Amid the ongoing controversy raging between Whitehall and Brussels over the EU-UK divorce settlement (Brexit), the European Union (Withdrawal) Bill has been wending its bumpy way through Government since July.
The overarching intent of the Bill is simple, set out in Clause 1 as ‘The European Communities Act 1972 is repealed on exit day’, with subsequent clauses setting out that domestic legislation which currently flows from Europe will be retained in the UK post Brexit. It is a high level approach, which leaves the detail to the devil.
The EU is the source of the majority of environmental legislation in the UK, and the UK’s work to combat climate change is mostly conducted in conjunction with the EU. As a result, the UK’s withdrawal from the EU will, without very careful management, have a significant impact on environment and climate change policies in the UK and the means by which they are delivered.
The Secretary of State for the Environment, Michael Gove, has set the Government’s objective as delivering a ’Green Brexit’ that ‘makes Britain a global champion for sustainable development, a world leader in environmental science, and a setter of gold standards in protecting and growing natural capital.’ All very promising, although unfortunately contradicted by his statement that EU wildlife protections ‘hold back business’, and his previous efforts to have climate change removed from the school curriculum. It’s no surprise then that the Bill does not refer to the word ‘environment’ at all.
Nonetheless, the government has committed to a 25- year Environment Plan, yet to be published, and to seamless transition of policy via implementation of EU Directives already transposed into UK law by secondary legislation. This is the legislation that has for many years provided joined up thinking in planning process and legal compliance – in management of air quality, protection of water sources and water management, protection of habitats and birds, protection of bathing water quality and marine planning, and the management of environmental impacts of development and land management.
Key to that seamless transition is a adherence to the ‘precautionary’ and the ‘polluter pays’ principles, set out in Article 191 (2) of the Lisbon treaty, whereby environment policy should ensure that ‘preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.’
As long, therefore, as secondary legislation continues to applied in full post Brexit, there should be confidence that environmental safeguards will be effective in the future.
The Devil rises from the detail
Unfortunately, with the Bill now at the committee stage, it is clear that the seamless transition of law will not be achieved without significant amendment to the Bill. This is because Schedule 1 of the Bill explicitly excludes from post-Brexit scrutiny by the UK Courts any law with flows from EU legislation. This means that there will be no right of action in domestic law based on a failure to comply with any of the general principles of EU law, and that no court or tribunal or other public body will be able to quash any conduct or decide it is unlawful because it is incompatible with any of the general principles of EU law.
In brief, in the absence of the ability of the Courts to exert overarching scrutiny of plans, activities and development, the fundamental principles of environmental protection can no longer be assured.
The UK does not have an auspicious track record in protecting the environment, witnessed notoriously by lack of progress in reducing the number of illegally polluted regions across the UK, despite court orders on ministers to do so. Other legal battles, on bathing water quality, endangered habitat and species protection, and access to justice in environmental cases, to name just a few, have been fought by charities, interest groups and communities in an effort to ensure compliance with the overarching principles of the Lisbon treaty. It’s probably fair to speculate that, n the absence of the right to legally challenge policy and actions, these matters are unlikely to be pursued domestically by the Government with greater enthusiasm post-Brexit than they have been to date.
Small furry animals
The Government’s direction of travel, which seems to be founded on the premise that deregulation is essential to UK commercial competitiveness outside the EU, is redolent of the definition of a cynic as ‘a man who knows the price of everything and the value of nothing’. The economic role of the ‘environment’ is not simply about how much it costs to conserve small furry animals and attractive landscapes. It is about the future of the environment in which we live. Failure to apply robust environmental safeguards, and to tackle foreseeable climate-related harm to communities and infrastructure, is already putting those people least able to protect themselves at great risk. Far from hindering economic development priorities, intelligently framed and implemented environmental law is critical to giving clarity to markets so that they genuinely deliver sustainable and cost effective economic development that benefits society.
Exclusion from the Withdrawal Bill of the right to legal challenge treats the environment as a lesser form of political imperative than economic or even social policy. It is not. The environment is too important an issue to leave to politicians in pursuit of short term economic gain. For the sake of society, future domestic law must be able to sanction non-compliance and, at the very least, have the same teeth as EU law.