Five fights that still need to be won

October 2016

This is great news for conservationists: the most immediate threat to environmental protection will not materialise. The Nature Directives and the laws that reduce against pollution, waste and over-exploitation will not be thrown out wholesale. However, a number of caveats mean environmentalists must still be on guard. Here are five fights that still need to be won:

1. “Wherever practical”
The most obvious loophole was David Davis’s caveat that law will be transposed across “wherever practical”. In the past, Governments have used that phrase to justify all kinds of exemption: physical, economic or social barriers that can feel like fig leaves for ideological preferences. It must not be a catch-all for ousting out-of-favour environmental protection.

2. Shared treasures
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. These cross-border environmental considerations still need to be retained as part of our international responsibilities.

3. Parliamentary scrutiny of Theresa May’s “unpicking”
The Great Repeal Bill will actually need to achieve the opposite – the creation of reams of new UK law. We are promised a snapshot of EU law, which Theresa May has said can be subsequently “unpicked” to reflect UK preferences.

Some EU law is already in UK legislation: Directives tend to be incorporated in Acts of Parliament or Secondary Legislation. However, EU Regulations currently have direct effect in the UK without existing in UK law, so these need to be transferred. In theory, this could be done through Acts of Parliament, but this could take a huge amount of time. More likely, the Act will empower Ministers to use Secondary Legislation to copy EU laws. Secondary Legislation tends to receive far less scrutiny than Acts of Parliament, and it cannot be amended once it is before the House, so there is a serious risk that the process of “unpicking” EU law will be left to Ministers, without proper oversight.

4. Trajectory and accountability
EU law is not some static monolith with commandments set in stone, it is an evolving regime brought to life by shared objectives and the rulings of the European courts. Without the trajectory provided by the Commission and the accountability provided by the courts, there is a risk that EU legislation becomes out-dated and unenforced, a kind of “zombie legislation”. Last year, there were many environmental infraction cases open against the UK, pushing Government to honour essential laws like targets to reduce air pollution. If the transferred acquis is to remain a living, functioning body of law, the UK will need new ways to hold the Government to account for delivery.

5. Progress
EU environmental laws were good, but we know they were not good enough. The UK’s natural environment is still in a state of long-term decline. Brexit could easily take up all the Parliamentary energy and time for years to come, stalling any hope of progress.

The Government has two opportunities coming up: the chance to reform farm subsidies to reward sustainable management and the chance to deliver on its manifesto promise of a 25 year environment plan with a legally-binding programme for delivering ambitious targets for species, habitats, air, soil and water. The Great Repeal Act must not obstruct UK leadership on environmental reform. Years spent recreating the status quo would be a terrible waste.

This week, at a Conservative Party Conference event hosted by RSPB, WWF and TWT, Andrea Leadsom reiterated her ambition for ours to be the first generation to pass on the natural environment in better condition. The reprieve for EU environmental laws gives hope that could still happen - now we must defend the detail and extend the ambition for a clean, green Brexit and beyond.

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.