Brexit: environment and climate change Contents

Chapter 3: The environment and the Great Repeal Bill

The Government’s commitment to environmental protection

26.As we have already indicated, the environmental acquis is cross-cutting and complex. At the same time, it is the source of a large proportion of environmental law in the UK, regulating protection of the natural environment and climate as well as standards for products such as chemicals, electrical goods, fertilisers and plant protection products, to name but a few. Transferring responsibility for environmental legislation from the EU to the UK, as a result of Brexit, will therefore have profound implications.

27.Several witnesses underlined that, as far as climate change policy was concerned, while EU policy and activity in the international sphere are important, the UK has an established domestic commitment to action on climate change. In the words of Bob Ward, Director at the Grantham Institute: “The UK has very clear national legislation that guides primarily our action on climate change, the Climate Change Act.”30 Jesse Norman MP, Minister for Industry and Energy at the Department for Business, Energy and Industrial Strategy (BEIS), elaborated the point: “We have carbon budgets which take us up to 2030 and we have a climate change committee. None of those are EU-dependent and they are a very important part of the enforcement of targets we are internationally committed to.”31

28.However, the same does not apply across all areas of environment policy, and we heard concerns about the potential dynamics of and pressures for lower environmental standards post-Brexit. Prof Michael Grubb, Professor of International Energy and Climate Change Policy at University College London, cautioned that in the context of Brexit, economic considerations could be prioritised to the detriment of the environment:

“I have become increasingly aware of a narrative that basically says Britain is desperate for foreign investment and will do anything to try to make itself industry-friendly … The real risk we face is if Brexit becomes a catch-all excuse for pushing aside anything else in the desperation to attract foreign investment and big business.”32

29.Such concerns are being felt across sectors. Sarah Mukherjee, Director of Environment at Water UK, told us: “it is not necessarily a race to the bottom; it could be a stroll to the bottom. You could just have a little bit of this legislation taken off or rounded off, or at the next price review we are not looking so hard at this.”33 Alan Andrews, lawyer and Clean Air Project Leader at ClientEarth, was worried about air quality regulations after Brexit: “We have seen that the Government have been trying to weaken the Ambient Air Quality Directive, particularly in relation to nitrogen dioxide, for years.”34

30.In written evidence submitted in November 2016, Professor Dickon Howell, Director at Howell Marine Consulting, expressed concern that the environment did not appear to be a central consideration in the Government’s preparations for Brexit. He pointed out that the Department for Exiting the EU “currently has teams for Economy, Infrastructure, Tax, Customs, Home Affairs, Public Services, Justice, Security, Data, Migration, Trade, International Partnerships and Devolved Administrations but no Environment”.35 We do, however, note that as of December 2016, Infrastructure and Environment was specified as a policy area under Cross-Government Policy Coordination within the Department.36 This indicates a developing recognition both of the importance of environment as a policy issue and its cross-departmental relevance, which we welcome, though the association with infrastructure should not preclude the consideration of all aspects of environment policy or of climate change.

Policy stability

31.Witnesses also warned against the prospect of policy instability arising from the uncertainties relating to Brexit and the future UK-EU relationship, in both the short and long term. Addressing the immediate aftermath of withdrawal, Prof Macrory told us: “on exit, in whatever form that takes, we need a period of regulatory stability … The last thing you want is to find that there are gaps, lots of litigation and so on; that will not help business or anybody else.”37

32.A key driver for environmental policy stability is the need to support investment. Commenting on the importance of policy stability to the effective management of the UK environment, Leah Davis, Acting Director of Green Alliance, gave a domestic example:

“The best example I can give of where policy direction is really important is the Government’s infrastructure pipeline. Towards the end of this decade, we see a drop-off when policy certainty ends, and therefore the infrastructure investment ends. We see a 96% drop in the investment from about £7.7 billion to £0.3 billion.”38

33.More broadly, The Wildlife Trusts told us: “Political stability is crucial when dealing with environmental or climate change policy as these are often issues that take place over the long term and that require a long-term and stable solution.”39 Hitherto the EU, partly because of its size, has provided such stability, as the Aldersgate Group noted: “EU Directives have provided stability beyond domestic policies and confidence in the direction of travel, which otherwise could be vulnerable to the national parliamentary cycle.”40 The Country Land and Business Association (CLA) agreed: “The EU may take a long time to produce policy and legislation, but once they have been agreed they do not change frequently, so providing public authorities and private investors with the certainty over the long term that allows them to make decisions with a significant degree of confidence.”41

34.The Ministers acknowledged the need for policy stability both during the Brexit period and beyond. Thérèse Coffey MP, Parliamentary Under Secretary of State for the Environment and Rural Life Opportunities at Defra, stated: “In the future I fully expect us to try to have a stable and clear legislative framework.”42

35.The medium-term stability and predictable review cycles provided by the EU have aided both investor confidence in the environment sector and civil society’s ability to engage with environment and climate change policies.

36.Policy stability will be critical during the process of, and in the immediate aftermath of, withdrawing from the EU to avoid the emergence of legislative gaps and avoidable uncertainties in the sphere of environmental protection. Once the UK has withdrawn from the EU, environment legislation and policy will be more vulnerable to short term and less predictable changes at a domestic level.

The Great Repeal Bill

37.The Government proposes to address the issues we have touched on by means of a ‘Great Repeal Bill’, which will retain all existing EU law in domestic law.

Box 3: The Great Repeal Bill

In October 2016, Prime Minister Theresa May announced the Government’s intention to introduce a Great Repeal Bill. It will repeal the European Communities Act 1972, which makes EU laws part of the UK legal system, and will convert existing EU law into domestic law, wherever practical. The aim of the Bill is to ensure a “calm and orderly” exit from the EU.

Source: Statement to Parliament by Secretary of State David Davis on 10 October, HC Deb, 10 October 2016, cols 40-42

38.According to Dr Norman, the Minister for Industry and Energy, “Part of the goal of the Great Repeal Bill is to make sure that that stability is maintained and that those gaps do not exist”.43 Other witnesses also looked to the Great Repeal Bill to provide some certainty about the level of environmental protection and standards, at least in the short term.44 Trevor Hutchings, Director of UK and EU Advocacy at WWF, told us: “Clearly, there are some questions around quite what that means in practice, but as a starting point it is exactly what we would like to see.”45

39.Translating the Government’s vision of a Great Repeal Bill into reality will not, however, be a simple task, particularly in respect of environmental legislation. The Wildlife Trusts noted that “the extensive nature of our environmental legislation with foundations in the EU and the number of different instruments that have been used to reflect this in UK law, means that the manner of transposition through the Great Repeal Bill will be complex”.46

40.Prof Lee developed similar concerns, focusing in particular on those aspects of EU environmental law that currently bind the UK, but which have never been transposed into domestic law:

“There is a question over whether it will be, literally, all EU law, Treaties, Regulations, Decisions and Directives, or whether it is just EU law that currently finds its home in the domestic system through secondary legislation. If we do not do all EU law, then there will be an enormous gap because we will miss everything that has not already been put into secondary legislation.”47

41.Similarly, Prof Jordan argued that:

“The Great Repeal Bill will need in Section 2 to provide for the critical difference between EU laws that are directly effective—Decisions and Regulations—and those that require enabling legislation, namely, Directives. That will have to be made clear in the enabling legislation, because—and this is important—environmental policy is enacted through a whole range of these different types of policy.”48

42.The Mineral Products Association was also concerned that, because EU Regulations are given direct effect in national legislation by virtue of the 1972 European Communities Act, “there is potential for ‘Regulation’ vacuum and operators will need immediate legal certainty on these Regulations on Day 1 Brexit.”49 Prof Macrory focused on Decisions:

“One should also mention Decisions which are legally binding on those to whom they addressed. Decisions are often addressed to Member States, though often confined to detailed administrative matters such as setting up committees, EU adherence to international treaties, technical standards concerning eco-labelling, etc. … Post Brexit existing Decisions would have no legally binding effect unless some provision is made in the Great Repeal Bill.”50

43.Prof Macrory also highlighted the complexity of “legislation by reference”:

“We have examples in this country of legislation that refers to Directives—that is called legislation by reference—such as environmental permitting regulations, which require the Environment Agency to have regard to or to follow certain Directives. It seems to me, on the surface, that that should survive because they could refer to a WHO standard or whatever. Then there are various guidance notes that come in and so on, and we have to decide their status.”51

He concluded: “The extent to which these references can survive depends on the context, and a number of different categories emerge.”52

44.Prof Macrory also provided a helpful analysis of the main technical challenges that would be faced in giving effect to the Government’s plans to ensure stability of environmental law by means of the Great Repeal Bill:

45.As well as presenting technical challenges, the Great Repeal Bill will require the Government to take and, through legislation, give effect to a number of difficult political decisions on future environmental policy. This was highlighted by Prof Lee:

“The legislation is embedded in an EU governance structure … How do we continue to participate in EU chemicals regulation when we are no longer a member of the European Union? Presumably, we will want chemicals that have already been authorised to continue to have access to the UK market. Presumably, we will want chemicals that have been restricted at the EU level to be restricted at the UK level. These are not simple questions and they are not technical questions. They are quite profoundly political questions about who will be governing us and on what basis … all this legislation is embedded in EU structures, and unpicking that will be very complicated and political.”58

We return to the question of how environmental laws will be upheld in Chapter 4.

46.Finally, there is also the question of what will happen after the Great Repeal Bill has been enacted, and what will happen to environmental legislation over time as it changes at EU-level. Lesley Griffiths AM, Cabinet Secretary for Environment and Rural Affairs in the Welsh Government, told us: “Further clarity is needed in relation to the Repeal Bill announced by the UK Government, particularly in respect of the extent to which it will … respond to any forthcoming changes in these areas.”59 Prof Macrory, Abi Bunker, Head of Policy and Advocacy at the RSPB, and The Wildlife Trusts all argued for close parliamentary scrutiny of any changes to legislation adopted through the Great Repeal Bill, in order to maintain standards and avoid a “race to the bottom”.60 In this context, we note Prime Minister Theresa May’s statement on 17 January 2017 that “it will be for the British Parliament to decide on any changes to that law [converted from the EU acquis into British law] after full scrutiny and proper Parliamentary debate.”61

International law

47.As Ms Griffiths reminded us, international environmental conventions, to which the UK is party, “will continue to apply post EU withdrawal”.62 This includes conventions such as the Berne Convention (which has been implemented through the Habitats Directive), the OSPAR Convention and the UN Framework Convention on Climate Change. They will apply regardless of the nature of the UK’s future relationship with the EU, and may constrain the extent to which the UK is able to pursue new approaches to environment or climate change policy.

48.As Prof Macrory explained, many of these conventions are “mixed agreements”,63 covering areas of both EU and Member State competence. As a result, they have been ratified by both the EU and by individual Member States.64 Although there are differing views within the legal community, both Prof Macrory and Prof Lee concluded that the UK would still be bound by them.65 The Minister, Dr Coffey, concurred: “It is my understanding that as the UK is already a party in its own right it absolutely will stick to the commitments, and is obliged to, once we leave.”66

49.Such international conventions tend to be couched in broad terms, and have hitherto generally been implemented by means of more detailed EU legislation. This was highlighted by Prof Macrory: “One will have to look at these international conventions, because up to now they have been transposed or extended by EU law … Some of them like the Ramsar Convention are very vague and they will probably need fleshing out.”67 Prof Jordan agreed:

“Generally, the EU has not simply taken an international convention and transposed it into EU law, and left it at that. It has often added in hard edges. It has added in deadlines, timetables and things like that. A classic example is how the Berne Convention was gradually developed, evolved and transmogrified into the Birds Directive and the Habitats Directive.”68

50.Those international agreements that have been implemented through EU law thus present a distinct challenge. Prof Macrory highlighted the Shipment of Waste Regulation (1013/2006) which in part implements the Basel Convention of 1989, to which the UK, other Member States and the EU are all parties. The Regulation, though, has a wider application than the Convention. After Brexit, the UK would continue to be party to the Convention, but even if the Regulation were preserved in UK law in the Great Repeal Bill, Prof Macrory was not convinced that “competent authorities in other Member States” would “have any obligation to deal with the UK other than in respect of Basel obligations”.69

51.There are also questions over the legal force of international conventions. The RSPB said that “it is important to note that [the Berne Convention] offers a lower degree of protection, and its impact (e.g. measured in terms of species population trends and protected area coverage) has tended to be much less outside the EU given the lack of strong enforcement mechanisms”.70

52.Prof Lee noted that after Brexit “international law will become politically more significant” because “that will be the backstop beyond which we cannot fall in terms of environmental standards.”71 The Minister, Dr Coffey, reiterated the Government’s commitment to international environment Conventions: “You will be aware that we are already members of many multinational agreements, and we will continue to honour those and indeed play a leading part where we have specific expertise”.72

Court of Justice of the European Union and case law

53.Prof Macrory highlighted the significance of European Commission guidance and CJEU judgments in the sphere of environmental law:

“There has been a lot of case law on the Habitats Directive, such as how the precautionary approach applies and what sort of assessment is required, in fleshing out the details. The judge starts with saying, ‘I can summarise now in about seven or eight paragraphs what are the key principles that apply from this case law and then we will apply it to a very difficult set of facts’.”73

Prof Macrory concluded that the Government should “keep [CJEU] interpretations in the law”, at least until environment legislation was revised post-Brexit.74 Mr Andrews concurred, identifying a need to transfer the CJEU’s “case law over into the UK system so that we benefit from case law which has guaranteed individuals’ rights to enforce, hold governments to account, access information and so on”.75

54.Dr Coffey, as we have seen, was clear that the Great Repeal Bill would seek to ensure legislative continuity, but she also indicated that the question of whether EU jurisprudence would transfer to the UK as part of the Great Repeal Bill was not yet settled.76 Her colleague Dr Norman developed the point:

“As regards the Great Repeal Bill and the [CJEU], of course, where there are interpretations that are, as it were, already mirrored in UK law separately, those will persist and, where they are brought in under the Great Repeal Act or similar legislation, they will be imported. There may well be [CJEU] judgments that sit in, as it were, limbo where they are not imported and it may be open to judges to follow or not follow those, depending on their view of the jurisprudence, so it is not a matter that is precisely capable of definition, even in principle, at this stage.”77

Mapping the challenge

55.The way in which EU environmental legislation has been implemented in the UK means that its transposition will, in Prof Macrory’s words, require “a very detailed mapping exercise looking at all our UK environmental law and that which is devolved, saying, ‘Where has it come from? How has it come from EU law and what is it doing?’”78 The Minister referred to just such an exercise:

“Defra has not yet finished doing this mapping exercise because it is so huge for us. What is very clear … is that the key areas where it is most complex are chemicals, pesticides and greenhouse gases, and they are what is consuming a lot of grey matter. Very detailed work is being done to ensure that nothing falls between the gaps in preparation for the Great Repeal Bill.”79

56.We note that Defra is hiring up to 30 staff to, among other tasks, “ensure UK environmental legislation is integrated into UK law on exit and that we have arrangements in place to ensure the many environmental services currently provided by Brussels can continue to be provided effectively on exit”.80

57.We also note that the Secretary of State, Rt Hon Andrea Leadsom MP, has told the Environmental Audit Committee:

“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.”81

58.In supplementary written evidence, Defra acknowledged that it “has a significant challenge in handling the return of legislative competence from the EU.”82 Of the more-than 1,100 pieces of legislation for which it is responsible, it noted that “some areas (such as chemicals or ozone-depleting substances) might present more challenges than others because they are currently delivered by EU agencies, systems or resources.”

59.Dr Coffey gave the following assurance:

“The purpose of the Great Repeal Bill is not to repeal all EU legislation, it is to repeal the European Communities Act and, very precisely, the Prime Minister has said that we will bring EU Regulations, which are not already part of UK law and have not already been transposed, into that.”83

The Prime Minister confirmed this when she stated that “The same rules and laws will apply on the day after Brexit as they did before.”84 However, in its white paper The United Kingdom’s exit from and new partnership with the European Union, the Government stated that the Great Repeal Bill would mean that “wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before.”85 We note that, referring to the statement by the Secretary of State for Exiting the EU on the Great Repeal Bill (see box 3), Prof Macrory told us as early as October 2016 that he was “concerned” about “[slipping] in some words such as ‘as far as practicable’” to the Bill.86

60.Defra recognised that delivering on its intention to “ensure a smooth and orderly transition via the Repeal Bill”87 will be a significant undertaking: “There are decades of EU law to consider, and we must ensure our statute book works on exit and that we provide the maximum possible stability, without pre-judging future decisions Parliament may make.”88 Defra also told us, in its supplementary evidence, that “where laws need to be fixed, that’s what the Government will do.”89 As the evidence explored above reveals, this is easier said than done in the realm of environmental legislation.

61.The breadth and depth of EU environment and climate change law means that transposing that legislation into UK law will be immensely complex. The Government intends that the Great Repeal Bill will ensure a degree of environmental legislative stability, while returning the responsibility for regulatory and judicial oversight to the UK, and in principle we welcome this approach.

62.The Government’s approach, though, begs a number of questions, including what the scope of the Great Repeal Bill will be, and how it will accommodate so-called ‘legislation by reference’, as well as references to the EU’s institutions, its Executive Agencies and obligations imposed on other Member States. It is also unclear how and to what extent CJEU judgements and soft law such as Commission guidance notes, which are important tools for interpreting and implementing environmental law, will be transposed into domestic law. These are central to maintaining legislative consistency and predictability, and the extent of their continuing applicability will need to be clarified in tandem with the Bill. Although we recognise Defra’s determination to deliver the intention of the Great Repeal Bill, we are not confident that it has yet translated this determination into a delivery plan that works for the more complex areas of EU environmental legislation.

63.International agreements will continue to shape aspects of the UK’s environment and climate change policies post-Brexit. Given that such agreements are often less detailed than the EU legislation through which they are implemented, and lack the institutional enforcement mechanisms offered by the EU, the Government will need to consider carefully the means by which they are given effect in domestic law, so as to ensure that the UK’s adherence to its international commitments is not watered down post-Brexit.

64.The review being undertaken by each Department of how legislation in their policy areas will be affected by Brexit is key to ensuring that current levels of environmental protection are maintained. The Government should use this review to clarify the extent to which the Great Repeal Bill will minimise the risk of a legislative deficit for the environment, and to inform legislative action to ensure that equal levels of environmental protection and standards are retained after Brexit.

65.The Government should also clarify what will happen to environmental legislation transposed through the Great Repeal Bill over time, in particular whether it will respond to any changes adopted by the EU after transposition. Regardless of the reason for any changes to environmental legislation, Parliamentary scrutiny will be vital to ensure current levels of environmental protection are at least maintained; we therefore welcome the Prime Minister’s recognition of the importance of this process.

30 Q 36 (Bob Ward), referring to the Climate Change Act 2008; also Q 58 (Dr Doug Parr)

35 Written evidence from Dickon Howell (ECB0003)

36 Department for Exiting the EU, ‘Senior Management Team’, January 2017: [accessed 4 January 2016]

39 Written evidence from The Wildlife Trusts (ECB0007)

40 Written evidence from the Aldersgate Group (ECB0009); also Q 8 (Prof Andy Jordan)

41 Written evidence from the CLA (ECB0001)

42 Q 67 (Dr Thérèse Coffey MP)

43 Q 71 (Jesse Norman MP)

44 Written evidence from the RSPB (ECB0006); and The Wildlife Trusts (ECB0007)

46 Written evidence from The Wildlife Trusts (ECB0007)

49 Written evidence from the Mineral Products Association (ECB0005)

50 Written evidence from Prof Richard Macrory (ECB0015)

52 Written evidence from Prof Richard Macrory (ECB0015)

53 Written evidence from Prof Richard Macrory (ECB0015)

54 Written evidence from Prof Richard Macrory (ECB0015)

55 Written evidence from Prof Richard Macrory (ECB0015)

56 Written evidence from Prof Richard Macrory (ECB0015)

57 Written evidence from Prof Richard Macrory (ECB0015)

59 Written evidence from the Welsh Government (ECB0008)

60 Written evidence from The Wildlife Trusts (ECB0007); Q 6; 15

61 Prime Minister Theresa May, Speech on The Government’s negotiating objectives for exiting the EU, 17 January 2017: [accessed 19 January 2017]

62 Written evidence from the Welsh Government (ECB0008)

63 Mixed agreements arise between the EU and external countries when the agreement concerns issues of both EU and Member State competence. They are thus signed by both the EU and its Member States.

66 Q 69; supported by Jesse Norman MP (Q 69)

69 Written evidence from Prof Richard Macrory (ECB0015)

70 Written evidence from the RSPB (ECB0006)

73 Q 3, referring to Mynydd y Gwynt Ltd v Secretary of State for Business, Energy and Industrial Strategy [2016] EWHC 2581 19 Oct 2016

79 Q 71 (Dr Thérèse Coffey MP)

81 Oral evidence taken before the Environmental Audit Committee, 25 October 2016 (Session 2016–17), Q 327 (Andrea Leadsom MP)

82 Supplementary written evidence from Defra (ECB0016)

84 Prime Minister Theresa May, Speech on The Government’s negotiating objectives for exiting the EU, 17 January 2017: [accessed 19 January 2017]

85 HM Government, The United Kingdom’s exit from and new partnership with the European Union, Cm 9417, February 2017, p 35: [accessed 6 February 2017]

87 Supplementary written evidence from Defra (ECB0016)

88 Supplementary written evidence from Defra (ECB0016)

89 Supplementary written evidence from Defra (ECB0016)

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