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Environmental law endangered

Doubt has been cast on the Prime Minister’s recent assurance that a Great Repeal Bill will transfer the body of EU law into UK law, leaving environmental protection in doubt. A strong, target-driven 25 year environment plan is needed more than ever.

October 2016

At the Conservative Party Conference, Theresa May announced a Great Repeal Bill, which would repeal the European Communities Act 1972, ending the primacy of EU law in the UK. The Prime Minister said the bill would transfer the body of EU law, into UK legislation. The environmental chapter of this alone comprises over 200 legal acts including water and air quality, waste management, nature protection, industrial pollution control, chemicals and GMOs, noise and forestry. Without them, many of the laws that have held environmental destruction at bay would cease to exist.

Unfortunately, the current offer doesn’t include:

  1. The awkward parts: David Davis told conference that laws would be transferred across ‘wherever practical’. That’s very different to the whole body of EU law. Technically, alongside EU laws, it also includes the EU Treaties, official decisions and court rulings. Yesterday Andrea Leadsom told the Environmental Audit Committee that it would be impractical to move between a quarter and a third of EU law into UK law. She said that the Great Repeal Bill would deliver certainty, but she was not able to specify which laws would be impractical to transpose.
  2. The parts they unpick: Theresa May said that after the transfer, the UK would be free to unpick EU law. Ministers have previously described the Nature Directives as ‘spirit-crushing’. While the main provisions of the Directives are already in UK law, the Government may attempt to loosen laws like planning restrictions on protected areas (Natura 2000) in favour of growth.
  3. Accountability: A former Parliamentary draftsman described the process as ‘the largest scale legislation and policy process that has ever been carried out’. Parliament is unlikely to have the time to consider every detail, so the process of choosing what’s practical and what to unpick is likely to depend on Ministerial say-so. The process is likely to rely on secondary legislation, which is unamendable by Parliament and hardly debated.
  4. A plan to update them: EU law is constantly changing. For example, product standards like efficiency ratings for white goods, or car emissions standards are continually updated. Either the Government will have to set up a process to mirror these as they are updated (meaning that businesses are still subject to EU rules, but without a say in setting them), or the law will quickly diverge, leaving the UK’s Brexit snapshot of EU law completely out of date.
  5. Or enforce them: The effectiveness of EU law depends on the EU Commission and Courts for accountability. The UK has proven unable to implement the law properly, for example in the designation of marine protected areas, or compliance with air quality and water quality standards. The environment has the 2nd highest proportion of infringement cases (around a fifth of EU cases).
  6. Trajectory: The effectiveness of EU law also depends on the Commission for direction and improvement, for example by ratcheting up air quality and climate change goals in line with science.
  7. Money: The EU budget guarantees important sources of funding for environmental protection that may not be maintained. In some areas, like farm funding, the UK is a net contributor. Theoretically, then, the Government could afford to spend more on land management, but there is no guarantee that this money will be maintained beyond 2020. In other areas, the UK is a net recipient. The excellence of the UK’s scientific research means that the UK wins a high proportion of bids for EU science funding, leaving universities and other researchers exposed to financial risk.
  8. Internationalism: Some aspects of EU law will not convert simply to UK law because they relate to cross-border considerations. For example, some species are protected under the Nature Directives not because they are scarce in the UK, but because they are a precious part of a wider, European bio-geographical region. Among them are “difficult” species like bats and newts which have sometimes been seen as an obstacle to development. It’s not clear how these cross-border environmental considerations would be retained or updated.

Before the Great Repeal Bill arrives in Parliament, the Government is expected to publish the framework for its 25 year environment plan. If the risks posed by these gaps in the Great Repeal Bill are to be averted, it’s more important than ever that the environment plan is (1) target driven (with binding objectives for natural assets like air, soil, water and species), (2) accountable through annual reporting to Parliament, and (3) ambitious in delivering farm funding that delivers public goods for public money.

There’s still a chance to turn this period of uncertainty into an opportunity for environmentally beneficial reform, but the news that such a substantial chunk of EU law may not be transposed into UK law heightens the risks.

The Government will need to set the ambition high for the 25 year plan and farm funding reform to provide reassurance that our most vital nature laws will be protected and to give hope that the ambition to leave the environment in a better state can possibly be met.

Richard Benwell

Head of Government Affairs, Wildfowl & Wetlands Trust

Find Richard on Twitter @RSBenwell

The opinions expressed in this blog are the author’s and not necessarily those of the wider Link membership.

Aspects of this blog were originally published on another website.