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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.


May, 11 2017

The Nuts and Bolts of the Great Repeal Bill

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Posted by Rosie Oliver at 16:30

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

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.


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.


June, 06 2017

UKELA present on Brexit at House of Commons library

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Posted by Richard Macrory at 11:55


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.


July, 04 2017

UKELA Strategy Launch: The Challenges Ahead

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Posted by Joe Newbigin at 17:02


On Wednesday 28 June 2017 UKELA co-chairs Andrew Bryce and Richard Macrory announced the forthcoming publication of a series of ‘Brexit and Environmental Law’ reports. The event at E3G was chaired by UKELA patron and chairman of the climate change think tank, Tom Burke.

The speakers outlined the full complexity of rolling-over environmental law after withdrawing from the European Union. They gave a taster of the first five reports which UKELA will publish on issues ranging from international environmental law to enforcement, Euratom to environmental standard setting. They announced a major UKELA Brexit conference in October 2017, to be chaired by a Supreme Court judge, with panellists including senior government lawyers and leading practitioners.

In the weeks since our last post we have also had a surprising General Election result, a cabinet reshuffle, the Queen’s Speech and the start of Brexit negotiations. In light of all that has happened, we thought we would highlight some things from the web which caught our attention in case you missed them:

  • The Bar Council published the third edition of their Brexit Paper. Topics covered have been expanded and now include Environmental Law, Fisheries, Agriculture, Technical regulations and CJEU Jurisprudence.
  • The Institute for Government published a thorough paper on the status of European Court decisions after Brexit. They have also released a handy explainer for the Queen’s Speech and interesting analyses of the implications that support from the DUP and the result of the General Election will have on the Government’s Brexit negotiations.
  • Greener UK launched their Brexit Risk Tracker. As most of the UK’s environmental protections stem from EU law they could be changed as a result of Brexit. This new tool aims help people track the level of risk posed to each environmental policy area and gives the UK government a traffic-light rating for its commitments to, and comments about, keeping current levels of environmental protections after leaving the EU.
  • Dr Jean-Pierre Gauci and Professor Robert McCorquodale from the British Institute of International and Comparative Law (BIICL) published their report on Brexit Transitional Arrangements and Public International Law’. The paper focuses on the legal basis in international law for transitional measures in relation to the financial services sector, but also sheds light on the wider international legal issues associated with Brexit (a summary of the report can also be found on the The UK Constitutional Law Association blog). This analysis was produced for Linklaters LLP who subsequently published...
  • ...'The Great Repeal Bill - Domesticating the EU acquis', which Linklaters LLP produced with The International Regulatory Strategy Group. This report discusses ways in which EU law can be ‘domesticated’, and sets out ways in which the Repeal Bill might work utilise a series of eight general principles and give rules, rather than a plethora of statutory instruments and far-reaching powers. The report focuses on the financial services sector, but we are examining how these principles might work in the context of environmental law.
  • The UCL Constitution Unit published a blog post reporting on their event ‘Legal and Constitutional Implications of Brexit’, jointly hosted with the House of Commons Library earlier in the month.
  • The Irish Times has published a report on the joint Northern Ireland Environmental Link/Environmental Pillar/European Parliament conference ‘Brexit: Implications for the Environment on the Island of Ireland’. More on this from the RSPB blog.
  • And finally... UKLegalFutures has launched a new website, which hosts a wealth of useful materials from their previous events and seminars looking at the legal implications of Brexit.

That's it from us for now. We will report back after the UKELA Annual Conference in Nottingham this weekend.

Tags: Brexit, News
July, 14 2017

'Exit from Euratom treaty & its Environmental Implications'

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Posted by Joe Newbigin at 11:03

UKELA have today published the first in a series of reports looking at Brexit and Environmental Law.

Brexit and Environmental law: Exit from the Euratom treaty and its Environmental Implications, focuses on questions of safety, the protection of human health and the environment arising from the UK’s withdrawal from the Euratom Treaty. It has been written by Stephen Tromans QC, barrister and former head of 39 Essex Chambers, and Paul Bowden, partner at Freshfields Bruckhaus Deringer LLP.

Screenshot 2017-07-14 13.21.47

Remarking on the release of the report Andrew Bryce, co-chair of the Task Force said:

“This is an important report which focuses on the environmental implications of leaving Euratom. It's an issue which has received little public attention to date compared to nuclear safeguards and security, and one that UKELA wishes to highlight as part of its work on Brexit. We are immensely grateful to the authors for bringing their considerable experience and expertise in nuclear law to the subject.”

The report emphasises that withdrawal from the EU and withdrawal from Euratom are - as legal and constitutional processes - separate exercises, ‎however they may be conducted practically and politically. In view of the particular complexities and challenges of withdrawing from Euratom, and of the UK maintaining a demonstrable commitment to safety in the nuclear field, ‘Brexatom’ requires its own Agreement and its own timetable.

The report examines the continued operation of a number of specific legislative measures, and the role each of these measures has on the current regime of nuclear safety, including:

  • Safety of Nuclear Installations;
  • Basic Safety Standards and related measures such as on the control of high-activity sealed sources;
  • Responsible and safe management of spent fuel and radioactive waste; and
  • Movement of radioactive substances.

It emphasises that the UK must find clear agreements with Euratom and its members states for continued regulatory equivalence and full participation in key safety-related bodies, such as ENSREG (the European Nuclear Safety Regulators' Group) and ECURIE (European Community Urgent Radiological Information Exchange).

It states that the review and re-alignment of existing Nuclear Co-operation Agreements (NCAs) embracing Nuclear Safety with states outside Euratom (not only with countries such as the US, Japan and Canada, but those with developing civil nuclear capability) is an urgent priority, in order to maintain the UK's international contribution to this field, as well as to demonstrate continued leadership. Establishing principles, or at least parameters, on equivalence in a future Euratom withdrawal agreement is, alongside replacing as many as possible of the current Article 101 NCA’s, perhaps the greatest priority for the imminent “Brexatom” negotiating process.

The report is available to download here.

The press release we sent out earlier today can be found here.

More information on UKELA’s work on Brexit can be found here


July, 18 2017

Enforcement of Environmental Law after Brexit

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Posted by Rosie Oliver at 12:00

We have today published our report Brexit and Environmental Law: Enforcement and Political Accountability Issues. The report highlights the need for effective mechanisms to hold government and public authorities to account for their environmental law responsibilities after Brexit. It calls for a review of possible options for a specialist environmental Commissioner or equivalent, and for strengthening the role of courts or tribunals in the environmental field.

Brexit and Environmental Law - Enforcement and Political Accountability Issues

Professor Richard Macrory QC CBE, Co-Chair of UKELA's Brexit Task Force, said:

“Brexit offers an opportunity to rethink imaginatively how we can hold government and public bodies to account for their environmental duties and responsibilities. Simply relying upon existing national mechanisms will not be sufficient.”

The European Union (Withdrawal) Bill will be concerned with ensuring that the body of EU environmental law is rolled over on Brexit. This is important for regulatory stability and environmental protection. But the focus on 'black letter' law means that broader issues of the accountability of government and other public bodies for their legal responsibilities under environmental law, which have been an important feature of the EU system to date, may disappear. If these institutional gaps are not properly addressed there is a danger of undermining the effectiveness of environmental law.

Current EU environmental laws require governments to provide regular reports to the European Commission on the actual implementation of the legislation. This is a valuable discipline. We need to retain such reporting requirements in our domestic environmental law post Brexit, but with governments reporting to Parliament and the devolved assemblies.

The Commission's role in supervising how Member States carry out their obligations under EU law will, together with its citizen's complaint procedure, disappear after Brexit. The procedures have been used most commonly in the environmental field because the environment has no legal interest and can all too easily die in silence.

Judicial review brought by environmental NGOs before the courts may be a valuable long-stop for ensuring that government and other public bodies carry out their duties under environmental law. But it cannot replicate the more systematic supervisory function hitherto carried out by the Commission. Other jurisdictions have recognised the particular vulnerability of the environment with the creation of bodies such as an independent Parliamentary Commissioner, environmental ombudsman, and more specialised environmental courts or tribunals.

A review should be initiated on possible options for a specialist environmental Commissioner or equivalent, and on strengthening the role of courts or tribunals in the environmental field.

The report is available to download here.

The press release we sent out earlier today can be found here.

More information on UKELA’s work on Brexit can be found here

July, 26 2017

UK a setter of Gold Standards after Brexit?

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Posted by Rosie Oliver at 18:18


Given concerns in some quarters that Brexit may prove the route to environmental deregulation and downgrading of standards, we were heartened by the Environment Secretary’s speech at WWF’s Living Planet Centre last week. UKELA welcomes the Secretary of State’s recognition that while Brexit is “an historic opportunity to review our policies” he has “no intention of weakening the environmental protections we have put in place while in the EU”. This is reassuring, given our position that the level of environmental protection must not be diminished.

We also welcome his ambition for the UK to become “a setter of gold standards in protecting and growing our natural capital”. UKELA considers it crucially important that the UK Government and devolved administrations should explore ways of improving and strengthening environmental regulation after Brexit. Of course, the extent to which this will be legally possible will be constrained by, amongst other things, the terms of future trade agreements. It is quite possible that a trade deal with the EU will require UK’s laws in many areas of environmental regulation to continue to converge with those of its EU trading partners.

We also warmly receive Mr Gove’s recognition of the importance of the UK’s leading role in establishing international environmental standards and maintaining international environmental co-operation in areas ranging from climate change and protection of the ozone layer, to promoting biodiversity and tacking trade in illegal wildlife. As we highlighted in a previous post, there are a number of international environmental agreements which will ‘fall away’ after Brexit and we look forward to hearing from the Government about which of these the UK will ratify and incorporate into domestic law.

We are encouraged to see a recognition of the need to replace the enforcement functions currently undertaken by European institutions. In our recent report ‘Brexit and Environmental Law: Enforcement and Political Accountability Issues’ we said that Brexit “presents an opportunity to innovate and improve on our domestic mechanisms for ensuring that duties on government and other public bodies are properly implemented”. We therefore welcome the Secretary of State’s ambition of creating “more effective, more rigorous and more responsive institutions” to enforce the “highest environmental standards”. We said that “the United Kingdom should aspire to be a leader in the design and implementation of effective environmental law” and we therefore similarly welcome the Secretary of State’s view that “if we establish ourselves as the home of the highest environmental standards, the most rigorous science and the most ambitious institutions then the world will look to us for environmental innovation and leadership”.

We look forward to the UK Government’s 25 year plan - now expected later this year - for more detail of the Government’s vision for the environment after Brexit.

UKELA’s position on Brexit can be found here.

August, 22 2017

Amending environmental law: Henry VIII and scrutiny

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Posted by Joe Newbigin at 17:30

Committee benchThe summer break has been uncharacteristically eventful for anyone interested in understanding the legal implications of Brexit. If you have spent the last few months under a rock (or on a beach) then this comprehensive collection of legal commentaries on the Withdrawal (European Union) Bill may be particularly useful for you1. The implications of the Bill for environmental law have attracted less attention, although we have seen some interesting comment by Green Alliance, NEF, ClientEarth and WWT (and on this panel discussion from the Guardian).

Here at UKELA the Withdrawal Bill has opened up new lines of enquiry in relation to Henry VIII powers and scrutiny. Henry VIII powers are provisions of a Bill which enable ministers to amend or repeal primary legislation by enacting subordinate legislation, with or without further Parliamentary scrutiny. Henry VIII powers are always controversial, because the constitutional norm is that enacting changes to Acts of Parliament is the role of Parliament, not ministers. The Withdrawal Bill needs to confer on ministers powers to amend ‘retained EU law’ so that it continues to operate effectively after Exit Day. However, the lack of restrictions on these powers and the expectation that they will be relied on to make thousands of amendments mean they have (along with issues of devolution) generated some of the Bill’s most strident critiques.

H8The parts of the Bill attracting attention for England are clauses 7-9 and 17 (for the devolved administrations this includes clauses 10 and schedule 2). Clause 7 illustrates the point. Sub clause (4) provides that a Minister’s power to make regulations “to prevent, remedy or mitigate… any failure of retained EU law to operate effectively, or… any other deficiency in retained EU law… arising from [Brexit]” can be used to enact regulations that make “any provision that could be made by an Act of Parliament”. ‘Retained EU law’ encompasses any legislation which continues to be part of domestic law after Exit Day by virtue of clauses 2, 3 or 4, therefore this includes primary legislation. This clause would allow Ministers to amend or repeal Acts of Parliament through secondary legislation, rather than through Acts of Parliament. Sub clause (2) sets out a non-exhaustive list of examples of ‘deficiencies’ which the powers may be used to remedy. These are broad and formidable regulation making powers, which may be used for up to two years after Brexit day.

To help inform the debate on the Bill we are providing some perspective on how much the Henry VIII clauses will likely need to be used to amend primary legislation in the environmental field. We have started to analyse the main Acts of Parliament for ‘failures’ and ‘deficiencies’ which may require amendment. We suspect the number of times this power will be used to change primary legislation may in fact be quite small. For instance, section 8 of the Climate Change Act 2008 requires the Secretary of State to set carbon budgets with a view, inter alia, to complying with the UK’s "European and international obligations". References such as these to UK’s ‘European obligations’ will make little sense after Exit Day and may require amendment. We are currently working through other Acts of Parliament with environmental implications looking for similar references.

The second strand of our interest focuses on the scrutiny procedure for statutory instruments made under the Bill in order to correct deficiencies in retained EU law. In the memorandum on delegated powers accompanying the Bill, the Government suggests that the powers under clause 7 alone will be used to enact hundreds of sets of regulations and that most of these will only be scrutinised using the negative resolution procedure. We expect a significant proportion of these regulations will be amending environmental legislation, albeit mostly secondary legislation (as EU environmental legislation has generally been implemented by Regulation) rather than Acts of Parliament. The procedure for scrutinising secondary legislation made under clause 7 is contained in schedule 7, which is elaborated on at paragraph 224 of the Explanatory Notes accompanying the Bill. This procedure does not usually allow the House of Commons committee which scrutinises a statutory instrument to amend it; instead, it can either approve the SI or reject it. As the Hansard Society have noted, since 1950 the House of Commons has only rejected 11 statutory instruments under the negative resolution procedure and the House of Lords rejected 7, which equates to 0.01% of all negative resolution procedure instruments.

We are looking at the implications of the proposed scrutiny mechanisms for environmental law. Given the potential for these powers to be used to make significant policy changes (for example new arrangements for domestic authorities to carry out functions currently exercised by European institutions) we consider it vital that there is proper parliamentary oversight of the use of these powers, whilst also not restricting the vast amount of legislation which will need to be approved. We were interested by the suggestion of an enhanced ‘sift and scrutiny’ system by the Hansard Society, and we are looking forward to seeing a more detailed proposal from the Society in early September. We are also keeping an eye on the development of the loose alliance of groups working on scrutiny procedures of the Bill under the banner of the Repeal Bill Alliance. If that sounds like something you might be interested in reading about then watch this space.

1: while we are rounding up available resources, the House of Commons library recently published a very helpful (and thorough) reading list of Brexit-related publications from researchers and committees in Westminster and the devolved assemblies.


September, 05 2017

Brexit and Nature Conservation Factsheet

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Posted by Joe Newbigin at 12:18

UKELA’s Brexit Task Force and the Nature Conservation Working Party have today released their Brexit and Nature Conservation Factsheet.

GCNThe Nature Directives have received bad press in the UK for years, recently this has appeared alongside persistent rumours that Habitats laws will not be 'rolled over' after Brexit. The debate surrounding both the European Union’s Habitats and Birds Directives (and the domestic legislation which transposes these into domestic law) has unfortunately long been characterised by misinformation and misconceptions. This factsheet sets out to debunk some common myths about this area of law.

The factsheet answers the following common questions:

  • Does the Habitats Directive prevent development, such as important infrastructure projects because it might damage a protected site?
  • Does the European Commission block developments in the public interest?
  • If the UK weakened Habitats law after Brexit would this be good for business?
  • Outside the EU, would the UK would have the opportunity for taking a more innovative and less restrictive approach to protecting Habitats?
  • Does the EU want to remove the Habitats Directive?
  • Will the UK need to change its nature conservation rules anyway as we take back control over agriculture and fisheries?
September, 05 2017

Report on Henry VIII powers and environmental law

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Posted by Joe Newbigin at 12:47

Following on from our previous post on Henry VIII powers, UKELA are pleased to announce the publication of its third report in the Brexit and Environmental Law series: Brexit, Henry VIII Clauses and Environmental Law.

Clause 7 of the European Union (Withdrawal) Bill proposes to give ministers far-reaching powers to amend ‘deficiencies’ in the law after Brexit – essentially provisions that would make no technical or practical sense when the UK is no longer a member of the EU. This power would allow Ministers to use regulations to amend existing Acts of Parliament – so-called ‘Henry VIII’ powers.

As a matter of general principle the use of Henry VIII powers should be kept to the minimum necessary for the effective continuance of domestic legislation after Brexit. However, we also believe that any debate on these powers must be informed by an accurate view as to the extent to which they will actually be used.

The purpose of this report is to set out where UKELA foresee these powers being used to amend the UK’s environmental laws after Brexit. UKELA applied its technical expertise to analyse all the Acts of Parliament relevant to the environment in England, identifying any provisions which a Minister might consider ‘deficient’ after Brexit and therefore require amendment.

As the analysis in this report shows the clause 7 power should be used far less than many would expect – at least in the environmental field. Across twenty-nine Acts of Parliament we found six provisions which require amendment, and a further thirty where we have said amendments are advisable, but not necessary. Seventeen Acts of Parliament – the majority – would not require a single amendment.

The report can be downloaded here.

Following up on the other strand of our previous post (relating to scrutiny) we welcome the publication today of the Hansard Society’s paper outlining the sift and scrutiny proposals, which we will be reading in detail. Read the full report here and a summary of the Society’s proposals at the Dispatch Box blog. Also out today is ClientEarth's thorough report on problems with the Withdrawal Bill, and the Land Use Policy Group/Institute for European Environmental Policy report on the potential implications of Brexit for UK agriculture and the rural environment.


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.


September, 25 2017

International Report considered by Parliament

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Posted by Joe Newbigin at 13:17

We are glad to see that the points raised in our report Brexit and Environmental Law: The UK and International Environmental Law after Brexit are being discussed in Parliament.

Parl Qs

Two weeks ago Caroline Lucas MP asked two questions which reflect issues we raise in that report. The first question asks the Secretary of State “which international environmental agreements to which the UK is currently a party as a consequence of ratification by the EU he plans the UK to ratify in order to maintain the current level of environmental protection after the UK leaves the EU”? This reflects the concerns we have raised in relation to EU-only agreements. The second question asks “what the legal position will be of international environmental agreements ratified jointly by the EU and the UK after the UK leaves the EU”

Dr Thérèse Coffey MP responded on behalf of Defra:

“The UK will continue to be bound by international Multilateral Environmental Agreements (MEAs) to which it is party. We are committed to upholding our international obligations under these agreements and will continue to play an active role internationally following our departure from the EU. We will give due consideration to the ratification of MEAs in the future to which the UK is not currently party in its own right,(recognising that some risks have no relevance to the UK.)”

We welcome Dr Coffey’s acknowledgment of the issue surrounding EU-only international environmental agreement, but trust that in due course the Government will elaborate in more detail which EU-only international environmental agreements it will sign and/or ratify in order to maintain the current level of environmental protection.

However, we remain concerned that the position of mixed agreements is still unclear. Dr Coffey’s response is consistent both with her answer to a previous written question and her evidence to the House of Lords Energy and Environment Sub-Committee last year (see paragraph 48). In summary, she says that because the UK is a party to mixed agreements in its own right it will remain bound by the obligations they contain, and this will not change after Brexit. Our concern is that despite this legal uncertainties and unresolved disagreements remain as to whether the UK will be automatically bound by all the obligations under mixed agreements after Brexit (see paragraphs 38 to 46 of our report).

We reemphasise our call for the UK Government to make a clear statement of its understanding of the legal position of these mixed agreements after Brexit. Ideally this would be a joint understanding with the European Commission. This would go a long way to resolving the uncertainty surrounding the future of mixed environmental agreements.


October, 18 2017

Wales, Brexit and Environmental Law: our latest report

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Posted by Rosie Oliver at 16:11

WalesReportCoverLandscapeWe're delighted to release today our fifth report: Wales, Brexit and Environmental Law. The report focuses on the challenges faced in developing environmental law in Wales after Brexit.

Victoria Jenkins, Senior Lecturer at the College of Law and Criminology, Swansea University and author of the report has commented:

“Brexit raises important issues about the relative responsibilities of the UK and devolved governments for environmental protection. From an environmental perspective, there will always be a need for multi-level governance approaches, but it is also important to allow the devolved nations room to respond to their particular social, economic and environmental circumstances. Wales has demonstrated significant ambition and innovation in creating legal frameworks to support the Sustainable Management of Natural Resources and the Well-being of Future Generations. Brexit must not stand in the way of the development of this progressive agenda.”

This report makes the following key points:

  • After Brexit, it will be important to maintain common frameworks for action on environmental protection across the UK. New institutional mechanisms involving all four nations in the UK will be necessary to underpin the work on developing these frameworks. There must also be room for devolved approaches in meeting, or indeed exceeding, common environmental standards.
  • The Welsh Government has recently demonstrated significant energy and enthusiasm in developing innovative approaches to environmental protection in Wales. This has resulted in new legal frameworks for sustainable natural resource management and the well-being of future generations. These frameworks, and crucially the principles underpinning them, will be important in providing strategic direction and stability for the future development of Welsh environmental law.
  • The current complexity of the law applicable to Wales and the relationship between devolved and non-devolved powers must also be considered in developing environmental law in the future. Any ambition to create a Welsh Environment Code should not stand in the way of pressing needs for incremental change.
  • The procedures for scrutiny of future Welsh environmental law should be carefully considered. There should be consistency in the approach to scrutinising legislation made further to the European Union (Withdrawal) Bill and other laws made by the Assembly. This will require NAW to have control of the procedures to be adopted. Legislation introducing significant changes to environmental protection should be subject to on-going review by the relevant Assembly Committee.

You can read a Welsh Language version of the press release for this report here. As a small charity, we regret that we do not have the funds to translate the report into Welsh.

Tags: Brexit, Wales
October, 24 2017

UKELA before the Commons Select Committee on Exiting the EU

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Posted by Rosie Oliver at 14:13


UKELA was delighted to be invited to give evidence to the House of Commons Select Committee on Exiting the European Union. Andrew Bryce, co-chair of our Brexit Task Force, appeared at the third session of the Committee's inquiry into the EU (Withdrawal) Bill on 18th October. The session focused on implications of the Bill for environmental law, chemical regulations, workers’ and consumer rights.

From an environmental point of view, the Committee was particularly interested in how to ensure the law is properly enforced absent the European Commission. Andrew referred them to our report on Enforcement and Political Accountability Issues. Annex 1 gives details of environmental ombudsmen and courts around the world that might offer lessons in how to fill the inevitable enforcement gap that will arise on Brexit. The report singles out the New Zealand Parliamentary Commissioner for the Environment as a particularly promising model (at paragraphs 30-31).

You can watch the full session on Parliament TV or read the transcript. More information about the inquiry is available on Parliament's website.

December, 05 2017

UKELA at Parliamentary Committee to discuss Mixed Agreements

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Posted by Joe Newbigin at 16:35

UKELA was again invited to give evidence to the House of Commons Select Committees, this time to the Environmental Audit Committee. Today Professor Macrory, co-chair of our Brexit Task Force, appeared before the Committee's inquiry into UK progress on reducing F-Gas emissions. The session focused on how the UK deals with mixed international agreements, with a particular focus on the Montreal Protocol, the Kigali Amendment, and the Kyoto Protocol. The future of these agreements was something UKELA addressed in our report The UK and International Environmental Law after Brexit.

Macrory at EAC on F-Gas

The Committee was particularly interested in whether the UK would continue to be bound by the Montreal Protocol after Brexit. Richard was clear that UKELA did not think that that this agreement, or either of the other international agreements regulating F-Gases, would fall. Nevertheless, when asked whether the UK Government should do more to clarify what its position is on the future of mixed agreements Richard said that the UK should do more. Referring to a recent answer given by a Defra minister he said:

“If I had a student who answered a question like that, I would have to mark them down for not answering the question. What UKELA would like to see is for the Government to come up with a clear legal analysis of precisely what the case would be under a convention. In an ideal world, one would have a joint statement from the Commission and the UK Government.”

Both the other experts on the panel agreed that a common position between the UK and the EU would dispel uncertainty and remove any ambiguity relating to mixed agreements. Professor Koutrakos, noting that this would be consistent with statements made by the European Council, said that in the current climate this was “not as eccentric as it might appear”. Dr Savaresi suggested that a joint statement may form the basis of a declaration issued with depositories of mixed agreement, or be formalised in a future collateral arrangement.

You can watch the full session on Parliament TV and UKELA's written evidence can be found on the inquiry's webpage. More information about the inquiry is available on Parliament's website.

[Update 14/12/17] The full transcript of Richard's evidence can be found here.

February, 09 2018

Environmental Standard-Setting & European Cooperation Bodies

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Posted by Rosie Oliver at 11:07


We're delighted to have launched two more reports in our Brexit and Environmental Law series.

The first, The UK and European Cooperation Bodies examines the implications of Brexit on the UK’s future involvement in a range of European cooperation bodies, networks and agencies relevant to environmental law.

The report identifies I8 bodies, networks and agencies that the UK currently participates in. These range from the European Environment Agency established under EU legislation to more informal networks of national experts such as the European Network of Prosecutors for the Environment. The report considers those which the UK could legally remain a member of after Brexit, and those where some form of associate membership could be sought. It ranks by priority the bodies that UKELA considers the UK Government should prioritise during its Brexit negotiations.

The report includes a systematic analysis of the detailed rules governing membership of each of these bodies and networks. It also considers possible political barriers to continued engagement, such as budgetary contributions, application of the relevant acquis or accepting limited jurisdiction of the European Court of Justice. These are balanced with the opportunities they offer, such as continued access to EU funding streams, and to the improved effectiveness of our future national environmental law and policy post Brexit.

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

Continued membership of the European Environment Agency is an open door, ready to be pushed – the rules currently permit third country membership and anecdotal evidence suggests that the Agency would welcome continued UK involvement. But there are other bodies which are also of the highest priority for the UK where continued membership will not be so straightforward. These include the European Chemicals Agency, the Seville Process and the European Food Safety Authority. We would welcome a commitment from the Government that these important bodies will be prioritised in negotiations.

The second report, Environmental Standard Setting after Brexit highlights the challenges facing governments in the UK in developing environmental standards after Brexit in three different scenarios:

  1. if the UK is required to keep pace with EU standards under the terms of withdrawal or a trade agreement;
  2. if the UK wishes to keep pace with evolving EU standards as a matter of domestic policy; and
  3. if standards are to be developed domestically.

The third scenario – setting standards domestically – raises the biggest practical and legal challenges, as governments will need to decide how to repatriate the considerable work currently undertaken at EU level. The report takes two contrasting case-studies: standard-setting for industrial processes and water classification standards. It considers whether current arrangements might suggest starting points, or provide lessons, for developing standards domestically after Brexit. In both cases, the report recommends that governments consider ways of involving a range of stakeholders, including regulators, industry and environmental NGOs, in developing standards after Exit Day.

Andrew Bryce, co-chair of the Brexit Task Force set up by UKELA, says:

If the UK and devolved governments wish to set standards domestically after Brexit a huge amount of work will be needed to develop procedures and institutions for doing this. If arrangements are not put in place, we risk having standards that are frozen in time, and that are not capable of addressing technical innovations or developments in scientific understanding of environmental risks.

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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