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Brexit

The prospect of the UK withdrawing from the EU following the 23rd June referendum result raises big questions about the future of UK environmental regulation. This page gives a summary of some key issues. The Further Reading sub-pages give details of UKELA's work on this topic and relevant papers by academics and practitioners.

What is the effect of the referendum decision to leave?

The UK will remain a full member of the European Union until it completes the process of withdrawal under Article 50 of the Treaty on European Union (also known as the Lisbon Treaty). The UK Government has indicated it intends to start the process by the end of March 2017. Once the Article 50 process is started, it could take up to two years to complete.

The High Court has ruled that the Government will have to consult Parliament before starting the Article 50 process. A Parliamentary debate could in principle delay the triggering of Article 50, or even block it. The High Court ruling is being appealed to the Supreme Court.

Until the Article 50 process is completed, the UK will remain bound by EU law. Governments, regulators and courts across the UK will be required to continue to enforce our domestic laws and measures that implement European environmental law.

How has EU membership affected UK's environmental laws?

Currently, the vast majority of the UK's environmental laws and policies are based on European laws. This is because, as a member of the EU, the UK is bound to apply EU environmental laws.

The EU has competence to legislate on environmental matters and has been very active in this area. Over the past forty years or so, it has introduced policies and laws dealing with issues including industrial and agricultural pollution, waste, water quality, air quality, nature conservation, environmental damage and climate change.

UKELA considers that EU environmental policy and legislation has, on balance, had a significant and very positive influence on the environment in the UK, with related economic benefits. Reasons for this view are set out in our written submissions to consultation exercises: the Government's 2103 Balance of Competences Review and the 2015/16 House of Commons Environmental Audit Committee's inquiry (available here).

How might Brexit change things?

Much will depend on the terms of the negotiated settlement for a UK withdrawal (or ‘Brexit’), and in particular whether this involves obligations on the UK to continue to comply with EU laws that affect the environment.

The possibilities include:

  • little change because the UK still has to apply most EU environmental laws. This would be the case if the UK were to join the European Economic Area (this is sometimes referred to as 'soft Brexit'). To do this, it would first need to re-join the European Free Trade Area. The UK would have little influence over the content of new EU environmental laws. This is because only EU member states can vote on proposals in the European Council and Parliament. Certain existing EU laws would cease to apply, including the Birds and Habitats Directives, Bathing Water Directive and relevant controls under the Common Agricultural Policy and Common Fisheries Policy. Decisions would need to be taken about what to do with our domestic laws and policies in those areas.
  • keeping things the way they are for other reasons. For example, the UK might decide to preserve current waste management laws because those standards will need to be met by businesses that export waste to EU countries. The UK might also want to continue to be able to trade within the EU emissions trading scheme in order to meet its greenhouse gas emissions targets under other international treaties and agreements.
  • developing 'home-grown' environmental laws and policies. For example, the UK government might choose to 'go greener', or to get rid of certain environmental protections because they are considered barriers to the free market. The UK government would not have an entirely free hand in this. Many of our environmental laws serve to implement not only EU laws, but also other international treaties and agreements. The government would also need to consider very carefully how to deal with national laws and measures that give effect to EU law, so as not to cause problems for businesses and regulators. Given the large number of laws and measures at issue, this exercise could take a huge amount of time and effort, and will raise some knotty legal questions.

These bullets are just brief summaries of a few possible scenarios.

The UK government and devolved administrations have issued a number of statements about their intentions. Find out more here.

Our Futher Reading section (top right) gives links to papers and handouts from events taking a much more detailed look at the legal and policy questions that would arise following a withdrawal from the EU.

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