A Green Brexit
2017 will see a more active phase of Brexit with Article 50 expected to be triggered in March of this year. Theresa May has remained largely silent on environmental matters since the referendum, and therefore there is some uncertainty as to what will happen to the UK’s application of EU environmental legislation.
The ‘Great Repeal Bill’ will be introduced at the beginning of the next parliamentary session in May 2017 and it will need to be in force prior to the UK leaving the EU, which is expected to be in March 2019. This bill will immediately repeal the European Communities Act 1972, which gives direct effect to all EU law, and it will allow MPs an opportunity to scrutinise, amend, repeal or improve any aspect of EU law. For example, the REACH Regulations were enacted in December 2006. Since then the regulations have been amended on at least 38 separate occasions. New UK law may help simplify such ever-amending EU legislation for businesses. The government may also use the ‘Great Repeal Bill’ to transpose all EU environmental legislation into domestic legislation.
There are about 800 pieces of EU environmental legislation covering wildlife and habitats, water quality, farming, food and fisheries which could be difficult to transpose. The concern is that these pieces of legislation may end up as ‘zombie legislation’, with no body to enforce them and no updates to the legislation. They could be easily eroded by ministers via parliamentary statutory instruments which receive minimal scrutiny from MPs. Environmental legislation and standards will be one of the most affected areas of policy. Most of the UK’s environmental legislation is based on EU Directives and there is no certainty around how these will be replaced. There is also the possibility that 40 years of EU environmental agreements may be lost once the UK leaves the EU.
In its 2011 manifesto, the current government made the following commitment to ‘be the first generation to leave the environment in a better state that it found it’. The government must then ensure that the ‘Great Repeal Bill’ contains democratic safeguards, which are put in place to ensure that no significant amendment to the scope or purpose of EU environmental legislation can be made without being subject to full parliamentary scrutiny. Going one step further, the government should introduce a new Environmental Act during Article 50 negotiations to replace and strengthen environmental protection once the UK leaves the EU.
The current Environmental Protection Act enacted in 1990 makes provision for the improved control of pollution arising from certain and other processes; restates the law defining statutory nuisances, provides for the termination of existing controls over offensive trades or businesses and provides for the extension of the Clean Air Acts to prescribed gases; confers powers to control the burning of crop resides and makes provision in relation to financial or other assistance for purposes connected with the environment.
To achieve its manifesto commitment, the government must provide an equivalent or better level of protection after leaving the EU as the UK’s membership of the EU has been a key factor in shaping environmental policy over the last 40 years. The government must also establish clear objectives for future environmental protection in the UK and they must also determine and commit to the level of resources necessary to deliver these, as much of the current public funding for the UK environmental sector is provided through the EU.
We will keep a close eye on developments over the coming months to keep you updated.