irreversible environmental damage, a lack of scientific certainty must not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”.58 The Greener UK coalition observes that in the draft statement this principle is categorised as ‘risk management’, arguably alluding to a precautionary approach should be based on realistic assessments of risk and not just theoretical hazards.59 This approach has been criticised for the high threshold of proof (i.e. serious or irreversible risk) required to justify action: we discussed the issue with the Secretary of State on 29 June.60
47. Greener UK argue that under the environmental protection regime which obtained before the UK’s exit from the EU, all ministers and public authorities are “legally bound” to consider environmental principles in any policymaking that could affect the environment: the precautionary principle empowered Ministers and public authorities to step in to halt a project if there was a lack of scientific information about the potential harm it could cause. Under the interpretation of the principle in the draft statement, it is argued that only some elements of government will need to consider the precautionary principle, and that principle, and other environmental principles, would weigh less heavily in policymaking: the repeated emphasis in the statement on a proportionate approach would make it easier for ministers to disregard the environment in favour of other factors.61 The focus on innovation and economic growth introduced in the statement, Greener UK contends, is likely to reduce the overall contribution of environmental considerations to assessments of significant policies.
48. Stakeholders have also observed that the provisions of section 19 of the Environment Act—which require Ministers to have due regard to the policy statement when formulating policy—have not yet been commenced and are therefore not binding on Ministers.62 Concerns have been expressed about the time likely to be taken in issuing the final policy statement, providing for its implementation across departments and commencing the section 19 provisions. These concerns were expressed in the context of the significant legislative and policy programme envisaged by the Government at the time the draft statement was published, and the potential changes to environmental legislation which might be facilitated by any legislation which delegated to Ministers the power to make substantive amendments to EU retained law.63
49. In this chapter we set out our observations on the draft statement, informed by the work in the field undertaken by the Committee in the 2017 Parliament, the contributions of other committees, external stakeholders and our discussion with the Secretary of State.
50. The predecessor Committee to ours made some prescient observations on the Government’s proposed method of including environmental principles in policymaking when it reported on the 25 Year Environment Plan in 2018. Specifically, that Committee concluded:
That Committee made the following recommendation:
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 [the] principles need regular updating, but the interpretative statement needs robust scrutiny […].65
51. Questioned about the interpretation of the precautionary principle in the policy statement, the Secretary of State set out his view of the different interpretations of the principle and the approach the Government was trying to achieve:
There has been a long-running debate, almost pitched as an argument, from people who say that you should have a risk-based approach or a science-based approach and that is seen as a US interpretation that some would see as not following the precautionary principle.
Then others say that you should have what they call a hazard-based approach and this is defined as being the way EU does things where you assume that everything is a problem and the answer to nearly every issue is no because someone invokes the precautionary principle.
We are trying to argue in this statement that it is a misunderstanding, that it is about science and it is about risk and it is also about hazard but it should also be a symmetrical test.
We make clear in the statement that if there is a new technology and the prima facie evidence is that that new technology or new approach might be less harmful to the environment than existing practices, there should be a margin of appreciation in its favour. It should not always be a timid, restrictive thing where you say no to anything based on a precautionary principle. It should be applied symmetrically so that you are constantly making judgments that on balance will be better for the environment.66
52. In his view the draft principles were intended to provide certainty for policymakers on the interpretation of principles:
There will be an ongoing role for Government, Parliament and Ministers to drive out the ambiguity that has been the curse of the system for so long.67
If anyone has a problem with [the interpretation of the principles], go and [apply for a judicial review of] the Government or report the Government to the OEP and we can have that argument with them, but you need to liberate agencies […] so that they are clear about what they need to do to abide by the principles.
53. The Secretary of State also contested advice received from the OEP in respect of the reliance the draft statement placed on a proportionate approach to the use of the principles:
We disagree with [the OEP advice] and the reason for that is that we are not seeking in this to reconstruct an EU interpretation of the precautionary principles. We are seeking to construct a set of principles that are consistent with our own obligations under the Bern Convention.68
54. The Secretary of State addressed potential concerns about the role of his Department in ensuring that the environmental principles were observed across Government. He anticipated that other departments with policies touching on environmental principles would engage with his Department to discuss the application of the principles and how to demonstrate that the duty to have due regard to them had been observed. If other departments did not engage sufficiently with the principles in formulating policies where they were in the lead, his Department would have “the ultimate sanction” of vetoing collective approval of the policy in Government and requiring further discussion.69
55. David Hill, Director General for Environment, Rural and Marine at the Department, explained some of the work going on to implement the principles at official level:
I chair a group of directors general from all the main Departments with a stake in supporting the environment plan. It has the Treasury and Cabinet Office present. One of the things we have done through that group at that level is socialise what are the principles, how we would expect Departments to apply them. We will be using that group on an ongoing basis to offer support […] and some challenge as well.
But ultimately, of course, scrutiny and transparency is one of the best tools here for ensuring that Departments are taking account of the principles, so there is that recourse to the OEP and if a Department is seen not to be using the principles that might well be something that the OEP wished to look at.70
He explained that there would be an ‘implementation period’—which we take to mean a period before formal commencement of the statutory duty in the Environment Act—”just to allow time to ensure that we can embed [the statement] properly across Departments”. Champions had been established in each Department to “socialise” the principles and to plan for how each Department “will be able to make a running start” to implementation later in 2022.71
56. Ministers are currently piloting an entirely new approach to ensuring that environmental principles are observed in policymaking by Government departments. The matter was hotly contested in the debates on the Environment Bill: the Committee still considers that the duty on Ministers alone to have “due regard” to a statement interpreting environmental principles has reduced the level of protection afforded to the environment from the protections enjoyed previously.72
57. Where certain issues are concerned—the precautionary principle and the proportionality of application of the principles—the gap between the Government’s current aspirations for the principles, on the one hand, and the expectations of many engaged in environmental protection, on the other, appears to be significant, despite the extensive consultation which has taken place on the principles to date.
58. It is a matter of some concern to us that Ministers have rejected elements of the advice on the policy statement which they sought from the Office for Environmental Protection on the apparent grounds that the Government disagrees with the OEP on the purpose of the principles. Given the OEP’s role in monitoring compliance with environmental law—including the duty on Ministers to have due regard to the environmental principles policy statement, once it is commenced—we recommend that the Government heed the OEP’s advice.
59. Responses to the draft statement from parliamentary committees and from other stakeholders indicate disagreement over interpretation of some of the principles. There is concern over the approach taken to the precautionary principle and guidance to Ministers and officials over the proportionate application of the principles.
60. We welcome the constructive engagement undertaken to date between the Government and parliamentary committees on improvement of the draft statement laid before Parliament. To ensure that this engagement leads to meaningful improvement of the draft statement, we recommend that the Government broaden, and add requisite urgency to, the definition of the prevention principle by adding “Where environmental harm is already occurring, prevention should be applied without delay and as soon as possible”, as recommended by the House of Lords Environment and Climate Change Committee.
61. The Secretary of State has indicated that the Government’s proposed interpretation of the environmental principles is not exclusively based on interpretations of the principles as set out in the EU Treaties. We are concerned to note the lack of clarity as to how the principles, when implemented, will operate in specific circumstances and how they will operate in the light of experience.
62. There is no statutory provision for periodic review of the policy statement, though the statement may be reviewed by the Secretary of State at any time by following the procedure specified in section 18 of the Environment Act. Our predecessors in 2018 were not convinced that regular updates were required. The uncertainty about the interpretation of certain aspects of the draft statement suggests to us that when the final statement is laid before Parliament in the autumn, it ought to be accompanied by a commitment to review its operation within a specific period.
63. We recommend that the Secretary of State, when presenting the final policy statement on environmental principles to Parliament, commit at the same time to a review of the operation of the principles. The review should be opened not later than 12 months after the date of commencement of section 19 of the Environment Act 2021, with a view to making a report to Parliament not later than 18 months after that date.
64. The report of the review may be accompanied by a revised draft policy statement for Parliamentary scrutiny. In addition to the formal requirements for parliamentary scrutiny provided for in section 18 of the Environment Act 2021, we recommend that any revised draft be submitted to relevant committees in both Houses to a timescale which will allow them, if they wish, to take written and oral evidence on the draft and to produce a report to which Ministers will respond.
65. We further recommend that Ministers submit to the review a catalogue of worked examples showing how the policy statement has operated in practice
a) across a range of departments and policy areas subject to the statutory duty, and
b) in at least one policy area not subject to the statutory duty but observing the principles on a voluntary basis.
66. The Government’s initial proposals to incorporate environmental principles into the legal order in England were published in May 2018, over four years ago. Ministers now plan to issue the final policy statement in the autumn of 2022, followed by an implementation period “of a few months” before the statutory duty to have due regard to the principles in policymaking is commenced.
67. There is no case to delay implementation of the environmental principles in policymaking for any longer than is strictly necessary. Following the change in leadership in the Conservative Party, a new administration is likely to take office after the summer recess, and there will be a demand for fresh policies to be developed and existing ones to be implemented. In all cases the policies being devised or further developed across Government ought to be thoroughly assessed through the prism of the environmental principles.
68. In our view, there is a strong case for the swift issue of the final statement of environmental principles as soon as possible in the autumn of 2022. We recommend that Ministers announce the date on which the statutory duty in section 19 of the Environment Act 2021 at the same time as the final statement is laid before Parliament. The date of commencement of section 19 must be not later than three months following the date the final statement is laid.
69. While some departments will need a short period to implement the policy statement, others will not. We recommend that the Department for Environment, Food and Rural Affairs commit to observing the statutory duty on a voluntary basis as soon as the policy statement is issued. All other departments in a position to do so should do the same.
I am delighted to confirm the laying of the draft Environmental Principles Policy Statement (“the Policy Statement”) and an accompanying Explanatory Memorandum before Parliament today.
The Environment Act 2021 (“the Act”) places a legal duty on Ministers of the Crown to have ‘due regard’ to the Policy Statement when making policy.
The Policy Statement is an important document and laying it before Parliament is a major milestone. It sets out how five internationally recognised principles should be interpreted and proportionately applied to future policymaking. This will contribute to the achievement of the environmental objectives set out in the Act, our ambition for placing environmental considerations at the heart of policymaking across government and to be the first generation to leave the environment in a better state than that in which we found it.
This Policy Statement applies to the development of policy by Ministers of the Crown in England, and when developing policy relating to reserved matters in Scotland. We will continue to work with the devolved administrations to ensure our environmental approaches work together.
Section 18 of the Environment Act provides for 21 sitting days for scrutiny. There will then be an implementation period before the duty comes into force to allow government departments to prepare.
I would welcome the committees’ thoughts and advice on the Policy Statement to ensure such a vital document meets the needs of our environmental commitments. I would be happy to receive questions and will make myself available for a meeting should any of the committees wish to discuss the documents with me.
Please do not hesitate to get in touch if you need further information.
Rebecca Pow MP
The Minister for Nature Recovery and the Domestic Environment kindly wrote to the Committee on 11 May to notify us of the laying before Parliament of the draft environmental principles policy statement required under section 17(1) of the Environment Act 2021. The Committee has been engaged with the issue since the inquiry into the Government’s 25 Year Plan for the Environment undertaken by the Committee in the 2017 Parliament.
As you will know, section 18(4) of the Act provides a statutory period of 21 sitting days within which resolutions of either House in respect of the draft statement, and recommendations on it made by a Committee of either House or a joint Committee, require the Secretary of State to prepare a response and lay it before Parliament before any final statement can be issued.
The 21-day period from the date the draft statement was laid elapses at the end of Thursday 23 June. You have accepted the Committee’s invitation to appear on Wednesday 29 June to discuss your Department’s policies on environmental protection. I understand that a ‘take note’ debate on the draft statement is to be held in the House of Lords on Thursday 30 June, following the special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee in its Third Report of this Session: that will no doubt result in a resolution of that House.
Before reporting its view on the draft statement to the House, the Committee wished to have the opportunity to discuss the matter with you in the evidence session already scheduled. The Committee will then be in a better position to make its report and any recommendations.
Although any report from the Committee is thus likely to be published following the expiry of the statutory 21-day period specified in the Environment Act, the Committee would be grateful for an assurance that its report will, when published, be treated as if it had been issued within that period.
I am copying this letter to the Minister for Nature Recovery and the Domestic Environment and to the Chairs of the House of Commons Environment, Food and Rural Affairs Committee and of the House of Lords Environment and Climate Change Committee. The letter will also be published on the Committee’s website.
Rt Hon Philip Dunne MP
1. It is a matter of some concern to us that Ministers have rejected elements of the advice on the policy statement which they sought from the Office for Environmental Protection on the apparent grounds that the Government disagrees with the OEP on the purpose of the principles. Given the OEP’s role in monitoring compliance with environmental law—including the duty on Ministers to have due regard to the environmental principles policy statement, once it is commenced—we recommend that the Government heed the OEP’s advice. (Paragraph 58)
2. Responses to the draft statement from parliamentary committees and from other stakeholders indicate disagreement over interpretation of some of the principles. There is concern over the approach taken to the precautionary principle and guidance to Ministers and officials over the proportionate application of the principles. (Paragraph 59)
3. We welcome the constructive engagement undertaken to date between the Government and parliamentary committees on improvement of the draft statement laid before Parliament. To ensure that this engagement leads to meaningful improvement of the draft statement, we recommend that the Government broaden, and add requisite urgency to, the definition of the prevention principle by adding “Where environmental harm is already occurring, prevention should be applied without delay and as soon as possible”, as recommended by the House of Lords Environment and Climate Change Committee. (Paragraph 60)
4. The uncertainty about the interpretation of certain aspects of the draft statement suggests to us that when the final statement is laid before Parliament in the autumn, it ought to be accompanied by a commitment to review its operation within a specific period. (Paragraph 62)
5. We recommend that the Secretary of State, when presenting the final policy statement on environmental principles to Parliament, commit at the same time to a review of the operation of the principles. The review should be opened not later than 12 months after the date of commencement of section 19 of the Environment Act 2021, with a view to making a report to Parliament not later than 18 months after that date. (Paragraph 63)
6. The report of the review may be accompanied by a revised draft policy statement for Parliamentary scrutiny. In addition to the formal requirements for parliamentary scrutiny provided for in section 18 of the Environment Act 2021, we recommend that any revised draft be submitted to relevant committees in both Houses to a timescale which will allow them, if they wish, to take written and oral evidence on the draft and to produce a report to which Ministers will respond. (Paragraph 64)
7. We further recommend that Ministers submit to the review a catalogue of worked examples showing how the policy statement has operated in practice
a) across a range of departments and policy areas subject to the statutory duty, and
b) in at least one policy area not subject to the statutory duty but observing the principles on a voluntary basis. (Paragraph 65)
8. In our view, there is a strong case for the swift issue of the final statement of environmental principles as soon as possible in the autumn of 2022. We recommend that Ministers announce the date on which the statutory duty in section 19 of the Environment Act 2021 at the same time as the final statement is laid before Parliament. The date of commencement of section 19 must be not later than three months following the date the final statement is laid. (Paragraph 68)
9. While some departments will need a short period to implement the policy statement, others will not. We recommend that the Department for Environment, Food and Rural Affairs commit to observing the statutory duty on a voluntary basis as soon as the policy statement is issued. All other departments in a position to do so should do the same. (Paragraph 69)
Philip Dunne, in the Chair
Duncan Baker
Barry Gardiner
Ian Levy
Caroline Lucas
Anna McMorrin
John McNally
Jerome Mayhew
Chris Skidmore
Dr Matthew Offord
[…]
The Committee deliberated.
Draft Report (Recommendations on the Government’s draft environmental principles policy statement), proposed by the Chair, brought up and read.
Paragraphs 1 to 69 read and agreed to.
Annex agreed to.
Summary agreed to.
Resolved, That the Report be the Third Report of the Committee to the House.
Ordered, That the Chair make the Report to the House.
Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No. 134.
[…]
Adjourned till Wednesday 20 July at 2.00 pm.
All publications from the Committee are available on the publications page of the Committee’s website.
|
Number |
Title |
Reference |
|
1st |
Building to net zero: costing carbon in construction |
HC 103 |
|
2nd |
Pre-appointment hearing: Chair of the Environment Agency (Pre-appointment hearing) |
HC 546 |
|
1st Special |
Water quality in rivers: Government Response to the Committee’s Fourth Report of Session 2021–22 |
HC 164 |
|
2nd Special |
Greening imports: a UK carbon border approach: Government Response to the Committee’s Fifth Report of Session 2021–22 |
HC 371 |
|
Number |
Title |
Reference |
|
1st |
Biodiversity in the UK: bloom or bust? |
HC 136 |
|
2nd |
The UK’s footprint on global biodiversity |
HC 674 |
|
3rd |
Green Jobs |
HC 75 |
|
4th |
Water quality in rivers |
HC 74 |
|
5th |
Greening imports: a UK carbon border approach |
HC 737 |
|
1st Special Report |
Energy efficiency of existing homes: Government Response to the Committee’s Fourth Report of Session 2019–21 |
HC 135 |
|
2nd Special Report |
Growing back better: putting nature and net zero at the heart of the economic recovery: Government and Bank of England Responses to the Committee’s Third Report of Session 2019–21 |
HC 327 |
|
3rd Special Report |
Biodiversity in the UK: bloom or bust?: Government Response to the Committee’s First Report |
HC 727 |
|
4th Special Report |
Green Jobs: Government Response to the Committee’s Third Report |
HC 1010 |
|
5th Special Report |
The UK’s footprint on global biodiversity: Government Response to the Committee’s Second Report |
HC 1060 |
|
Number |
Title |
Reference |
|
1st |
Electronic Waste and the Circular Economy |
HC 220 |
|
2nd |
Pre-appointment hearing for the Chair-Designate of the Office for Environmental Protection (OEP) |
HC 1042 |
|
3rd |
Growing back better: putting nature and net zero at the heart of the economic recovery |
HC 347 |
|
4th |
Energy Efficiency of Existing Homes |
HC 346 |
|
1st Special Report |
Invasive species: Government Response to the Committee’s First report of Session 2019 |
HC 332 |
|
2nd Special Report |
Our Planet, Our Health: Government Response to the Committee’s Twenty-First Report of Session 2017–19 |
HC 467 |
|
3rd Special Report |
Electronic Waste and the Circular Economy: Government Response to the Committee’s First Report |
HC 1268 |
1 Parliamentary Office of Science and Technology (POST), EU Environmental Principles, POSTNote Number 590, November 2018
2 See Richard Macrory, Justine Thornton QC “Environmental Principles: Will They Have a Legal Role After Brexit?” Journal of Planning and Environment Law 9 (2017), pp 907–913
3 Declaration of the Council of the European Communities and of the representatives of the Governments of the Member States meeting in the Council of 22 November 1973 on the programme of action of the European Communities on the environment, OJEC Volume 16 No C 112, 20 December 1973
4 “What are environmental principles?”, ClientEarth briefing, 12 March 2019 [accessed 10 July 2022]
5 POST, EU Environmental Principles, November 2018
6 Ibid.
7 Section 2(1) of the Act.
8 European Union (Withdrawal Agreement) Act 2020, [ref]; European Union (Withdrawal) Act 2018, schedule 1, paragraph 3.
9 Section 16 of the European Union (Withdrawal) Act 2018 (as initially enacted), and the Explanatory Notes to the Act. Royal Assent to the Act was signified to both Houses of Parliament on 26 June 2018.
10 GOV.UK, Draft Environment (Principles and Governance) Bill 2018
11 Environmental Audit Committee, Scrutiny of the Draft Environment (Principles and Governance) Bill, Eighteenth Report of Session 2017–19, HC (2017–19) 1951, and Scrutiny of the Draft Environment (Principles and Governance) Bill: Government Response to the Committee’s Eighteenth Report of Session 2017–19, First Special Report of Session 2019, HC (2019) 238; Environment, Food and Rural Affairs Committee, Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill, Fourteenth Report of Session 2017–19, HC (2017–19) 1893 and Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill: Government Response to the Committee’s Fourteenth Report of Session 2017–19, First Special Report of Session 2019, HC (2019) 95
13 Bill 9 of Session 2019–21, subsequently carried over and reintroduced as Bill 3 of Session 2021–22.
14 European Treaty Series No. 104, Convention on the Conservation of European Wildlife and Natural Habitats, done at Bern on 19 September 1979. The obligations of the Convention were transposed into UK law by the Wildlife and Countryside Act 1981, which remains in force: following that enactment, the UK ratified the Convention on 28 May 1982 and it entered into force in the UK on 1 September 1982.
15 Oral evidence on The environmental protection policies of the Department for Environment, Food and Rural Affairs, 29 June 2022, HC 478, Q23
16 Environment Act 2021, section 17(1)
17 Explanatory notes to the Environment Act 2021, para 186. The explanatory notes to the Act represent the final version of the explanatory notes prepared by the sponsoring Department to accompany the Environment Bill during its passage through both Houses. Erskine May (25th edition, para 26.15) states that explanatory notes “provide a summary of and background to the bill [or Act] and explain its various provisions. They are framed in non-technical language and should contain nothing of an argumentative character. They need to be read in conjunction with the bill and are not meant to be a comprehensive description of it.”. Explanatory notes to an Act “may be referred to in litigation according to the rule in Pepper v Hart” [Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 (26 November 1992] (Ibid., para 30.77).
19 Environment Act 2021, section 17(5)
20 Explanatory notes to the Environment Act 2021, para 186.
25 Department for Environment, Food and Rural Affairs, “New environmental protections to deliver a Green Brexit”, 12 November 2017
26 Department for Environment, Food and Rural Affairs, Environmental Principles and Governance after the United Kingdom leaves the European Union: consultation on environmental principles and accountability for the environment, May 2018. Ministers were subsequently placed under a statutory obligation to publish draft legislation for pre-legislative scrutiny: see para 6 above.
27 Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, Eighth Report of Session 2017–19, HC (2017–19) 803, and The Government’s 25 Year Plan for the Environment: Government Response to the Committee’s Eighth Report, Twelfth Special Report of Session 2017–19, HC (2017–19) 1672
28 Department for Environment, Food and Rural Affairs, Information paper on the policy statement on Environmental Principles, December 2018
29 Ibid., p. 1
30 Department for Environment, Food and Rural Affairs, “Environment Bill—next steps”, 26 January 2021
31 Department for Environment, Food and Rural Affairs, Environmental Governance: Consultation on the draft policy statement on environmental principles, March 2021
32 Letter dated 25 June 2021 from the Parliamentary Under Secretary of State, Department for Environment, Food and Rural Affairs, Rebecca Pow MP, to the Chair-designate of the Interim Office for Environmental Protection, Dame Glenys Stacey DBE. The Office for Environmental Protection was established in interim and non-statutory form from 1 July 2021 pending Royal Assent to the Environment Bill.
33 Office for Environmental Protection, “Advice on the draft environmental principles policy statement”, 6 July 2021
34 Department for Environment, Food and Rural Affairs, Draft environmental principles policy statement, May 2022
35 The letter is reproduced in the Annex to this report.
36 Department for Environment, Food and Rural Affairs, Draft environmental principles policy statement, May 2022, p. 5 (in PDF version)
37 Ibid., pp. 6–8
38 Ibid., p. 9
39 Ibid., pp. 10–13
40 Ibid., pp. 13ff
41 Department for Environment, Food and Rural Affairs, Explanatory memorandum to the environmental principles policy statement and Summary of responses and government response, May 2022
42 Letter to the Chair from the Executive Director, Aldersgate Group, dated 14 June 2022
47 Letter from the Interim Chair, Environment, Food and Rural Affairs Committee, to the Minister for Nature Recovery and the Domestic Environment regarding the Government’s draft environment principles policy statement, dated 20 May 2022
48 Letter from the Minister for Nature Recovery and the Domestic Environment to the Chair of the Environment, Food and Rural Affairs Committee regarding the draft environmental principles policy statement, dated 14 June 2022
49 Letter from the Chair, Environment and Climate Change Committee, to the Minister for Nature Recovery and the Domestic Environment regarding the Government’s draft environment principles policy statement, dated 23 June 2022
50 Secondary Legislation Scrutiny Committee, Third Report of Session 2022–23, HL Paper 11, pp 9–12
51 HL Deb, 30 June 2022, col 178GC
52 Secondary Legislation Scrutiny Committee, Third Report of Session 2022–23, HL Paper 11, p 12
53 HL Deb, 30 June 2022, cols 158–180GC
55 House of Lords Business, 30 June 2022
56 Michael Holder, “’Missed opportunity’: Ministers shelve sustainability disclosure rules, commit to binding environmental policy principles”, BusinessGreen, 12 May 2022; letter to the Chair from the Executive Director, Aldersgate Group, dated 14 June 2022
57 Tess Colley, “Environmental Principles Policy Statement: 5 things you need to know”, ENDS Report, 12 May 2022
58 United Nations General Assembly, Rio Declaration on Environment and Development, Annex I to Report of the United Nations Conference on Environment and Development, August 1992, Article 15
59 Greener UK briefing note on the environmental principles policy statement, June 2022
61 “’Missed opportunity’: Ministers shelve sustainability disclosure rules, commit to binding environmental policy principles”, BusinessGreen, 12 May 2022
62 Greener UK briefing note on the environmental principles policy statement, June 2022
63 The Queen’s Speech delivered on 10 May 2022 indicated that “A bill will enable law inherited from the European Union to be more easily amended.” This ‘Brexit Freedoms Bill’ is expected to introduce new powers for Ministers “to strengthen the ability to amend, repeal or replace the large amounts of retained EU law by reducing the need to always use primary legislation to do so”, to remove “the supremacy of retained EU law as it still applies in the UK” and to “clarify the status of retained EU law in UK domestic law to reflect the fact that much of it became law without going through full democratic scrutiny in the UK Parliament”. GOV.UK, Lobby briefing notes on 2022 Queen’s Speech, 10 May 2022
64 Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, Eighth Report of Session 2017–19, HC (2017–19) 803, para 109
67 Ibid.
72 Environmental Audit Committee, Scrutiny of the Draft Environment (Principles and Governance) Bill, Eighteenth Report of Session 2017–19, HC (2017–19) 1951, para 23