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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

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.


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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This page was printed from the website of the UK Environmental Law Association at www.ukela.org.
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