The principles derive from EU law. The two best-known are the ‘precautionary principle’, which requires policy makers to assess environmental risk through a science-based approach and to take appropriate action, depending on the level of uncertainty, and the ‘polluter pays principle’, which should ensure that policy makers always factor the pollution costs into their thinking.
There is also the ‘integration principle’, to build environmental protection into policy development; the ‘rectification principle’, to reduce the impact of environmental damage by addressing it at source; and the ‘prevention principle’ requiring action to avoid environmental damage before it occurs.
Under EU law, these were legally binding for all public authorities, including the government, its agencies, and local authorities, across all decisions. However, under the government’s proposals, the principles will no longer be legally binding. Instead, they apply only to government ministers, and only when making policy.
The minister needs only to “have due regard to” the policy statement on the principles, not the principles themselves. This is an important distinction, according to Maria Lee, co-director of the Centre for Law and the Environment at University College London.
“If ministers had due regard to the principles, that would mean having due regard to substantive values and approaches. Having due regard to a policy statement puts a whole other layer in place, and the policy statement itself is full of provisos and caveats - the obligation has very little to get its teeth into in the policy statement,” she said.
“Having due regard” is stronger than “having regard”, but weaker than having to act in accordance with them, believed Emma Tattersdill, partner in the planning and environment group at Freeths.
The weak wording risks consideration of the principles becoming no more than a tick-box exercise, she says. A duty to “have regard” to the policy statement does not give the information needed to ensure that ministers really engage with the principles, she said.
For example, it does not tell you what weight needs to be attached to the principles, at what stage in the policy-making process they need to be taken into account, or weigh the principles against each other in the case of any conflicts between them, she said.
UK Environmental Law Association (UKELA) believes this wide discretion given to ministers through this wording is the most significant flaw in the proposals. “This could well collide with the government's commitment to being a world environmental leader,” according to Dr Paul Stookes, its law and policy advisor.
It is also unclear when the principles need to be taken into account, Tattersdill says. The government says that they need to be taken account of in policy making, but there has been litigation where cases are based on what counts as a policy and what does not, for example, in terms of strategic environmental assessment, which covers plans and policies, she said.
Lee agrees that the wording is far too vague. “It's really easy to have ‘due regard’ to the policy statement, because all it asks ministers is to have a think about it, and do something if they feel like it,” she said.
The statement is further weakened by a large number of caveats, Ruth Chambers, senior parliamentary affairs associate at the Green Alliance, pointed out. For example, the principles only apply “where relevant”, “proportionately”, and ministers need to weigh up the “costs and benefits” of action.
“In bending over backwards not to interfere with ministerial discretion, it comes across as apologetic, and its tentativeness is likely to lead to ministers second guessing its application, and to inconsistent and piecemeal policy making,” she said.
The effect of these is to give the policy statement a very negative tone, Lee noted. “It takes every opportunity to reduce the level of constraint on ministers. There are many places where it explains why they might not have to apply the principles, when they could instead explain the situations in which they should, if they want to be really ambitious,” she said.
UKELA is concerned that the definition of environmental protection used by the policy statement – which comes from the environment bill – is too narrow.
As well as excluding policy making on funding and taxation, it also omits the land use planning system, except those parts of it that come under environmental impact assessment or strategic environmental assessment. “The planning system is arguably the most influential form of environmental regulation in the UK,” Stookes said.
DEFRA said it would provide training to help government departments understand and apply the requirements of the policy statement, and incorporate the principles into existing government policy guidance documents, such as the Treasury’s Green Book.