Table of contents
On 11 May 2022, the government laid a draft environmental principles policy statement before Parliament. The production of an environmental principles policy statement (EPPS) is a requirement of the Environment Act 2021, which also stipulates the principles themselves and details how the statement should be consulted on. This includes provisions to consult Parliament by laying a draft EPPS and allowing 21 sitting days for resolutions from either House or recommendations from committees. A response to any resolution or recommendations must be forthcoming prior to the laying of a final EPPS before parliament.
On 30 June 2022, the House of Lords will discuss the draft EPPS. Baroness Parminter (Liberal Democrat), chair of the House of Lords Environment and Climate Change Committee, has tabled a motion:
[…] 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.
The House of Lords Secondary Legislation Scrutiny Committee (SLSC) has drawn the draft EPPS to the special attention of the House on the ground that “it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House”.
1. Environmental principles policy statement
1.1 Environmental principles: Background
Prior to the UK’s withdrawal from the European Union a large proportion of environmental law and policy in the UK derived from the EU, with its implementation largely monitored and enforced by EU institutions such as the European Commission. The government has argued that leaving the European Union has presented “new opportunities”, stating that:
We have the chance to strengthen environmental protection and enhancement. We can also ensure that environmental principles are used consistently across government to guide policymaking whilst supporting innovation and economic growth.
Section 16 of the European Union(Withdrawal) Act 2018 required the secretary of state to publish a draft bill which included a set of environmental principles and a statement of policy about how to apply those principles. The draft Environment (Principles and Governance) Bill, was published in December 2018 and underwent pre-legislative scrutiny. Its provisions formed the basis for the environmental principles later introduced in the Environment Act 2021.
The Environment Act 2021 specifies a series of environmental principles and requires the publication of a policy statement on these principles setting out how they are to be applied by ministers during policymaking. It also creates a duty on ministers to have “due regard” to a policy statement on environmental principles when making policy.
1.2 Environmental principles: The five principles
Section 17(5) of the Environment Act 2021 details five environmental principles which the government says are “internationally recognised as successful benchmarks for environmental protection and enhancement”. The government outlines the principles in more detail in the draft EPPS:
- The integration principle: The integration principle proposes that policymakers should look for opportunities to embed environmental protection in fields of policy that have environmental effects.
- The prevention principle: The prevention principle means that government policy should aim to prevent environmental harm. This principle underpins many aspects of environmental policy to ensure that environmental damage, such as CO2 emissions, pollution or biodiversity loss is avoided.
- The precautionary principle: The precautionary principle assists the decision-making process in the face of a lack of scientific certainty. The principle helps policymakers deal with risks which may not be precisely calculable in advance.
- The rectification at source principle: The rectification at source principle states that environmental damage should, as a priority, be addressed at its origin to avoid the need to remedy its effects later. Rectification at source should result in approaches that are more cost-effective, efficient, and equitable in the long-term.
- The ‘polluter pays’ principle: The polluter pays principle means that, where possible, the costs of pollution should be borne by those causing it, rather than the person who suffers the effects of the resulting environmental damage, or the wider community.
The principles cannot be changed without primary legislation.
1.3 Purpose of the EPPS
The EPPS seeks to set out how the five environmental principles will be applied by ministers during policymaking. The government has argued that the EPPS will “empower ministers” to “think creatively and use environmental principles in an innovative and forward-thinking way”.
As well as including details on how and when to apply each of the five principles, the EPPS includes details on the legal duty to have “due regard” to the EPPS in making policy. It also covers issues of proportionality of environmental concerns to “broader policy considerations” and how the different principles interact. The draft EPPS includes details of criteria to apply the principles, and options for how to apply them. For example, this could be by amending policy options or including an additional policy option, or by postponing a policy until further evidence is available.
The government has said that the secretary of state is satisfied that the EPPS will contribute to the improvement of environmental protection and sustainable development, arguing that the application of environmental principles to policymaking “will enhance environmental protection and promote sustainable development”. However, it has stressed that the EPPS:
[…] is not prescriptive in dictating the outcome of any application of the environmental principles. Instead, it aims to provide ministers, and those developing policy on their behalf, with the space to use the principles to enable and encourage innovation. This approach will ensure that nature and the environment are proactively designed into the policymaking process.
Environmental protection is devolved, therefore the EPPS will not apply to policy relating to Wales or Northern Ireland, or to Scotland, except to a small number of policy areas which are reserved in relation to Scotland.
The duty to have “due regard” to the EPPS applies to all policy across government. However, section 19 of the Environment Act 2021 specifies exemptions for the armed forces, defence or national security, taxation, spending or the allocation of resources within government policy areas.
1.4 Development of the EPPS
Section 18 of the Environment Act 2021 stipulates how the EPPS should be drawn up and consulted on. It requires that the secretary of state prepare and consult on a draft EPPS. The secretary of state should consult “such persons as the secretary of state considers appropriate” in relation to the EPPS. The act goes on to outline the parliamentary scrutiny of the draft EPPS, requiring the secretary of state to lay the draft statement before Parliament.
Either House may then pass a resolution regarding the draft EPPS prior to the end of the 21 sitting days. In addition, a joint committee or committee of either House can also make recommendations regarding the draft EPPS within the same timescales. Where a resolution or recommendations are made, the secretary of state must respond to them prior to laying a final EPPS before Parliament. Where no resolutions or recommendations are made, the secretary of state must prepare and lay the final EPPS after the 21-day period.
The final EPPS comes into effect when it is laid. Should the secretary of state wish to revise the EPPS, the same statutory process outlined above must be followed with the new draft.
A 12-week public consultation on the draft environmental principles policy statement closed on 2 June 2021. The consultation sought views on whether the draft EPPS contained enough process guidance to ensure its consistent application and adequate definitions and explanation of terminology. The draft EPPS was laid before Parliament on 11 May 2022.
The government has said that there will be an implementation period for the final EPPS “to allow government departments to prepare for the new duty”.
Commentary on the draft EPPS relates to issues such as the implementation of the final EPPS, the evaluation of its effectiveness and the way in which the EPPS will be embedded across different government departments.
2.1 Secondary Legislation Scrutiny Committee
The Secondary Legislation Scrutiny Committee (SLSC) scrutinised the draft EPPS as part of its remit to review all instruments subject to parliamentary scrutiny. The committee drew the draft EPPS to the special attention of the House on the ground that “it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House”, noting:
As this is the first draft policy statement to have been laid before Parliament under the Act and a precedent is therefore set for how the House will handle future policy statements, the House may wish to consider the potential scope for a more exacting scrutiny procedure for future policy statements.
The committee was critical of the lack of explanations of the environmental principles in the explanatory memorandum accompanying the draft EPPS and asked the Department for Environment, Food and Rural Affairs to revise it. It also drew attention to a lack of monitoring and evaluation of the effect of the EPPS, stating:
[…] it is essential that the practical implementation and effectiveness of the policy statement and the environmental principles will be properly monitored and evaluated by all government departments in scope of the statutory duty. 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.
2.2 House of Commons
Environment minister Rebecca Pow wrote to the chairs of both the House of Commons Environment, Food and Rural Affairs (EFRA) Committee and the House of Commons Environmental Audit Committee on 11 May 2022 to confirm the laying of the draft EPPS. She said she would welcome the committees’ “thoughts and advice” on the EPPS “to ensure such a vital document meets the needs of our environmental commitments”. Rebecca Pow also wrote to Baroness Parminter, chair of the House of Lords Environment and Climate Change Committee, on the same date.
Correspondence from the interim chair of the House of Commons EFRA Committee sent on 20 May 2022 queried: the timescale for implementation of the EPPS; the measures to be used to assess that due regard is being given to the EPPS in policy making; discussions with departments responsible for exempt policy areas (such as the Ministry of Defence) about the potential of them adopting the environmental principles on a voluntary basis; and work with departments such as the Department for Transport and the Department for Levelling Up, Housing and Communities to familiarise them with the principles, particularly regarding the precautionary and polluter pays principles.
In her response on 14 June 2022, Rebecca Pow outlined work to develop a cross-government toolkit to help other departments to prepare for the duty to have regard to the EPPS. As well as highlighting engagement with a number of departments, the letter mentioned work with exempt policy areas. The minister confirmed that the possible length of the implementation period was currently being discussed across government, noting “Lessons learnt from the roll out of the public sector equality duty demonstrated that it is important to allow sufficient implementation time”. In relation to evaluation, the minister noted:
The most appropriate way to do this will depend on the policy, and different government departments may have different approaches, which is why neither the EPPS or the Environment Act 2021 is prescriptive. The public sector equality duty requires public authorities to publish information to demonstrate their compliance with the duty. There is no similar requirement for environmental principles under the Environment Act 2021. Ministers will be responsible for implementing the EPPS within their departments and our toolkit will provide template guidance and support.
On 23 June 2022, Baroness Parminter replied to Rebecca Pow’s letter of 11 May 2022. Baroness Parminter set out the House of Lords Environment and Climate Change Committee’s comments on the draft policy statement. She said that the committee warmly welcomed “the government’s intentions to put the environment at the heart of their decision-making and the changes made since the last draft to help the environmental principles policy statement achieve that”. However, she said the committee “nevertheless” continued to have “significant concerns” that she outlined in the letter. For example, on proportionality, Baroness Parminter wrote that “the latest draft of the text gives insufficient weight to environmental considerations, in defining what constitutes a proportionate response by ministers when considering the potential effects of a policy option”. She said that she hoped the government would “reflect” on the committee’s concerns “in order to strengthen the environmental principles policy statement going forward”.
This briefing has been updated to include a reference to correspondence from Baroness Parminter, chair of the House of Lords Environment and Climate Change Committee, to Environment Minister Rebecca Pow, which was published on 24 June 2022.