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Report Published on Brexit and International Environmental Law

Sep 11, 2017

Further information
Joe Newbigin

Report highlights the extent of uncertainty surrounding which international environmental treaties and conventions the UK will remain bound by after Brexit, and possible issues with the implementation with those that will remain in force.

The UK is party to over 50 international environmental agreements. The Government has repeatedly said that the UK will continue to honour its international commitments after Brexit [1], but it remains ambiguous quite what these commitments will encompass after the UK leaves the EU.

UKELA today published a report which makes clear the extent to which international environmental treaties may cease to apply after Brexit unless the Government takes positive action. The report provides the first systematic analysis of all international environmental agreements to which the UK is a party.

Some agreements have been signed by the UK only and will continue to apply. But the vast majority have been signed either by the EU on behalf of Member States (including the UK), or jointly by the EU and the Member States. It is here that problems arise.

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

“Many of the international environmental agreements which currently bind the UK only do so because the EU has signed up to them. After Brexit the UK will cease to be bound by these agreements and the public will lose the backstop these provide in terms of environmental obligations, rights and minimum standards. We urge the UK Government to urgently clarify which of these agreements it will ratify in order to maintain the current level of environmental protection.”


For example, the UK is a signatory to the 1992 Water Convention but has not ratified it. The UK is currently only a party by virtue of its membership of the EU. The Government should urgently consider ratifying this treaty as transboundary cooperation is crucial to the waterways and lakes spanning the boundary between Northern Ireland and the Republic of Ireland [2].

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

“The UK Government must also make clear its understanding of the future legal status of mixed agreements, i.e. those agreements where both the EU and Member States are parties. As I pointed out in evidence before the House of Lords last year, smart people have diametrically opposed views about whether the UK will continue to be party to these agreements, and if so, whether in whole or in part. The Government has said that it will ‘stick to’ these mixed agreements, but it must make clear the basis for its understanding about whether the UK will continue to be bound by these agreement - while this uncertainty remains, the full extent of this loss of environmental obligations and standards also remains unknown.”


For those international environmental agreements that do continue to bind the UK, the report also identifies significant issues for ensuring these continue to be properly implemented after Brexit. [3]

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 already available include:
    1. Brexit and Environmental Law: Exit from the Euratom Treaty and its Environmental Implications
    2. Brexit and Environmental Law: Enforcement and Political Accountability Issues
    3. Brexit and Environmental Law: Brexit, Henry VIII Clauses and Environmental Law
  6. Forthcoming reports include:
    1. Brexit and Environmental Law: Environmental Standard Setting Outside the EU
    2. Brexit and Environmental Law: the UK and European Environmental Bodies
    3. Brexit and Environmental Law: Wales, Brexit and Environmental Law

Footnotes

[1] Most recently 7 September 2017, statement by Parliamentary Under-Secretary at the Department for Exiting the European Union during debate on the first day of the Second Reading of the Withdrawal Bill to, “put on the record again that we [the Government] will uphold all our commitments to international law in relation to the environment”, Hansard HC Deb 7 September 2017, vol 628, cols 289. See also, report paragraphs 3 to 6.
[2] See report paragraph 23
[3] The report highlights a number of 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 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 (see report paragraph 47). The report also asks whether the UK has sufficient legal powers to implement sanctions which reflect these amendments (see report paragraph 48-50).

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