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Green Brexit: 1 out of 3 for environmental principles

The Government’s European Union (Withdrawal) Bill should assure the letter of the law, the spirit of the law and adherence to the law. However the Bill before Parliament puts the principles of environmental law at great risk in the UK.

August 2017

The Government’s European Union (Withdrawal) Bill should assure the letter of the law, the spirit of the law and adherence to the law. However the Bill before Parliament puts the principles of environmental law at great risk in the UK.

Currently, principles like “sustainable development” and “polluter pays” are set out in the EU Treaties. They are essential guidelines for courts, businesses and Government decision-making. They have been instrumental in decisions like the EU ban on imports of hormone-fed beef, the moratorium on neonicotinoid pesticides, and control of the release of Genetically Modified Organisms in the EU.

A green Brexit would require these principles to apply in UK law in three ways:

  1. Interpreting EU-derived law
  2. Challenging environmentally-damaging actions in court
  3. Guiding future decision-making across Government

However, the Bill only delivers one of these. The principles could guide interpretation of (unamended) EU law, if they are confirmed as general principles of EU law. However, even if environmental principles are retained, the bill explicitly limits the way they can be applied in two ways: (a) courts will not be able to overturn decisions or challenge actions that do not conform to the principles; and (b) there will be no compulsion for public bodies or businesses to refer to the principles in future actions and decisions.

For a green Brexit, the bill must be amended to ensure that the principles are placed at the heart of UK law.

Partial success: interpreting EU-derived law

The EU (Withdrawal) Bill states that general principles of EU law are retained in UK law. Under Clause 6(3), the courts will be able to interpret EU-derived law in accordance with “retained general principles of EU law”.

However, it is not clear whether the environmental principles will be considered general principles of EU law. Neither the Court nor the Treaties have defined general principles. According to Schedule 1, “no general principle of EU law is part of domestic law on or after exit day if it was not recognised as a general principle of EU law by the European Court in a case decided before exit day”. While some of the principles have on occasion been recognised as general principles (such as the Precautionary Principle in Artegodan v. Commission of 26 November 2002 (T-74/00), paragraph 184.), it is not clear whether the full body of environmental principles would meet the bill’s definition of generation principles.

If the environmental principles are not explicitly recognised as general principles of EU law, they could be lost altogether. If they are recognised, then they will be available for UK courts to refer to in interpreting EU-derived law under Clause 6(3).

Failure: challenging unsustainable actions in court

Schedule 1, paragraph 3 limits the legal remedies available when general principles are contravened. It will not be possible to take an action in court or challenge or quash any law or activity on the basis of the principles. So, the courts will be unable to overturn decisions, and individuals or NGOs will not be able to challenge these decisions on the basis that they are not compatible with environmental principles.

As the bill is currently drafted, if a public body contravenes the principles of environmental law, it will not be possible to challenge the action in court.

Failure: Guiding action

In EU law, the environmental principles are forward-looking and play a formative role in guiding decisions, day-to-day decisions, and policy development, but as the Bill is drafted this could be lost entirely.

For example, chemicals and pesticide regulation in the UK could look completely different if they were not informed by the precautionary principle or the polluter pays principle. Principles which explicitly reference wider decision-making include the principle of sustainable development and the integration principle, which stipulates that ‘environmental protection requirements must be integrated into the definition and implementation of Union policies’.

In the months and years ahead the principles of environmental law should be applied to UK decision-making in a number of high-risk areas, such as trade policy, chemicals regulation and infrastructure planning.

Environmental principles provide an essential touchstone for decision-making where consumer protection and environmental standards are at stake.

Unless the bill is amended, the legal force of the environmental principles to guide future policy and decision-making will be completely lost.

Opportunity: Amending the bill

While the UK has incorporated some of the environmental principles in law, such as the sustainable development duties for Natural England (NERC Act 2006) and Ofgem (Energy Act 2008), their application has been limited and often ineffective. Other countries like France and Germany have gone much further, recognising the principles in statute and constitution.

To ensure a green Brexit, the Government should explicitly include the principles in UK law for the purpose of interpreting the law, enforcement in court, and guiding decision-making.

We will be asking Parliamentarians across the House to amend the Bill to preserve the spirit of environmental law in the UK—take action for the environment now- contact your MP.

Only by faithfully converting EU environmental protection into UK law can we go further and deliver the ambition to pass on our environment in better condition.

Richard Benwell

Co-chair of Link's 25 Year Plan Working Group and Head of Government Affairs, WWT

Find Richard on Twitter @RSBenwell

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