BW1_UK legal

(6 March 2019) The Environment, Food and Rural Affairs Committee held last week the final hearing on the Draft Environment (Principles and Governance) Bill. Alongside a panel of expert witnesses, the Secretary of State for the Environment Michael Gove and junior Minister Thérèse Coffey were also invited for questioning.  

At this session, experts warned the government that the Office for Environment Protection (OEP) could be in danger of duplicating the duties of other UK bodies, such as the Environment Agency. The need to introduce the “high level of environmental protection” as an overarching principle resurfaced again.

Another point of debate was the legal nature of the decision notices that will be issued by the OEP. Experts have suggested there should be an option to render these notices as legally binding, while the UK government believes the role of the OEP should not be to overrule government’s decisions, but instead to challenge them and suggest how progress should be achieved. The independence of the OEP remains a thorny problem, as Gove was asked again to ensure that the proper functioning of the OEP will not be impacted by having its budget and nominations decided by the government. Parliamentary Under Secretary Coffey confirmed that the OEP will not be located within the offices of Defra.

As the debate progressed, government representatives were criticized for being in “listening mode” and dodging questions.

Environment, Food and Rural Affairs Committee’s hearing

Although the current UK Government is said to have published more Statutory Instruments than any previous government, there remains a real risk of stalls on environmental legislation and subsequently a regulatory gap after Brexit. The Guardian notes that in the best-case scenario the Environment Bill will be passed in autumn 2019. Further, the Office for Environmental Protection (OEP) will not materialise until 2021. Meanwhile, a “holding arrangement” will set out an “undefined mechanism” which will be able to receive reports of environmental lawbreaking. These are due to be investigated later by the OEP as it enters into function. With no operational body that holds equivalent powers to the European Commission and the European Court of Justice, this regulatory gap leaves big uncertainties on environmental law enforcement post-Brexit.

The Guardian article on no-deal Brexit environmental risks

(6 February 2019) The Office for Environment Protection (OEP), set out in the UK draft Environment Bill to monitor and report on environmental laws, was the subject of a hearing in the UK Parliament (EU Energy and Environment Sub-Committee).

Witnesses noted that replacing the enforcement role of the European Commission is a challenging task. They also highlighted the complications of having a holistic assessment of the OEP’s authority, as only parts of the Environment Bill are currently available.

Criticism was raised in regard to the independence of the body (government’s decisions on OEP’s budget and appointments) and the lack of overall objective for the OEP. The scope of the OEP is also considered to contain a significant gap: the enforcement mechanism will be applicable only in England. This implies that the OEP’s outreach will have to be extended to the devolved nations or parallel bodies will have to operate in similar ways at local level.

Witnesses on post-Brexit enforcement of environmental law

Defra is the second most affected UK department by the European Union Withdrawal Act (EUWA), which will copy across among others existing EU environmental laws. More precisely, the Act impacts 80% of Defra’s work. The legislative work lying ahead is significant: Defra needs to present 95 statutory instruments to implement the EUWA and two additional new bills on agriculture and fisheries to replace the EU Common Agricultural Policy. In case of a no-deal scenario and in order to avoid a regulatory gap, all of this will need to be complete before 29 March.

Local government, already diminished in size and financially constrained by previous cuts, has not received any additional funding for Brexit preparedness. Furthermore, around 400 staff from local agencies were redeployed centrally to work on Brexit. As EU environmental laws are being copied across to the UK legislative systems, gaps in human and budgetary resources risk hindering their enforcement in the UK. 

Environmental Politics article on EU environmental policy and Brexit
Cuts in agencies staff

(30 January 2019) Academics and legal professionals were questioned on the draft Environment Bill by the UK’s Parliament Environment, Food and Rural Affairs Committee. The draft Bill sets out how the UK will maintain environmental standards after Brexit.

The expert witnesses agreed the draft needs significant improvement. The issue of enforcement mechanisms was highlighted unanimously, and is considered to prove a difficult test after Brexit. Other criticism was raised with regard to the independence of the Office for Environmental Protection (OEP) and a failure to bring across all the existing acquis communautaire. According to Professor Maria Lee, the provisions on environmental principles fall short on what has been promised: they are set to have a weak status (policy instead of legal), will be binding only to ministers of the crown (not all public authorities) and will not apply in all their functions (instead only to high level policies).

Academics and legal professionals questioned on the draft Environment Bill
Paper on the Environmental Principles after Brexit

According to the Institute for Government, the environment is the area where the UK is brought most often before the European Court of Justice (ECJ). In most cases, it is not a problem of transposition, but of implementation. Even though the UK will copy across the EU environmental acquis, the real issue is therefore the actual application, due to be monitored and enforced ensured by the Office for Environmental protection. Nevertheless, the office is already the target of critiques for lack of independence, specifically on its ability to take action against the government.

Furthermore, NGOs and British citizens could well be dissuaded to initiate litigations, as the judicial costs are lower within the ECJ than in UK national courts.

Institute for Government explainer on the level playing field in Brexit negotiations

Institute for Government briefing on the UK’s relationship with the European Court of Justice

The UK Government published before Christmas the Draft Environmental Bill which sets the base of an Environmental Bill (due to be published in 2019), meant to maintain and even “surpass” EU legislation.

This piece of law creates the Office for Environmental Protection (OEP), due to be in charge of monitoring and reporting on environmental laws. It can also take action in case public authorities fail to comply with environmental norms. The OEP’s mandate seems to have addressed a series of concerns previously expressed by stakeholders (Bar Council, UK Environmental Law Association): the possibility of submitting individual complaints and the power of the OEP to bring the Government to court. Nevertheless, one crucial issue remains controversial: its independence. The clauses mention that non-executive members are appointed by the Secretary of State, their remuneration or compensation for “special circumstances” being also set by him/her. The Secretary of State also holds responsibility for establishing the reasonable sufficient budgets for the OEP’s functioning.

Draft Environment Bill, December 2018
Bar Council, response “Environmental Principles and Governance” public consultation
UK Environmental Law Association, “Brexit and Environment Law”
Insidetrack (hosted by Green Alliance) critique

The UK has published its legal position on the Withdrawal Agreement. The level playing field intended to secure a fair and open competition in the future single customs union is applicable to the whole UK territory. Regarding the environmental level playing field, the assessment confirms there is a non-regression clause with further UK’s commitments to be established by the Joint Committee. The UK should also pay regard to the effective implementation of multilateral environmental agreements and establish a carbon pricing system that is at least equivalent to the EU’s ETS. If the arbitration mechanism is not applicable to disputes related to these provisions, it can be used if the UK’s domestic monitorisation and enforcement are defective.
     
Legal position on the Withdrawal Agreement (December 2018)

A report by the UK’s Parliamentary Office of Science & Technology suggests that under the Withdrawal Agreement, a set of EU environmental principles will need to be incorporated into the UK’s legislation. Among the principles referred to, is the precautionary principle, preventive action, rectification at source and the polluter pays principle. Principles stemming from the Aarhus convention are also included: public access to environmental information, participation in decision-making and access to justice in regard to environmental matters.  

The report presents the EU’s ban on genetically modified crops and neonicotinoids (pesticides associated with the decline in bee populations), where the precautionary principle has been invoked. Both cases demonstrate the far-reaching impact the precautionary principle could have on trade and the maintenance of a level playing field in the future EU-UK relationship.

The application and interpretation of these principles will be determined to a large extent by the UK’s Environmental Principles and Governance Bill, for which a government proposal is expected in the next six months.
However, the report puts up questions about the enforcement. According to the General Council of the Bar of England and Wales, the watchdog as proposed in Defra’s consultation on the Bill would lack equivalent powers to those of the European Commission.

Parliamentary Office of Science & Technology, PostNote n° 590 (November 2018)

Concerns about adverse impacts on the EU in the event UK lowers environmental and social standards in order to gain commercial advantages surfaced only after negotiations on the Withdrawal Agreement between the EU 27 and the UK had completed.

The Northern Ireland Protocol, the magic piece of the puzzle meant to prevent a hard border with the EU, whilst also allowing the UK to restore its borders, contains significant rules relating to a level playing field. They have the potential to be applied for a long-time to come, even if unwanted. Essentially, the backstop requires Northern Ireland to follow the EU’s internal market rules, thus most environmental and health standards concerning industrial production. These include for example the regularly updated emission limit values under the Industrial Emissions Directive or the restriction of chemicals under the REACH regulation. They remain enforceable for Northern Ireland, but not for Great Britain. This means the UK could start to diverge from EU standards for England, Wales and Scotland.

Environmental quality standards, such as for water, air and nature protection, are not covered by the Protocol, except for a “non-regression clause”, which freezes protection levels as soon as the protocol enters into force. Different procedures, such as a joint committee, are provided in the draft Withdrawal Agreement, to put meat onto the bones for enforcement, but are challenged by environmental NGOs (see Guardian article).

Days before the Article 50 European Council of 25 November 2018, Denmark, France, Germany, Italy and the Netherlands demanded stronger level playing field requirements. These calls did not change the text of the Withdrawal Agreement, but were eventually accommodated in the Political Declaration for a future relationship, as well as in a separate statement by the EU27 leaders.

The Guardian on NGO critics on Withdrawal Agreement
Statement by EU27 leaders (25 November 2018)