Current environmental law and policy

The transboundary nature of environmental issues mean that they are often global in scope. As such environmental principles, laws and policies in the UK originate from a mesh of international agreements, EU legislation as well as domestic law. A number of international agreements have been ratified by both the UK and the EU, which in turn are implemented through a mixture of EU Directives and UK legislation. As the environment is a devolved policy competence, the devolved Administrations also have powers to make their own primary and secondary legislation within the environmental sphere and have increasingly taken divergent policy routes in certain areas.

Preparing for Brexit

All EU environmental laws, principles and any relevant enforcement mechanisms will continue to apply to the UK up until exit day. Article 50 negotiations are ongoing and the outcome of the wider negotiations may have an impact on the future of environmental policy and legislation in the UK. The European Council’s Article 50 guidelines for Brexit negotiations include a requirement to ensure a level playing field, including through environmental measures and practices. The Secretary of State has confirmed that environmental standards will not be compromised in pursuit of a trade deal and that the Government will “deliver a Green Brexit”.

The European Union (Withdrawal) Bill is designed to provide legal continuity by copying over all EU law (including all environmental law) into UK law from exit day. However a number of concerns have been raised in relation to how this will work in practice. Members will consider the Bill in a Committee of the whole House starting on 14 November. A number of amendments relating to the environment have been tabled.

Potential impacts of Brexit

The Government has confirmed that it intends to continue EU environmental rights on a UK legal basis and it intends to uphold its obligations under international environmental treaties. In relation to the rollover of EU environmental law, a number of concerns have been raised including: the possible weakening of environmental standards following the rollover; the level of scrutiny or consultation that will be available; how environmental standards will be enforced; how the Government and public bodies will be held to account; how environmental principles will be incorporated and interpreted in UK law; and the impact on funding and resources for environment programmes and policy development in the UK.

Devolution and Brexit

The UK Government has said that it foresees Brexit as being an opportunity for the devolved Administrations in the area of the environment. Both the Scottish and Welsh Governments however, have expressed concern about the European Union (Withdrawal) Bill and how it would intersect with a number of devolved environmental policy areas. In particular about where the devolved governments would have no powers to change EU frameworks (for example on water quality and forestry), incorporated into UK law by the Bill. Both Governments have refused to approve legislative consent motions on the Bill. The Scottish Government has committed to maintaining “high” ambitions for the environment following Brexit. The Welsh Government has stated that Brexit must not be used to dilute or row back on environmental standards. It has argued for a continued divergence on environmental issues. Northern Ireland has unique environmental issues created by Brexit because of its border with Ireland. The EU is keen to maintain similar environmental standards on both sides of the border to prevent environmental “dumping”.

A tailored UK approach?

The Government has said that it would use Brexit as an opportunity to develop a comprehensive approach to improving the environment “in a way that is fit for our specific needs”. Defra has been developing a 25-year plan for the environment which is expected to be published by Christmas or in early 2018.

On 12 November 2017, the Government announced plans to consult on a new, independent statutory body that would hold Government to account for upholding environmental standards in England; and on the scope and content of a new policy statement to ensure environmental principles underpin policy making. The consultation is expected in early 2018.

This paper does not discuss the implications of Brexit specifically for fisheries and agriculture. For further information on fisheries and agriculture,

Transitional Justice Institute CAJ