In the Environment Bill, which is due to be brought before the House of Commons for Report on 25th June 2020, the Bill commits UK Ministers to give strictly limited consideration to environmental principles when making policy.
The environmental principles in question are at a high level, and are –
(a) the principle that environmental protection should be integrated into the making of policies,
(b) the principle of preventative action to avert environmental damage,
(c) the precautionary principle, so far as relating to the environment,
(d) the principle that environmental damage should as a priority be rectified at source, and (e) the polluter pays principle.
The Environment Bill as currently drafted will already do much to limit the application of these principles. They will only apply to Ministers, not all public bodies. They will only apply when Ministers are making policy, not to the exercise of their other functions. They will not apply directly, but only through a policy statement prepared by the Secretary of State. Ministers are not to be required to do anything about the principles if they consider it would have no significant environmental benefit, or would “in any other way” be disproportionate to any environmental benefit.
Subject to all of that, and to all of these limitations, qualifications and restrictions, Ministers are supposed to have “due regard” to the policy statement of environmental principles, when making policy: but subject to some further, overall exceptions.
There are to be wholesale further exemptions from the scope of the policy statement prepared by the Secretary of State for –
(a) the armed forces, defence or national security,
(b) taxation, spending or the allocation of resources within government.
In the decades since World War II, the application of “Crown Exemption” from environmental laws has been progressively cut back. It was found that a multitude of environmental sins were covered up (for example in the nuclear industry) by a blanket application of ‘national security’, and large improvements have been achieved by greater transparency and the wider application of environmental laws. The armed forces have shown themselves to be perfectly capable of full compliance with the vast majority of detailed environmental laws, and have detailed manuals to prove it. No explanation has been given by government as to why the armed forces, defence or national security would in any way be prejudiced by the application of high level principles that have in any event been part of European Union law applying to them for the past four and a half decades.
The idea that environmental principles should also be disapplied from any policy concerned with taxation, spending or the allocation of resources within government was “absurd” when first proposed in 2019 (as William Wilson of Wyeside Consulting pointed out in evidence to the House of Commons Environment, Food & Rural Affairs Committee), but is even more so in 2020.
In response to the COVID-19 pandemic, we are advised, by Ministers, the opposition, international bodies, business and leading academics that every aspect of taxation, spending and the allocation of resources within government should be directed towards a “Green Recovery”. How can it possibly make sense, therefore, to put in place a legislative requirement that when making policy on taxation, spending or the allocation of resources within government, Ministers should exclude environmental principles from their consideration?
The House of Commons Environment, Food & Rural Affairs Committee in 2019 commented on these provisions –
“We are very concerned by the exemptions to the policy statement listed in Clause 1(6). The exemptions relating to defence and general taxation are too broad and could lead to significant gaps in environmental protection within the Ministry of Defence and HM Treasury.”
The House of Commons Environmental Audit Committee in 2019 added that -
“The principles should be broadly applied to have their intended effect. The exclusions set out in the Bill are so broad that the principles will not continue to have a meaningful influence on the development and application of environmental policy and law. It is likely that the exclusions set out in clause 4(2) will be immune from judicial review.
Any exclusions to the application of the principles ought to be very narrowly defined. The Bill should specify that the Ministry of Defence as a landowner is not excluded, nor should general taxation or spending be omitted since many environmental measures depend on changes to the tax system. We welcome the commitment that the Secretary of State will look again at the exclusions to the principles…”.
If the government would properly reflect the advice of two House of Commons Committees, the governance provisions of the Environment Bill could be greatly improved, without in any way impeding the operations of the armed forces, the defence of the realm, national security, the workings of government or the operations of HM Treasury.