Domestic Environmental Law After Brexit
The UK Government intends that, so far as possible, the same
rules and laws will apply on Exit Day as applied the day before. This will be
achieved principally through the European Union (Withdrawal) Act 2018 which,
amongst other things:
- preserves all 'EU-derived domestic legislation', such as the
many statutory instruments that implement EU environmental directives (section
- incorporates 'direct EU legislation' such as EU
environmental regulations into our domestic law (section 3)
Some changes will need to be made to domestic legislation so
that it continues to operate effectively. For example, some domestic Acts of
Parliament and statutory instruments include references to 'the UK's obligations'
under EU environmental directives. Those references will not make sense after
Brexit, when the UK stops being bound by EU directives. Some domestic
legislation refers to functions carried out by the European Commission, for
example to consider derogations. Those references will either need to be
removed, or changed so that the Commission's role can be carried out by a
domestic body after Brexit. Clause 7 of Withdrawal Bill ('dealing with
deficiencies arising from withdrawal') allows regulations to be made to make
This approach in theory should provide stability and
certainty for those affected by environmental law. A UKELA report considers the
extent to which primary legislation will need to be amended to correct
'deficiencies'. A range of other UKELA reports look at other key Brexit-related
issues for UK environmental law, such as how to ensure it is properly enforced
once the Commission ceases to have a role, and how to approach setting
standards in the future. For more information, visit UKELA's work on Brexit.
On 20 December 2016 the First Minister published proposals to keep Scotland in the European Single Market, retain freedom of movement, and
to equip the Scottish Parliament with powers to serve Scotland's interests post-Brexit.
Read our response to the consultation on Environmental Principles andGovernance.
Scotland’s Place in Europe, 20 December 2016
As stated by the Cabinet Secretary for Environment, Climate
Change and Land Reform, Roseanna Cunningham, there are no plans to amend or
revoke any environmental legislation as a result of the EU referendum.
Similarly, the Scottish Government has no plans to alter its domestic policies
and priorities on the environment, such as delivery of climate change targets,
as a result of the referendum. See the following press release from Scottish
Government for further information.
The Welsh Government has made clear it is Wales' priority
that UK should retain access to the single market (a 'soft Brexit'). The
Cabinet Secretary for the Environment and Rural Affairs, Lesley Griffiths has
indicated that the Welsh Government will be looking at how to develop
Welsh-specific policies that build upon EU environmental policies and
legislation concerning the environment, health, farming and fisheries so as to
meet Welsh needs.
The future of farming policy (and its implications for the
environment) is a particularly important issue in Wales, which has access to
considerable EU funding. UK minister George Eustace has said he cannot
guarantee that future agricultural support programmes will be as generous as
current EU subsidies. Any future Welsh agriculture policy will have to sit
within a UK wide framework. Read our response to the consultation on
Environmental Principles and Governance.
First Minister Arlene Foster has indicated she has "no
time for those who want to re-fight the referendum", and that the
government should be looking forward to the opportunities Brexit presents. This
follows a High Court ruling that rejected a claim that the Good Friday
Agreement prevented the government from triggering the Article 50 Brexit
process. Minister for Agriculture, Environment and Rural Affairs Michelle
McIlveen has stated that Northern Ireland must be closely and directly involved
in UK's domestic agricultural, environmental and fisheries policy and trade
agendas as they unfold in order to maximise the opportunities that will come
Northern Ireland will need to decide how to regulate on
cross-border environmental matters, in the event of a hard Brexit where
European laws only continue to apply in the Republic of Ireland. Key issues
include transfrontier shipments of waste, pollution of cross-border water
bodies, and environmental impact assessment of developments.