Environment and Brexit: Strong Words from the House of Lords Select Committee

21 Feb 2017

On Valentine’s Day, the House of Lords Select Committee on the EU published a report entitled “Brexit: Environment and Climate Change” .But there is nothing romantic about this document: while recognising that Brexit affords the UK the opportunity to improve on EU environmental legislation in certain respects, it paints a bleak picture of what environmental law in this country could become post-Brexit, all the more because this event will affect “nearly every aspect of the UK’s environmental policy”.

The report stresses the risk that binding environmental standards will be lowered for financial reasons, not least to attract foreign investment – although it points out that this risk may be especially high in England since, according to several witnesses, “in some respects the Devolved Administrations’ environment and climate change ambitions” are higher.  But it is clear from the report that this decline might occur quite slowly.  In the colourful language of one witness, it will not necessarily be “a race to the bottom” but could be “a stroll to the bottom” with standards being regularly pared down in small ways.

Having said that, the report underlines the fact that, if the UK is to continue to sell its products in the EU, it will have to meet the EU’s environmental standards.  In addition, the report indicates that the UK would be subject to firm diplomatic pressure if it were to lower its standards regarding air pollution, since the prevailing winds would sweep most of the pollution over to the Continent.

On the issue of the enforcement, the report is particularly forthright, stating:

The importance of the role of the EU institutions in ensuring effective enforcement of environmental protection and standards, underpinned as it is by the power to take infraction proceedings against the United Kingdom or against any other Member State, cannot be over-stated. The Government’s assurances that future Governments will, in effect, be able to regulate themselves, along with Ministers’ apparent confusion between political accountability to Parliament and judicial oversight, are worryingly complacent.

As if to emphasise this point, the very next day the Commission announced that it was issuing a reasoned opinion to the UK – along with four other Member States – for failing to address repeated breaches of air pollution limits for nitrogen dioxide (here).

To remedy this deficiency, the report calls for “an effective and independent domestic enforcement mechanism” with regular oversight of “Government’s progress towards its environmental objectives, and the ability, through the courts, to sanction non-compliance as necessary”. No doubt, the reference to “Government” here includes the Devolved Administrations, since environmental policy is primarily within their remit.

In short, in this report the Select Committee appears to cast some doubt on the Government’s statement in its recent White Paper on Brexit (here) that it is “committed to ensuring we become the first generation to leave the environment in a better state than we found it”.

What is more, the report warns of the dangers of legal uncertainty, quoting Professor Macrory as saying “on exit, whatever form it takes, we need a period of regulatory stability … The last thing you want is to find there are gaps, lots of litigation and so on; that will not help business or anyone else.”

As the report points out, the Great Repeal Bill could be a source of considerable legal uncertainty, given the numerous complexities of attempting to carry over the existing body of EU law into a post-Brexit UK – a point already made in relation to all the areas concerned by George Peretz QC back in October (here).  (Indeed, back in October 2016, DEFRA Secretary Andrea Leadsom had already acknowledged that around a third of environmental acts “won’t be easy to transpose” (here).

Again, the reference to the Great Repeal Bill must be taken to refer equally to the primary and secondary legislation enacted by the Devolved Administrations designed to achieve the same objective.  (In the White Paper, the Government reiterated its commitment to the effect that it would not attempt to recover devolved powers. That is in accordance with the Sewel Convention.)

The final chapter of the report is devoted to devolution.  In the absence of the “overarching framework of EU legislation”, considerable divergences between environmental law and policy in the four constituent parts of the UK can be expected, according to several witnesses to the Select Committee.  To some extent, because Scotland, Wales and Northern Ireland are widely expected to be more ambitious than the UK Government in this regard, this could be positive.  However, the report stresses the need for coordination to avert unnecessary divergences and even “friction”.