House of Lords publishes report on Brexit, the…

On 14 February 2017 the EU Committee of the House of Lords published its report Brexit: environment and climate change (available here). The overall tone of the Report is cautionary, emphasising the scale of the task facing the Government and highlighting perceived shortcomings in the Government’s approach thus far.

The Report notes that environmental policy played little part in the referendum campaign and emphasises the following:

“The UK is leaving the EU, not Europe. Its environment will remain inextricably linked to the environment of Europe”.
Though the UK has strong domestic climate change legislation, domestic environment policy is heavily influenced by EU law.
Whilst Brexit is an opportunity to amend or repeal existing legislative measures, the environment and those seeking to preserve or invest in it need long term policy stability. Maintaining this stability during the Brexit process will be crucial to ensure that legal protections for the UK’s environment remain complete and effective.
The Great Repeal Bill should in principle help to achieve a degree of stability, but it is far from clear whether it will be comprehensive and many stakeholders are concerned that environmental protections and ambitions will be diminished. The Government will need to map out the EU’s environmental acquis to assess where the Great Repeal Bill will not be able to preserve legislative and policy stability, and act accordingly.
EU institutions, particularly the European Commission and the Court of Justice of the European Union, have played a key role in driving improvements to the UK’s environment by monitoring and enforcing the implementation of EU environment and climate change laws – particularly through the threat of infraction proceedings. Government self-regulation will not be an adequate substitute post-Brexit. An equally effective domestic enforcement mechanism, able to sanction non-compliance, will be necessary to ensure that the objectives of environment legislation continue to be met.

The section of the Report addressing EU environmental legislation and action is useful in understanding the scale of the challenge facing the Government (by way of example, the Report observes that Defra has identified over 1,100 “core” pieces of directly applicable EU legislation and national implementing legislation that fall within its remit). The Report concludes that whilst the repatriation of environmental policy as a result of Brexit presents opportunities and risks, the scale and complexity of the task of doing so and its “profound implications for domestic governance as well as for domestic law” must not be underestimated.

On the environment and the Great Repeal Bill, the Report notes that as of December 2016, DExEU has had an “Infrastructure and Environment” team and welcomes this “developing recognition both of the importance of environment as a policy issue and its cross-departmental relevance” although it cautions that “the association with infrastructure should not preclude the consideration of all aspects of environment policy or of climate change”.

The Report is critical of the Government’s approach, explaining that it “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 judgments and soft law such as Commission guidance notes, which are important tools for interpreting and implementing environmental law, will be transposed into domestic law. […] 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”.

On enforcement, the Report observes that “the Government’s confidence in its ability to ‘hold itself to account’ contrasts with the concern expressed by the vast majority of our witnesses, that without supra-national oversight, by means of the EU institutions, environmental protection in the UK could be undermined” and expresses the view that the importance of the role of the EU institutions (underpinned by the power to take infraction proceedings) “cannot be over-stated”. The Report also notes the concerns of witnesses that existing domestic judicial review procedures may be inadequate and costly. The Report is again critical of the Government in this respect: “[t]he Government’s assurances that future Governments will, in effect, be able to regulate themselves, along with Ministers’ apparent confusion between political accountability to Parliament and judicial oversight, are worryingly complacent”.