As we all know, Brexit will soon be upon us, as we are for the moment in the transition period. To avoid unpicking a plethora of legislation, the Withdrawal Act retained all EU driven legislation and subsequent regulation – for now.
But what is the position once we have left the transition period? The Withdrawal Act has paved the way for the UK to modify all legislation. The key species and habitats legislation carried over is the Conservation of Habitats and Species Regulations 2017 (as amended). Until the end of 2020, this legislation and any legal decisions relating to it remain in effect and provide case law precedent. After 2020, legal challenges to the Regulations could change their interpretation in the UK. However, Parliament could amend or enact new legislation from 2021 which could alter the Regulations and their interpretation.
In addition, the Secretary of State can modify the Schedules of EPS plant and animal species and can modify habitats and species in the Directive Annexes.
If the Regulations remain unchanged, the extant domestic and European case law still has effect; however, the Supreme Court has the power to over-ride these, and this power may be extended to lower courts. And any CJEU decisions made after 2020 are no longer binding in the UK, although a judge in the UK could refer to these in making a judgement.
Key portions of the Conservation of Habitats and Species Regulations 2017 are:
What to look out for:
1.Expect an evolving situation based on new court challenges to the Regulations. The Supreme Court or lower courts could interpret regulations differently to established case law. After January, new interpretations would be over-riding;
2.The government may issue guidance which changes the way the Regulations are interpreted
3.Also, look out for measures in Parliament to replace or substantially amend the 2017 Regulations
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