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Three flaws in the law —
a first look at the Repeal Bill

The Government’s intention to move the body of EU law onto UK statute books is welcome, but the proposals published in the European Union (Withdrawal) Bill only do half a job.

July 2017

Unless it is amended, the Repeal Bill will leave three major failings in UK environmental protection.

The letter of the law

The Government’s proposals would only partially preserve the acquis, the body of EU law, which includes the principles of the Treaties, the case law of the Court of Justice, and EU Decisions, as well as EU Regulations and Directives. The gaps include:

  • Clause 2 leaves the door open for important EU environment laws like the Habitats Directive, which are not fully or properly transposed, to be locked in their incomplete state.
  • Clause 6(3) says that in taking account of EU-derived law, case law will only apply “so far as that law is unmodified on or after exit day” – so when EU-derived laws are even slightly adapted or corrected, will EU case law cease to apply?
  • Clause 6(4) says as UK courts are not bound by established case EU law, UK courts will be able to overrule important EU rulings, like the interpretation of sites and species protection in the Nature Directives.

What’s more, even where EU law is properly converted, the scope for Government to make amendments to environment law, the so-called ‘Henry VIII powers’ is extremely broad. The Government’s own assessment suggests that Ministers expect to use the correcting power alone as many as 1,000 times, even up to two years after Brexit day.

We should not allow important environment protections to be changed without full Parliamentary scrutiny. Of course, some reporting requirements may need to change (such as informing the EU Commission about water quality), but they will need to be replaced by equally rigorous reporting in the UK – the use of correcting powers must not allow for under-the-radar deregulation.
We are proposing amendments that would:

(1) curb the scope of delegated powers, so that they may only be used insofar as necessary to ensure that EU-derived law continues to operate with equivalent scope, purpose and effect in the UK, or to implement obligations arising from the Brexit agreement.
(2) limit the use of delegated powers to six months after Brexit day
(3) provide for enhanced scrutiny procedures, ensuring that public consultation and parliamentary debate are the presumption and not the exception.

The spirit of the law

The EU acquis includes the principles of law set out in the Treaties. This includes important environmental principles such as: the precautionary principle; sustainable development; dealing with damage at source; and the polluter pays principle, as well as access to environmental justice and appropriate remedy. These principles are essential guidelines for the courts and for businesses—they give life to the letter of the law and have been essential in guiding decision-making in cases such as controlling the use of bee-killing pesticides and harmful chemicals like lead. They set a legal background against which other law is made.

Some principles are already included in particular Acts of Parliament, but there is no general statement of environmental principles in UK law equivalent to the commitment in the EU Treaties.

Under Clause 4(1), the bill will convert any rights which apply directly in the UK. However, the Government’s guidance documents suggest that these principles will only apply if they have “direct effect”, but for direct effect to apply, it must confer a specific right upon which a citizen can base a claim, so the principles of environmental law may be lost.

We are proposing amendments to embed the principles of environmental law in UK law, including:

(a) sustainable development
(b) prudent and rational utilisation of natural resources;
(c) the precautionary principle
(d) preventive action
(e) environmental damage should be rectified at source
(f) the polluter pays principle
(g) access to environmental justice.

Adherence to the law

Environmental protection relies on authoritative institutions to inform, monitor and enforce compliance. Under the Government’s proposals there will potentially be a cavernous governance gap, where functions performed by EU institutions need to be filled for the law to operate effectively.

Whilst the Government’s proposals do include a delegated power to set up public authorities, there is no obligation to do so. Instead the Government considers that judicial review and Parliamentary elections will be sufficient to uphold the law.

There are a number of serious shortcomings to the Government’s position. For example, the Government only recently reformed the rules relating to judicial review, make it much harder and more expensive to access justice in environmental cases. The experience of recent court cases relating to air pollution has shown that the Supreme Court does technically have the competence to deal with environmental cases, but there is a real shortage of UK judges with environmental expertise. Nor is there an effective UK equivalent for the powerful infringement proceedings, such as daily fines, which the Commission can bring to bear to push Governments toward compliance.

It is clear that the UK must make provision for the regulatory, monitoring, oversight, accountability, enforcement which was otherwise provided by EU institutions. This is likely to require a mix of continued collaboration with the EU, beefed up UK environmental agencies, and new UK environmental institutions such as an Office for Environmental Responsibility. This must be done soon, before Brexit day.

An essential foundation

The Government’s manifesto promise to pass on the UK’s environment in better condition is ambitious and admirable and we welcome the confirmation that the Government’s long-awaited 25 year environment plan is on its way. In the months to come, we will be looking for world-leading thinking on farm, fisheries and infrastructure to make this ambition a reality. We will be calling for an Environment Act to set the ambition in law.

But before any of this excellent environmental ambition can be realised, the Government must ensure that it properly secures the EU acquis: the letter of the law, the spirit of the law and adherence to the law.

Amending the European Union (Withdrawal) Bill to fix these three flaws is an essential first step.

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.