Post-Brexit Environmental Principles: Government and risky business

The UK Government recently carried out a consultation on its Statement of Environmental Principles. The Statement will have legal status through being referred to in the Environment Bill, still slowly making its way through Parliament and now in the House of Lords. This Bill is supposed to repair the damage done by Brexit pulling the UK out of the shared EU arrangements for environmental protection.

One might think that the issue of risk – and particularly the risk of “low probability, high impact” events would have shot up the Government’s agenda as a result of the Covid-19 pandemic. Here is an event which few predicted and yet the possibility of such an event could have been prepared for, in a way which would have benefited millions of people over the past year or so.

The consultation document shows no signs of such thinking. Quite the opposite: its focus is firmly on what is “likely”, rather than the risks which may be taken as a result of hoping – or simply assuming – that nothing unlikely will ever happen. Whether the problems this causes are due to conceptual confusion in Defra or the deliberate undermining of Defra’s intentions by Other Government Departments (prime suspect here is the Treasury) is not clear from outside Whitehall, but the means through which risky behaviour is to be encouraged are very clear: the dubious concepts of “proportionality” and “innovation”.

Consider “proportionality” first: it means not taking potential environmental impacts into account TOO much. Impacts exist, but let’s be reasonable about these things. This general approach can be interpreted in many different ways, but what does the consultation document say? The wording on page 9 is:

“When considering the environmental impact of a policy, policy-makers also need to take a proportionate approach; the environmental effects that should be considered are those which are both a) likely to occur, and b) likely to have a substantial impact.”

This obviously implies that if an effect is unlikely to occur, i.e. there is a less than 50% chance of it, then it does not need to be considered in policy-making. This doesn’t do anything to prepare us for “low probability, high impact”. But we still have the precautionary principle.

On page 18, under the heading ‘The Precautionary Principle’, things get worse. Here we are told that “The principle should not unnecessarily hinder innovation due to novelty, without plausible evidence of a risk of serious or irreversible harm.” But the whole point of the precautionary principle is that it urges caution where there is currently a lack of scientific evidence. It does not require “evidence” of harm, and certainly not of “serious or irreversible harm”. It requires caution up to the point where there is sufficient evidence to merit something being given the go-ahead. Again, the Government proposes to err on the side of risky behaviour.

Furthermore, far from it being the case that “innovation” necessarily stands opposed to precaution, the Late Lessons From Early Warnings studies showed clearly that frequently the Precautionary Principle is a spur to innovation. Companies not-infrequently seek not to innovate, but rather to continue with dangerous, established, profit-making strategies or practices; the Precautionary Principle disrupts that complacency, and can thus force innovation for the sake of greater safety.

Another area of concern in the consultation document is how it treats the ecological footprint of the UK (‘Global Britain’). Page 9 says: “However, for the majority of domestic policy it would unlikely to be appropriate to consider the environmental impact overseas, unless there is strong rationale for doing so.” But – and this will be obvious to readers here even if not to those who wrote that sentence – that in a large proportion of cases where there are significant environmental impacts, a large proportion of those impacts are overseas. The climate emergency is global in nature and UK policies tending towards increased greenhouse gas emissions inevitably have an effect overseas. The UK economy (as Defra research has shown) has a significant impact on biodiversity overseas, for example through the food the UK imports and the land and water necessary to produce it. An understanding that the UK economy – and with that, our energy, transport, food, and housing systems – have an impact overseas is basic to any appreciation of the UK’s international obligations, for example under the UNFCCC and CBD treaties.

Other principles referred to in the document are – “polluter pays”, “prevention”, “rectification at source”, and “integration” – are not in themselves objectionable, but the Environment Bill (and the consultation document confirms this) seeks to apply them only to a limited range of cases of government policy-making. There is an opt-out for the Treasury, with the exclusion of tax and spending issues. There is also repeated reference to “environmental” law in ways that make it look as though the principles’ writ won’t run as far as planning law. The new Planning Bill expected soon may clarify this, and it will be important to get something like these principles incorporated into that controversial piece of legislation.

The document also represents a missed opportunity to add to the list of principles the principle of taking into consideration the interests of members of future generations, an approach pioneered by the Future Generations Act in Wales.

All this matters because this is no ordinary document. This is the Government’s proposed way of interpreting the environmental principles it will be putting into law through the Environment Bill, and which we are depending on as our line of defence for the environment now the UK is outside the EU.

The consultation questions are set out and explained here:

The document itself is here:

The latest (amended) version of the Environment Bill is:

Clauses 16, 17 & 18 are about the role of the statement of Environmental Principles.

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