How Brexit will affect Environmental Law in the UK
Will Brexit prove momentous for environmental law which is driven by EU law in the UK? That is the question on everyone’s lips. The current president of the EU Council Donald Tusk stated that there would be no Single Market à la carte for the UK. Therefore the answer will depend on whether we become an EEA member or we leave the Single Market.
The House of Lords (HL) published, in May 2016, a report on the Brexit process arguing that Parliament will need to pass legislation for notification to occur. I suspect this is why a group of businesses have instructed Mischon de Reya to ensure that there is no Government exit without an Act of Parliament. This point is legally contentious as some argue that Art 50 requires a Member State to withdraw in accordance with its own “constitutional requirements”. Without a written constitution and with the use of royal prerogative, Government lawyers argue that the Government could decide to exit without the seal of Parliamentary ratification.
Certainly the European Communities Act 1972 will need to be repealed under any EU exit scenario . There will be much enabling legislation to put in place. Then there is the trade, banking and insurance deals, which typically take between 3 and 10 years to negotiate. The rights of EU citizens will also be decided upon. What will be the acquired rights of legal entities and persons? The Government has announced that it will not guarantee the rights of EU citizens living in the UK without having the rights of UK citizens across the EU guaranteed.
In terms of environmental law we do not have a right to the environment in common law or constitutionally or in any of the EU Treaties. The Brexit constitutional debate provides an opportunity to look at environmental rights. The EU Treaty integrates environmental protection and sustainable development into other EU policies. The UK could go beyond that.
No deal reached with the EU
David Edward KCMG, QC, PC, FRSE, Former Judge of the Court of Justice of the European Union described this as “The long-term ghastliness of the legal complications is almost unimaginable.”
There is in legal terms a risk that there will be an issue with the rule of law if the negotiations fail after 2 years, or any extensions that are most likely to be granted. Failure to agree would mean unilateral withdrawal by the UK from the EU, Sir David believes that this will result in “falling back onto WTO Terms for trade”, which are less progressive commercially and environmentally.
We would have to go to Parliament to re-enact most of our environmental legislation. There would certainly be chaos here and huge risks for environmental protection which may lag behind trade, banking and insurance in the Parliamentary agenda.
Out of the EU and the EEA
The catalyst for the development of environmental law is directly linked to the Single European Act which brought into being the Single Market. Commerce and competition were the impetus for the improvement of environmental law. If we do not sign up to the Single European Market, then most environmental law as we know it will not necessarily be kept. There will be a lot of EU referential drafting to disentangle, and reinterpret and redraft, see the Environmental Permitting Regulations for example which largely refers to EU Directives for their implementation into UK law.
We would hope that the Government would enact most of the laws but we would need to be very watchful on how these will be enacted and if there would be any opportunities here, particularly for biodiversity climate and ecosystems.
Investment researchers Sustainalytics have said in their report “The Brexit: Assessing the ESG Implications” that recycling and air quality are two areas to watch out for. If standards drop so will incentives to develop programmes in these areas.
The European Commission New Circular Economy Package establishes a recycling target of 65% and the UK will no longer be required to comply with this Package.
In terms of Corporate Governance, the report warns that “the UK government’s resistance to the EU ESG Disclosure Directive could be a concern for investors as the UK negotiates its withdrawal from the EU.
EEA – Single Market Member
If we stay as members of the EEA (and that means acceptance by all EEA members not only EU members) and therefore benefit from the Single Market, the Council of Europe has stated that we will have to accept the 4 Freedoms. Freedom of movement seems to be a sticking point for Brexiters but the majority of MPs were in the remain campaign. If we do need an Act of Parliament to exit the EU, then remain MPs may be ready to compromise on an exit that allows us to stay as part of the Single Market with all the Freedoms in place.
We can safely stay that if we stay part of the Single European Market, then most environmental law as it is will be kept.
Areas to watch CAP
The main danger areas are those that are territorial environmental laws which do not directly impinge on trade. We include here the Birds Directive, the Habitats Directive and the Bathing Water Directive. In the trade mix, these are also vulnerable as biodiversity protection and ecosystem benefits are difficult to monetise and tend to be subsidised to correct externalities and market failures.
As an example let’s take the Common Agricultural Policy which is EU driven and is not linked as such to the Single Market as it is in effect a subsidy payment. The NFU tells us that 55% of total UK farming income comes from the EU. What does this mean for farmers?
Meurig Raymond, the NFU President told the BBC recently that to remove the CAP support in the UK and keep it in place in the rest of Europe could devastate British farming. This means that the Government has to take speedy action to find a substitute for CAP subsidies.
O to be a green fly on the fall at the Rural Payments Agency. What will the Government do? Replace the subsidy, use the same parameters including Greening? Will ecological protection criteria still be paramount to receiving subsidy farming? In 2013/14 12% of direct payments to farmers in the UK were moved to payments subsidising ecological and land enhancing measures. Will this continue?
There may actually be an opportunity here to require more ecological protection in exchange for farming subsidy payments. It depends on future Government policy. The House of Commons briefing paper on the Impact of Brexit on UK Policy stated that :
“Leaving the regime would probably reduce farm incomes, as past Government positions on CAP reform have indicated UK Government and Devolved Administrations may be unlikely to match the current levels of subsidy and/or would require more ‘public goods’ in return for support, such as environmental protection, which the UK Government views as the overarching market failure in this sector.”
Ambient air quality levels are already below what is required by the EU due to our failure to achieve the required standards under the Ambient Air Directive. Client Earth is currently judicially reviewing the Government on it’s Air Quality Plans. In areas such as this, will we see environmental standards quietly lapse along with EU membership?
Listen to our podcast on Air Pollution Law.
UK fisheries policy is directly lead by the EU Common Fisheries Policy (‘CFP’). The CFP comes to us in the form of EU Council Regulations which are enforceable as laws in the UK without any other UK legislative Act.
I counted we will have to implement and therefore have a chance to rethink 7 Council Regulations on fishing policy: (EC) No. 1005/2008, (EC) No. 1010/2009, (EC) No. 1224/2009 (EC) No. 1005/2008, (EU) No. 404/2011, (EC) No. 1224/200 and (EU) No 1380/2013 .
There is a lot of evidence that fishing is best regulated at either EU or International level as fish do not stay in one place and they are interconnected, so the environmental consequences of losing fishing stock are international.
On the other hand I was surprised to read such criticism to how EU fisheries were regulated in the evidence given to DEFRA in their “Review of the Balance of Competences between the United Kingdom and the European Union Fisheries Report“. These criticisms have to be balanced with the fact that fishing stocks were depleted before CAP, but there is a discussion to have about management and governance.
The UK had managed to influence the reform of CAP and introduce a new form of regional governance “meetings” providing Member States with a process for coming together to identify measures effective for the fisheries they share. However the EU still has exclusive competence on the conservation of marine biological resources under CAP.
The UK government sees an opportunity in regional management of CAP together with greater influence in international treaties. Brexit could allow the UK to regain legislative competence for fisheries.
Have your say
With environmental laws inextricably linked to trade laws, environmental negotiators and stakeholders have to be at that table. There is a watchdog role here for stakeholder to ensure that environmental protection is not diminished and opportunities are seized as we do not know what the environmental priorities and policies of the government post Cameron will be. Lets start working on the agenda.