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UKELA Report Published on the UK and European Environmental Cooperation after Brexit

Jan 29, 2018

Further information
Joe Newbigin

A report published today by the UK Environmental Law Association examines the implications of Brexit on the UK’s future involvement in a range of European cooperation bodies, networks and agencies relevant to environmental law. I8 such bodies have been identified. The report considers those which the UK could legally remain a member of after Brexit, and those where some form of associate membership could be sought. It ranks by priority the bodies that UKELA considers the UK Government should prioritise during its Brexit negotiations.

The UK currently participates in numerous European environmental bodies and networks. These range from bodies such as the European Environment Agency established under EU legislation to more informal networks of national experts such as the European Network of Prosecutors for the Environment. To date insufficient analysis has been published on the impact of Brexit on the UK’s relationship with these bodies and networks.

UKELA’s paper systematically sets out the detailed rules governing membership of each of eighteen key environmental bodies and networks. This analysis shows which bodies the UK can retain full membership post-Brexit under current rules, and those where Government might seek amendment to these rules, or seek some lesser form of membership should it wish to continue to participate in them.

UKELA considers that it will be in the UK’s interests post Brexit to continue to participate in a number of these bodies. To help inform this analysis, UKELA’s report sets out the functions performed by each of these bodies and its relationship with the delivery and enforcement of key sectors of environmental law. The report considers possible political barriers to continued engagement, such as budgetary contributions, application of the relevant acquis or accepting limited jurisdiction of the European Court of Justice. These are balanced with the opportunities they offer, such as continued access to EU funding streams, and to the improved effectiveness of our future national environmental law and policy post Brexit.

It will be for Government to determine those bodies and networks where it will seek continued participation post Brexit. UKELA’s report has suggested an objective order of priorities, based on feedback from UKELA members working in the field of environmental law. 1

Professor Richard Macrory QC, co-chair of the Brexit Task Force, says:

“Continued membership of the European Environment Agency is an open door, ready to be pushed – the rules currently permit third country membership and anecdotal evidence suggests that the Agency would welcome continued UK involvement.2 But there are other bodies which are also of the highest priority for the UK where continued membership will not be so straightforward. These include the European Chemicals Agency, the Seville Process and the European Food Safety Authority. We would welcome a commitment from the Government that these important bodies will be prioritised in negotiations.”

ENDS



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 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.

6. Other reports already available in the Brexit and Environmental Law series include:

Exit from the Euratom Treaty and its Environmental Implications

Enforcement and Political Accountability Issues

Brexit, Henry VIII Clauses and Environmental Law

The UK and International Environmental Law after Brexit

Wales, Brexit and Environmental Law

7. Forthcoming reports in the series include:

Environmental Standard Setting Outside the EU

Scotland, Brexit and Environmental Law

Scotland and International Environmental Law after Brexit


Footnotes

[1] UKELA conclusions are that there are:

  • four environmental bodies which the UK can continue to participate in after Brexit without amendment to underpinning legislation: the European Environment Agency, European Food Safety Authority (EFSA), European Network of Prosecutors for the Environment (ENPE) and the European Environmental and Sustainable Development Advisory Councils Network (EEAC). It is recognised that acceptance of the relevant acquis and limited acceptance of CJEU jurisdiction would be required for the European Environment Agency and the EFSA;
  • two environmental bodies which the UK would not be able to participate in as a third country under their current rules, but where amendment should not be a substantial obstacle: European Network for the Implementation and Enforcement of Environmental Law (IMPEL) and European Union Forum of Judges for the Environment (EUFJE);
  • one maritime safety body which the UK can satisfactorily seek observer status in: European Maritime Safety Agency (EMSA);
  • two nuclear bodies which the UK can retain observer status in, but that nevertheless full membership should be negotiated: European Nuclear Safety Regulators' Group (ENSREG) and The European Radiological Data Exchange Platform (EURDEP);
  • eight environmental bodies which the UK cannot retain membership of as a third country, and where amendment to the underpinning rules will not be straightforward. Of these there are:
    • three which we consider to be of the greatest importance, and should therefore be prioritised: the European Chemicals Agency (ECHA), the European Integrated Pollution Prevention and Control Bureau (the Seville Process) and European Community Urgent Radiological Information Exchange (ECURIE);
    • two which we consider to be less urgent: Water Framework Directive Common Implementation Strategy (WFD CIS) and Marine Strategy Framework Directive Common Implementation Strategy (MSFD CIS); and
    • three bodies where an accurate assessment of their priority level cannot be made because their importance for post-Brexit environmental governance hinges on the UK’s future relationship with the relevant EU regimes: European Fisheries Control Agency (EFCA), Euratom Supply Agency (ESA), and the Fisheries Advisory Councils (FACs); and
  • one body for which we could not obtain the rules of membership: ENVI CrimeNet (ECN).

[2] Derek Osborn, ‘UK should keep working with the EU on the environment’, The ENDs Report, 20 December 2017.

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