The Future of the Natural Environment after the EU Referendum Contents

3Legislative Issues

25.The Prime Minister has indicated that the Government intends to introduce a ‘Great Repeal Bill’ to repeal the 1972 European Communities Act and transpose all EU laws into UK law, with the intention that these laws can then be amended or repealed at a later date. As we noted in the previous chapter, and in our previous report, the extent to which the Government is able to do this will be influenced by the final position negotiated with the EU.

26.Our previous inquiry found that the sharing of legal authority to legislate on environmental matters between the EU and member states has provided significant benefits to solving some environmental problems multilaterally. National Parks England emphasised the volume and range of EU environmental legislation affecting the UK:

The EU has over 800 pieces of environmental legislation. Many of these are deeply woven in to UK statute, sometimes being almost directly transposed in to UK law and in others supplementing pre-existing UK regimes. Issues such as the protection of birds, pollution of water and land, Environmental Impact Assessment, Permitting Regimes, protection of air, bathing water quality and waste are all covered.41

Current legislative arrangements

27.Our previous report into EU and UK environmental policy examined the existing legislative relationship with the EU. The report noted the importance of EU membership to UK environmental protection, and evidence received by the Committee pointed out that 80% of UK environmental legislation is shaped by the EU.42 The overwhelming majority of witnesses to the previous inquiry believed that the UK’s membership of the EU had improved the UK’s approach to environmental protection and ensured that the UK environment had been better protected. Two points regarding the development of legislation outside the EU were made to us repeatedly during that inquiry. Firstly, the UK would still need to meet international environmental commitments made in the UN and elsewhere, many of which are reflected in EU law. Secondly, a UK outside the EU would still have to comply with some aspects of EU environmental legislation, particularly if it wished to remain in the Single Market, but with significantly less ability to influence the process of its development.43

28.The Birds and Habitats directives are especially at risk from leaving the EU44 as they are excluded from the EEA agreement,45 so are unlikely to be requirements in order to remain a part of the European Free Trade Association (EFTA) and European Economic Area (EEA). Even if incorporated through the Great Repeal Bill they could be subject to changes at a later date regardless of the final negotiated position with the EU. Northern Ireland Environment Link provided an assessment of which environmental directives would be likely to be a requirement of continued participation in EU trade arrangements:46

Table 1: Relevance of key EU environmental legislation to membership of EFTA and EEA

Legislation

Relevant to EFTA and EEA?

Habitats Directive

No

Birds Directive

No

Bathing Water Directive

No

Invasive Alien Species Regulations

No

Control of Trade in Endangered Species

No

Maritime Spatial Planning Directive

No

Public Access to Environmental Information Directive

Yes

Water Framework Directive

Yes (except Natura provisions)

Environmental Impact Directive

Yes

Public Participation Directive

Yes

Strategic Environmental Assessment Directive

Yes

Sustainable Use Directive

Yes

Environment Liability Directive

Yes

Plant Protection Products Directive

Yes

Nitrates Directive

Yes

Groundwater Directive

Yes

Marine Strategy Framework Directive

Yes

REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals)

Yes

Priority Substances Directive

Yes

Seveso Directive

Yes

Source: NI Environment Link

29.Some of the legislative provisions of EU Directives are given effect by existing national legislation, so these provisions will remain a part of UK law without any specific need to transpose legislation. However protections provided under UK legislation are not as strong or as extensive as those currently achieved through the transposition of EU Directives.47 For example, The Woodland Trust explains that:

The [Birds and Habitats] Directives built on the protection that the UK had already put in place with the Wildlife and Countryside Act (1981) but have broadened its remit, for example introducing the use of appropriate assessments for activity within the vicinity of designated sites and favourable conservation status assessments for protected species.48

The Woodland Trust also explains that, although these additional protections have been written into UK law via the Habitats Regulations, they rely on the underlying Directives to define terms and conditions, and so would not stand alone if EU legislation no longer applies to the UK without further domestic legislation.

30.Friends of the Lake District particularly highlights that the Habitats directives give much stronger protection to the EU Natura 2000 sites (the collective term for Special Protection Areas and Special Areas of Conservation) then domestic legislation, as damage to and loss of these sites without mitigation or compensation is not allowed, unlike Sites of Special Scientific Interest which can be damaged via licencing and planning permission.49

31.EU legislation underpins much of the UK environmental protections. The Government needs to ensure that it maintains the strength and range of protection given to the UK’s most valuable wildlife sites, particularly around Natura 2000 sites currently defined through EU legislation.

This conclusion is linked to our first recommendation.

Transposition into UK law

32.This inquiry questioned the Secretary of State for Defra on the progress being made to prepare environmental legislation for the transfer into UK law. She responded:

We think that in the region of about two-thirds of the legislation that we are intending to bring into UK law will be able to be rolled forward with just some technical changes, so roughly a third won’t, which means that obviously there will be work to do to ensure that we can make those measures continue to work once we leave the EU.50

The Secretary of State was unable to confirm which third of legislation would have transposition difficulties, explaining that work to identify these and the specific issues faced is ongoing. She also mentioned that the task of transposing law was the subject of once- or twice-weekly meetings between herself and the team responsible at Defra.51

33.This inquiry has not focussed on identification of these transposition issues. However, witnesses told us that the most significant issues in transposition are likely to arise where EU legislation is designed to organise cooperation between Member States, public authorities and businesses, as the relationship between these will fundamentally change. There will also be potential difficulties where EU legislation links to international conventions, requiring the UK to establish its own reporting mechanisms directly to international institutions in place of EU measures.52 Steve Trotter of The Wildlife Trusts (England) also highlighted the need to ensure that transposition examines the mechanisms by which legislation is delivered, telling us:

Key issues would be how are we going to deal with the precautionary principle that is currently embedded within the European legislation. We need to transpose things like the imperative reasons of overriding public interest in the hierarchy of planning considerations when considering mitigation and compensation.53

Martin Harper of RSPB welcomed the principle of the Great Repeal Bill, but called for full parliamentary scrutiny of any subsequent changes to legislation transposed through the bill.54

34.Ministers have indicated that approximately a third of the over 800 pieces of EU environmental legislation will be difficult to transpose into UK law. Transposition is likely to be complex and time consuming, and Government must ensure that protections are not weakened, either during the process of leaving the EU or afterward, and provide the opportunity for full parliamentary scrutiny of the UK’s future environmental legislation. The problems faced in transposing legislation and developing a governance structure once the UK leaves the EU will be the subject of further work by this Committee.

This conclusion is linked to our fifth recommendation.

Governance and enforcement

35.National Parks England reports that most environmental professionals feel that EU legislation has proved to have more “clout” than UK laws. They told us:

An important issue will be (if, as seems likely, the Habitats Directive no longer has to be applied) how the UK establishes equivalent fully independent administrative systems, to protect the most important wildlife sites. This seems likely to require some new legislative mechanisms if the current system for enforcing the Habitats Directive (ultimately, via the Commission and ECJ) becomes irrelevant.55

Dr Viviane Gravey echoed this, saying that although European Law would be transposed to the UK, governance arrangements would not be and highlighting two problems that this could create. First, the complexity of the process of agreeing EU law means that it tends to be resistant to change, and therefore creates a stable policy environment. This encourages investor confidence when responding to environmental legislation: this stability could be lost with the increased freedom of the UK to set its own laws. Second, the EU governance structure allows Government to be held accountable for its environmental actions, for example through NGOs being able to challenge air quality policy in court.56

36.Stephen Trotter of the Wildlife Trusts said that the issue of accountability and a reference to a higher court is critical, suggesting that there may be scope for establishment of a UK Environment Court.57 The UK Environmental Law Association takes the view that:

The level of environmental protection, and the ability of citizens to participate in environmental decisions and take action in the courts where necessary, must not be diminished by any future changes to domestic legislation following Brexit.58

Martin Harper from the RSPB explained the difference in jurisdiction between the UK Supreme Court and the European Court of Justice:

One example of what the European Court of Justice can do, as opposed to the Supreme Court, is it can operate on a slightly broader basis than, for example, our judiciary that is following due process through the judicial review and judicial challenge process. For example, the European Court determined that all important bird areas, as identified through BirdLife International, should qualify for a special protection area under the Birds Directive. They made that judgment based on assessment of the information. As I understand it, that would not be the purview of the current Supreme Court.

Mr Harper continued:

I think it might be quite an interesting exercise to try to properly determine what the Supreme Court will not be able to do that the European Court of Justice currently does and then it is for Government to determine whether they do or they do not want to have those measures in place.59

The Scottish Wildlife Trust was concerned about a “stalling” in Scotland’s commitment to implement EU environmental directives, given that it thought “the checks and balances in the system that have been established through the infraction proceeding mechanism will not exist post Brexit.”60

37.The Environment Agency, in their written evidence, highlighted the importance of the cross-compliance mechanism attached to all land-based CAP payments as a means of ensuring that the minimum environmental standards set out in EU law are complied with:

Cross compliance underpins both Pillar 1 and Pillar 2. Farmers do not receive CAP payments unless they are carrying out their activities in a way that complies with the legislation and standards checked by the Rural Payments Agency (RPA). Compliance with these rules helps to protect the environment from the potential impacts of agricultural activity.61

If the cross-compliance mechanism was lost and not replaced, it would make the enforcement of transposed EU environmental legislation considerably more difficult.

38.Robin Walker MP, Parliamentary Under-Secretary of State of Department for Exiting the European Union told this inquiry that a review of European law to ensure that there are appropriate UK bodies to take it forward would be a matter for the end of the process of leaving the European Union.62 The Secretary of State for DEFRA said there would be no need to replace the European Courts with a UK Environmental Court, saying:

The UK courts have endured for many hundreds of years and we have a very clear court process in the United Kingdom that will absolutely be able to uphold the legislation that we undertake to take into UK law through the Great Repeal Bill.63

39.There are particular concerns regarding the future development of transposed legislation. Professor Andrew Jordan told the House of Lords EU Energy and Environment sub-committee that without the European Environment Agency, the European Commission and the European Court of Justice there was a risk of legislation becoming “zombie legislation”, either no longer enforced or no longer updated to the latest scientific understanding.64 Guy Smith of the National Farmer’s Union told us that even once the UK has left the European Union we will have to be mindful of what occurs within their environmental regulations, particularly the CAP, as our nearest neighbours and trading partners.65 Rob Cooke of Natural England said that:

One would hope that in deciding those standards, Government would keep an eye on what was happening elsewhere, whether it be within the EU-27 or other parts of Europe, about what evidence is coming to bear that affects standards associated with environmental quality. I do not see any particular reason why any policy needs to be frozen in time, in my view.66

40.Simply transposing legislation without replacing the governance arrangements will lead to significant weakening of environmental protections in many areas, such as the lack of reference to a higher court and the absence of a body updating and enforcing legislation. The Government should publish a review of European environmental law as soon as possible. Any provisions which cannot be transposed into UK law should form the basis of a new Environmental Protection Act, which should receive Royal Assent before the UK leaves the EU.

This conclusion is linked to our first and fifth recommendations.

Devolution and the overseas territories

41.Currently EU law provides a framework within which the devolved nations of the UK implement environmental law. As we have noted, the Government intends to retain European environmental legislation in UK law, at least in the short term, through its Great Repeal Bill. However the transposition of EU law raises questions about the UK Government legislating on matters that would ordinarily be devolved and altering the obligations of the devolved administrations and legislatures.

42.In terms of EU environmental law, Martin Harper from the RSPB said it was important to work out where common standards between the nations were appropriate, such as in relation to wildlife moving across borders.67 A framework of common standards is currently provided through EU legislation. Replacing this would probably require UK legislation in devolved areas and changes to the scope of devolved powers, both of which may necessitate the consent of the devolved governments.68 RSPB told us that:

In order for the Great Repeal Bill to bank all EU law, there would have to be changes to the Scotland Act.69

The House of Commons Library has explained that if a UK Repeal Bill legislated on matters that currently fall to the EU but which would otherwise be devolved, such as the environment, “the devolved institutions would likely expect consent motions to be requested by the UK Government.”70

43.The UK Government must also address concerns relating to the natural environment in UK Overseas Territories (UKOTs). The UK Overseas Territories Conservation Forum explained that support would be needed to help Gibraltar retain existing environmental law in its own legislation, and to ensure it became a party to international conservation frameworks outside the EU umbrella. The UK government has consistently said that UKOTs meet their obligations to the Bern convention through the EU Birds and Habitats Directives without them needing to be party to it, however these Directives themselves will probably not apply to the UK when it leaves the EU. The domestic legislation transposing them into UK law will be retained through the Great Repeal Bill but this will not apply to Gibraltar. The Forum therefore continued:

UK’s ratification includes the Cyprus Sovereign Base Areas, the Isle of Man and Jersey. As long ago as 1996, in UK Dependent Territories: a Conservation Review (part-funded by UK Government’s Darwin Initiative), UKOTCF (at the request of Gibraltar partners) called on the UK Government to include Gibraltar in its ratification of the Bern Convention and assist in its implementation.71

The Forum also called on the UK Government to increase Defra resources in order to support territories and Crown Dependencies in designating and managing Wetlands of International Importance under the Ramsar Convention.72

44.Membership of the EU has provided a common framework within which the devolved nations have been able to develop their own environmental policies. References to the EU will need to be removed from devolved legislation, and the Government must substitute a new common framework. The Government must ensure that the status of EU environmental legislation in the UK Overseas Territories is understood and action taken to preserve protections where necessary.

This conclusion is linked to our seventh recommendation.


41 National Parks England (BRX0248)

43 Environmental Audit Committee, Third Report of Session 2015–16, EU and UK Environmental Policy, HC537

44 Q113 (Dr Viviane Gravey)

45 Dr Viviane Gravey (BRX0009)

46 Northern Ireland Environment Link (BRX0055)

47 Cornwall and Isles of Scilly Local Nature Partnership and the Cornwall Area of Outstanding Natural Beauty Partnership (BRX0163), CPRE Lancashire (BRX0127), Malvern Hills Conservators (BRX0076)

48 Woodland Trust (BRX0115)

49 Friends of the Lake District (BRX0062)

50 Q327 (Right Hon. Andrea Leadsom MP)

51 Q328 (Right Hon. Andrea Leadsom MP)

52 Dr Apolline Roger (BRX0255)

53 Q115 (Mr Steve Trotter)

54 Q115 (Mr Martin Harper)

55 National Parks England (BRX0248)

56 Q112 (Dr Viviane Gravey)

57 Q115 (Mr Stephen Trotter)

58 UK Environmental Law Association (BRX0110)

59 Q119 (Mr Martin Harper)

60 Scottish Wildlife Trust (BRX0077)

61 Environment Agency (BRX0250)

62 Q40 (Mr Robin Walker MP)

63 Q328 (Right Hon. Andrea Leadsom MP)

64 House of Lords, European Union Energy and Environment Sub-Committee, 20 July 2016

65 Q262 (Mr Guy Smith)

66 Q288 (Mr Rob Cooke)

67 Q122 (Mr Martin Harper)

69 RSPB (BRX0240)

70 House of Commons Library, Legislating for Brexit: the Great Repeal Bill, 7793, 21 November 2016, p42

71 UK Overseas Territories Conservation Forum (BRX0015)

72 UK Overseas Territories Conservation Forum (BRX0015)




21 December 2016