BW1_UK legal

(2 October 2019) The UK government has set out its proposals for a Brexit deal, which drops a customs union and with no commitments for “extensive level playing field arrangements” which were put in place in the Protocol on Ireland/Northern Ireland. Annex 4 of the Protocol notably established a non-regression clause on the level of environmental protection and required the UK to respect EU Treaty principles, including the precautionary principle. The discussion on “open and fair competition” should be developed in the EU-UK future relationship, according to the UK.

Explanatory note on UK’s proposals

(21 June 2019) Client Earth announced a High Court challenge to the UK’s government Brexit legislation, more specifically over parts of a statutory instrument changing the habitat and species conservation regulation. This would give new powers to Ministers, allowing them to “alter and reduce standards for protected sites”. Stakeholders argue this change would represent a breach of the “green Brexit” promised by the UK government.

Dr Tom West from Client Earth fears government will continue using its power in this manner, thus requiring improved scrutiny from all fronts.

Client Earth article

The subject of the Office for Environmental Protection (OEP) dominates more than half of EFRA’s report, including detailed assessment and recommendations on the functions of the watchdog (appointments, funding, complaints processes, fines, territorial extent etc.). EFRA concedes that the UK cannot replicate EU’s governance framework, but emphasizes that the Government should take this opportunity to deliver the “world leading watchdog” promised by the Secretary of State.

The independence of the OEP appears again as a key matter of the future body. EFRA argues it must not be seen as “just another arm’s length public body attached to Defra”, especially since the OEP must hold the Government accountable for breaches of environmental protection. The status of a “non-departmental public body” is not considered sufficient, instead EFRA asks for a constitutionally innovative model (despite a lack of a precedent). This status is also not financially adequate, as it does not ensure budgetary independence. EFRA advises the Government to provide additional financial protections, through a multi-annual budgetary framework negotiated directly with the Treasury and then voted on by Parliament. The appointment procedure is also crucial for ensuring the OEP’s independence, thus EFRA finds it inappropriate for solely the Secretary of State to select a Chair and other non-executive members of the board.

On procedural aspects, EFRA finds it important for the OEP to be able to launch investigations into environmental law breaches even in the absence of a complaint. Fines are not seen as an adequate mechanism for enforcement, instead proposals are given to provide greater personal accountability. The distinction between the OEP’s two functions (advisory and scrutiny) must also be clarified, putting a focus on its duty to hold the Government accountable. The watchdog must not be overwhelmed with advisory matters, and this function should be kept at a high-level to avoid adopting functions currently undertaken by other UK specialist statutory bodies (e.g. the Environment Agency).

Pre-legislative scrutiny of the Draft Environment (Principles and Governance) Bill (April 2019), Environment, Food and Rural Affairs Committee (EFRA) House of Commons

The Environment, Food and Rural Affairs Committee (EFRA) of the House of Commons released last month a pre-legislative scrutiny of the Draft Environment (Principle and Governance) Bill. The main message of the report is that the environmental framework put forward by the Government does not match current EU environmental protections. The report also describes a range of issues that emerged during EFRA’s assessment and inquiries throughout January – March 2019.

In introducing the report, the Committee regrets not being able to assess the full Bill, as the final contents are yet to be published in the next parliamentary session. This has limited the scope of the inquiry and hindered a holistic assessment of the Bill. EFRA is therefore calling on the Government to allow enough reviewing time when they introduce the remaining clauses in Parliament.

Transposing environmental principles into the UK system continues to raise problems, chiefly the lack of an overarching principle, i.e. the EU’s objective of “a high level of protection for the environment”. The legal status of the principles (policy statements) is also questionable as it marks a regression from EU environmental principles which are legal provisions. Policy statements are weaker and can be easily revised. Moreover, these environmental principles place a weak duty on Ministers (with an obligation only “to have regard to”).

EFRA calls on the Government to consider rewriting some of the definitions provided by the Bill, notably on the “environment” which should be more holistic. Given the departure from the EU’s legal acquis, the report recommends including a reference to international law within the definition of “environmental law”.

Finally, the report stresses the importance of setting up a co-operation framework between the UK Government and the devolved administrations. This should entail common standards and principles, or even a specific mechanism of cooperation and data sharing in the event that separate environmental bodies are created at devolved level.

Under no-deal pressures the UK government has been in a hurry to complete the copy across of the EU’s acquis and has already laid 515 Statutory Instruments, a quarter of them coming from Defra.

Greener Alliance argue that as NGOs have only analyzed a small part of the laws, the Brexit delay now brings an opportunity to further scrutinize the Government’s legislative work and possibly push for amendments where required.

According to Green Alliance, the fast passage process of legislation has diminished stakeholder involvement and parliamentary debate. It has also resulted in mistakes which will have important consequences on environmental protection. Defra did put in place a mechanism for advance viewing of legislation and for gathering ideas and advice, but this apparently came too late in the process to have meaningful impact and address deficiencies.

For example, the UK replica of the chemicals safety legislation REACH, had to be amended after complaints from industry arose concerning transitional arrangements to avoid supply chain disruptions. Further, environmental NGOs have pointed to greater deficiencies, which are believed to lower protection levels (by deviating from the REACH governance system on stakeholder engagement and commitment to future outcomes).  

Green Alliance article

REACH etc. (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

A legal opinion commissioned by the Greens in the German Bundestag has found that the Withdrawal Agreement (WA) is not effective in enforcing the non-regression in the level of environmental protection, labour and social standards, set out in the Protocol on Ireland and Northern Ireland – the so-called backstop of the draft WA.

The backstop in regard to environment, excludes the non-regression provisions from the scope the WA’s enforcement mechanism (the dispute settlement mechanism including the binding decisions of the arbitration panel). Only the minimum requirements for the monitoring and enforcement related to environmental protection, which are the set-up of an “independent body” and the availability of judicial proceedings for members of the public and administrations, are covered by the WA’s enforcement mechanism. The opinion written by Dr. René Repasi from the Erasmus University Rotterdam, therefore argues that regressing from the common environmental protection level on its own cannot be challenged. What matters is whether the procedures are effective in sanctioning the regression. This means that only if an environmental regression takes place over a long time which the party’s own enforcement system fails to remedy, would a call to the WA’s arbitration panel stand a chance.

Dr. Emily Lydgate, lecturer at the University of Sussex, finds the approach innovative in establishing a middle way between total alignment, like under the EEA Agreement, and much more distant trade agreement, like the ones with Canada and Korea.

A further weakness identified by Dr. Repasi’s opinion in ensuring a level-playing field is the general nature of the non-regression provisions. A list of regulations do feature in the WA, but these are applicable only to Northern Ireland and not to the UK.

The opinion concludes that the level-playing field should be rendered as clear as possible in legal terms. This would entail the environmental areas mentioned in the WA, such as industrial emissions, nature, chemicals and climate, being reflected by a list of legislation and standards, and their enforcement not being excluded from the scope the arbitration procedure.

Dr. Emily Lydgate (2018). Environmental non-regression in the Withdrawal Agreement: forcing the EU’s hand on the Level Playing Field

Dr. René Repasi (2019). Durchsetzung der materiellen Vorgaben des „Level-Playing Fields“ im „Backstop“ des Entwurfs für ein Abkommen über den Austritt des Vereinigten Königreichs Großbritannien und Nordirland aus der Europäischen Union in den Bereichen des Umwelt- sowie Arbeits- und Sozialschutzes. Expert opinion commissioned by the Greens in the Bundestag, Dr Franziska Brantner, MdB.

The UK government announced in November 2018 that a total of 700 Statutory Instruments (SIs) need to be adopted in preparation for Brexit. 515 SIs have been laid before Parliament so far, which amounts to approximately 10,269 pages of legislation. However, only 396 of the 515 SIs (76%) have completed their passage through Parliament.

Defra has produced the most SIs, laying 122 (23%) before Parliament. A National Audit Office report stated that Defra needed 93 SIs “to complete the conversion of EU law into UK law at the point of exit”.

The Government initially expected to lay 800-1,000 SIs before Parliament, but this number has been revised and reduced over the past few months.

Brexit Statutory Instruments Dashbord, Hansard Society

Dynamic alignment is the term used to describe a process by which the UK would continue to follow the EU’s standards after exit, in order to avoid reductions of environmental, labour or other standards. It is important to maintain a level playing field in policy areas that progress regularly, such as chemicals, but it can prove to be difficult in practice.

Professor Charlotte Burns suggested that the UK should take over a comprehensive set of environmental standards (if possible, the whole environmental acquis), including some form of future alignment. According to MEP Sirta Pietikäinen, this would raise the issue of enforcement which should be a pre-requisite in negotiations. Another difficulty discussed with dynamic alignment was the question of a democratic deficit. One way of avoiding this could be May’s proposal to allow UK Parliament a vote on any new developments in EU law, though is not at all clear how this could work in practical terms. The IEEP’s senior fellow David Baldock suggested that in any scenario, the level of alignment will have to be proportional to the future type of relationship: bilateral trade agreement, customs union or single market.

Recording of “Brexit and the environment: What’s next” event

An interim secretariat has been established by the UK Government which will record breaches of environmental law until the Office for Environmental Protection (OEP) is ready. The OEP will not be functionable in time for Brexit. The interim secretariat is expected to comprise 16 servants and will allegedly function separately from DEFRA. Richard Macrory, lawyer and professor of environmental law, as well as president of UK Environmental Law Association, was appointed to lead the interim watchdog according to a UK media report.

After Brexit the UK will itself hold responsibility for enforcing environmental legislation, which in the EU is one of the core mandates of the European Commission.

ENDS Report article

After holding consultations with professionals from the field on the Draft Environment Bill, the House of Lords (EU Energy and Environment Committee) sent a pressing letter to Environment Minister Gove.

The Committee urged the government to strengthen the Bill, which they argue risks negatively impacting environmental standards post-Brexit. Among issues mentioned are again the independence of the OEP, and the exclusion of policy areas such as forestry, flooding and climate change in its remit.

The lack of preparedness for a no-deal Brexit was also underlined. The signatories suggested that until the OEP enters into force, other bodies should receive temporary enforcement functions and be given additional resources and sufficient independence to carry the tasks. 

The House of Lords insisted that the UK cannot afford to lose the high environmental standards created as an EU member, and stands ready to press the government to keep its word on non-regression.

Post by Lord Robin Teverson in Green Alliance