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14 Jul 2017

Three flaws in the law – a first look at the Great Repeal Bill

Posted in Blog posts

The UK will set itself free of EU law through a huge piece of legislation. The grandly titled European Union (Withdrawal) Bill was introduced to Parliament yesterday and will have a huge, huge effect on the environment. You’ll find plenty of opinions across the internet. But here, WWT’s Head of Government Affairs Dr Richard Benwell provides your one stop shop for all your legal questions around the environment, and some potential answers too. Bookmark the page – over the next year you might need it!..

 

The Government’s intention to move the body of EU law onto UK statute books is welcome, but the proposals published in the European Union (Withdrawal) Bill only do half a job.

The Repeal Bill will leave three major failings in UK environmental protection:

  1. The letter of the law: with incomplete conversion of the acquis and too much freedom for ministerial meddling.
  2. The spirit of the law: the proposals would jettison the principles of environmental law that guide EU decision-making—the fundamental ideas that polluters pay, that damage is dealt with at source, and that all development is sustainable.
  3. Adherence to the law: holding Governments, businesses and individuals to account and making sure that everyone has access to environmental justice.

The letter of the law

The bill would only partially preserve the acquis, which includes the principles of the Treaties, the case law of the Court of Justice, and EU Decisions, as well as EU Regulations and Directives. Gaps include:

  • Clause 2: domestic law that implements EU Directives will apply “as it has effect in domestic law immediately before exit day” – so will laws like the Habitats Directive which are not fully or properly transposed now be locked in their incomplete state?
  • Clause 6(3): in interpreting EU-derived law, case law will only apply “so far as that law is unmodified on or after exit day” – so when EU-derived laws are even slightly adapted or corrected, will case law cease to apply?
  • Clause 6(4): is clear that the courts are not bound by established case EU law, allowing the courts to overrule important rulings, like the interpretation of sites and species protection in the Nature Directives.

What’s more, even where EU law is properly converted, the scope for Government to make amendments is extremely broad. There are “Henry VIII” delegated powers for Ministers to change EU-derived law in Clauses 7, 9, 10 and 17. The bill’s impact assessment suggests that the Government expects to use its correcting power alone as many as 1,000 times, which creates a substantial scrutiny challenge. These powers may be used for up to two years after Brexit day.

Strong Parliamentary procedure must ensure that delegated powers are not used to change the meaning of the law without full scrutiny. For example, the impact assessment refers to cost-savings that may result from “reducing burdens”, citing reporting requirements that may be removed. Of course, some reporting requirements may need to change (such as informing the EU Commission about water quality), but they will need to be replaced by equally rigorous reporting in the UK – the use of correcting powers must not allow for under-the-radar deregulation. However, the Government’s proposals rely on established scrutiny procedures, which would mean that many changes are never debated or considered by a Parliamentary committee, so many small alterations that undermine the force of the law could slip by unnoticed.

Other potential loopholes include the fact that the “correcting” power in Clause 7 can be used to correct “deficiencies” in EU law, but the definition of deficiency is not limited to examples in the bill. Clause 9 includes a power to implement a withdrawal agreement, but Clause 14 states that this includes agreements that have not been ratified—so the power could be used to make changes that have not been agreed by Parliament. The power in Clause 17 to make “consequential amendments” seems almost completely without bounds.

With our colleagues across the sector, we are proposing amendments that would:

  1. curb the scope of delegated powers, so they may only be used insofar as necessary to ensure that EU-derived law continues to operate with equivalent scope, purpose and effect in the UK, or to implement obligations arising from the Brexit agreement.
  2. limit the use of delegated powers to six months after Brexit day
  3. provide for enhanced scrutiny procedures, ensuring that public consultation and parliamentary debate are the presumption and not the exception.

The spirit of the law

The EU acquis includes the principles of law set out in the Treaties. The main environmental principles are set out in the Lisbon Treaty, Article 191. These include: the precautionary principle; sustainable development; dealing with damage at source; and the polluter pays principle, as well as access to environmental justice and appropriate remedy. These principles are essential guidelines for the courts and for businesses—they give life to the letter of the law and have been essential in guiding decision-making in cases such as controlling the use of bee-killing pesticides, harmful chemicals like lead, or the use of genetic modification. What’s more, they set a legal background against which other law is made. Some principles are already included in particular Acts of Parliament, but there is no general statement of environmental principles in UK law equivalent to the commitment in the EU Treaties.

Under Clause 4(1), the bill will convert any rights which apply directly in the UK, including directly effective rights and obligations within EU treaties, such as Article 157 of the Lisbon Treaty on equal pay. However, the Government’s guidance documents suggest that these principles will only apply if they have “direct effect”. The principles of environmental law may not be considered directly effective as they do not confer rights to individuals—for direct effect to apply, it must confer a specific right upon which a citizen can base a claim.

We are proposing amendments to embed the principles of environmental law in UK law, including:

  1. sustainable development
  2. prudent and rational utilisation of natural resources;
  3. the precautionary principle
  4. preventive action
  5. environmental damage should be rectified at source
  6. the polluter pays principle
  7. access to environmental justice.

Adherence to the law

Environmental protection relies on authoritative institutions to inform, monitor and enforce compliance. For example, the recent Supreme Court ruling on the Government’s responsibility to meet EU air quality targets relied on an infringement action by the EU Commission. When the UK leaves the EU, there will potentially be a cavernous governance gap, where functions performed by EU institutions need to be filled for the law to operate effectively.

Clause 7(5)(b) does include a delegated power to set up public authorities, which is welcome. However, there is no obligation to do so. The Government’s response to a joint letter by environmental NGOs and its note on environmental protection suggest that the Government considers that judicial review and Parliamentary elections will be sufficient to uphold the law.

There are a number of serious shortcomings in these routes to environmental justice. For example, the Government has recently reformed the rules relating to judicial review, making it much harder to access justice in environmental cases. The experience of recent court cases relating to air pollution has shown that the Supreme Court does technically have the competence to deal with environmental cases, but there is a real shortage of UK judges with environmental expertise. Most importantly, there is simply no equivalent of the role the European Commission has played in pressing and cajoling the Government toward compliance, nor for levying the serious fines the UK has faced for failing.

We are proposing amendments to require the Government to make specific provision for the regulatory, monitoring, oversight, accountability, enforcement and other functions relating to the UK currently provided by EU institutions. This is likely to require a mix of continued collaboration with the EU, beefed up UK environmental agencies, and new UK environmental institutions such as an Office for Environmental Responsibility. This must be done soon, before Brexit day.

An essential foundation

The Government’s manifesto promise to pass on the UK’s environment in better condition is ambitious and admirable. We welcome the confirmation that the Government’s long-awaited 25 year environment plan is on its way. In the months to come, we will be looking for world-leading thinking on farm, fisheries and infrastructure to make this ambition a reality. We will be calling for an Environment Act to set the ambition in law.Amending the European Union (Withdrawal) Bill to fix these three flaws is an essential first step.

But before any of this excellent environmental ambition can be realised, the Government must ensure that it properly secures the EU acquis: the letter of the law, the spirit of the law and adherence to the law.

Dr Richard Benwell, WWT Head of Government Affairs

(Main photo: Bewick’s swans leaving Europe for the UK. See what we did there?!)