The Great Repeal Bill and the risk of enforcement black holes: some further thoughts based on environmental law

31 Mar 2017

As noted in my blog post yesterday, one of the main concerns about the Great Repeal Bill is whether Brexit-related secondary legislation will receive proper Parliamentary scrutiny.

The Government’s line as set out in its White Paper is that secondary legislation will only be used to make technical changes needed to ensure EU laws work sensibly after Brexit, i.e. once they have been incorporated into UK law. It says that primary legislation will be used for any policy reforms.

But any distinction between technical changes (warranting less scrutiny) and policy reforms (warranting greater scrutiny) quickly collapses.

For example, the White Paper went out of its way to say positive things about environmental law and stated that the “Bill will ensure that the whole body of existing EU environmental law continues to have effect in UK law”.

Separately, though, it gave an example of the sort of technical changes that might be required, noting that the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 requires the UK to obtain an opinion from the European Commission on certain types of project. The White Paper states that the Government’s delegated powers will allow it to either replace the reference to the Commission with a UK body or remove this requirement completely.

But the Commission’s environmental role is not limited to providing the odd opinion here and there. It also shares information, monitors progress and reports on Member State compliance. Crucially, it can bring infraction proceedings against governments that fail to comply with their obligations – and impose fines on them.

And, as became evident from internal Government documents relating to the 2015 Air Quality Plan that was the subject of the Client Earth (No.2) v DEFRA proceedings, the possibility of being on the receiving end of infraction proceedings provides a major incentive for the Government to comply with EU-derived environmental law.

If the legislative changes made under the Great Repeal Bill simply remove all references to the Commission’s environmental activities, rather than establishing an equivalent UK body to carry out the same tasks, the bottom line is that environmental law will be enforced less effectively.

And that is a change with significant policy consequences that would under normal circumstances be the subject of rigorous Parliamentary scrutiny, e.g. if the Government was trying to neuter a domestic regulator by taking away its enforcement powers.

The White Paper hints that the Government may reassess the environmental regulatory framework ‘over time’, i.e. after Brexit has taken place. But it could be years before sufficient Parliamentary time is available to put in place a new regulatory regime. Parliament will need to pass laws to implement whatever new trade arrangements are agreed with the EU, and there will be a backlog of other legislation to deal with given that there will not be much time for anything else other than Brexit over the next 24 months.

In short, there is a very real risk of ‘enforcement black holes’ opening-up if the Government simply removes references to all the Commission’s activities from the existing body of EU law. To avoid it, battles will need to be fought in Parliament to ensure that the changes made under the Great Repeal Bill ensure that independent UK bodies are put in place to carry out the Commission’s current enforcement functions.

And the rules of engagement for those battles will be determined by the detail of the Parliamentary procedures used for the mass of secondary legislation that will be passed under the Bill. The Commons Procedure Committee’s current inquiry into this issue could be of huge importance.

See also, in relation to environmental law after Brexit, this earlier post by Peter Oliver.