Gov approach to Brexit could reverse “years of progress” on environment, say legal experts

03/07/2017 – News / UK / EU / Brexit / Environment

Brexit could give future governments too much leeway over environmental standards, legal experts have warned, threatening to slam years of progress into reverse when the UK leaves the EU.


The UK will need to sign up to international agreements on environmental standards after Brexit, as they are critical to trade and investment – but senior barristers have pointed out that it is unclear whether the Government has plans on how the UK’s environmental obligations will be enforced once it leaves the jurisdiction of the Commission and the CJEU (Court of Justice of the European Union).


“International laws that protect the environment only work when there is a body to enforce them,” said Hugh Mercer QC, Chair of the Brexit Working Group at the Bar Council – a body that represents barristers in England and Wales. “In most legal cases, a claim is made by a living person or a business, but with environmental law there is often no identifiable party with a justiciable interest,” he told us.


“The Commission and the CJEU have done the job of compelling the Government to follow its own legal obligations, but current plans will see their jurisdiction and authority in the UK come to an end. The big question is, who will enforce standards? The risk is that there will be no independent and effective body to ensure that the Government follows the rules,” he continued.


“UK courts will have some power to hold the Government to account, but only to UK law. They will be powerless to hold the UK Government to account over international obligations that are the backbone of environmental standards and are critical to agreements on trade and attracting inward investment.


“Unfortunately, the UK does not have a great reputation when it comes to following environmental law,” Mr Mercer lamented. “Despite the UK’s agreement to the high international standards, successive governments have been slow or reluctant to implement properly or correctly to apply key European measures such as, for example, air quality standards.


“The UK also has a track record for trying to use cost and economic reasons to swerve its obligations under environmental law,” he claimed. “The CJEU has set it straight on more than one occasion, such as when the Government tried to defend the unlawful discharge of untreated sewage by claiming the costs of improvements were too high.


“If not by the Commission or the CJEU, the Government needs to spell out how it will be held to account for its international environmental obligations.”


Recommendations to Government


The Brexit Papers, published by the Bar Council, make a number of recommendations to Government. They include:


• Create an effective, independent domestic enforcement mechanism to replace the Commission and CJEU, underpinned by judicial oversight and sanctions

• Ensure that UK courts continue to recognise past and future decisions of the CJEU prior to the UK’s departure from the EU, and subsequently take an approach consistent with EU law as it stands at the date of Brexit

• Align UK and EU environmental standards to assist the maintenance of cross-border trade

• Ensure medium-term stability and investor confidence in the environmental sector by avoiding legislative gaps and uncertainties in environmental protection

• Do not use the Great Repeal Bill as a mechanism for altering the UK’s approach to environmental regulation, either in the transition period or for the longer term. If the Government wishes to alter policy post-Brexit, it should do so through new primary legislation with full Parliamentary scrutiny

• Co-operate with the EU and other organisations to ensure long-term environmental protection, and

• Adopt a long-term approach to environmental protection, with due consideration of binding targets, consistent with the approach currently taken by the UK as set out in the Climate Change Act 2008.


The Brexit Papers


Published last week, The Brexit Papers: Third Edition offer Government, parliamentarians, the media and the public a concise and informative evaluation of the legal challenges posed by leaving the EU, and their practical implications for the economy and society.


A total of nine new papers are published as part of The Brexit Papers: Third Edition setting out in plain English the key legal challenges the Government will face on a range of policy issues including acquired rights, WTO, agriculture, fisheries, product standards, public procurement, environment, dispute resolution, and the CJEU. They offer a series of recommendations to Government, and each can be read as a stand-alone document.

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