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UKELA Report Published on Enforcement of Environmental Law after Brexit

Jul 18, 2017

Further information
Joe Newbigin

A UKELA report published today highlights the danger of undermining environmental law after Brexit if enforcement and accountability gaps are not properly addressed

The United Kingdom Environmental Law Association (UKELA) has today published its 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.

Professor Richard Macrory QC CBE, co-chair of the Brexit Task Force set up by UKELA, 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.

The report makes the following key points:

  • 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 ombusdmen, 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.
Notes to the editors:
  1. The UK Environmental Law Association (UKELA) is the foremost body of environmental lawyers in the UK. It is composed of 1,400 academics, barristers, solicitors, consultants, and judges involved in the practice, study and formulation of environmental law across England, Scotland, Wales and Northern Ireland. UKELA aims to promote better law for the environment and to improve understanding and awareness of environmental law.
  2. UKELA remained neutral on the Brexit Referendum. UKELA’s full position on Brexit can be found at www.ukela.org/ukelaposition.
  3. UKELA’s Brexit Task Force was established in September 2016 to advise on all matters relating to and arising from the UK’s decision to leave the European Union insofar as this impacts environmental law, practice and enforcement in the UK. The 27 members of the Task Force include experienced environmental law solicitors and barristers, legal academics, and members of the judiciary with representation from all the UK jurisdictions.
  4. The Brexit Task Force has been examining the legal and technical implications of separating our domestic environmental laws from the European Union and the means by which a smooth transition can be achieved. The Task Force aims to inform the debate on the effect that withdrawal from the EU and draw attention to potential problem which may arise.
  5. This report is on of a series of UKELA reports to be published between July and October 2017 on key issues related to Brexit and environmental law. The first five reports will be: Brexit and Environmental law: Exit from the Euratom Treaty and its Environmental Implications; Brexit and Environmental law: the UK and International Environmental Law after Brexit; Brexit and Environmental law: Enforcement and Political Accountability Issues; Brexit and Environmental law: Environmental Standard Setting Outside the EU; and, Brexit and Environmental law: the UK and European Environmental Bodies.

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