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September, 11 2017

Report on Brexit and International Environmental Law

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Posted by Joe Newbigin at 10:25
Following on from our earlier post setting out emerging issues in International Environmental Law, UKELA are pleased to announce the publication of its fourth report in the Brexit and Environmental Law series: The UK and International Environmental Law after Brexit. This is based on a mapping exercise of all international environmental agreements that the UK is currently bound by and how each has been implemented through EU and domestic legislation.

United_Nations_Flags_-_croppedIt is the Government’s intention that following Brexit the UK will remain bound by its existing international obligations. In the House of Commons on Thursday DExEU minister Steve Baker MP took the “opportunity to put on the record again that we [the Government] will uphold all our commitments to international law in relation to the environment.” Although this sentiment is welcome, our report sets out that achieving this may not be straightforward and the statements made by Ministers have not resolved how this will be achieved.

We have analysed how each of these international environmental agreements has been entered into and which agreements the UK will continue to be bound by after withdrawing from the EU. If the UK ceases to be bound by some of these agreements then the backstop they provide in terms of environmental obligations, rights and minimum standards will be lost.

Two key points arise from this. First, unless and until the UK itself ratifies international agreements entered into by the EU alone then the UK will lose the backstop they provide. For instance, the UK is a has not ratified the 1992 Water Convention which is crucial for continued transboundary cooperation in relation to waterways and lakes spanning the boundary between Northern Ireland and the Republic of Ireland. The report urges the UK Government to clarify which EU-only international environmental agreements it will sign and/or ratify in order to maintain the current level of environmental protection.

Second, is relation to international agreements ratified jointly by both the EU and the UK (‘mixed agreements’), the effect Brexit will have on mixed agreements remains highly unclear. There is a sharp distinction between those who think that these agreements will remain after Brexit and those who do not; Ministerial statements have been ambiguous on this point. Our report recommends that the UK Government makes a clear statement of its understanding of the legal position of these mixed agreements after Brexit and the legal basis for this understanding.

We have also examined how agreements have been incorporated into domestic law and implemented in the UK. One key recommendation is that where retained EU law currently implements an international environmental agreement which the UK will not be bound by after Brexit (whether a mixed agreement or an EU-only agreement), then the Government’s powers to amend this should be restrained and subject to enhanced scrutiny, unless and until the Government has made a conscious and open decision not to sign or ratify that agreement.

The report highlights other immediate concerns which need to be addressed for the continued implementation of the UK’s international environmental commitments. Andrew Langdon QC recently said, in a statement from the Bar Council that:

"By taking a 'snap-shot' of EU law and adopting it into UK statute, the [Withdrawal] Bill offers no mechanism for the UK to keep pace with international conventions and agreements. Our laws may quickly become out-of-date and that could put the UK in non-compliance with its international obligations.”

We believe he is correct and give specific examples of this. While DExEU have said that the UK will continue to uphold our obligations under CITES, we note that the mechanism for domestically implementing updated lists of endangered species will disappear, as this is a process which currently operates through the conduit of EU law. The report also asks whether the UK has sufficient legal powers to implement sanctions which reflect these amendments.

We end by highlighting key possibilities and limitations to enforcing international environmental agreements in future, both through external enforcement mechanisms and domestically through judicial review.

Although at present this mapping exercise and the analysis only extends to England, we are working on broadening it to encompass the devolved administrations and the unique issues that poses, starting with Scotland.

The report can be downloaded here.


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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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