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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

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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

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.

h8
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.

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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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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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