On 26 June 2018 the European Union (Withdrawal) Bill received Royal Assent. The European Union (Withdrawal) Act 2018 provides a legal framework for the UK leaving the EU and the subsequent incorporation of EU law into UK law (which framework may be added to by the Scottish Parliament’s UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill if the Scottish Bill survives the UK Government’s legal challenge to be heard by the Supreme Court in July 2018).
Section 16 of the Act includes provision for the maintenance of environmental principles once the UK leaves the EU and requires the UK Government to publish a draft Bill which, amongst other things:
- a set of environmental principles,
- a duty on the Secretary of State to publish a statement of policy; and
- provisions for the establishment of a public authority with functions for taking, in circumstances provided for by or under the Bill, proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law (as it is defined in the Bill).
In this first of two posts we look at the UK Government’s environmental policy post-Brexit.
UK Government consultation
On 10 May 2018 the Government opened a consultation about the proposed Environmental Principles and Governance Bill (the Bill) which is expected in autumn 2018. The Government’s intention is to establish post-Brexit environmental principles for the UK and an independent statutory environmental body to replace the EU’s environmental enforcement mechanisms. The consultation paper also follows up on the Government’s 25 Year Environment Plan published in January 2018. The consultation is open until 2 August 2018.
In the consultation paper the Government summarises the key environmental principles that “…have been used to guide and shape modern environmental law”. Section 16(2) of the Act lists environmental principles that must be included in the Bill, including, amongst others, the sustainable development principle, the precautionary principle, the rectification at source principle, and the polluter pays principle.
Currently there is not one single place where the environmental principles from various sources (EU law, international law, domestic law) are bundled, despite their key role to Government policy. The Government’s proposal will also include a comprehensive policy statement to set the base for the UK’s post-Brexit environmental policy-making and legislation. The policy statement will combine the existing principles derived from different sources into one UK source.
Once the UK has left the EU it will cease to implement EU environmental laws and principles and the UK’s compliance with EU environmental law will no longer be monitored by EU bodies and agencies, such as the European Commission, the European Environment Agency, and the Court of Justice of the European Union. The consultation paper “…explores the functions of a new, independent, statutory environmental body to hold government to account on the environment”. The paper considers the functions, remit, scope and nature of a proposed new governmental body that will be created by the Bill. Key proposals for the new body include that it should:
- act as objective and impartial voice for environmental protection;
- be independent of government and capable of holding it to account;
- have a clear remit, not overlapping with other bodies, and have the powers, functions and resources required to deliver that remit; and
- have jurisdiction over environmental areas that are the responsibility of the UK Government and where possible areas of devolved matters, if the devolved administrations wish to take a similar approach.
Since joining the EU the UK has continuously strengthened its commitment to strong environmental policies and laws. The UK Government is proposing a new body which will aim to ensure the UK’s future compliance with environmental principles. The Prime Minister in a speech at the London Wetlands Centre on 11 January 2018 emphasised the opportunity Brexit provides to strengthen and enhance the UK’s environmental protections. The proposed Bill expected for autumn 2018 has the potential to be an important step for post-Brexit environmental law.