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“Brexit: Environment and Climate Change” – the report of the Parliamentary European Union Committee

24th February, 2017

The parliamentary European Union Committee published its report on Brexit and environmental law (“Brexit: environment and climate change”) on 14 February 2017.

In addition to the mammoth task of ensuring adequate implementation of European Law into  domestic legislation post- Brexit, the report discusses the fate of “sectoral policies” such as CAP and CFP and what happens vis a vis regulation and enforcement when the Commission and CJEU cease to have jurisdiction in the UK.

The Committee observe that, “the repatriation of environmental policy as a result of Brexit presents opportunities and risks. . .but what must not be under estimated is the scale and complexity of the task of repatriating environmental policy, and its profound implications for domestic governance as well as for domestic law.”

Limitations of Great Repeal Bill

Concerns are raised over the scope of the Great Repeal bill and how it will “accommodate” “legislation by reference” as well as “references to the EU’s institutions, its Executive Agencies and obligations imposed on other Member States.”

There will need to be greater clarity as to how “soft law” – including guidance notes from the Commission on interpretation of policy and legislation – will be transposed into domestic law.

The committee comment that, “Although we recognise Defra’s determination to deliver the intention of the Great Repeal Bill, we are not confident that it has yet translated this determination into a delivery plan that works for the more complex areas of EU environmental legislation.”

Treaties

Although there are international agreements in place which bind the EU and the UK it is usually the case that they are “less detailed than the EU legislation” and the government will need to consider how to incorporate them into UK law so they are not “watered down” post Brexit.

Developing Law in Europe

The report underlines the need for the government to clarify what will happen to environmental legislation “transposed through the Great Repeal Bill over time” and whether, for instance, it “will respond to any changes adopted by the EU after transposition.”

Enforcement of environmental law

The report states that the European Commission and the Court of Justice of the European

Union “have had a strong impact in ensuring the UK’s compliance with EU legislation that affects environmental protection.”  However, “the Government’s assurances that future Governments will, in effect, be able to regulate themselves, along with Ministers’ apparent confusion between political accountability to Parliament and judicial oversight, are worryingly complacent.”

The answer to this, the report states, would be “an effective and independent domestic enforcement mechanism”. The Committee adds that, “such enforcement will need to be underpinned by effective judicial oversight, and we note the concerns of witnesses that existing domestic judicial review procedures may be inadequate and costly

Environmental implications of free trade with the EU

In order to benefit from economic agreements with Europe, the UK will – the report says –

need to either “comply with” or “align itself to” European standards. The examples given include chemicals regulations and energy efficiency standards. The government therefore “needs to make clear what the free trade agreement with the EU will entail, in order to help to clarify the constraints on future environment policy in the UK.”

CAP and CFP

Both the Common Fisheries Policy and the Common Agricultural Policy are not in themselves law and once Brexit has occurred, they will cease to apply to the UK.

Although parallel policies could be “carried over” as a “temporary measure” by the Great Repeal Bill, it would “not be the appropriate mechanism for evaluating and implementing options for taking forward these key areas of environmental policy.”

The committee therefore recommends that the Government “set out its plans for conducting [. . .] an evaluation, with a view to implementing new domestic policies that build on the progress in environmental protection that has been made in the last few decades in advance of the completion of withdrawal from the EU.”

Climate Change – Emissions Trading Schemes (ETS)

The report highlights one of the most important functions of European-wide policy and law on climate change and that if the UK wishes to continue to participate in the EU ETS, “it should also seek to retain influence over its operating rules, to ensure that the system operates effectively.” If the Government does not continue to participate, “it will need, as a matter of urgency, to evaluate alternative means of driving emissions reductions, so that the UK can continue to fulfil its national and international obligations.”

Devolution and the environment

The report recommends that the government consults closely with the Devolved Administrations “throughout the withdrawal negotiations”, and “in the formulation of its Great Repeal Bill”.

If you have any questions to ask about any of these issues, please contact Justin Neal.

Justin Neal

Senior Associate & Head of Environmental Law
Email: [email protected]
Tel: 01244 405440

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