EU environmental laws that cannot be easily converted into UK law might never make it onto the statute book once the UK leaves the EU, according to a House of Lords scrutiny committee.
The House of Lords EU select committee today published its report on the impact of leaving the EU on UK environmental regulation and policy. After secretary of state for the environment Andrea Leadsom admitted during questioning that around one-third of laws would be hard to roll into UK law through the Great Repeal Bill (GRB), peers requested more detail from Defra.
They specifically wanted more information on the scope of the bill, how it would accommodate references to EU institutions, executive agencies, judgments by the European Court of Justice (ECJ) and what would happen to ‘soft law’, such as commission guidance notes.
In written evidence, Defra said it was facing a ‘significant challenge’ in returning legislative responsibility to the UK. The department had identified that more than 1,100 directly applicable EU laws, and national legislation implementing them, were under its remit.
It stated: ‘Some areas (such as chemicals or ozone-depleting substances) might present more challenges than others because they are currently delivered by EU agencies, systems or resources. But where laws need to be fixed, that’s what the government will do. We will provide more detail on the GRB in due course.’
Speaking to the environmentalist about the committee’s report on the impact of leaving the EU on environmental laws and policy, Lord Teverson said peers had been ‘very disappointed’ by Defra’s statement.
‘It was very broad and non-specific,’ he said. ‘ From this, we thought they weren’t sure what the one third was specifically, or whether it was just an estimate, and secondly, they hadn’t much idea how they were going to deal with it. When you have a very short period of time to get the GRB on the statute book that it is a great concern.’
The government’s white paper said that the bill would enable the same laws to apply on the day after the UK leaves the EU as they did before ‘wherever practical and appropriate’.
‘This [wording] concerned us [because] in certain areas they might decide that this is just too difficult. We have an ongoing concern about that one-third and whether it will actually make it onto the statute book,’ Teverson said.
He added that the committee had ‘had to push Defra long and hard’ to get any response at all, and he questioned the department’s resources to deal with Brexit.
In an earlier inquiry, the House of Commons Environmental Audit Committee had recommended that the government introduce an Environmental Protection Act to fill any gaps in the GRB.
The House of Lords committee also said that the government was ‘worryingly complacent’ about the enforcement of environmental laws once the UK is no longer under the remit of the ECJ. Witnesses told the committee that effective enforcement of EU legislation had been just as important as the laws themselves. Thirty cases have been brought to the ECJ that have resulted in a judgment against the UK government, the committee was told.
Both Leadsom and environment minister Thérèse Coffey told the committee that parliamentary scrutiny, elections and the process of judicial review would be sufficient to ensure that the UK complies with environmental laws that originated in the EU.
But the committee was not convinced and recommended that the government establishes an independent domestic enforcement mechanism underpinned by judicial oversight to fill the vacuum once the UK leaves the EU.
Teverson acknowledged that this would be difficult politically. ‘The committee did not feel that there was an intent by ministers to water down environmental protection – there was no evidence of that. But the political environment of Brexit means that, having broken free from the constraints of the supranational lawmaking of the ECJ, we should go back to UK parliamentary democracy that operates for other parts of the legal system.
‘The government doesn’t want one set of independent law enforcers replaced by another set, I think there is that background,’ he said.
It was unlikely that such a body could be established within the two-year negotiating period for Brexit. But Teverson suggested that an independent organisation, similar to the Committee on Climate Change, and responsible to parliament rather than the government, could be set up for the transitional period,.
Meanwhile, Green Party co-leader and MP Caroline Lucas called on the government to introduce a ‘green guarantee’ to ensure that environmental protections were not diluted when the UK leaves the EU. This should include enshrining the principles underlying EU environmental law, such as the precautionary and the polluter pays principles, into UK law, she said.
The government must also set out how it intends to uphold international environmental agreements such as the Bern and Aarhus conventions, as these have mostly been met through membership of the EU, Lucas said.
