UK consultation on binding environmental principles that will apply to all future policy

The UK Government has made no secret of its belief that leaving the EU presents an opportunity for better regulation. Last week it pushed forward changes to deliver against its environmental and sustainability commitments, by launching a consultation building on five environmental principles* that are intended to put environmental considerations at the heart of all policy-making in the future.

The consultation seeks views on a draft “Policy Statement” on five internationally recognised environmental principles incorporated into the draft Environment Bill (currently in the House of Commons). When enacted, the Environment Bill will require all UK Government bodies to have ‘due regard’ to the Policy Statement.

The plan is that this Policy Statement will result in policies which are likely to have more sustainable and better environmental outcomes by setting out how the principles should be interpreted and proportionately applied by Ministers so that they are used effectively and embedded in policy to protect the environment.

The consultation (available here) seeks public views by 2 June 2021 on the draft Policy Statement and whether it provides a suitably robust and clear framework for it to be understood and applied consistently.

As drafted, the Policy Statement requires UK policymakers to take three key steps when enacting future UK policy:

1. Assess whether the proposed policy will have an environmental impact: Policy makers should consider the primary and secondary impacts on the environment (regardless of whether that impact occurs in England or overseas), while adopting a proportionate and common-sense approach.  It remains to be seen how policymakers will approach questions involving environmental impact overseas, but it is perhaps notable that Environment Secretary George Eustice said last week that “our environmental principles are essential, and will ensure that ministers across Whitehall are guided to not just protect the environment, but tackle problems at their origin.” Of course, those who have been following the draft proposals in the Environment Bill in relation to supply chain due diligence will be aware that the Government has already shown that it is prepared to take steps to target overseas environmental impacts where there is a strong rationale for doing so. Those proposals will provide for fines in instances of insufficient public reporting or tracing of ‘forest risk commodity’ products derived from illegal deforestation abroad (see our recent blog post on this topic here).
2. Understand which principles are relevant: The environmental principles (ensure integration of policies, prevention of environmental harm, rectification at source, the polluter pays and take a precautionary approach) operate as a set of overarching principles but will apply to different policy areas in different ways.
3. Apply the principles: Proposals that lead to legislation as well as changes to existing legislation that could impact the environment are captured by the Policy Statement. As such, should the UK choose to move away from previous EU legislation, it is assumed that the principles governing environmental protection should guide the way.

The consultation also provides insight into the future application of the UK’s environmental principles going forward, including:

• an indication that DEFRA’s view is that preventing environmental damage has long term economic benefits as it avoids the costs and complexities that arise when environmental damage occur;
• a recognition that in order to bring about, or address, a change in behaviour it may be more effective to apply the ‘polluter pays’ principle to the consumer of a product associated with environmental harm, rather than the producer itself;  and
• a suggestion that it could be more effective to distribute ‘polluter pays’ costs across an entire sector rather than an individual or group.

Comment

As hosts of COP26 this year, President of the G7 and a key player in the UN Biodiversity Conference (CBD COP15), the UK Government is keen to show that it is leading the climate change agenda. The consultation also comes at a time of ever-increasing public awareness of environmental change and an accelerated move towards greener decision making as a result of COVID-19. That consumer attitude can be seen very clearly in the EU Commission’s consumer data survey from 2020 (published on 12 March to mark European Consumer Day and available here) which showed that as well as consumers shopping nearer to home to support local businesses, they are also making "greener" choices (such as spending more on a more sustainable or durable product).

Although the UK government is now forging its own path, it won’t have escaped the attention of businesses, consumers and politicians alike that there has been a raft of recent developments across the EU which show how the EU and Member States are advancing their own measures to target ESG issues.  For example, on the same day that the UK Consultation was announced, MEPs voted overwhelming in favour (504 to 79) of progressing legislation which requires companies to conduct due diligence on their supply chains. The aim being to identify and eliminate environmental harm and human rights abuses. MEP Lara Wolters commented “We refuse to accept that deforestation or forced labour are part of global supply chains”. Similar provisions are already in force in certain countries (France being one with its Corporate Duty of Vigilance law), but these new rules could potentially apply across the whole of the EU and apply to any companies accessing the EU’s market. See our post here.

If the UK Policy Statement consultation follows in the footsteps of its other recent consultations on environmental issues, we should expect to see a strong appetite among respondents for policies which increasingly put environmental protection at their heart. It remains to be seen whether these proposals and other measures in the draft Environment Bill (now not expected before Autumn 2021) will be viewed by businesses and consumers as going far enough to delivering on the bold promises which have been made in that regard.