Brexit

Posted on: 24 July 2017

The “Great Repeal Bill” and environmental law

Posted by: Charles Morgan

The European Union (Withdrawal) Bill was introduced to the House of Commons on 13 July. Its substantive provisions occupy 13 pages, with a further 47 pages of schedules (much of the latter being devoted to devolution issues). The accompanying Explanatory Notes, despite describing themselves as “not, and not intended to be, a comprehensive description of the Bill”, are nevertheless of roughly equal total length.

The overall thrust of the Bill is relatively simple. Clause 1 reads: “The European Communities Act 1972 is repealed on exit day.” Sic transit gloria unitatis. The rest of the Bill adopts the anticipated course of a saving provision in clause 2 for EU-derived domestic legislation in effect at exit day, the incorporation by clause 3 of direct EU legislation operative at exit day, at clause 4 a saving provision in relation to direct rights under Treaties and then further provision concerning the future interpretation and application of EU law in domestic courts. By this method a body of ‘retained EU law’ is created.

The most controversial part of the Bill is in clauses 7 onwards under the heading “Main powers in connection with withdrawal”. Provision in one form or another for ‘tidying up the loose ends’ (grossly to understate the task) is essential, however a great deal of constitutional debate is anticipated from the proposed method of ‘Henry VIII’ clauses empowering Ministers in very broad terms to amend primary legislation by statutory instrument for the purposes of dealing with deficiencies arising from withdrawal, complying with international obligations and implementing the withdrawal agreement. It is thought that up to 1000 such instruments may be needed. The width of ministerial power is reined in to some extent by the terms of associated schedules imposing affirmative resolution procedure upon the more sweeping exercises of power permitted by the provisions.

There is little doubt that ‘the devil will be in the detail’ of the resulting subordinate legislation. The Bill itself is addressing Brexit at a very high level of abstraction. Neither any reference to any specific EU environmental measure nor indeed the word ‘environment’ is to be found in it. Interestingly, the Explanatory Notes do choose such an item of legislation as an example of “Possible uses of the power to correct problems arising from withdrawal”. In paragraph 25 of the Notes, references in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to “other EEA states” are identified as in need of correction by deleting the word “other”. Who would have thought it? The reader might doubt that this is the most egregious example of the potential difficulties.

One consolation for practitioners and exponents of environmental law is that a great deal of EU environmental control has originated in Directives which have been implemented by domestic secondary legislation in terms which can continue to operate effectively in a seamless way. Further, that legislation, at any rate in some areas, has been substantively implemented in practice by improvement of processes and infrastructure in a manner which is capable of enduring if they are properly operated and managed. The real future battle is likely to be over the extent to which continued compliance in those areas, and the attainment of compliance in areas where it has not yet achieved, will be effectively enforced in the absence of the continuing overarching scrutiny of the European Commission. That body has during the UK’s membership found the latter’s environmental regulation to be significantly wanting in a number of respects, including recently in relation to sewer overflows and, notoriously, air quality. Such matters are unlikely to be pursued domestically by the Government with greater fervour post-Brexit than they were pre-Brexit or indeed pre-Brentry.

 

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