Out-Law Guide 6 min. read
30 Oct 2023, 9:27 am
The new environment duty in force from 1 November 2023 is likely to have a significant impact on UK government decision-makers.
The duty requires a decision-maker to take five environmental principles into account when taking policy decisions. It is modelled on the public sector equality duty (PSED) in some respects, and a number of lessons can be drawn from how the PSED has operated and been enforced by the courts since its entry into force in 2011.
A failure to comply with the duty amounts to an unlawful action, which can be challenged by way of judicial review. As was seen with PSED, creating a new ground for judicial review challenges in this way is likely to prompt a surge in the number of legal challenges to government policy decisions.
Section 19 of the 2021 Environment Act (‘the Act’) imposes a duty on UK government ministers, when making policy, to have due regard to the government’s policy statement on environmental principles. It applies to all policies, subject to exemptions referred to below, whether or not they have the primary aim of protecting the environment.
The policy statement sets out five environmental principles:
The duty requires the decision-maker to take these principles into account when taking policy decisions including proposals for legislation, producing national policy statements, strategies and guidance, and making written ministerial statements. It does not capture “individual regulatory, planning or licensing decisions made by ministers or authorities acting on their behalf”.
It is a procedural duty, which governs the process of making such decisions, so that the principles are considered as a factor in that process. It is not a duty to achieve a policy outcome that most favours the environmental principles.
The duty does not apply where it would have no ‘significant’ environmental benefit, or where applying it would be disproportionate to the environmental benefit. The explanatory notes accompanying section 19 of the Act, which courts may use when interpreting the duty, state that the word ‘significant’ is merely to be understood as meaning ‘not negligible’. It will be a high bar for the government to overcome where it wishes to assert that the duty is not applicable, in that it will need to establish that any potential environmental benefit resulting from its policy decision would be negligible.
It will be a high bar for the Government to overcome where it wishes to assert that the duty is not applicable, in that it will need to establish that any potential environmental benefit resulting from its policy decision would be negligible.
The introduction of a new statutory duty may make it more difficult for the government to defeat legal challenges to the consideration it gives to environmental impacts of policy changes. In the planning sphere, for example, a challenge on the grounds that a full strategic environmental assessment (SEA) should have been carried out in connection with changes to national planning policy was defeated by the government when the courts found that there was no legal requirement for this under the legislation governing SEA in respect of the policy document. A similar challenge in the future might have a different outcome following the introduction of the new duty.
There are exemptions, so that the duty does not apply to policy decisions relating to armed forces, defence or national security, or taxation. There is a further exemption for ‘spending or the allocation of resources within government’. However, the explanatory notes again give a narrow interpretation, stating that the exemption applies only to high-level policy decisions on spending, such as the chancellor’s annual Budget. Decisions about individual policies on which government funds may be spent are not exempt from the duty.
The environment duty applies only to UK government ministers. In law, this includes their officials and departments. It also includes any executive agencies tied to government departments which are arms of a minister’s legal personality.
The duty does not apply to the devolved governments, local authorities or other public bodies, except where these are extensions of a UK government minister’s legal personality. However, section 40 of the 2006 Natural Environment and Rural Communities Act, as amended by the Act, places a similar duty on public authorities (including the Secretary of State, government departments and agencies, local authorities and statutory undertakers) to have regard to the purpose of conserving biodiversity in the exercise of functions. That duty came into force on 1 January 2023.
There are variations in how the environment duty applies for policy decisions affecting different parts of the UK:
The duty rests on the shoulders of the decision-maker personally, whether that is a minister or a senior official to whom a minister has designated decision-making responsibility. The duty cannot be delegated to others assisting the decision-maker, so compliance depends on what the decision maker personally knew and not what (other) officials knew.
The duty does not expressly require evidence of compliance, but documenting how regard has been paid to the five environmental principles will be a crucial element of defending any legal challenge. There is no obligation for an environmental impact assessment to be produced in each case with a detailed analysis of how the policy decision will impact on the environment and how the five environmental principles have been taken into account, and the courts have stated in relation to PSED that they will take a realistic and proportionate approach to evidence of compliance. However, preparing an environmental impact assessment for inclusion in the papers considered by the decision maker is the gold standard for compliance, and the courts may question the absence of a full assessment in relation to important policy decisions having a major environmental impact.
Preparing an environmental impact assessment for inclusion in the papers considered by the decision maker is the gold standard for compliance, and the courts may question the absence of a full environmental impact assessment in relation to important policy decisions having a major environmental impact.
One hurdle to overcome in this regard will be ensuring that quality data is available to make the assessment. Given the continuing use of metrics in policy and guidance, expert advice and interpretation will be important to ensure ministers are making decisions cognisant of the full impacts.
A failure to comply with the duty amounts to an unlawful action, which can be challenged by way of judicial review. Where this is the case, the court may quash the policy decision, so that a new decision-making process that complies with the duty may be required, leading to the decision-maker taking a fresh decision with an open mind.
As was seen with PSED, creating a new ground for judicial review challenges in this way is likely to prompt a surge in the number of legal challenges to government policy decisions. That would also be consistent with the sharp upward trend in climate change judicial reviews in recent years. Recent published correspondence between the Office for Environmental Protection (OEP) and government departments on changes to environmental policy indicate that the OEP will be closely monitoring the government’s compliance with the environment duty. Most recently, in a speech at the Forestry Conference, OEP chair Dame Glenys Stacey, said that delays to the introduction of biodiversity net gain were “unwelcome” and the OEP expects appropriate regard to be given to the environmental principles policy statement requirements in the production of the delayed policy and guidance.
The PSED litigation of the last decade tells us that the courts are likely to concentrate their scrutiny of the environment duty on examining the paper trail of briefing materials put to decision-makers as evidence of compliance.