Environment Bill: Legal principles remain source of contention

The scope of a new set of environmental principles, as set out in the government’s mammoth Environment Bill, retains loopholes that have previously come under fire from legal experts and green groups.

Draft passages of the bill, published in December 2018, gave ministers a degree of flexibility in how they approach a new set of environmental principles, modelled on those found in EU law, and for exempting activities relating to national security from those principles.

These exemptions remain in place in the new bill. Ministers do not need to consider the principles for anything related to the armed forces, defence and national security, nor for tax and spending decisions. Legal experts have previously voiced concern over the exemptions, noting that they are not matched in EU law.

The list of principles, which will be set out in a separate policy statement, cover: 

  • Integrating environmental protection into policymaking

  • Preventative action to avert environmental damage

  • A precautionary approach to environmental risk

  • Rectifying environmental damage at source

  • The polluter to pay for environmental damage.

  • The list has been considerably shortened since the publication of the draft passage of the bill, following criticism from legal experts that it was incoherent.

    The requirement to “have due regard to” the principles represents a slight shift in the draft wording, under which policymakers merely had to “have regard to” the principles. Nevertheless it is still weaker than a requirement to “act in accordance with” them, the wording that green groups had been calling for

    In addition, the bill requires ministers to “take into account other considerations relevant to their policy”, allowing them some leeway when they have regard to the principles.

    The bill requires the government to present a draft policy statement before parliament, with MPs able to pass motions on it. However, they do not have the power to reject it. The environment secretary can also revise the policy statement “at any time”, which would then be laid before parliament again.

    Environmental umbrella group Greener UK said it was concerned by the absence of any “legal commitment to maintaining existing standards” in the bill. “Without such a commitment, future governments could deregulate,” it warned. 

    The bill does, however, state that the environment secretary “must be satisfied” that the policy statement on principles “contribute to the improvement of environmental protection”.

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