By Henrietta Appleton, GWCT Policy Officer (England)
4 minute read
The Retained EU Law (Revocation and Reform) Bill – often termed the Brexit Freedoms Bill – and the Levelling-up and Regeneration Bill (LURB) have caused much consternation amongst environmental NGOs as both have mechanisms that will result in the current EU-derived environmental legislative framework changing. But is this cause for concern? Surely it’s what was expected from Brexit?
If you listened to Craig Bennett of the Wildlife Trusts on Radio 4’s Today programme on Monday 24th October you might conclude that our environmental regulatory rule book was being torn up and the future bleak. Concerns expressed by the Wildlife Trusts and a number of other eNGOs e.g. RSPB and National Trust were fanned by the growth orientated Truss administration’s rush to relax planning restrictions.
However, at Second Reading debate of the Brexit Freedoms Bill on 25th October, the Sunak administration emphasised that “We will use the powers in the Bill to ensure that our environmental law is functioning and able to drive improved environmental outcomes, with the UK continuing to be a world leader in environmental protection”.
Comfort should also be taken that Government will “take the necessary action to safeguard the substance of any retained EU law and legal effects required to operate international obligations within domestic law”. It is also worth noting that Government has been meeting many in the environmental network to discuss their concerns and so this reassurance at the Dispatch Box should help quell their concerns.
The intention of the Brexit Freedoms Bill (and Part 5 of LURB) is to create a domestic environmental legislative framework, rather than rely on the existing EU based one, and in so doing move to a less prescriptive and more flexible approach to regulation. This move to ‘soft’ law with policy guidance and statements providing the detail to guiding framework legislation has already started e.g. the Environment Act 2021 but it causes alarm amongst those who consider that the only way is to protect our environment through designations and other legal prescriptions.
But this does not necessarily mean that environmental legislation will be weakened. The carrot rather than the stick approach is likely to be more engaging to land managers and, let us be honest, the EU is not always a gold standard. A good example of this is the EU’s decision to ban the only effective herbicide for bracken control, based on residue data submitted when the chemical was used on spinach. That treated bracken might be eaten seems highly unlikely, yet there are many other negative impacts of uncontrolled bracken including Lymes Disease and contamination of drinking water from toxic spores. In the UK we are seeking a managed approach, balancing the up and downsides.
So rather than bemoan the changes being proposed, we would encourage Government to consider how existing EU-derived legislation could be converted into appropriate domestic frameworks so that the unique environmental challenges faced by the UK are directly addressed and not diluted by the consideration of 26 other nations as was the case with the EU.
Consequently we also take some comfort from a recent answer to a parliamentary question in which Trudy Harrison, Parliamentary Under-Secretary at Defra, stated “My department is carefully considering the scope of the delegated powers in the Retained EU Law (Revocation and Reform) Bill, and whether they can be used to deliver a better, bespoke British system of nature protections to replace the provisions in the Conservation of Habitats and Species Regulations 2017 (as amended).”
However we recognise that there is a genuine concern about how long the process of reviewing and replacing over 2,500 pieces of EU-derived legislation will take. The Brexit Freedoms Bill still must become law and so the sunset date of end 2023 does not look that far away , especially if one considers that economic and employment EU-derived legislation is likely to receive precedence. In addition, the Bill permits retained EU legislation to simply cease to exist at the sunset date with no parliamentary input unless Ministers take action.
But perhaps of most concern is that Ministers will be able to amend law by Secondary Legislation (rather than Primary) if they so wish. This makes it harder for Parliament to scrutinise and challenge as this method of law making can only be agreed or rejected by Parliament and cannot be amended, unlike Primary Legislation which can be amended during the passage of the Bill. That could pose problems if a Secretary of State wanted to change legislation which was not based on best available science. In addition, there is concern that the lack of consultation on the replacement domestic legislation could result in mistakes and unintended consequences.
So it is not all plain sailing clearly and there is still much to consider as we seek to balance a reduction in red tape with world leading environmental standards and achieving Environment Act targets. But I would argue that the role of organisations such as the GWCT is to engage with Government and to seek a collective outcome - not to cause alarm.
[1] https://questions-statements.parliament.uk/written-questions/detail/2022-10-17/64376
[2] We note that a power to provide for an extension to the sunset to 23rd June 2026 has been included in the Bill should a lack of parliamentary time, or external factors, hinder progress.