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UKELA Report Published on Brexit, Henry VIII Clauses and Environmental Law

Sep 05, 2017

Further information
Joe Newbigin

A UKELA report published today, aims to clarify how the powers given to ministers in the Withdrawal Bill will be used to amend ‘deficiencies’ in environmental laws after Brexit.

The United Kingdom Environmental Law Association (UKELA) has today published its report Brexit and Environmental Law: Brexit, Henry VIII Clauses and Environmental Law.

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. 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.

Andrew Bryce, co-chair of the Brexit Task Force set up by UKELA says:

“We feel that 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.”

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.

Professor Richard Macrory QC (Hon.) CBE, co-chair of the Brexit Task Force, says:

“We found that this 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. We look forward to the Government publishing a similar report.”

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 one of a series of UKELA reports to be published between July and October 2017 on key issues related to Brexit and environmental law. Other reports will include:

  • Brexit and Environmental Law: Exit from the Euratom Treaty and its Environmental Implications
  • Brexit and Environmental Law: Enforcement and Political Accountability Issues
  • Brexit and Environmental Law: The UK and International Environmental Law after Brexit
  • Brexit and Environmental Law: Environmental Standard Setting Outside the EU
  • Brexit and Environmental Law: the UK and European Environmental Bodies
  • Brexit and Environmental Law: Wales, Brexit and Environmental Law

UK Environmental Law Association - Better law for the environment
Registered charity 299498; company registered in England number 2133283
Registered office: One Glass Wharf, Bristol, BS2 0ZX

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