Reckless ministers set to burn fingers over policy amendments

Why are ministers so intent on playing with fire when it comes to the legal aspects of public policy?

Although the High Court's striking down the government energy review in February should have been a wake-up call, Whitehall seems unable to avoid getting itself caught up in potentially messy litigation.

The DCLG has known for the past 18 months that it needs to remedy a defect in UK regulations to allow environmental impact assessment (EIA) to be carried out at the reserved matters stage if it has been missed during consideration of the original outline application. The necessary amendments really should not have detained the parliamentary draughtsmen for too long.

Yet only in the past week has the department set out proposals to close the loophole. Allowing 12 weeks for comment on the amendments, it will be doing well to get the regulations in place by the end of January, after which Brussels is promising to come down like a tonne of bricks on any continuing transgression of the EIA directive.

Meanwhile, barristers instructed by Friends of the Earth are warning that the government is courting more problems with its plans for an infrastructure planning commission. But we don't need counsel's opinion to see that pushing through national policy statements on the siting of key facilities without a strategic environmental assessment (SEA) will be dangerous. Few plans or policies fall more squarely within the SEA directive's remit.

Equally, if the commission is to make legally fireproof site-specific decisions, these must take into account other relevant national, regional and local policy. The edifice of common law and human rights legislation casts doubts on the adequacy of the white paper proposals to ensure that affected parties can get their views across.

These days, draft policy documents are regularly accompanied by regulatory impact appraisals. Maybe ministers need to commission litigation impact assessments as well, to help all concerned appreciate the consequences of their proposals and avoid paying their share of the bill for an ongoing lawyers' banquet.

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