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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.

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, 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, 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

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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