How to save the Precautionary Principle: Some thoughts for Lords and Ladies

This article was first published on Medium.

by Victor Anderson and Rupert Read

Introduction

What is the Precautionary Principle [PP]? The PP aims to ensure a high level of environmental protection through preventative decision-taking in the case of risk and particularly of uncertainty. It is applied in circumstances where there are reasonable grounds for concern that an activity could cause harm, but where there is uncertainty about the probability of the risk and the degree of harm and some gaps in the information currently available.

The PP is a vital tool for defending humanity against itself, a way of having the humility of recognizing that we are living in a world that we will never fully understand, let alone control.

The PP has been recognised by various international agreements. The Bergen Declaration on Sustainable Development (1990) is a widely-accepted framing of the PP in international law. Its definition of the PP is:

In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

The current state of play

The Precautionary Principle has some legal status in the UK through its membership of the EU, because it is one of the EU’s official environmental principles. However this will no longer be the case when (if?) the UK leaves the EU.

The Government has agreed to start off Brexit by transferring all EU law into UK law. That leaves open the option of changing parts of it later, but at least that provides a useful starting-point. But it only applies to laws and not to principles, and therefore doesn’t apply to the environmental principles or the EU Charter of Fundamental Rights (which has principles on human rights and citizens’ democratic rights).

In both Houses of Parliament the Government has faced pressure — and amendments — on these issues. Most recently, members of the House of Lords debated Amendment 27, which would have put the environmental principles (and the principle of animal sentience) into UK law and required the Government to set up a new watchdog body to enforce these principles and environmental standards, such as those on air quality, replacing the current enforcement roles of the European Court of Justice and European Commission.

The amendment wasn’t put to a vote, because the minister responding to the debate, Lord Callanan, promised that the Government will come forward with its own proposals, and they will do this before the Lords potentially return to this issue on May 16, when they debate the Withdrawal Bill at Third Reading, before handing it back to the Commons for MPs to consider the changes the Lords have made. Peers backing the amendment decided to wait and see what the Government comes up with, giving themselves the option of debating a new amendment on May 16.

The Government is almost certain to propose a new watchdog body on the lines Michael Gove has already committed himself to — apparently despite pressure from some other ministers. For example, the Department for Transport aren’t keen on an effective enforcement body for air quality standards. However what the Government has not promised — and what was in Amendment 27 but not put to a vote — is giving statutory status to the EU’s environmental principles, including the Precautionary Principle.

The Government is proposing to put these principles into a National Policy Statement, which has lower standing in law than full-scale primary legislation, and can much more easily be changed by the Government. In particular, an NPS is vulnerable to being changed by an unenlightened future Secretary of State (and we shouldn’t forget it is not long since the openly anti-environmentalist Owen Patterson held that position).

It is important to challenge and wherever possible improve on the Government’s proposals at every opportunity — including in the public consultation process, proceedings on the Withdrawal Bill, and the debates on the bill which will come forward — probably next year — to set up the new watchdog body and give it its objectives and duties.

Meanwhile, the first line of defence for the PP now is the House of Lords.

What is to be done?

In a previous article, one of us (Read) urged that a minimum way forward for not discarding the PP would be to embed the environmental principles in an NPS that was statutorily required, and that the proposed environmental watchdog would have to have regard to. As noted in that article, Macrory and Thornton (2017) have observed:

The model of town and country planning legislation can provide a useful pointer where national government guidance and policy is contained in non-legal documents but given some explicit legal connection to the planning system.

If environmental principles are to play a legal role, future environment legislation could adopt a similar model by incorporating them in government policy documents rather the legislation itself but then making a link to decision-making under the relevant legislation.

This provides some future for the Precautionary and other EU Principles.

It appears that exactly this route is the one that the Secretary of State is favouring. This is better than nothing. But, as we noted above, it is a bare minimum only. It remains far less than ideal, because the content of the NPS is still highly vulnerable to change with the whims of ministers.

Ways to retain the Precautionary Principle more effectively than by means of a National Policy Statement.

Here are two possibilities, going further than what the Government now appears to be proposing. Either of these would be genuinely satisfactory ways of preserving and even enhancing the PP:

1) It’s desirable for the precautionary principle to be enshrined in UK law that carries over existing EU legislation referring to it to ensure that decisions made under such legislation cannot be challenged in a UK court on the grounds that the hazard has not been scientifically-evidenced beyond reasonable doubt. The precautionary principle also needs to be enshrined in some way so that new UK legislation can be based on it. One way to do this would be through a comprehensive Environment Act.

Possibility (1) however is clearly not Gove’s intention. It embodies too much of a strong direct commitment to the environmental principles for the Conservative Government to stomach.

So we suggest another possible option:

2) The statutory ‘watchdog’ that the Secretary of State Michael Gove is proposing should have the key environmental principles — especially the prevention principle (that prevention is better than cure) and the precautionary principle — embedded explicitly in its duties.

Here is a rough draft text for such inclusion, vis a vis the Precautionary Principle:

The body shall exercise its functions in conformity with the following principles:

((a)) the precautionary principle, ((b))…

Amendment 27 debated in the Lords, however, went further still in one important respect. It would have applied the Precautionary Principle and the other EU environmental principles as duties on all public bodies, not just on the new environmental watchdog.

This would be a way in which the future of the environmental principles was not only guaranteed but indeed strengthened.

Conclusion

The bottom-line is this. If the Government brings forth soon a consultation on a strong environmental watchdog, that’s progress. But we need to have good reason to believe that that watchdog really will be enough. Our proposal (2) would be a way to make it enough.

As Ruth Chambers says here, on the Green Alliance blog, warm words at this point are not enough.

And in particular, we’d add this: that what Lord Callanan is promising is IN ANY CASE not enough. For again, he is promising only an NPS to embody the environmental principles. But those principles need to be either directly in law ((1), above), and/or (and perhaps better still) in statute by way of framing the watchdog itself ((2), above).

So: we would urge peers to reject whatever the Government comes up with between now and May 16, unless it embodies a real concession in this direction. Doing so would strengthen the hands of those who are seeking genuinely to save and even to strengthen the environmental principles. And that is exactly what is needed at this moment in history.

Appendix

The Lords debate on A27 is
available online

The key section of the minister, Lord Callanan’s, reply to the debate is this -

“Our recent announcements include an increase in recycling rates in order to slash the amount of waste polluting our land and seas, a consultation on a deposit return scheme later this year and a ban on the sale of plastic straws, drinks stirrers and plastic-stemmed cotton buds. In line with this commitment, the Secretary of State for the Environment, Food and Rural Affairs announced on 12 November our intention to create a new comprehensive policy statement setting out our environmental principles, recognising that the principles on which we currently depend in UK law are not held in one place. It is intended that the new policy statement will draw on current EU and international principles and will underpin future policymaking, underlining our commitment that environmental protection will be enhanced and not diluted as we leave the European Union.

“At that time, the Secretary of State also announced our intention to consult on a new, independent and statutory body to advise and challenge government and potentially other public bodies on environmental legislation, stepping in where needed to hold these bodies to account and being a champion for the environment. I can confirm for noble Lords that it is our intention to publish the consultation in time for the Third Reading of this Bill [May 16]. The consultation will explore, first, the precise functions, remit and powers of the new statutory and independent environmental body and the nature, scope and content of the new statutory policy statement on environmental principles. It is of course important to gather the views of many stakeholders in this area before coming to any conclusions. Amendments 27 and 28 would prejudge the outcome of the forthcoming consultation by setting requirements in legislation now.”

Our view, as explained above, is that it is clear from this reply that what the Government will bring forward between now and May 16th will not be sufficient to justify the Lords not voting A27 through, in that debate.

Publication: