Full Brexit could decimate environmental regulation

28th April 2016

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Bernice Roberts

Leaving the EU could lead to huge gaps in environmental law, the former chief executive of the Environment Agency Baroness Young fears.

She is backed by lawyers who say large parts of environmental law depend on the European Communities Act (ECA), which would be repealed if the UK left the EU.

Two types of law depend on the ECA: regulations such as the REACH chemical regulation, which are not implemented by UK legislation, and secondary legislation, which is brought in by statutory instruments (SIs). EU law that has been implemented by an act of the UK or Scottish parliament would remain part of domestic law unless it was repealed separately. However, much of the legislative detail of those laws is brought in by SIs.

To prevent gaps appearing in UK law would require an act to ensure that regulations and SIs do not lapse, legal experts say. But Young does not believe that will be possible politically if the vote is in favour of leaving the EU. Many politicians who want out hate the EU because of the standards it imposes, she said. Even legislation to extend existing law until the UK decides what it wants instead would receive ‘a rocky ride’ through parliament, she said.

‘The whole point is that people [who want to leave the EU] don’t want to meet EU standards,’ Young said. ‘If we want a trading relationship with the EU like Norway then we’d have to meet their standards, but you can bet your bottom dollar there would be people trying to water down regulations. When most of it was being negotiated in the UK, it wasn’t easy. The fine detail and the way of going about meeting regulations will be up for grabs again.

‘How would regulators regulate? How would business know what they need to do? It would be a legal nightmare,’ she added.

Young, who is co-chair of campaign group Environmentalists for Europe, raised her concerns at the launch of a report by UK in a Changing Europe, which is part of the Economic and Social Research Council. The report outlines how the EU has influenced the UK’s environment and was co-authored by 14 international policy and legal experts, including Joanne Scott, professor of European law at University College London. ‘Nearly all EU legislation is implemented by SI under the ECA. If all those SIs lapse with nothing in the ECA’s place, you will have an almighty hole; most environmental law in the UK would just disappear. It’s a very frightening prospect,’ Scott said.

Even if a temporary or ‘grandfathering’ act was passed, it is not clear whether decisions over which pieces of law should be repealed or amended in the long term would rest with parliament or the government, Scott said.

Charlotte Burns, senior lecturer in environmental politics and policy at the University of York, said: ‘I would hope that common sense would prevail and an act would be adopted to maintain everything for the time being.’ If not, large loopholes would emerge and there would be scope to challenge the basis of lots of environmental regulation, she warned.

Andrew Farmer, director of research at the Institute for European Environmental Policy, said he thought a grandfathering act would be politically palatable. ‘All it would say is that the ECA stays in place until we decide how to replace it with something else,’ he said.

If nothing was put in place of the ECA, the consequences would be severe, he said. ‘You wouldn’t just repeal something; you’d go backwards as well. Some of the transposed legislation amended previous regulations,’ he pointed out. If the ECA was simply repealed then previous regulations would be in force again and industry would have to go back to what it did before, which would be ‘insane,’ he argued.


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