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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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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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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.

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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.

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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