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Law and Your Environment
June, 06 2017

UKELA present on Brexit at House of Commons library

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Posted by Richard Macrory at 11:55

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On June 1st Richard Macrory and Victoria Jenkins from UKELA were invited to speak in the House of Commons Library to researchers from the UK Parliament and Devolved Administrations on Brexit and environmental law.

Richard spoke about international environmental law and the extent to which the UK will remain bound by international conventions after Brexit. UKELA will publish a major report on the subject in the Autumn. Victoria considered environmental law developments in Wales, and the likely legal situation following Brexit. They were then followed by Navraj Ghaleigh from the University of Edinburgh who spoke about climate change law and Brexit.

It was clear that post-Brexit there are likely to be greater divergencies in many areas of environmental law across the devolved jurisdictions in the UK, a development which could have benefits in allowing new initiatives (the Welsh plastic bag tax being a good example). There was a lively discussion on the challenges for Parliament and the devolved legislatures in monitoring regulatory developments following Great Repeal Bill.

More details of UKELA’s work on Brexit can be found on the UKELA Brexit page.

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May, 25 2017

International environmental law after Brexit

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Posted by Joe Newbigin at 21:33

In parallel with UKELA’s work on the ‘roll-over’ of specific sectors of EU environmental legislation we have also been looking at the technical challenges Brexit presents for other layers of environmental governance. One of our first lines of inquiry has been the impact of Brexit on the UK’s international environmental obligations. We will be publishing a detailed briefing paper on the subject in the Autumn, but here are some initial thoughts.

UNCCC

Scope of the UK’s international obligations

The March 2017 White Paper has acknowledged the role international law has had in delivering “tangible environmental benefits” and states that the UK will “continue to honour our international commitments and follow international law”. Unfortunately, the White Paper does not detail which international environmental agreements the UK will remain a party to, and therefore which commitments the UK will be obliged to honour. To shed light on this we have begun to map all the international agreements that the UK is currently bound by, and how each has been implemented and enforced at an EU and national level.

When we analysed whether any of these agreements will ‘fall away’ we noted two main issues. First, the White Paper has not addressed the status of the international agreements which the EU entered into on behalf of Member States under its exclusive competence. Our analysis suggests that these agreements will no longer apply to the UK post-Brexit unless the UK signs and/or ratifies these agreements. The immediate consequences of a ‘do nothing’ scenario for the UK may therefore include:

  • losing the ‘backstop’ these agreements provide in terms of environmental obligations, rights and minimum standards;
  • immediate impact on international relations, such as the effect of leaving the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes for lakes spanning the border between Northern Ireland and the Republic of Ireland; and
  • forfeiting membership of inter-governmental bodies, including bodies created under such international agreements such as the North Atlantic Salmon Conservation Organisation.

Second, there is also a high degree of uncertainty surrounding the status of ‘mixed agreements’ which contain elements falling within both EU and Member State competence. One perspective is that as the UK is already a party to these agreements in its own right and will be obligated to stick to these commitments once we leave. Others have argued that both exclusive and mixed agreements will fall on Brexit day, meaning they will have to be renegotiated after Brexit. A third view is that the UK would remain bound only by the elements of an agreement which were within the UK’s competence. The White Paper does not endorse the legal basis for any of these positions. The Task Force has identified nearly 50 mixed agreements, spanning most areas of environmental law, and it is unclear whether the environmental obligations contained in these agreements will constitute part of the UK’s post-Brexit international commitments. It is also unclear whether other states will themselves consider that the UK is bound by such agreements, a question which is particularly salient where reciprocal obligations exist.

Continued implementation and enforcement of international obligations

Recognising these limitations, we have nevertheless started to look at how the mechanisms proposed in the White Paper for preserving and converting EU law may affect the implementation and enforcement of the UK’s international obligations. For instance, where the UK has ratified an agreement to which the EU is not a party, but the obligations under that agreement are predominantly implemented by directly applicable EU law (such as global limits on ship exhaust emissions set by MARPOL 93/78), then will the conversion of this part of the acquis be sufficiently safeguarded? Will provision be made for ensuring continue compliance with international obligations when considering, for instance, a ‘sunset clause’ for EU-derived law?

Further questions arise in relation to agreements which will change over time. For example, under the model for conserving and preserving EU-derived law, will future changes to an international convention lead to a corresponding change in domestic regulations? What happens when an agreement is frequently updated which has, until Brexit, been implemented by EU law which domestic law in turn cross-refers (such as changes to the lists of endangered species in CITES)? Without a new mechanism for updating the UK’s domestic regulation, a ‘snap-shot’ of EU law, taken on the day of Brexit, would quickly become out-of-date and potentially put the UK in non-compliance with its international obligations.

The White Paper leaves these and many other complex questions unanswered. The current system of multi-layered governance clearly creates additional pressures and constraints on the legislative form of the UK’s departure from the EU. As we prepare for the publication of the Great Repeal Bill after the general election we will continue to map these ‘known unknowns’ and prepare a framework with which to analyse the Bill’s effects. We will also be publishing a more detailed paper on the subject later in the year.

More details of UKELA’s work on Brexit can be found on the UKELA Brexit page.

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May, 11 2017

The Nuts and Bolts of the Great Repeal Bill

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Posted by Rosie Oliver at 16:30


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A major strand of UKELA’s work on Brexit is to scope for issues that many need addressing under the Great Repeal Bill. Whilst we do not yet have sight of the Bill, the Conservative Government’s March 2017 White Paper outlines key elements of their proposed approach.

Impact on the Statute Book

The headline purpose of the Bill is to repeal the European Communities Act 1972 (ECA) so as to implement the decision to leave the EU and ‘take back control’ of our laws.

Much of the White Paper, however, focuses on how the Bill will ‘ensure that wherever practical and sensible, the same laws and rules will apply immediately before and immediately after our departure’. This will be done by:

  • converting directly applicable EU regulations and decisions into UK law; and
  • preserving domestic laws that implement EU law. This is a hugely important task in the environmental field, as so many environmental regulations have been made under powers in section 2(2) ECA.

The Bill will also create a ‘power to correct the statute book where necessary, to rectify problems occurring as a consequence of leaving the EU’. The White Paper anticipates some 800-1000 pieces of secondary legislation under this power, to ‘correct’ both secondary and primary legislation. It cites provisions that refer to the UK’s ‘EU obligations’ or to European institutions as examples of problems that may need rectifying in this way.

The power to make secondary legislation on a massive scale is likely to prove the most contentious aspect of the Bill. In the environmental field, there will be fears that it could be used as a vehicle for deregulation and downgrading levels of environmental protection. More generally, there will inevitably be concerns at the lack of Parliamentary scrutiny attached to secondary legislation, and resistance to new ‘Henry VIII’ powers.

Recognising these concerns, the White Paper cites the ‘need to ensure that the right balance is struck between the need for scrutiny and the need for speed’. It indicates that:

  • ‘the power will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law arising out of our exit from the EU’; and
  • ‘the power will be time-limited’, as most of the changes will need to be made before withdrawal from the EU.

Whilst these limitations seem appropriate to the purpose of the Bill, they raise the question of how future governments will be able to legislate to bring in new environmental policies. Limits on Parliamentary time will mean there is little scope for new primary legislation. Further, after Brexit governments may struggle to find the necessary powers to make regulations in some areas. Examples are nature conservation and water pollution, where heavy reliance has been made on powers in section s2(2) of the ECA to legislate by regulations. Under the Great Repeal Bill, section 2(2) will be repealed, and the White Paper makes no mention of new powers to replace it to bring in policy changes unrelated to Brexit.

Interpretation of EU law after Brexit

After Brexit, questions of interpretation of EU law will be a matter for our national courts, as the CJEU will cease to have jurisdiction. The White Paper states that the Bill will not require domestic courts to consider the CJEU’s jurisprudence. However, it also indicates that questions of interpretation ‘will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU’. The Great Repeal Bill will provide that ‘historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court’. The White Paper indicates that the Government would expect the Supreme Court to take a ‘sparing approach’ to departing from CJEU case law.

The White Paper leaves it open as to how courts should approach future CJEU case law, raising the possibility of a divergence of approach. It does, though, also state that after Brexit ‘our courts will continue to be able to look to the treaty provisions in interpreting EU laws that are preserved’. This would perhaps allow for a continued, purposive approach to interpretation, and for domestic courts to be steered towards taking a similar approach to the CJEU in future cases.

More details of UKELA’s work on Brexit can be found on the UKELA Brexit page

April, 29 2017

Response to EAC Report on Future of Chemicals Regulation

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Posted by Joe Newbigin at 00:02


imgresUKELA welcomes the House of Commons Environmental Audit Committee report on ‘The Future of Chemicals Regulation after the EU Referendum’ which has been published today. The key findings of the report reflect many of the points made by the Brexit Task Force in UKELA’s written submissions to the Committee on January 2017.

Professor Richard Macrory, co-chair of the UKELA Brexit Task Force, says:

The EU REACH system is one of the most important but complex areas of EU environmental law. It cannot easily be rolled-over into national law after Brexit, and there is a danger that the benefits it has brought to the environment and industry will be jeopardised. The EAC report makes clear the significance and complexity of the future regulation of chemicals post Brexit and emphasises the need for the Government to engage urgently with all stakeholders to develop a coherent approach which it can take into negotiations to avoid a significant loss of leverage for the UK chemicals sector in the European Market”

In its White Paper on the Great Repeal Bill published in March, the Government stated that “The Great Repeal Bill will ensure that the whole body of existing EU environmental law continues to have effect in UK law.” The Audit Committee agreed with UKELA’s view that because of the way REACH operates and the terminology used in the Regulation allowing REACH-style provisions to continue to apply this could not sensibly be done by having a line in the Great Repeal Bill deeming REACH to apply in the UK. REACH was written from the perspective of participants being within the EU, with much of it also relating to Member State co-operation and mutual obligations, oversight and controls, and freedom of movement of products.

We welcome the Committee’s recognition that companies face significant uncertainty over the validity of current REACH registrations after the UK leaves the EU, and its call for the Government to clarify their position on the future regulatory framework as a matter of urgency. UKELA said in its written submissions that:

The extent to which a UK system could, at least in a transitional period while it builds up capacity, make use of the EU REACH system post exit would be subject to any agreements that could be negotiated with the EU but with political and budgetary ramifications for both sides. But it raises a large number of practical questions which would have to addressed”.

The Brexit Task Force also welcomes the Committee’s call for the Government to take a pragmatic approach to the future of the UK's relationship with the EU's single market for chemicals. UKELA noted that while post-Brexit the UK Government will lose a number of significant legal rights under REACH it would be sensible for the Government to seek equivalent rights to EEA States to participate in the various institutions established under REACH, though without voting rights. We also noted practical problems in relation to joint registration of substances by UK and EU countries, particularly in relation to cost.

Establishing a stand-alone UK system of chemicals regulation is likely to be expensive for both the taxpayer and for industry. UKELA said to the Committee that:

[i]f not properly managed, a new national regime has the potential to create large-scale excessive cost, duplication and confusion for industry and potentially making the environmental purposes of the regime more difficult to meet”.

UKELA also noted in its evidence that there are number of important international conventions concerning chemicals which the EU and the UK have ratified. The Environmental Audit Committee does not directly address this issue. UK will continue to be bound by international law after Brexit, and these conventions will need to be taken into account in the development of any national chemicals system. The Brexit Task Force is currently carrying out a detailed analysis of international environmental conventions and their implications for the UK post-Brexit.

UKELA aims to ensure that the Government (as well as devolved administrations and regulators) are aware of the immense body of legal expertise within UKELA that may be employed to assist with the next steps. The role of the Brexit Task Force is to help UKELA take full advantage of opportunities to engage with Government and other organisations in contributing to any resettlement of the UK’s environmental laws which arises as a result of Brexit.

UKELA has submitted evidence to several Parliamentary Committee Inquiries on Brexit which can be found on the UKELA Brexit page.

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April, 27 2017

Welcome to UKELA’s Brexit Blog

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Posted by Joe Newbigin at 10:30

This new blog will comment on the impact of Brexit on environmental law, practice and enforcement in the UK.

We will be discussing the challenges of rolling-over the substance of EU environmental law and preserving current environmental legislation, across the UK and devolved administrations. We will also consider broader issues of legal and political accountability​, ranging from ongoing compliance with international environmental agreements to the post-Brexit architecture of standard setting.

​The Brexit Task Force will be publishing reports on these and other key issues over the coming months. In this blog we intend to summarise these research projects, our findings and our thoughts in a simple format, accessible to all.

UKELA adopted a neutral position prior to the referendum and has not advocated any particular exit model. Our analyses are politically impartial, reflecting the range of our members’ views and drawing on their professional expertise.

About this blog

Welcome to the UKELA Brexit Task Force blog where we consider the impact of Brexit on environmental law, practice and enforcement in the UK
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