Repeal Bill: stricter scrutiny needed to make the White Paper green

March 2017

The Repeal Bill will convert existing EU law into UK law, so that the same rules apply on the day after we leave the EU. Avid readers of the Link blog will know that Link members and Greener UK have been asking Government for three assurances about this risky process:

1. The whole body of EU environmental law should be transferred across and Ministerial powers to amend those laws should be strictly limited to technical changes.
2. The principles of EU environmental law — like polluter pays and the precautionary principle — should continue to apply.
3. There should be continuity in accountability, so that environmental laws are properly upheld.

1. All EU law will be transferred. Ministers will have powers to amend the laws through Delegated Legislation (ie. without full Parliamentary scrutiny), but they will be time-limited and will be limited to fixes in function, so no changes in policy can be made.
2. Legal principles contained in the EU Treaties but not in the text of particular laws can still be used to guide judgements in court with regard to interpretation of EU-derived law.
3. EU case law will still apply in UK courts, so all the environmental judgments made in EU courts will still inform the reading of UK law. These White Paper promises are very welcome and should be heartening news for environmentalists.

UK environmental protection is dependent on EU law and it is doing a good job, but nature is still in decline. Any weakening of environmental protection could have serious consequences for our environment.

The Government clearly intends to reshape environmental law in the UK. The White Paper repeats the Government’s intention to create a “legislative framework that is outcome driven and delivers on our overall commitment to improve the environment within a generation”.

Unfortunately, opportunists are already lining up to attack the UK’s environmental protection. The recent campaign launched by the Telegraph to cut red tape from Europe was irresponsible and short-sighted. It attacked green energy, energy efficiency standards, product standards and wildlife protection laws with the most flimsy of justifications—including the quality of light from modern lightbulbs, and the suction power of energy-efficient vacuums. These laws are designed to protect future generations, reduce pollution and conserve wildlife that is precious to millions of people, yet the Telegraph saw fit to snidely snipe at these environmental laws as EU red tape.

Certainly, there are improvements that can be made in environmental protection outside the EU, such as making farming subsidies more efficient and refocusing them on environmental stewardship, but the kind of deregulatory ideology set out in the Telegraph is regressive; the Great Repeal Bill must include proper safeguards against weakening environmental law.

Unfortunately, at the moment, the bill does not include any assurances that powers to amend EU-derived law through Delegated Legislation will not be created by other Acts of Parliament after Brexit. There should be a clear guarantee that substantive changes to EU-derived law may only be made by primary legislation even after Brexit.

Nor is there a clear plan for updating EU-derived law once we leave the EU to maintain equivalence with EU standards. The White Paper says that EU-derived laws will be maintained “as they applied in the UK the moment before we left the EU”, but EU law is constantly evolving. To guard against “zombie legislation”, there should be a process for simply and quickly updating EU-derived law without recourse to primary legislation, but such powers would need to be carefully circumscribed to ensure that they are only used to faithfully update EU-derived law, not to otherwise change its purpose, scope or effect.

Third, there is no provision for replacing the role of EU institutions. Continuity in case law is welcome, but the EU has held the UK to account for delivery through its institutions (like Commission compliance proceedings) and through fines levied by the courts. Crucial matters like air quality, development controls and site and species protection have only been addressed in the UK in the past because of intervention by the European courts.

So, each of the protections offered by Government needs to be strengthened.

1. The Bill should include as specific clause to ensure that even after Brexit, environmental laws that come from the EU should not be changed, save by primary legislation, or where changes are necessary to keep UK law in line with EU law. Government should also bolster the Parliamentary resources devoted to scrutinising secondary legislation so that any changes are properly assessed.
2. The Government should clarify that the principles of EU environmental law should continue to apply even after amendments have been made.
3. EU case law is not enough. The Government should commit to new governance to ensure robust monitoring, enforcement and other functions currently provided by the EU institutions. Options include new courts or an Office of Environmental Responsibility.

A brighter future
Of course, even the strongest Repeal Bill will not be enough to meet the Government’s manifesto pledge to restore the UK’s environment for the next generation.

Link remains committed to supporting that ambition and we are calling on Government to bring forward the new powers and resources needed to achieve it—cross-Government objectives for restoring nature (set out in a new Environment Act), investment in natural assets from cities to coasts to countryside, and strong accountability for delivery. This will need to add to, not replace, a faithfully transposed foundation of EU-derived environmental law.

The Government’s White Paper is a decent start, but stronger guarantees are needed to preserve the integrity of our environment laws. Powerful climate, farming and environmental plans will be essential soon after if we are really to make the best of a green Brexit.

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.