GREENER UK

ENSURING THE WITHDRAWAL BILL LEADS TO A GREENER UK PARLIAMENTARY BRIEFING

RSPB

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INTRODUCTION

Greener UK believes that, no matter what the outcome of the Brexit negotiations, the people of these islands deserve a world class environment: clean air and water, a stable climate, healthy seas, beautiful landscapes and thriving wildlife in the places we love.

We welcome the UK government’s commitment to leave the environment in a better state. The Withdrawal Bill should be an important first step towards achieving this ambition, and the government has said it will “ensure that the whole body of existing EU environmental law continues to have effect”.

But, as currently drafted, the bill contains flaws that will leave our natural environment less well protected than it is now.

We are asking you to help address this problem during the bill’s passage through parliament. There would be public support for doing so, as 80 per cent of British adults believe Brexit should lead to current or stronger levels of environmental protection.

In particular, the bill needs to:1 Convert the entire body of European environmental law into domestic law, including fundamental principles of international and EU environmental law.2 Provide for new governance arrangements, so that there is effective implementation of environmental standards, whatever the UK’s future relationship with EU institutions.3 Restrict the use of secondary legislation, before and after Brexit, and create processes for robust parliamentary scrutiny of any changes made through secondary legislation during the conversion of EU law.

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AVOID GAPS IN ENVIRONMENTAL LAW

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Jon Haw

kins The Wildlife Trusts

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The government intends the Withdrawal Bill to “ensure that the whole body of existing EU environmental law continues to have effect”. We believe this this means converting all existing EU environmental law (including preambles, principles and jurisprudence) into domestic law.

The Withdrawal Bill risks leaving gaps in the body of environmental law. For example, aspects of EU directives that are currently incompletely or incorrectly transposed will be lost; the relevance of the preambles, used to interpret existing EU legislation, is unclear; and existing judgments of the Court of Justice of the European Union (ECJ) may not have the same reach.

A particular risk is the loss of environmental principles. Many of our strongest protections, and the international commitments to which the UK has signed up, are underpinned by general principles of environmental law. These are enshrined in the EU Treaties.

These principles are core objectives of the EU and shape how its law is interpreted by decision makers. But they are not articulated separately in our domestic law despite being a fundamental part of the environmental acquis and other parts of EU policy. To ensure that environmental protections continue to be applied in line with these principles, and are developed correctly in future, they need to be converted into domestic legislation.

REASONS WHY THIS IS NEEDED

Stopping the decline of bees

Since 1900, the UK has lost around 20 bee species, and a further 35 are at risk. Pesticides are thought to be playing a significant role in this decline.

EU laws governing the use of pesticides aim to ensure that all potential risks are investigated, understood and

“Many of our strongest protections are underpinned by general principles of environmental law.”

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minimised, before new technologies that could have a negative impact on the environment are approved. Such laws were developed in response to mounting evidence of the environmental and toxicological effects of pesticides, such as DDT, and widespread public concern about improper use.

In 2013, there was clear scientific evidence that the pesticides known as neonicotinoids could harm bees. But evidence was less conclusive about population scale effects, and whether or not the levels bees might be exposed to in the wild could be causing bee decline.

The precautionary principle means that the risk of threats to health or the environment is taken into account, even in the absence of full scientific certainty. At the time, the EU banned the use of neonicotinoids on flowering crops on the basis of the precautionary principle, as lack of risk to bees could not be proved.

There is now evidence that neonicotinoids do harm the overall performance of colonies as well as individual bees, justifying a continuation of the neonicotinoids ban.

Ensuring that polluters pay

The ‘polluter pays principle’ states that the polluter should bear the expense of carrying out pollution prevention and control measures. The EU’s Water Framework Directive, which drives the sustainable management of the UK’s waterways, has led to great improvements in the quality of our drinking water. It is specifically based on this principle, as is the Environmental Liability Directive.

“Since 1900, the UK has lost around 20 bee species, and a further 35 are at risk.”

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In accordance with the principle, the Environment Agency in England imposes fines on operators found to have caused pollution, and requires them to repair any damage and invest in preventative measures.

This year, six figure fines have been imposed on two water companies, one for pumping raw sewage into a river and another for a pollution incident that killed fish, birds and invertebrates. In addition, the companies were required to repair the damage caused and make investments to reduce the risk of breaches in the future. This not only ensures that clean-up and prevention costs are borne by the operator, and not by the taxpayer, but also acts as a deterrent because avoiding pollution usually costs less than removing pollutants from the environment.

CREATE NEW GOVERNANCE ARRANGEMENTS

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As noted by the House of Lords EU committee last year: “the importance of the role of the EU institutions in ensuring effective enforcement of environmental protection and standards… cannot be over-stated”.

EU institutions perform vital governance functions for the UK that must either be maintained or replicated after Brexit. They have brought the letter of the law to life through monitoring, oversight, implementation and enforcement. For example, the European Commission carries out an important watchdog function in ensuring member states comply with common environmental standards and requirements.

Our current domestic arrangements and institutions are not able to fulfil all of these functions in a comparable way to the existing system. The government has said that the UK’s judicial review and parliamentary processes would be enough to enforce environmental law after Brexit but domestic governance systems are not equivalent to existing arrangements for a number of reasons. For example, individuals can complain directly to the European Commission about breaches of EU law and other international commitments whilst judicial review has much more limited scope. Unlike the UK’s Supreme Court, the ECJ can impose fines on the UK government if it refuses to comply. This is a strong incentive which could disappear after Brexit. In addition, judicial review is being weakened further in the UK.

The Withdrawal Bill needs to ensure that, at the very least, there will be equivalent provision for environmental standards, protections and access to justice if the UK ends its relationships with EU institutions.

“The Withdrawal Bill needs to ensure that there will be equivalent provision for environmental standards, protections and access to justice.”

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“Without a way to enforce legislation and hold governments to account, the laws would be hollow, and cleaning up the air in our cities would be even harder.”

REASONS WHY THIS IS NEEDED

Our right to breathe clean air

Exposure to air pollution triggers heart and asthma attacks and increases the risk of hospitalisation or death. The equivalent of 40,000 premature deaths a year across the UK have been linked to air pollution, with children and older people more vulnerable to its effects.

Clean air laws exist to protect people’s health but they are only effective when governments act to implement them. Without a way to enforce legislation and hold governments to account, the laws would be hollow, and cleaning up the air in our cities would be even harder.

ClientEarth has twice had to bring legal action against the UK government over its inaction on illegal levels of air pollution, and has used EU law to do so. Following an ECJ ruling on the interpretation of the EU air quality directive, the UK courts were required to provide a legal remedy for the ongoing breach of air quality standards and ordered the government to prepare a plan to achieve limits as soon as possible. This action has forced the government to publish a new air quality plan. In a separate but related legal procedure, the European Commission has brought infringement proceedings against the UK for failing to take sufficient action to meet air quality standards. This could ultimately lead to the UK receiving fines from the ECJ, which was a key influence on the development of the government’s 2015 air quality plans.

Protecting porpoises

The harbour porpoise is the smallest cetacean in the UK and is protected under the EU Habitats Directive. They experience significant pressure from noise and chemical pollution and, it is estimated, more than

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1,500 porpoises die every year in British waters through entanglement in fishing gear.

As part of their protected status, the UK is legally required to set up protected areas for the porpoise. However, in 2012, a formal complaint was brought by WWF to the European Commission regarding the UK’s failure to designate such areas. As a result, the UK undertook a series of consultations and outlined a number of protected areas.

Without the European Commission’s intervention, this might not have been possible, for several reasons:

The fact based complaint system used in the harbour porpoise case is not available in any forum in the UK, including judicial review, which has its scope limited to process.

Once a complaint has been brought forward, investigations are taken over by the European Commission, meaning the prosecution of the case is not the responsibility of the complainant, limiting costs incurred.

Member states can be fined by the ECJ for infringing EU law. This mechanism is not available through judicial review.

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RESTRICT THE USE OF SECONDARY LEGISLATION

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According to the EU’s legal database, there are approximately 12,000 EU regulations in force. Given the complexity of bringing them all into domestic law, as well as EU directives and other legal acts, the government will need to use statutory instruments and delegated powers to ensure legal continuity on the day the UK leaves the EU.

The Withdrawal Bill must, however, ensure that any delegated powers given to ministers are for the purpose of faithful conversion only. As drafted, the bill does not do this. Safeguards are needed that:

provide assurance that delegated powers are only used to ensure that converted EU law operates with equivalent scope, purpose and effect; or to implement any rights or obligations arising from negotiations with the EU;

ensure any non-technical changes to legislation are made by primary legislation only;

put a time limit on any powers, so that they lapse after the UK leaves the EU;

create a robust ‘sift and scrutinise’ system so that every statutory instrument undergoes an appropriate level of scrutiny.

Under the ‘sift and scrutinise’ system, a number of options would be available. For some of the more nuanced or contentious statutory instruments, a parliamentary scrutiny committee will have the power to:

require that a draft of the proposed statutory instrument is laid before parliament;

require the relevant minister to provide evidence or an explanation of why the statutory instrument is needed;

“The Withdrawal Bill must ensure that any delegated powers given to ministers are for the purpose of faithful conversion only.”

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require a public consultation on the exact text of the statutory instrument, with evidence in support of why it is needed;

recommend amendments to the minister in relation to the text of the statutory instrument;

make recommendations to parliament that the statutory instrument should not enter into law.

Much EU-derived UK law is in the form of secondary legislation. Further to the above safeguards, once all EU law has been converted it should normally be given a status equivalent to primary legislation that can only be amended or repealed by an Act of Parliament.

REASONS WHY THIS IS NEEDED

Giving wildlife space to thrive

Golden eagles were once common across Britain but by the mid-nineteenth century they had disappeared from England and Wales and fallen to very low numbers in Scotland. The Scottish population suffered a sharp decline again in the 1960s due to the use of organochlorine pesticides, such as DDT, which caused mass infertility. Due to their large home ranges, golden eagles are very sensitive to land use changes, including poorly located developments.

In 2009, the Scottish government created six new Special Protection Areas (SPAs) for golden eagles. SPAs are designated under the EU Birds Directive. By 2016, Scotland’s golden eagle population had soared to 508 breeding pairs, up by 15 per cent from 2003. This passed the threshold at which the bird’s long term sustainability is considered viable. Although the eagles have benefited from fewer illegal killings, the protection of their habitats has also been crucial.

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In 2016, the European Commission completed an evidence based fitness check of the EU Birds and Habitats Directives, which found them to be fully fit for purpose. Any changes to this legislation, without full parliamentary scrutiny, could threaten the future well-being of the species and habitats currently protected under these directives.

Keeping our seas healthy

The Marine Strategy Framework Directive (MSFD) was introduced in 2008 to restore marine ecosystems and reduce collective human pressures. Its value is that it requires a co-ordinated and joined up approach, both across borders and policy areas. What is more, it has driven research and action on issues not well covered by other existing legislation, such as fish abundance and distribution, underwater noise and marine litter.

The UK has to reach ‘good environmental status’ of its seas under the MSFD by 2020, and all four UK governments are implementing a shared UK Marine Strategy to achieve this.

While much still needs to be done in the UK to achieve good environmental status, the MSFD is driving real progress and should be transposed in its entirety, with sufficient parliamentary scrutiny to ensure the detail of the directive is not loosened by secondary legislation, either now or in the future. In doing so, a revised UK Marine Strategy must still act as the overarching goal for all UK marine management, under which all marine policy (including fisheries policy) sits.

“The Marine Strategy Framework Directive has driven research and action on issues not well covered by other existing legislation.”

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ENVIRONMENTAL ISSUES CUT ACROSS BORDERS

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Governance of environmental matters in the UK is largely devolved, but many of them can only be addressed effectively with a co-ordinated approach as they cross multiple jurisdictional boundaries.

EU environmental law has provided a common framework in all the UK’s jurisdictions. It is important for the UK and devolved governments to work collaboratively to retain these common frameworks and standards in domestic law, while respecting devolution settlements. This should include avoiding unnecessary constraints on the ability of any of the devolved nations to pursue more environmentally ambitious approaches.

Each legislature in the UK’s four nations must be given a full and proper role in scrutinising the process of converting EU law into domestic law and any changes made to the UK’s common environmental standards in future.

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HOW YOU CAN HELP

Greener UK is a coalition of thirteen major environmental organisations, with a combined membership of 7.9 million. We are working together to maintain and strengthen the UK’s environmental protections and climate leadership as we leave the EU.

We are asking for your help.

You could use the information given here to inform your speeches at the Withdrawal Bill’s second reading from 7 September 2017, highlighting the importance of getting the bill right for the UK’s environment. We would be happy to provide more information if you need it (contact Paul McNamee pmcnamee@green-alliance.org.uk).

Sign up to Greener UK’s amendments to the Withdrawal Bill greeneruk.org/resources/Withdrawal_bill_amendments.pdf

179 MPs have already signed our Pledge for the Environment (greeneruk.org/pledge) to confirm their long term ambition for a greener UK. Add your name by contacting us at mp@environmentpledge.org.uk

GREENER UK

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This briefing was edited by Paul McNamee, head of politics at Green Alliance, on behalf of Greener UK

Contact: Paul McNameee: pmcnamee@green-alliance.org.ukt: 020 7630 4527

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