The Great Repeal Bill Framework has now been set out in a White Paper. What this confirms is that the Bill will preserve all laws we have made in the UK to implement EU obligations. The White Paper suggests that after leaving the EU, such preserved legislation may be reviewed and altered.
Setting the Stage for Life After Brexit
Of note is a box on page 17, which addresses environmental law:
“The Great Repeal Bill will ensure that the whole body of existing EU environmental law continues to have effect in UK law….We [the UK] will then have the opportunity, over time, to ensure our legislative framework is outcome-driven and delivers on our overall commitment to improve the environment within a generation. The government recognises the need to consult on future changes to the regulatory frameworks, including through parliamentary scrutiny…”
This is an interesting comment, as it suggests that the government is sympathetic to the view that some environmental legislation, written to meet EU Directives, is not necessarily effective in delivering environmental improvements.
In an earlier article we pointed out that the Habitats Regulations was based on the Bern Convention. The White Paper notes that such treaties can form the basis for resolving interpretation of retained EU law after leaving the EU:
“2.10 … in interpreting an EU measure it may be relevant to look at the context as revealed by its legal basis as found in the treaties…”
So the expectation is that EU-derived regulations will continue to be implemented after Brexit.
What will change – the Court of Justice of the European Union
Long a bugbear for the UK, this Court will no longer have jurisdiction over any UK law, EU-derived or otherwise. Appealing to this court has been pro forma for any objectors to UK implementation of EU Regulation, and Theresa May suffered greatly during her time as Home Secretary with endless appeals based on human rights issues.
How will anomalies be Dealt with?
The White Paper makes it clear that although EU-derived legislation will still have effect after the UK leaves the European Union, such legislation may be reviewed and altered. The government already proposes using secondary legislation, familiar to practitioners as Statutory Instruments. The power to create SIs is devolved, meaning parliament does not have to review them, before passing them. This mechanism is proposed to deal with areas where EU derived law may conflict in some way with other legislation.
What to Watch Out for?
Wait to see how the final Great Repeal Bill is finally written – this is a White Paper, and much could change.
The latest news on the much-promoted Garden Bridge over the Thames has been thrown into doubt by the Hodge Report, which was commissioned by London Mayor Sadiq Khan. A more detailed financial summary can be found here: http://www.publicfinance.co.uk/news/2017/04/garden-bridge-should-be-scrapped-finds-hodge-report
But is there a biodiversity case for the bridge? In terms of value for money, I would say no. The River itself functions as a dynamic corridor for biota of all kinds. Like all rivers, the biosystem dynamics are well-understood, with the flow of nutrients and mineral material downstream to be deposited in the Thames Estuaries and the sea. Biota have developed strategies for dealing with the tidal nature of the Thames. While the balance of flow is towards the sea, there are twice daily movements in the other direction. Thus as a biotic corridor, the Thames does not need assistance from us, although there would be merit in naturalising the banks. Such naturalisation has occurred only in isolated areas, and the value of land along the banks means that it is difficult to get owners and developers to agree to sacrifice river frontage to habitats.
So would the bridge assist as a biological corridor over the Thames? This could help flightless fauna, and some terrestrial wildlife. Again, most fauna have developed strategies for crossing barriers, including hitchhiking with birds (in the case of insects) and utilising rafts of vegetation or detritus to cross the river itself. Thus while the garden bridge could provide some positive benefit in biological corridor terms, it is doubtful that it would create a detectable increase in wildlife crossing the Thames. The bridge is really more of an aesthetic feature, and developed a romantic following amongst some Londoners.
I am struck when in the upper stories of London buildings how much potential unused habitat exists. A real and much less costly biological benefit could be gained from simply creating pockets of habitat on the London skyline. Much like the naturalisation of the Thames bankside, there is policy aspirations to achieve this, but it is more evident in its absence. There is still much to be done for London to achieve real biodiversity enhancements in line with national policy. The Garden Bridge is not the answer.
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