What will form the foundation of future environmental policy in the UK? The question has been with us since the Brexit referendum. The UK’s environmental policy and legislation has been fundamentally affected by its previous EU membership. Now that the transition period ended and there is hope that the Environment Bill will soon continue its passage through Parliament after another long pause, it is timely to reflect on this question.

The long-awaited draft environmental principles policy statement, released by Defra in March 2021, provides important pointers to this question.

As with all kinds of policy, creating impactful environmental policy has many ingredients. Strong guiding principles are a fundamental part of the recipe. They merit particular attention as they play an important role in setting environmental policy by expressing an overarching vision for it.[1] They can encompass a wide range of principles with diverse ways for application in legal and/or policy contexts around the world.

Prior to Brexit, the environmental principles that were applied in the UK were set out in the Treaty on the Functioning of the European Union (TFEU). Although their interpretation and application is far from perfect, under EU law, environmental principles are legally binding for all public authorities when applying EU law that falls under EU environmental competence, including in individual administrative decisions.[2]

The Environment Bill names the same five principles as the TFEU. It mandates the Secretary of State to prepare a policy statement on how they should be interpreted and proportionately applied by Ministers of the Crown.[3] The draft policy statement includes the following five principles:

• the precautionary principle which states that if there is a threat of serious or irreversible environmental damage, a lack of full scientific certainty should not be used to prevent cost-effective measures to prevent degradation;
• the prevention principle, outlining that government policy should aim to prevent, reduce and mitigate environmental harm;
• the rectification at source principle, meaning that if environmental damage cannot be prevented, it should be tackled at its source;
• the polluter pays principle, namely that those who cause environmental pollution or damage are liable for its mitigation and compensation costs; and
• the integration principle which sets out that policy-makers should look for opportunities to embed environmental protection in other policy fields that have environmental impact.

Despite the nominal application of the same environmental principles, the post-Brexit era brings several differences with respect to their application and relevance. Most importantly, environmental principles will no longer be legally binding across the whole UK for all public bodies in the same way as they were before.

As part of this new framework, the Environment Bill outlines that Ministers of the Crown only need to have ‘due regard’ to the policy statement on environmental principles, rather than having the obligation to act according to the principles themselves.

The draft policy statement released by the Secretary of State will only apply to Ministers of the Crown, but it does not apply to other public bodies, such as government agencies or local authorities. The environmental principles will have to be ‘proportionately applied’ by them ‘when making policy’, but not in everything they do, such as individual regulatory decisions[4]. The statement also contains exceptions about their relevance, notably, relating to ‘the armed forces, defence or national security’; and ‘taxation, spending or the allocation of resources within government’.

As the current draft statement only applies to Ministers of the Crown, the five environmental principles will no longer be universally applicable across the whole UK. The broad scope environmental principles had across the UK under EU law, will be lost through the way in which environmental principles are carried over to the UK framework[5]. Devolved administration can define their own approach to environmental principles when it comes to devolved policy areas. Scotland, for instance, enshrined in law under the Continuity Act, that Scottish Ministers, and other public authorities as well, will have to have due regard to the five environmental principles derived from the TFEU.

Environmental principles form only one building stone of environmental policy, but a foundational one by setting the symbolic and overarching vision for environmental protection. In light of this, restructuring the legal foundations of environmental policy brings new dynamics into the context in which environmental policy is made across the UK. As the UK continues outlining the foundations of its new environmental system, it is important to reflect on the direction environmental policy is heading and take all potential opportunities to strengthen it, supporting government’s manifesto commitment to protect and enhance natural environment.

Currently, Defra is consulting on the draft policy statement on environmental principles by 2 June 2021. You can to respond to the consultation online.

View our previous work focusing on the future of the UK environmental policy, including the Environment Bill.

[1] Lee, M. and Scotford, E. A. K. 2019. Environmental Principles after Brexit: the draft Environment (Principles and Governance) Bill. Working Paper.

[2] Ibid.

[3] While namely the five principles are the same, it is important that their definition/interpretation can differ. This is an important aspect, but discussing it is beyond the scope of this blog.

[4] Reid, C. T. 2020. Mapping post-Brexit environmental law

[5] Ibid.