Policy paper

Explanatory memorandum to the environmental principles policy statement

Updated 31 January 2023

This was published under the 2019 to 2022 Johnson Conservative government

1. Introduction

1.1 This explanatory memorandum has been prepared by the Department for Environment, Food and Rural Affairs and is laid before Parliament by Command of His Majesty.

2. Purpose of the instrument

2.1 The purpose of the environmental principles policy statement (policy statement) is to set out how the principles should be interpreted and proportionately applied by Ministers of the Crown so that they are used effectively to shape policy to protect and enhance the environment.

2.2 The Environment Act 2021 places a legal duty on Ministers of the Crown to have “due regard” to the policy statement when making policy. In practice, this means that policymakers will need to consider 5 internationally recognised environmental principles when developing policy.

2.3 The 5 environmental principles are the integration, prevention, rectification at source, polluter pays and precautionary principles. Their purpose is to guide Ministers of the Crown towards opportunities to prevent environmental damage and enhance the environment.

2.4 Policy areas exempt from this duty are the armed forces, defence, national security, taxation, spending and the allocation of resources within government.

3. Matters of special interest to Parliament

Matters of special interest to the Joint Committee on Statutory Instruments

3.1 None.

4. Extent and territorial application

4.1 The territorial extent of this instrument is England and Wales and Scotland.

4.2 The territorial application of this instrument is England and Scotland.

5. European Convention on Human Rights

5.1 As the policy statement is not subject to the affirmative resolution procedure and does not amend primary legislation, no statement is required.

6. Legislative context

6.1 Sections 17 to 19 of the Environment Act 2021 make provision for the policy statement.

6.2 Section 17 requires the Secretary of State to prepare a policy statement on 5 specified environmental principles which explains how Ministers of the Crown should interpret and proportionately apply those principles when developing policies. The Secretary of State must be satisfied that the policy statement will contribute to the improvement of environmental protection and sustainable development.

6.3 Section 18 establishes the process by which the Secretary of State will develop and publish the policy statement. Consultation is required on an initial draft of the policy statement, followed by laying before Parliament. There is then a period within which either House of Parliament, or a committee of such, may pass a resolution in respect of the draft policy statement or make recommendations. The Secretary of State must lay a response to any resolution or recommendation before Parliament. Following completion of that stage of the process, the Secretary of State must lay the final policy statement before Parliament and publish it. The Secretary of State may revise the policy statement at any time, subject to the statutory process being followed once more.

6.4 Section 19 sets out the legal duty on Ministers of the Crown in using the policy statement. It also details the relevant exemptions to the duty to have due regard to the policy statement. Ministers are required to have due regard to the policy statement when making policies included in the scope of the duty (in other words, policy that is not excluded). Policies excluded from the duty are those relating to the armed forces, defence, national security policy, taxation, spending and the allocation of resources within government. The duty does not apply to policy so far as it relates to Wales and applies when making policy in relation to Scotland only so far as that policy relates to reserved matters.

7. Policy background

What is being done and why?

7.1 The government has committed to leaving the environment in a better state than that in which we found it. To make this happen, we need to ensure that environmental protection forms an integral part of policy development in all government departments. This is why the government has chosen to embed this list of clear and long-established environmental principles in law and publish an accompanying statutory policy statement which will set out how these principles should be interpreted and applied by policymakers.

7.2 The 5 principles in the policy statement are internationally recognised as successful benchmarks for environmental protection and enhancement. When making policy, and where relevant, ministers will need to consider:

• the integration principle – environmental protection should be integrated into the making of policies

• the prevention principle – policy should aim to prevent environmental harm

• the rectification at source principle – environmental damage should, as a priority, be addressed at its origin to avoid the need to remedy its effects later

• the polluter pays principle – where possible, the costs of pollution should be borne by those causing it, rather than the person who suffers the effect of the resulting environmental damage, or the wider community

• the precautionary principle - where there are threats of serious or irreversible environmental damage, a lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation

7.3. Sustainable development and the improvement of environmental protection are overarching objectives in the Environment Act. The Secretary of State must be satisfied that, when the policy statement comes into effect, it will contribute to the achievement of these 2 objectives. Sustainable development goes hand in hand with the objective that the policy statement should improve environmental protection.

7.4 Ministers of the Crown are required to have due regard to the policy statement when developing new, or revising existing, policy. This means that, when making policy, Ministers of the Crown must consider the policy statement with substance, rigour and an open mind. It is not a tick box exercise. This will ensure that the principles are factored into policy development alongside other relevant considerations.

7.5. Having left the EU, the UK government has the space to regulate as we see fit giving us the opportunity to strengthen environmental protection and enhancement. Our approach to environmental principles will ensure that ministers across government are legally obliged to consider the principles in all policy development.

7.6 The Environment Act 2021 provides an exemption from the duty on ministers in respect of policy so far as it relates to the armed forces, defence, national security, taxation, spending and the allocation of resources within government.

7.7 Defra is working closely with other government departments to support them in planning and preparing for implementation of the duty through a variety of methods. We are developing resources and online training to be shared across government. We will include the principles in relevant government policymaking guidance, including HM Treasury’s Green Book.

7.8 Environmental protection is devolved in Scotland, Wales, and Northern Ireland subject to a small number of reserved areas. Therefore, each devolved administration is able to legislate individually for the environmental principles in Scotland, Wales and Northern Ireland respectively. We have agreed to continue working closely with the devolved administrations to ensure a cooperative approach on the implementation of environmental principles across the UK.

8. European Union withdrawal and future relationship

8.1. This instrument does not relate to withdrawal from the European Union.

9. Consolidation

9.1. This instrument does not consolidate previous instruments.

10. Consultation outcome

10.1. View the consultation version of the draft environmental principles policy statement.

10.2. A 12-week public consultation on the draft environmental principles policy statement closed on 2 June 2021. It gathered views on whether the draft policy statement provided adequate explanation of terminology, contained enough definitions and scope, provided enough process guidance to ensure its consistent application, and excluded, as far as possible, the possibility for unintended outcomes in its application.

10.3. The online survey invited respondents to answer 11 questions, with an additional opportunity to provide feedback on the online consultation tool. Defra also held stakeholder events where attendees were able to provide feedback on the draft policy statement with Defra officials. Attendees included non-governmental organisations, trade bodies and industry. A total of 216 responses were received during the consultation period. 176 responses were submitted via the Citizen Space online portal, and 40 responses were received via email.

10.4. On the 2 July 2021, the Interim Office for Environmental Protection wrote to Minister Pow to provide advice on the draft environmental principles policy statement. The advice was given by reference to the 6 substantive questions posed in the public consultation.

10.5 The summary of responses and government response to the consultation was published on 12 May 2022.

10.6 A revised post-consultation draft of the environmental principles policy statement was laid before Parliament on 11 May 2021 for 21 sitting days of parliamentary scrutiny. Feedback was received from the Environment, Food & Rural Affairs Committee (EFRA Commons Select Committee), the Environmental Audit Committee (EAC Commons Select Committee), the Secondary Legislation Scrutiny Committee (SLSC Lords Select Committee) and the Environment and Climate Change Committee (ECCC Lord Select Committee). Briefings from Greener UK (dated June 2022) and a letter to Baroness Parminter (dated 8 June 2022) from the Office for Environmental Protection (OEP) were referred to by parliamentarians during scrutiny. Additionally, the House of Lords Grand Committee debate on 30 June 2022 was considered.

10.7 The government has laid a response to parliamentary scrutiny, alongside the final environmental principles policy statement. The final policy statement and this updated explanatory memorandum are accessible online.

11. Guidance

11.1 There is no proposal to lay guidance with the policy statement.

12. Impact

12.1 There is no, or no significant, impact on businesses, charities, or voluntary bodies.

12.2 The impact on the public sector will arise from embedding the duty in government policymaking. All Ministers of the Crown, when making policy that is not exempt from the duty, must have due regard to the policy statement. Therefore, there will be an impact on government departments. However, Defra is working on effective implementation to ensure other government departments are aware of the expectations associated with the principles, and are able to build their own capability to implement the duty.

12.3 A full impact assessment has not been prepared for this instrument because an impact assessment was undertaken as part of the Environment Act 2021.

13. Regulating small business

13.1 The legislation does not apply to activities that are undertaken by small businesses.

14. Monitoring and review

14.1 The Office for Environmental Protection has a duty to monitor the implementation of environmental law, which includes the requirement for Ministers of the Crown to have due regard to the policy statement when making policy. The OEP has committed in its Corporate Plan 2022/23 (June 2022) to “Monitor implementation of the Environmental Principles Policy Statement across UK government departments and publish an evaluation of its implementation in a future year.”

14.2 Defra will lead a high-level review of implementation of the duty within 2 years of the duty coming into force. It will highlight best practice and review the effectiveness of the overall approach to implementation. This is not intended to be a report on compliance, and we will share our plans with the OEP in order to avoid duplicating their review.

14.3 Section 18(11) of the Act enables the Secretary of State to revise the policy statement at any time, subject to the same processes that are now being followed.

15. Contact

15.1 You can contact Edward Dyson and Claire Horton ([email protected]) and [email protected] with any queries regarding the instrument.

15.2 Rachel Bailey, Deputy Director for Environmental Governance, Natural Environment, Trees and Landscapes Directorate at the Department for Environment, Food and Rural Affairs can confirm that this explanatory memorandum meets the required standard.

15.3 Minister Trudy Harrison, Parliamentary Under Secretary of State for Environment at the Department for Environment, Food and Rural Affairs can confirm that this explanatory memorandum meets the required standard.