Many of you will no doubt be concerned about the impacts of the Brexit decision on our natural environment legal framework and the health of our natural environment. Those of you working in the ecological services industry may be fearful of the implications of Brexit on your work and businesses. Those of you involved in property and infrastructure development may be concerned about uncertainties in environmental regulatory frameworks arising from the Brexit decision and may wonder whether there may ultimately be commercial benefits from a weakening of existing legislation.
I have been considering these issues and set out comments on a number of points below.
In summary my thoughts at this stage are that:
- Any changes to our domestic natural environment legislation are likely to be some considerable way off in the future;
- Although the Habitats and Birds Directives are unlikely to remain legally binding on the UK in a post-Brexit model (and therefore this does at first sight appear to present a basis for potential weakening of existing domestic legislation), a number of international conventions ratified by the UK are likely to have the effect of restricting any proposed weakening so that domestic legislation is ultimately unlikely to be very different to that seen at present. This is particularly the case for EU protected species whereas for EU protected habitats the restrictions are a little looser;
- Perhaps the key “unknown” (and therefore the main concern for some) is likely to be the future interpretation by our courts of our domestic legislation, given that (i) the strictness of EU nature conservation law is in large part due to the judgments of the Court of Justice of the European Union (“CJEU”); and (ii) the standing and influence of those judgments in the UK will be in question following Brexit.
1. Any changes to domestic legislation are likely to be some considerable way off.
There are a number of reasons why any changes are likely to be some way off. We do not know when Article 50 of the Lisbon Treaty will be invoked by the Government, but Government statements indicate that it will not be this year. http://www.theguardian.com/politics/2016/jul/19/government-awaits-first-legal-opposition-to-brexit-in-high-court. Assuming it happens next year, we would be looking at the UK’s withdrawal from the EU in 2019.
Further delays could arise if Parliamentary consent is needed to invoke Article 50. As some of you will have read, this question is the subject of litigation. Article 50 states that a Member State may decide to withdraw from the EU “in accordance with its own constitutional requirements”. What are the UK’s constitutional requirements? Do they require Parliament’s involvement? The Government’s view is that this a matter for its prerogative powers so that no Parliamentary consent is needed. But others disagree. The irony is that this question may ultimately have to be referred by the Supreme Court to the Court of Justice of the European Union for their view.
It has also been reported in Business Insider (http://uk.businessinsider.com/brexit-how-does-article-50-work-2016-7) that some legal experts have advised that, once invoked, the UK could not be forced to go through with the Article 50 process if it did not want to ie the UK could change its mind if, for example, if there were a change in Government during that process. As the Business Insider article states, the political consequences of a change of mind would be substantial so it perhaps seems unlikely that this would happen.
See also 4. below: “What is the position for existing domestic natural environment legislation after the UK has left the EU?”
2. What happens to natural environment law whilst we wait for the Article 50 process to be invoked / to run its course?
During this time it is business as usual. Existing EU nature conservation / environmental law continues to apply as before, as does domestic natural environment law. Ecologists, developers, local planning authorities and statutory nature conservation bodies should all be operating as before.
3. What about any EU Directive which must be implemented by Member States whilst we wait for the Government to invoke Article 50 / completion of the Article 50 process?
The prime example of this is the Environmental Impact Assessment Directive 2014/52/EU which must be implemented by 16 May 2017. This Directive makes a number of significant changes to existing EIA requirements.
The Scottish and Welsh Governments have already commenced public consultations on the changes to be made to domestic EIA legislation so as to implement this Directive. At the time of writing no similar consultation had commenced in England.
As long as the UK remains a Member State, it is required to implement Directives within the specified timeframes. Failure to implement this EIA Directive within the required timeframe could lead to infraction proceedings from the European Commission, although the likelihood of this happening is perhaps lower than it was before 23 June 2016.
Nevertheless, since the existing EIA Directive has in the past been held by the CJEU to have “direct effect”, an objector to, say, a planning application could, in the absence of domestic implementing legislation, expect to succeed in a judicial review claim to quash a planning consent granted in breach of the new Directive. If implementing legislation is not therefore adopted this will leave planning authorities in a potentially very difficult situation. Therefore it can be expected that England will follow the Welsh and Scottish examples and consult on this very soon.
4. What is the position for existing domestic natural environment legislation after the UK has left the EU?
The general position, subject to the next paragraph, is that domestic legislation, including that adopted to implement European law, will remain in force unless and until it is specifically amended / revoked. For example the Wildlife and Countryside Act 1981 (which implements some aspects of the Wild Birds Directive) will remain in force until new legislation (if any) is adopted to amend / repeal it.
The position is more complex for secondary legislation (ie Regulations or Orders, rather than Acts of Parliament) adopted under the European Communities Act 1972 (ECA 1972). Many European Directives relating to the environment have been implemented through such secondary legislation. Examples are the Conservation of Habitats and Species Regulations 2010 which implement (in England and Wales) the Habitats Directive and some aspects of the Wild Birds Directive; and the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 which implement in England the Environmental Liability Directive.
The ECA 1972 is the key piece of domestic legislation which authorised UK membership of the (then) EEC. It seems inevitable that the ECA 1972 will be repealed either at the same time as, or shortly after, the UK leaves the EU under the Article 50 process (some have even suggested that it could be repealed before that). When the ECA 1972 is repealed, the secondary legislation adopted under it will immediately lapse unless some legislative mechanism is first put in place to preserve this legislation.
Since there is so much secondary environmental legislation under the ECA 1972 that could be affected this way, and since repeal of the ECA 1972 is likely to be regarded as priority (either as we leave or once we have left the EU) it seems very unlikely that the Government would, at the same time as repealing the ECA 1972, also look to make detailed amendments at that stage to each and every piece of separate environmental secondary legislation under it. To do so would be an enormous task to achieve in a relatively short timeframe. It therefore seems much more likely that a simple legislative mechanism would be adopted to preserve this secondary legislation whilst the ECA 1972 is repealed and that any changes then considered necessary to specific secondary legislation would follow in accordance with a longer timetable.
When, and to what extent (if any), domestic legislation is amended / revoked is the burning question. This will depend upon the agreement reached over the ongoing relationship between the EU and the UK.
It seems very unlikely at this stage that the model chosen to decide the ongoing relationship between the EU and the UK would legally require continued compliance with the Habitats and Wild Birds Directives.
A model based on the UK joining the European Free Trade Area and the European Economic Area (EEA) is likely to require the UK to maintain compliance with most EU environmental laws, including the Environmental Impact Assessment Directive and EU environmental regulatory regimes relating to matters such as air, chemicals, waste and water. However, the existing EEA Agreement carves out any requirement to comply with the Habitats and Wild Birds Directives and linked nature conservation provisions within the Environmental Liability Directive and Water Framework Directive (it also carves out any requirement for compliance with the Bathing Waters Directive).
Another model would be to negotiate bilateral treaties; or to negotiate a Free Trade Agreement with the EU and trade with the EU on terms governed by the World Trade Organisation. If either of these paths were taken then there is no indication that the UK would be legally bound by the Habitats or Wild Birds Directives.
5. Does this mean that natural environment legislation will end up being watered down?
Even though whatever model we decide upon going forward is unlikely to legally require ongoing compliance with the Birds and Habitats Directives, this does not mean that our devolved governments will necessarily decide to alter or weaken their domestic legislation. First, if it ain’t broke, why fix it (there will of course be differing view as to whether it is “broke”). Secondly, the UK has ratified a number of international conventions with which it will need to comply.
6. What do the international conventions require?
Whilst there may be detailed arguments about the exact legal position in relation to any individual convention ratified by the UK, the starting point is that any changes made to domestic natural environment legislation would need to be consistent with the UK’s international law obligations.
Whilst it is true to say that international conventions give rise to less rigorous enforcement of their provisions than is the case for EU law, and that our domestic courts do not at present allow international treaty provisions to be relied upon directly before our national courts, it would be a surprising outcome if the UK made changes to domestic legislation in direct breach of its international convention obligations.
A few of the relevant conventions are considered in brief below. These and many other international conventions will require detailed analysis to assess the extent to which the UK is bound to retain its existing legislation in the natural environment sphere. For example, in terms of marine conservation there is the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) and The United Nations Convention on the Law of the Sea (UNCLOS). In terms of Environmental Impact Assessment, public participation, access to justice and freedom of information, there is the Aarhus Convention.
6.1 EU protected species
In terms of protected species, the Convention on the Conservation of European Wildlife and Natural Habitats (the “Bern Convention”) is key. It entered into force on 1 September 1982 and was ratified in the same year by the United Kingdom. The primary aim of the Habitats Directive was to give effect to the Bern Convention obligations across the EU and so, not surprisingly, there are strong parallels between the two.
The Bern Convention offers protection to listed wild flora in Appendix I; and to listed wild fauna species (both birds and other animals) in Appendices II (those requiring “special protection”) and III (those requiring a lesser level of protection than Appendix II species).
Most of the Habitat Directive’s Annex IV(a) list of “European Protected (animal) Species” (EPS) (which are relevant to the UK) are included in Appendix II of the Bern Convention. Exceptions are the common pipistrelle bat and dormice (Muscardinus avellanarius). Other bat species, Great Crested Newt, otter, sand lizard, wild cat, and certain listed Cetacea species are covered by Appendix II of the Bern Convention. The Bern Convention’s legal regime for these Appendix II animal species, including its derogation (licensing) regime, is almost identical to that found in Articles 12 and 16 of the Habitats Directive. There is only one main difference: the prohibition against “damage or destruction of a breeding site or resting place” under the Bern Convention requires the prohibited act to be carried out “deliberately”, whereas this requirement is absent under the “strict liability” (no fault) offence of the Habitats Directive.
All of the Habitat Directive’s Annex IV(b) list of EPS plants (which are relevant to the UK) are included in Appendix I of the Bern Convention. Again, the Bern Convention’s legal regime for these plant species, including its derogation (licensing) regime, is almost identical to their protection under Articles 13 and 16 of the Habitats Directive.
Based on these points, beyond the issue of common pipistrelle bats and dormice, there would be very little scope for a “Bern Convention-compliant” weakening of the protected species provisions of the Conservation of Habitats and Species Regulations 2010.
The Bern Convention applies a certain level of protection to almost all wild bird species either through Appendix III or Appendix II (Appendix II contains the stricter protection). A detailed comparison between the Bern Convention and the Wild Birds Directive is needed but, on first analysis, there are strong parallels, although the Wild Birds Directive does appear to offer some additional protection for all wild birds.
6.2 EU protected species
The Bern Convention also contains provisions for protected habitats.
The Bern Convention requires (Article 4.1) each party to take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of the wild flora and fauna species (especially those in Appendices I and II) and the conservation of endangered natural habitats. Further, each party must (Article 4.2), in their planning and development policies, have regard to the conservation requirements of the areas protected under Article 4.1 so as to avoid or minimise as far as possible any deterioration of such areas.
It can be seen from the reference in Article 4.2 to “the areas protected under Article 4.1” that the intention of the Bern Convention is that specific areas are to be protected under Article 4.1 as part of the “measures” to be taken, even though Article 4.1 does not expressly require classification / designation of protected areas. There is therefore a clear parallel with the site classification / designation requirements of the Wild Birds (SPAs) and Habitats Directives (SACs).
Further, whilst Article 4.2 does not mirror the prescriptive and precautionary regime for the assessment of impacts of plans or projects on SPAs and SACs under Article 6.3 Habitats Directive / Article 7 Wild Birds Directive, there is still a requirement that any deterioration of these areas must be avoided or minimised as far as possible. This obligation would also need to be read in light of the Article 4.1 obligation “to take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of the wild flora and fauna species (especially those in Appendices I and II) and the conservation of endangered natural habitats”.
Finally, under Article 9 Bern Convention, a party may make exceptions (derogations) from the provisions of Article 4 Bern Convention if certain tests are met. These tests are that: there is no other satisfactory solution; that the exception will not be detrimental to the survival of the population concerned; and that the exception must be for a certain public interest need, such as public health and safety or other overriding public interests.
These three tests are similar to the derogation tests found in Article 6.4 Habitats Directive. As Article 9, Article 6.4 requires that there is no alternative solution. Article 6.4 also requires that there must be imperative reasons of overriding public interest which may be of social or economic nature (i.e. so potentially going wider than Article 9 of Bern, which does not expressly include social or economic factors). Finally, Article 6.4 requires delivery of compensatory habitat measures to ensure the coherence of the Natura 2000 network, whereas Article 9 requires “no detriment to the survival of the population concerned”. It is difficult to see how one could ensure no detriment to the population unless one was prepared to provide compensatory habitat.
In addition, the UK also ratified the Ramsar Convention in 1976. Under this Convention the parties must designate suitable wetlands as Ramsar sites (Article 2.1) and promote the conservation of these wetlands (Article 3.1). Article 4.2 then states that “where a party in its urgent national interest, deletes or restricts the boundaries of a wetland included in the List, it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the protection, either in the same area or elsewhere, of an adequate portion of the original habitat”. To the extent, then, that SACs or SPAs are also Ramsar sites (which is not uncommon), Article 4.2 Ramsar Convention goes some way towards duplicating the “habitat compensation” requirements of Article 6.4 of the Habitats Directive.
In conclusion, the habitat protection regime envisaged by the Bern Convention (and to some extent the Ramsar Convention) is similar to, albeit less prescriptive, than that in the Birds and Habitats Directives. It could be argued that the Habitat Directive’s express precautionary rules over the assessment of impacts of plans and projects on protected sites would be “gold plating” once we have left the EU, but the success of this argument is far from certain given the wording of Article 4.1 Bern Convention. A complete scrapping of the site protection provisions of the Conservation of Habitats and Species Regulations 2010 is very unlikely to be “Bern Convention-compliant”, particularly where the domestic SSSI protection regime in the Wildlife and Countryside Act 1981 and national planning policy is unlikely to be adequate (eg they do not apply in full the derogation tests as per Article 9 of the Bern Convention).
7. Will there be any immediate changes in relation to natural environment law when the Article 50 process is complete?
Yes (although please note that some commentators suggest that these outcomes will not occur until the ECA 1972 is repealed (not when the Article 50 process is complete) – but I would question that conclusion).
By leaving the EU the existing supremacy of (i) EU law over domestic law; and (ii) CJEU decisions over UK court decisions will be removed. So, for example, the CJEU judgments on the Habitats and Birds Directives (which have of course in the past influenced our domestic court decisions) will no longer be strictly binding on the UK. Therefore the domestic court’s likely treatment of the CJEU judgments is an “unknown”. Our domestic Supreme Court and Court of Appeal judgments will of course remain binding on lower courts, but one can see arguments arising that if a particular Supreme Court or Court of Appeal judgment was influenced by CJEU decisions which are no longer binding on the UK, then those domestic judgments may not be regarded as binding in the future. Until the time comes and these arguments are made, we will not know how judges will respond to these sorts of arguments. This issue is perhaps the most significant, since the strictness of the EU nature conservation regime is in large part attributable to CJEU interpretation of the legislation, rather than the letter of the law.
There is a further immediate implication: EU Regulations would cease to be binding on the UK. EU Regulations are “directly applicable” meaning that they are binding on the UK without any requirement for “implementation” through domestic legislation. Unless a particular EU Regulation is accompanied by domestic implementing legislation then leaving the EU will leave a gap.
An example of this relates to the international prohibitions on trade in certain endangered species of fauna and flora under the Convention on the International Trade in Endangered Species 1973 (CITES). The Convention is now primarily given effect across the EU through a self-contained set of EU Regulations (principally Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein and Commission Regulation (EC) No 865/2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97). The EU Regulations are enforced domestically through the Control of Trade in Endangered Species (Enforcement) Regulations 1997 and the Endangered Species (Import and Export) Act 1976 – but this domestic legislation only deals with enforcement, not the substantive rules on what is prohibited and when permits are needed. If the EU Regulations cease to be valid, there would be no effective legal regime for this area.