Shortly before the Brexit referendum, the different groups in DLA Piper were asked to provide a briefing for clients on the likely implications of Brexit on the law in their subject areas.
The Safety Health and Environment Team took the view that radical change in UK laws relating to the Safety Health on environment was not very likely in the short to medium term. Against the background that a very high proportion of the legal provisions in this area are now interlocked with EU legislation, it would be likely that in the event of Brexit that legislation would have to be kept in force as UK legislation for a significant period, and there would likely be little appetite for radical change, for the following reasons:
Significant aspects of the EU corpus of legislation on these topics were originally inspired by UK developments.
Ongoing engagement with the single market might well demand a future commitment to comply with EU laws, and the Government would have much more immediate concerns to address than radical amendments to regulatory law on Safety Health and the environment.
Furthermore international commitments outside the EU would continue to be binding. That would be a particularly relevant consideration as regards commitments on climate change, as the UK is a party to the UNFCCC Treaty and to the Paris Agreement, which it ratified at the time of the Marrakesh Conference of the Parties.
These views were confirmed following the referendum, with the Government's announcement of a "Great Repeal Bill". Despite its name, this will keep in force as UK law, after the UK leaves the EU most EU regulatory law, including environmental law, on an indefinite basis. There was a slight stir in October, when Andrea Leadsom suggested that there were significant elements of EU environmental law which it would not be practicable to "nationalise, on technical grounds. However, it seems that what she had in mind were the "monitoring" elements, e.g. provisions requiring the EU Commission to monitor the implementation of Directives, and receive reports from Member States. That would not affect the substantive provisions. Clearly there would be a significant change if Brexit resulted in the UK Government becoming the chief arbiter of its own compliance with important areas of environmental law. It is however, by no means self-evident that that would be the consequence.
Despite the passage of time, there remains considerable general uncertainty as to the UK's future relations with the European Union. However, early indications from the newly formed Department for Business, Energy and Industrial Strategy (BEIS) suggest that the Government is committed to the decarbonising of the economy necessary to meet its obligations under the Climate Change Act and the Paris Agreement. It seems that a significant element in this is the Government's desire to reassure investors in the low carbon energy that the UK is a stable place to do business in the long term.
One important question posed by Brexit is continued membership of the EU ETS. That system provides an important control on the larger-scale emissions of greenhouse gases. One option might be for the UK to negotiate continuing membership notwithstanding Brexit. However, should this prove politically unpalatable, either to the UK or to the rest of the EU, another option might be withdrawal, but with the continued parallel operation of a similar scheme. That would not be difficult, as prior to Phase III of the system it effectively operated as a system of parallel schemes in each Member State.
Leaving aside the EU ETS, it is not clear to what extent the UK Government is likely to follow the European Commission's proposals for a "Winter Package", after Brexit and how it intends to keep within future budgets under the Climate Change Act.
One point the Government will have to bear in mind is that ClientEarth, which recently scored a High Court victory over the UK Government in relation to Air Quality (see current edition of SHE Matters) has expressed an interest in testing the enforceability of the Climate Change Act in the event of any backsliding of the Government.
Brexit may lead to less rigorous enforcement of EU environmental legislation (as transposed Post Brexit). However it will not affect the powers of the UK Courts to hold the UK Government to any commitments it may have made in national statutes.