Although there is still much uncertainty, the Government has given some indication as to how EU and UK law could be decoupled. Brexit Secretary David Davis announced at this year’s Conservative Party Conference that the Government will introduce a ‘Great Repeal Bill’, which, in simplified form, will transfer into domestic law all EU law which applies to the UK at the time Article 50 is triggered. After Article 50 is triggered, which is currently predicted to be May 2017, new EU laws will stop applying automatically to the UK.
Laws adopted under the Great Repeal Bill can be removed later, but they will have to be actively repealed by Parliament. Therefore to predict which laws will be in force even by the end of 2017, it is necessary to consider both the provisions which will not make the Article 50 cut off and never enter domestic law, and those which may be actively repealed afterwards.
For instance, EU member states have until 17 May 2017 to enact the revised Environmental Impact Assessment (EIA) Directive, which introduces new monitoring requirements and penalties. Consultation has begun in Wales but there is an ominous silence from Westminster so far; is this a sign that it may never become domestic law?
It is likely that following the cut off, ministers will be inundated with requests to repeal certain laws. This will inevitably trigger renewed and vociferous debate between certain business sectors and the ‘green’ lobby over the importance of environmental protection. Although a wholescale ‘bonfire’ is unlikely, the Government is likely to regard this transition period as a good opportunity to dispose of any unwanted EU regulations.
There has been some speculation that the Habitats Directive and the Wild Birds Directive may be in line to be axed, as the EU system of Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) under these directives has historically limited the power of the UK Government to follow its own priorities under the domestic SSSI regime. Although some flexibility may result in protections which are more directly applicable to the UK, there is a danger that any replacement legislation will be less complete and that some protection for species such as great crested newts and other European priority species and habitats may be lost.
Much of the law on the definition of waste has also emanated from EU directives and has been refined by European Court decisions over many years. There will no doubt be calls on the Government to bin much of the perceived EU ‘red tape’ on waste management in due course, but it is a complex area and would require some well-crafted new UK legislation to take its place.