Environmental laws and enforcement post-Brexit

Much of the debate about the UK environment post Brexit has been concerned with whether environmental standards will be watered down to benefit the competitiveness of businesses on the global stage, and what procedural arrangements will be put in place to develop environmental standards i.e. the statutory framework.

In January this year the United Kingdom Environmental Law Association (UKELA) published a paper “Brexit and Environmental Law – the UK and European Cooperation Bodies”. The paper considered whether the UK in a post-Brexit world will be permitted to continue to participate in the European bodies which are of greatest importance to environmental law, what the benefits would be for the UK to continue to participate in each of these bodies and finally if participation is not possible, what functions would the UK be losing in terms of environmental governance. The detail of that report is beyond the scope of this article however it is implicit from the three key questions that it poses that there are some very significant mechanisms that influence, form and regulate environmental law and policy which require detailed consideration in creating the architecture of a post-Brexit suite of UK environmental laws.

Since UKELA’s report was published, the UK Government announced in May this year that it would consult on the Environmental Principles and Governance Bill (the Bill) which will “ensure environmental protections will not be weakened as we leave the EU”. Michael Gove the Environment Secretary stated that new laws, including the Bill will be introduced to ensure “core environmental principles remain central to government policy and decision-making”.

One of the key proposals of the Bill is to establish an independent body to hold the government to account on environmental issues. This body will “support [the UK Government’s] commitment to be the first generation to leave our environment in a better state than that in which we inherited it. It will provide scrutiny and advice…”. The body will have three key responsibilities being:

• providing independent scrutiny and advice on existing and future government environmental law and policy
• responding to complaints about government’s delivery of environmental law, and
• holding government to account publicly over its delivery of environmental law and exercising enforcement powers where necessary.

The consultation also seeks views on the UK Government’s intention to “require ministers to produce - and then have regard to - a statutory and comprehensive policy statement setting out how they will apply core environmental principles as they develop policy and discharge their responsibilities”. The consultation closed on 2 August 2018.

However, this proposal has not been universally welcomed, with a coalition of environmental groups including Friends of the Earth expressing concern that standards will fall. UKELA have also published a response setting out a number of options to help ensure that there will be a suitable system for environmental law enforcement. These include expanding the role of the Planning Court and the role of the Environmental Tribunal or establishing a specialist environmental court or tribunal that would have comprehensive jurisdiction for the administrative, civil and criminal enforcement of all environmental law.

Comment

It is clearly critical that the UK Government puts in place a robust legal framework to address environmental matters post-Brexit. The current proposals on which it has consulted are relatively superficial and do not address some core questions including the extent to which the UK will follow or benchmark against European laws and standards. A failure to put in place a robust framework could compromise the protection of the environment. As Peter Harvey, Chair of the UKELA Brexit Task Force Sub-Group has stated the UK Government must ensure that “there is no serious governance gap when the European Commission is no longer holding our public bodies to account for complying with environmental law”.