David Cameron made an election committed to an “in-out” referendum on Britain’s membership of the European Union by 2017. But what would be the implications for the UK’s environmental law if the UK did leave Europe?
Many areas of UK environmental regulation originate from Europe and those in favour of leaving the EU point to the apparent advantages of being better able to tailor regulation to the UK’s own needs. This would give the UK freedom to better determine the scope and timing of environmental regulation. But could this freedom in fact ever be realised, or would the UK’s role in the European and world markets mean that it would still need to comply with much EU regulation, even if the UK was no longer a member of EU?
At the moment there is much uncertainty about exactly how a Brexit would be implemented, particularly in relation to the legal status of UK law that was implemented because of obligations arising from EU membership. Would all such law be abolished on the exit date? Would there be a transitional period to allow review and revision of such legislation? And how would the UK find the resources for such a comprehensive reworking of legislation? Experts consider that the negotiation of an exit from the EU is likely to take a couple of years, even after a decision is made to leave, because of the complexities of withdrawal. Such a timescale would allow simultaneous negotiation of new trade agreements needed to allow trade to continue with other European member states and markets where the UK currently has preferable access because of its EU membership. But would this also allow time for a re-write of the statute books?
Below, we consider some of the practical implications of a Brexit on environmental law and some approaches that could be considered. We should note that UK devolution adds a further level of potential complexity, as environmental regulation is not consistent across the UK, but, for brevity, we have not looked in detail at this point.
Status of European law
One approach might be to repeal all European environmental law on the Brexit date. This would presumably mean repeal of all legislation which implements EU Directives and of all EU Regulations, which themselves are directly effective in UK law. It is worth noting that even establishing which laws are derived from EU sources is not straightforward. In some cases, measures which were required by Europe were already in existence in UK law before this EU requirement arose. In other cases, EU requirements have been enhanced when implemented into UK law. Even if it can be established which law is “EU law”, a simultaneous repeal of all such legislation would lead to a significant vacuum in environmental regulation – many areas of environmental regulation would probably have been implemented by the UK independently had they not been dealt with under EU Directives. In addition, some EU law implements UK obligations under international conventions, such as Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). A repeal of such legislation would put the UK in breach of its obligations under the convention.
To avoid such a vacuum, a comprehensive review of environmental legislation, identifying “EU derived laws” and determining whether to repeal in whole or part or to replace would need to happen in the period before the exit becomes effective. Given the scale of this task and the large numbers of consultations required for many potentially fundamental changes to a large range of environmental regulation, the two year timetable for exit would seem rather short.
The alternative would be a transitional period of repeal and replacement following any exit. This may allow a more orderly evolution of regulation, but would lead to a longer period of uncertainty about the future UK regulatory landscape – very unattractive to UK business and investors.
However, there are areas of EU environmental legislation, for example the Mining Waste Directive, where many argued that the issues it sought to address were not common to all member states. In these circumstances, arguably the legislation provided little in the way of environmental benefit to the UK and added compliance costs which were difficult to justify. A UK-focussed regulatory system could better address the key issues in the UK, avoiding unnecessary legislation.
There is an interesting question about the role of caselaw precedent following the divergence of UK and EU law after a Brexit. What would be the role of European Court judgements in interpreting points of law that remain on the statute books after the Brexit (either because they have not yet been repealed, or because the UK has decided to retain that regulation)? And would the answer differ for judgements made before the Brexit date and those made after? These matters would need to be determined at the time of any exit to allow clarity on interpretation of regulatory requirements.
Also the status of, for example, European designated sites, such as Special Areas of Conservation and Special Protection Areas, would need to be reviewed and alternative designations applied if on-going protection is to be secured following repeal of the relevant European legislation. Similarly with European Protected Species, prior to the repeal of legislation associated with the protection of these, a review would need to determine what protection they are to be afforded after a Brexit.
As well as explicit environmental regulation driven by Europe, a number of environmental areas are subject to targets imposed by Europe such as landfill diversion targets and greenhouse gas emissions reduction targets. Consequently, both regulation and policy have sought to meet such targets. Consideration would need to be given to the status of this regulation and policy that relates to objectives that presumably would no longer have any effect in the UK. Again, a significant part of the issue will be in identifying the motivating factor behind various legislation and policies, where often, this is likely to have a number of drivers.
Undoubtedly the UK government would determine areas where they want to implement alternative environmental targets or objectives. However any failure to meet those targets in future would presumably be a solely political failure – there would be no scrutinising body overseeing achievement of targets or fines levied for failure to meet these, as there is while the UK remains a member of EU. For some this may be seen as a benefit, though others may see it as an opportunity for governments to avoid long-term targets which are particularly relevant in environmental protection.
Another point which is particularly pertinent in the environmental sphere is the question of dealing with transboundary or large scale issues. Whilst the UK remains within the EU, it is much easier to co-ordinate a regulatory response, at least at a European scale. In particular in relation to climate change, the UK has been a driving force for environmental regulatory change within Europe, but its influence is likely to be greatly weakened if it were outside the EU.
Also, the European Commission co-ordinates much scientific and technical research which underpins EU policy and legislation. Presumably if the UK were outside the EU, it would have to bear the cost of such research itself and, on trans-boundary issues, negotiate with the EU on the basis on which any co-ordinated research was to be carried out and funded as well as the terms of data-sharing etc.
The role of markets
Many argue that because of the importance of the EU market to the UK, many regulatory requirements will need to be complied with by UK businesses simply to allow access to the markets. As well as product standards, this could be driven by client organisation’s environmental and CSR (corporate social responsibility) policies. However, if this is the case, it would leave the UK in the position where it did not have the opportunity to influence and shape legislation created by EU, but nonetheless was effectively constrained by it.
It is likely that if the UK did leave the EU, it would seek to join the European Free Trade Association (EFTA) and/or the European Economic Area (EEA) so that it could access the single market. However, membership of EEA would mean that the UK would be subject to most EU environmental legislation, excluding the Birds, Habitats and Bathing Water Directives. Again, this would result in the position outlined above where the UK was subject to legislation over which it had little influence and which was formulated without consideration of its impact on the UK.
This is a complex area and we have tried to raise just a few of the areas for consideration. There is much that is still unknown about how a Brexit may be structured and the knock-on impacts on environmental legislation and policy. There is no doubt, however, that if the referendum does lead to an exit from the EU, deciding on the best strategy to implement in the UK for future environmental regulation will be a complex, multi-faceted decision, with a wide range of stakeholders to consider. Whatever that decision, minimising the period of regulatory uncertainty will be essential to avoid loss of business confidence and investment and to best protect environmental resources.
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