Environmental Legislation after Brexit – Clues from the White Paper on Exiting the European Union

Jaquelin Clay Development, Environmental offences, Guidelines/Legislation, Sharing Economy

The Great Repeal Bill Framework has now been set out in a White Paper. What this confirms is that the Bill will  preserve all laws we have made in the UK to implement EU obligations. The White Paper suggests that after leaving the EU, such preserved legislation may be reviewed and altered.

Setting the Stage for Life After Brexit

Of note is a box on page 17, which addresses environmental law:

“The Great Repeal Bill will ensure that the whole body of existing EU environmental law continues to have effect in UK law….We [the UK] 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…”

This is an interesting comment, as it suggests that the government is sympathetic to the view that some environmental legislation, written to meet EU Directives, is not necessarily effective in delivering environmental improvements.

In an earlier article we pointed out that the Habitats Regulations was based on the Bern Convention. The White Paper notes that such treaties can form the basis for resolving interpretation of retained EU law after leaving the EU:

“2.10 … in interpreting an EU measure it may be relevant to look at the context as revealed by its legal basis as found in the treaties…”

So the expectation is that EU-derived regulations will continue to be implemented after Brexit.

What will change – the Court of Justice of the European Union

Long a bugbear for the UK, this Court will no longer have jurisdiction over any UK law, EU-derived or otherwise.  Appealing to this court has been pro forma for any objectors to UK implementation of EU Regulation, and Theresa May suffered greatly during her time as Home Secretary with endless appeals based on human rights issues.

How will anomalies be Dealt with?

The White Paper makes it clear that although EU-derived legislation will still have effect after the UK leaves the European Union, such legislation may be reviewed and altered.  The government already proposes using secondary legislation, familiar to practitioners as Statutory Instruments.  The power to create SIs is devolved, meaning parliament does not have to review them, before passing them.  This mechanism is proposed to deal with areas where EU derived law may conflict in some way with other legislation.

What to Watch Out for?

  • Expect no substantive change for at least 2 years.
  • Look out for new Statutory Instruments
  • Expect Legal Challenges at Any time

Wait to see how the final Great Repeal Bill is finally written – this is a White Paper, and much could change.

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