Environmental Law & Governance Post-Brexit

This report presents a high-level overview of some gaps and challenges facing environmental law in the United Kingdom post-Brexit.

This report is correct as at 11 February 2021 and is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your particular circumstances should always be sought separately. We accept no responsibility for any actions taken or not taken on the basis of this publication.

In summary, the report highlights:

 1. Loss of EU architecture

• Post-Brexit the UK loses the EU architecture for enforcing environmental law, including the Commission; with some arguing that judicial review by national courts is no substitute for the systematic enforcement role played by these supranational bodies.
• The UK also loses access to the technical expertise of specialist EU bodies (such as the European Food Safety Authority) which provide independent scientific advice and data on environmental issues. At the same time, the UK’s existing authorities involved in environmental protection (such as DEFRA) face funding and skills shortages.
• As environmental matters are largely devolved, no single, national framework for environmental protection can take the place of the common EU processes which previously bound the UK as a whole.
• The new Office for Environmental Protection (OEP), introduced by the Environment Bill (2019-21), will be responsible for monitoring and enforcing environmental law (primarily in England); however, there are concerns that it lacks sufficient independence from government and calls for appointments to the OEP to have Parliamentary oversight.

2. Retained EU law

• The EU has an extensive legislative framework which gives effect to its objective of environmental protection, as enshrined in its Treaties. Following Brexit, the EU Treaties, Regulations and Directives cease to apply; in their place, the UK has transposed some EU law into domestic law, i.e. ‘retained EU law’. However, Ministers have broad powers to modify retained EU law, and certain courts can depart from retained CJEU case law.

3. Future Government plans and the Environment Bill

• While the Government has committed to maintaining high levels of environmental protection post-Brexit, it is unclear how the Environment Bill will deliver:
  • Most of the Bill applies to England only.
  • The current draft does not contain a binding ‘non-regression’ clause to prevent the lowering of current environmental protection standards.
  • The delay in the passage of the Bill is delaying progress on the Government’s environmental ambitions.
• The post-Brexit EU-UK Trade and Cooperation Agreement (TCA) gives some recognition to the UK and EU’s shared environmental objectives. On climate change, it enshrines the parties’ commitment to net-zero targets. It also includes a provision aimed at preventing the regression of environmental protection; but only if that impacts on trade and investment.

 4. Rule of law

• The Independent Review of Administrative Law (IRAL) has prompted concerns that possible public law reforms (such as reduced time limits) could hinder access to justice in environmental cases, but it also presents opportunities to improve the process of judicial review.
• There has been a significant increase in the use of secondary legislation in preparing for Brexit, with some arguing that Ministers have introduced substantive changes to environmental laws without sufficient oversight.