Yesterday the UK Government published Legislating for the United Kingdom’s withdrawal from the European Union. This is the Government’s Great Repeal Bill White Paper, which sets out the Government’s proposals for ensuring a functioning statute book once the UK has left the EU.
The environment is mentioned in one box (page 17), gets a minor mention regarding devolved competence (para 4.2), and in a reference to the EU Invasive Alien Species Regulation (para A.12).
Example 2 on page 17 commits the UK Government to “ensure that the whole body of existing EU environmental law [including secondary legislation, see para 2.5] continues to have effect in UK law. This will provide businesses and stakeholders with maximum certainty as we leave the EU. We will then have the opportunity, over time, to ensure our legislative framework is outcome driven and delivers on our overall commitment to improve the environment within a generation. The Government recognises the need to consult on future changes to the regulatory frameworks, including through parliamentary scrutiny.”
However, EU laws will continue to evolve after the UK has left the EU. The Paper does not appear to address how the Government intends to update EU-derived laws post-Brexit, which leaves the possibility of ‘zombie legislation’ prevailing on the statute book.
There is no mention of whether EU principles such as the ‘precautionary principle’ or the ‘polluter pays principle’ will be brought over into UK law.
The White Paper is vague and has limited detail, particularly on scrutiny and use of delegated powers, which are a concern for environmental legislation both during the Brexit process and post-Brexit when legislation may be reviewed. Paragraph 1.15 states that “the Great Repeal Bill will create a power to correct the statute book where necessary, to rectify problems occurring as a consequence of leaving the EU. This will be done by secondary legislation.” Secondary legislation gives Ministers the power to create or amend legislation without Parliamentary scrutiny.
Case Study 2 on page 20 continues by stating that “the power to correct the law would allow the Government to amend our domestic legislation to either replace the reference to the Commission with a UK body or remove this requirement completely.” This would seem to imply that UK bodies will take over the current scrutiny and enforcement role of EU institutions, or simply remove that obligation entirely! Scrutiny and enforcement of the legislation must be overseen by an independent body.
Paragraph 2.12 makes clear that “in leaving the EU we will bring an end to the jurisdiction of the CJEU [Court of Justice of the European Union] in the UK”. However, paragraph 2.14 goes on to say that “for as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means. The Government believes that this is best achieved by providing for continuity in how that law is interpreted before and after exit day. To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.”
Regarding devolved competences, paragraph 4.2 states: “At EU level, the UK Government represents the whole of the UK’s interests in the process for setting those common frameworks and these also then provide common UK frameworks, including safeguarding the harmonious functioning of the UK’s own single market. When the UK leaves the EU, the powers which the EU currently exercises in relation to the common frameworks will return to the UK, allowing these rules to be set here in the UK by democratically-elected representatives.” This would seem to imply that a UK-level framework for devolved competences such as agriculture and environment will be set from Westminster.
Lastly, on more a positive note, the European Parliament has stated “that any future agreement between the European Union and the United Kingdom is conditional on the United Kingdom’s continued adherence to the standards provided by the Union’s legislation and policies, in, among others, the fields of the environment, climate change, the fight against tax evasion and avoidance, fair competition, trade and social policy.”
Read more about CIEEM’s Brexit activities.