Produced in partnership with Ardea International
Brexit
11 pm (GMT) on 31 December 2020 marked the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements came to an end and significant changes began to take effect across the UK’s legal regime.
For further guidance, see Practice Note: Brexit—impact on environmental law.
Sustainable development in the UK, post Brexit
Sustainable development in the UK has been driven in part by EU legislation and funding. The UK’s exit from the EU may have significant implications for sustainable development and it is worth noting that, as of 1 January 2021, the UK is not expected to be involved in the European Commission’s future Sustainable Development Goal (SDG) initiatives discussed in this Practice Note.
Despite no longer being part of EU indexes, the UK will continue to report against the UN’s SDG indicators. As a result, the UK government has not suggested that any dramatic changes to its sustainable development policies are on the horizon.
The UK’s SDG Implementation Strategy gives a more detailed insight into how each government department’s policies contribute towards the goals. Each single departmental plan references the SDGs and outlines a broad commitment to uphold or surpass the current level of contribution after Brexit. Although, UK policies may now shift emphasis towards a particular pillar of sustainability. For example, the UK Voluntary National Review highlights the need to increase focus on the economic pillar and the UN’s Leaving no one behind objective. This is reflected in the policies of the Department for International Development (DFID), which reference the need to remain at the forefront of international contributions to poverty reduction and the SDGs post Brexit.
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Voluntary national review of progress towards the SDGs
UK Stakeholders for Sustainable Development (UKSSD) are among the groups to have expressed concerns surrounding Brexit’s impact on the SDGs. These include:
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Measuring up: how the UK is performing on the UN SDGs
- aspects of the Equality Act which are derived from EU agreements and directives including those on working time, parental leave and pregnant workers being undone (SDG 5)
- how the repeal of the EU Common Agricultural Policy and Common Fisheries Policy will affect the UK’s environmental impact (SDG 14 and 15)
- how the UK will replace the role played by the European Court of Justice (ECJ) and European Commission in the enforcement of environmental standards (SDG 13)
- increasing the cost of developing countries accessing the UK market (SDG 1)
EU funded development projects
The European Structural Funds (ESF) aim is to support equal development across all regions of the EU. In the funding cycle between 2014–20, the EU allocated the UK just over £14bn. The largest contributions have been made to West Wales and The Valleys, and Cornwall and Isles of Scilly. The ESF projects the UK has benefited most from are:
- European Regional Development Fund
- European Social Fund
- European Agriculture Fund for Rural Development
While current EU-funded projects will remain unaffected, the UK will be excluded from future projects. In place of the ESF, the UK government established the UK Shared Prosperity Fund. The government has committed in the March 2020 Budget to ‘at a minimum, match current levels of funding to each nation from EU structural funds’. The budget also stated that this fund will ‘be realigned to match domestic priorities, not the EU’s’. At present, the domestic priorities are largely undefined and it is unclear how much they will align with those of the global community and the SDGs.
EU legislation
Certain EU directives, regulations and agreements overlap with the SDGs as they serve to protect human rights and the environment, as well as ensuring sustainable economic growth.
Changes to post-Brexit domestic legislation which could impact sustainable development include:
- the Agriculture Act 2020—see Practice Note: Brexit—impact on environmental law—Agriculture
- the Fisheries Act 2020—see Practice Note: Brexit—impact on environmental law—Fisheries
- the Environment Bill—see Practice Notes: Environment Bill—snapshot and Environment Bill—developments
For more details around legislation to be enshrined in domestic law as retained EU law, see Practice Note: Introduction to retained EU law.
The Political Declaration setting out the framework for the UK’s future relationship with the EU acknowledges sustainable development and the achievement of the SDGs as key overarching objectives. Furthermore, the document states that ‘the Parties should uphold the common high standards applicable in the Union and the United Kingdom at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters’. This suggests a broad commitment to enshrining sustainable development in future policies and legislation, although it is not legally binding for future governments.
The EU-UK Trade and Cooperation Agreement also contains wording to ensure a ‘level playing field for open and fair competition and sustainable development’. For more information, see Practice Note: EU-UK Trade and Cooperation Agreement—environmental provisions.
Defining sustainable development—the background
UK mechanisms touching on sustainable development are generally based on, and have as their overarching objective, some variation of the so-called ‘Brundtland definition’. These mechanisms also widely reference the three interconnected ‘pillars’ of sustainable development, also known as the ‘triple bottom line’ of sustainable development.
The Brundtland definition and the ‘Three Pillars’ concept
The Brundtland Report, as the report entitled Our Common Future is widely referred to, defines sustainable development as:
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‘Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It [sustainable development] contains within it two key concepts:
- the concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and
- the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs.’
The United Nations (UN) General Assembly endorsed the Brundtland definition in Resolution 42/187.
The definition is also referred to in paragraphs 7 and 8 of the National Planning Policy Framework (NPPF). The NPPF draws on the Brundtland definition and the five Guiding Principles from the Shared Framework (a framework for action developed jointly by the UK government and the devolved administrations in 2005).The NPPF outlines a three-pronged role for planners and decision-takers: an economic, an environmental, and a social role.
The UN 2005 World Summit Outcome Document refers to the 'interdependent and mutually reinforcing pillars' of sustainable development, which are:
- economic development
- social development, and
- environmental protection
See Practice Note: Sustainable development—definition and application at international level.
Sustainable development as a policy objective
The UK continues to reiterate its commitment to sustainable development and has developed its own understanding of the concept in various national Sustainable Development Strategies (SDS). As is the case with the definition of sustainable development, the UK-wide strategy is a continuous work in progress.
The UK SDS outlines policies to progress towards each of the 17 SDGs. Scotland, Wales and Northern Ireland are responsible for implementing policy in areas of devolved competence.
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Timeline
The first SDS was devised in 1994 and looked at sustainable development as a trade-off between opposing economic and environmental objectives. This overlooked the social pillar of sustainable development.
The 1999 strategy, entitled A better quality of life—A Strategy for Sustainable Development for the United Kingdom, summed up sustainable development as 'a better quality of life for everyone, now and for generations to come'.
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A framework for change: A better quality of life
In 2005, the UK government launched a new strategy entitled Securing the future—The UK Strategy for Sustainable Development. It endorsed the ‘Guiding Principles’ (see below) outlined in the Shared Framework.
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Securing the future: delivering UK sustainable development strategy
In 2011, the Government published its vision on Mainstreaming sustainable development.
In 2015, the UK Government committed to achieving the UN's SDGs. From then on, the UK has largely aligned with UN implementation and reporting guidelines.
The 2019 National Review assessed progress towards achieving the SDGs in the UK. It also outlined how economic, social and environmental strategies support fulfilment of the goals.
Guiding principles
The Shared Framework was developed jointly by the UK government and the devolved administrations in 2005. It set out the five guiding principles of sustainable development:
- living within the planet’s environmental limits
- ensuring a strong, healthy and just society
- achieving a sustainable economy
- promoting good governance, and
- using sound science responsibly
Mainstreaming sustainable development
In 2011, the government published its vision on Mainstreaming Sustainable Development, which maintained the Guiding Principles and developed them further.
Mainstreaming sustainable development would require renewed and more robust efforts in a number of areas, such as:
- national and international sustainability
- transparency and public accountability
- operations and procurement requirements
- protecting the natural environment
- fairness and improved wellbeing
The practical measures listed by the government are as follows:
- ministerial leadership and oversight
- leading by example
- embedding sustainable development in government policy
- transparency and independent scrutiny
The devolved administrations
Scotland, Wales, and Northern Ireland have all issued their own SDSs which are in accordance with the Shared Framework from 2005.
They are reporting separately on how they will deliver the SDGs.
Since the 2018 redesign of the Scottish Government’s National Performance Framework (NPF), development has been mapped onto 16 National Outcomes. The Outcomes are in line with the SDGs, placing them at the heart of how Scotland measures its progress. The NPF is underpinned by legislation through the Community Empowerment (Scotland) Act 2015.
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SDG National Performance Framework
2020 will see the first compulsory Future Generations Report for Wales prepared and published by the independent Future Generations Commissioner for Wales. This will give an independent view of progress under the Well-being of Future Generations (Wales) Act 2015, five years on from the adoption of the SDGs.
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Wales and the Sustainable Development Goals
Northern Ireland has incorporated the three dimensions of sustainable development; economic, social and environmental, into the Northern Ireland Civil Service (NICS) strategic plans, rather than through separate sustainability strategies. This has resulted in the principles of sustainable development being embedded in the Northern Ireland Executive’s highest level strategy, the draft Programme for Government (PfG).
References:
2019 UK Voluntary Review of progress towards the Sustainable Development Goals
The abolition of the Sustainable Development Commission (SDC)
The SDC was set up in 2000 as the UK Government's independent adviser on sustainable development and carried out a range of functions.
In 2011, the SDC was abolished as part of the government’s public spending reforms and represents a major institutional development (or setback). This decision places doubt on the extent to which sustainable development is a genuine priority for the government given the agency’s vital role in helping the government to achieve its sustainable development objectives.
In 2011, the Environmental Audit Select Committee recommended the creation of a new Minister for Sustainable Development.
In 2017, this proposal was put forward again. The response to the proposal by the government did not suggest any intention to create a new role.
Mechanisms for implementation
The lack of an authoritative and binding definition has been the cause of much uncertainty, particularly in relation to:
- the precise boundaries of the concept
- its role in decision-making, and
- how to give it effect and make it operable
This means the UK government can declare a commitment to sustainable development while being selective in relation to the values it adheres to and adequately implements.
The real impact of the national SDS depends on the extent to which:
- consistent political leadership exists, and
- sustainable development is made a priority and given proper effect
Institutional and policy integration
One mechanism to implement sustainable development is through the integration of sustainable development objectives into policy, and the creation of institutions which oversee its integration. This includes, but is not limited to:
- the development of an action plan
- civil service training
- monitoring of progress
- institutional reorganisation
- clear indication of consequences of failure
The UK government has demonstrated relative success in embedding sustainability from an operational perspective and has also undergone some cross-departmental organisational reform to assist it in meeting its sustainable development objectives. For instance:
- setting increasingly ambitious procurement targets has been high on the Greening Government Commitments
- the Department of Energy and Climate Change (DECC) was set up in 2008 to take over functions related to energy policy, reconciling energy sector regulation with climate change mitigation. On 14 July 2016, the DECC, was merged with the Department for Business, Innovation and Skills, to form the new Department for Business, Energy and Industrial Strategy (BEIS)
The Environment Bill (Bill) is the latest piece of UK legislation to propose organisational reform. The Bill includes the establishment of the independent Office for Environmental Protection to scrutinise environmental policy and law. For more information, see Practice Note: Environment Bill—snapshot.
Since the launch of the most recent SDS, an important example of an attempt to embed the principles of sustainable development in policy was through the National Planning Policy Framework 2012 (2012 NPPF).
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National Planning Policy Framework 2012
Presumption in favour of sustainable development
The 2012 NPPF attracted a lot of criticism during its drafting stages for being skewed too far in favour of the economic pillar of sustainable development, focusing more on the development and less on the sustainable. For example, the National Trust complained of the lack of protection being afforded to the Green Belt.
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Presumption in favour of sustainable development
During the Committee stage several recommendations were made, including adjusting the definition.
The final version of the 2012 NPPF established a presumption in favour of sustainable development and intends to reintroduce more balance between the three pillars of sustainable development.
The 2012 NPPF was replaced by a revised version of the NPPF from 24 July 2018 (2018 NPPF) which also included a presumption in favour of sustainable development. This was further updated in February 2019. The most recent update of the National Planning Policy Framework which was published in July 2021 (Updated NPPF) retains a presumption in favour of sustainable development at paragraph 11.
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National Planning Policy Framework
A new paragraph 11(a) to the Updated NPPF, defines the meaning of the presumption in favour of sustainable development for plan-making. The new version makes explicit reference to mitigation and adaptation to climate change for the first time, as well as aligning growth and infrastructure.
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National Planning Policy Framework, para 11(a)
The policy draws on the Brundtland definition and the five Guiding Principles from the Shared Framework. It outlines that achieving sustainable development means that the planning system has three main objectives: an economic, an environmental and a social objective.
The presumption in favour of development is at the heart of the Updated NPPF. There is the potential to challenge developments which cannot be said to be 'living within the planet's needs' on policy grounds. However, there are both exceptions to the rule and limitations, such as when exactly the presumption is engaged. Moreover, in practice, there may be situations where development cannot fulfil the three above-mentioned objectives
For more information, see Practice Notes: Presumption in favour of sustainable development, Planning for sustainable development—regulation and News Analysis: Revised National Planning Policy Framework—implications for climate change and sustainable transport.
Sustainable development indicators and goals
A more practical tool to assist with the implementation of sustainable development is the adoption of sustainable development indicators (SDIs) or SDGs.
SDIs are a mechanism by which to measure (or at least attempt to measure) progress towards the policy goal of sustainable development.
A UK-wide set of SDI’s was published in 2013 by the Department for Environment Food & Rural Affairs (Defra). However, the last version of the indicators was published in July 2015. Since then there has been a move towards measuring progress against the SDGs instead.
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UK data for the UN Global Indicators is now reported to the UN by the Office for National Statistics (ONS), the UK’s national statistics agency. This information is accessible via the ONS’ National Reporting Platform.
For more information, see Practice Note: Sustainability—indicators and goals.
SDGs
Driven by the UN, the governments of all 193 UN Member States agreed on the SDGs in September 2015. The new SDGs and targets came into effect on 1 January 2016.
The 17 SDGs with 169 targets will guide development policy around the world until 2030.
In March 2017, the government published its policy paper ‘Agenda 2030’ which sets out the UK government’s approach to delivering the SDGs. The Department for International Development (DIFD) retains the policy oversight for the SDGs.
The aims of the goals are embedded in Single Department Plans (SDP) with DIFD having policy oversight of them. Each government department is expected to report on its progress to achieving the goals each year. The Office for National Statistics will provide available UK data against the global indicators to the UN for their annual progress reporting.
SDG Indicators are hosted on a platform. Reports have been published setting out the progress made towards measuring the SDGs indicators and the government has agreed to undertake annual hearings on domestic progress against the SDGs.
In June 2019, the UK government published a Voluntary National Review reporting on the UK’s progress towards the 17 SDGs. This was presented at the UN High Level Political Forum in July 2019. The government acknowledged areas that need further work, including:
- tackling injustice to ensure no one is left behind
- further increasing efforts to address climate and environmental issues
- ensuring the housing market works for everybody
- responding to mental health needs
- supporting a growing and ageing population
The UKSSD scorecard of the report found that the UK is falling short of UN reporting standards. In response to the report, UKSSD called for:
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Voluntary national review of progress towards the Sustainable Development Goals—UKSSD
- a Minister in Cabinet with a domestic mandate to lead the UK’s efforts to implement the SDGs
- a commitment to develop an ambitious and comprehensive plan for the implementation of the SDGs
- further clarity on the purpose of the stakeholder engagement mechanism to which the government committed
The Local Government Association has published a guide for councils on the SDGs. The guide sets out for councils how they might respond to the SDGs and make use of them in their own communities, drawing on actions and ideas being discussed in the UK and internationally. It also sets out the case for council engagement with SDGs, among other things.
For more information on the SDGs, see Practice Note: Sustainability—indicators and goals and News Analysis: Measuring progress in the UK towards achieving the UN’s sustainable development goals.
Legislation
A final means of implementing sustainable development is through ‘hard requirements’ laid out in legislation.
Sustainable development has not achieved the status of a legal principle. However, it is increasingly appearing in legislation across the UK, and emerges in a variety of legal forms such as duties, objectives and procedural requirements.
The BEIS 2019 Corporate Report outlined an action plan for implementing the SDGs. The strategy includes proposed legislative changes, namely, becoming the first economy to legislate to net zero carbon emissions (Goal 7), as well as implementing secondary legislation reforms to improve labour standards (Goal 8).
A4ID and the International Bar Association have published guidance on how lawyers can help integrate SDGs into business strategy, as well as supporting the implementation of the goals through pro bono work. For example, where UK legislation lacks hard requirements, legal professionals have been advised by the IBA to consider implementing requirements based on the SDGs in documentation for business and investors.
References:
A4ID A Legal Guide to the Sustainable Development Goals
The SDGs: investing in the future
Sustainable development as an objective or duty in law
One of the earliest references to sustainable development was in the Environment Act 1995, which touches on the 'objective of sustainable development' throughout.
Legal obligations, such as a duty imposed on a particular agency or Minister, can vary in strength. All use mandatory language but it places a different onus on the subject when they must merely direct their attention to the concept and bear it in mind when taking decisions versus a duty to achieve sustainable development. The Water Services Regulation Authority (Ofwat) is one example of a regulatory authority under a statutory duty to contribute to the achievement of sustainable development since 2005.
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The Water Services Regulation Authority (Ofwat)
The contrast between a weak and strong notion of sustainable development is evident when considering how sustainable development is featured in different pieces of legislation.
The Clean Neighbourhoods and Environment Act 2005 adopts a weak notion, stating that the subject ‘must have regard to national policies…relating to sustainable development’. In contrasting, the Climate Change Act 2008 (CCA 2008) has stronger provisions, establishing that the subject 'must act in exercising its functions in a way that it considers is most sustainable'. However, even the harder obligations allow for discretion.
Policy context is also very important in shaping how discretion might be used and the extent to which a rule will assist in implementing sustainable development.
Procedural requirements
Legislators are attaching procedural requirements to the principle of sustainable development. This might include obligations to produce, or follow:
- guidance
- regulations or directions
- strategies, or
- reports
For example, CCA 2008, s 83 requires the government to publish guidance assisting organisations to measure and report their greenhouse gas (GHG) emissions, while CCA 2008, s 84(1) establishes that:
- ‘The Secretary of State must:
- review the contribution that reporting on GHG emissions may make to the achievement of the objectives of Her Majesty's Government in the United Kingdom in relation to climate change, and
- lay a report before Parliament setting out the conclusions of that review’
Alternatively, there may be requirements regarding notice, audit or publicity.
Legislative examples
Sustainable development has been increasingly incorporated into environmental legislation. The intensity of obligations is also increasing with stronger focus on the obligation to adopt a long term view as opposed to short term planning and investment. Two examples are the Water Act and the Well-being of Future Generations (Wales) Act 2015.
Water Act 2014
The Water Act 2014 was introduced under the policy, Reforming the water industry to increase competition and protect the environment. In part, this Act is intended to give statutory footing to the government’s guidance to Ofwat on sustainable development in the Strategic Policy Statement. It imposes an overarching resilience duty on Ofwat to supplement the existing sustainable development duty.
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The primary duty of resilience requires Ofwat to:
- secure the long-term resilience of the systems (including the natural systems) on which our essential water and sewerage services rely
- promote action to respond effectively to pressures on the environment (including climate change), population growth and changes in behaviour
- ensure long-term planning and investment; and
- promote measures to manage water sustainably and reduce demand so as to reduce pressure on water resources
For more information, see Practice Note: The Water Act 2014—Snapshot.
Well-being of Future Generations (Wales) Act 2015
The Well-being of Future Generations (Wales) Act 2015 (WFG(W) 2015), previously the Sustainable Development Bill, was introduced in 2015 to the National Assembly for Wales (now the Welsh Parliament) by the First Minister.
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Well-being of Future Generations (Wales) Act 2015
This Act incorporates a definition of sustainable development and requires that ‘each public body must carry out sustainable development’.
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The definition of ‘sustainable development’ is set out in WFG(W) 2015, Pt 2, s 2:
‘…“sustainable development” means the process of improving the economic, social, environmental and cultural well being of Wales by taking action in accordance with the sustainable development principle (see section 5) aimed at achieving the well-being goals (see section 4)’
The Act places a mandatory requirement on public bodies to ensure they act in a manner which seeks to ensure that the ‘needs of the present are met without compromising the ability or future generations to meet their own needs’.
For more information, see Practice Note: Sustainable development—the Well-being of Future Generations (Wales) Act 2015.
Fisheries Act 2020
The Fisheries Act 2020, which received royal assent on 23 November 2020, is an example of how legislation will continue to lend consideration to sustainable development following the UK’s withdrawal from the EU. The first objective listed is the ‘sustainability objective’, to ensure:
- ‘…fish and aquaculture activities are:
- environmentally sustainable in the long term
- managed so as to achieve economic, social and employment benefits and contribute to the availability of food supplies, and
- the fishing capacity of fleets is such that fleets are economically viable but do not overexploit marine stocks.’
The Act includes a requirement that relevant authorities prepare Fisheries Management Plans that contribute to achieving the sustainability objective by taking into account ‘available evidence relating to the social, economic or environmental elements of sustainable development’.
For more information, see Practice Note: Brexit—impact on environmental law—Fisheries.
Enforceability and the courts
Sustainable development is not an enforceable legal principle. However, courts have demonstrated a willingness to accept sustainable development as a material consideration in decisions.
The legal significance of existing provisions can be vague. No obligations relating to sustainable development generate criminal or administrative offences.
Assuming a court is willing to apply principles of sustainable development to a case, it is not clear what definition should be relied on given that no statute offers a binding statement of the concept.
In Cheshire East Borough Council v Secretary of State for Communities and Local Government, Jay J decided that decision-makers must not, when following paragraph 14 of the NPPF 2012, adopt a broader approach to the terms of sustainable development beyond what the NPPF 2012 says about the principle. Jay J said that the presumption in favour of sustainable development in the NPPF 2012 was a rebuttable presumption. In effect, however, the presumption could only be overcome by showing that a development proposal had significant and demonstrable adverse impacts for the environment.
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Cheshire East Borough Council v. Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin)
The Court of Appeal in the Barwood v East Staffordshire BC, confirmed that the benefit of the presumption in favour of sustainable development could only be obtained in circumstances defined by paragraph 14 of the NPPF 2012 and not in any other circumstances, where a proposal is contrary to the development plan.
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Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893
The High Court in Wavendon Properties considered the interpretation of the wording of the presumption in favour of sustainable development in the 2018 NPPF and concluded that decision-makers must apply a ‘holistic’ approach in applying the presumption in favour of sustainable development. See News Analysis: Court considers revised NPPF wording of presumption in favour of sustainable development (Wavendon Properties v SoS).
References:
Wavendon Properties Ltd v Secretary of State of Housing, Communities and Local Government [2019] EWHC 1524 (Admin)
