DEFRA policy statement on environmental principles – Law Society response

The proposals

The UK government has expressed its aim to set world-leading environmental standards now that the UK has left the EU, largely through the Environment Bill.

The bill requires the government to prepare a statutory policy statement, which the Department for Environment, Food and Rural Affairs (DEFRA) consulted on.

The statement seeks to incorporate five internationally recognised environmental principles:

  • integration principle – policymakers should look for opportunities to embed environmental protection in other fields of policy that have impacts on the environment
  • prevention principle – government policy should aim to prevent, reduce or mitigate harm
  • rectification at source principle – if damage to the environment cannot be prevented, it should be tackled at its origin
  • polluter pays principle – those who cause pollution or damage to the environment should be responsible for mitigation or compensation
  • 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

Our view

We recognise that climate change is a serious challenge and concern for the planet, the public and the profession.

We actively engage with a number of initiatives across the legal profession committed to tackling environmental issues and climate change.

We acknowledge the difficulty in drafting such a statement given the plethora of stakeholders and issues that need to be considered.

Our view is that this statement should ensure that the UK maintains and builds on existing international environmental standards.

We’re concerned that elements of the statement (and the Environment Bill) as drafted may undermine the government’s intention to create stringent and world-leading environmental standards that could adversely affect our future trade relationships with other nations.

Now that the UK is no longer subject to the accountability and enforcement functions of the European Commission, this statement could be a good opportunity to affirm the UK’s commitment to governmental accountability before an independent oversight mechanism, when it comes to the future enforcement of environmental law.

A strong statutory framework is needed to ensure non-regression from the EU standards we were previously bound by.

Notably, the statement does not enshrine duties around the principles themselves with the only legal obligation being “to have due regard” to the policy statement.

We would welcome the statement expressing a clearer direction of travel supported by more robust and decisive wording and appropriate oversight mechanisms to make sure that any legitimisation of environmental harm will be appropriately mitigated via the legal system to at least the same standard as the European system.

Next steps

This consultation closed on 2 June 2021.

The statement will be consulted on again by parliament once the bill receives royal assent. This statement may, as a result, be altered in response to any changes to the bill.

Read the statement on the GOV.UK website

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