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Leaving in an orderly fashion - our approach to Brexit

17 May 2017

The Law Society's Planning and Environmental Law Committee (PELC) is gearing up to engage with the next stage of the UK's process of leaving the European Union. Committee chair, Caroline Allen, explains further and encourages environmental law practitioners to get involved.

Background

With the triggering of Article 50 and the Great Repeal Bill White Paper, the UK's exit from the EU is finally, formally underway. Speculation over the nature of a UK-EU deal, arguments over the desirability of different deals and what domestic legislators and policymakers might or should do with their repatriated powers will continue to rage. Meanwhile the detailed practical work of making the transition is ongoing in the background.

The Law Society has already been active in engaging with government on Brexit, pursuing its core priorities:

  • continued access for UK lawyers to practise law and base themselves in EU member states
  • maintaining mutual recognition and enforcement of judgements and respect for choice of jurisdiction clauses across the EU in civil cases
  • maintaining collaboration in policing, security and criminal justice
  • promoting England and Wales as the jurisdiction of choice, ensuring that legal certainty is maintained throughout the process of withdrawal.

The Society's Brexit and the law report also identifies the importance of maintenance of legal certainty and the impact on sectors such as property and construction with which the legal sector has close connections as important. It is on these priorities that the PELC has its specific focus.

Planning and environmental law, the EU and Brexit

The EU has been a major influence on the development and practise of environmental law in the UK – around a thousand pieces of legislation are estimated to require transposition into domestic law. This is already proving a formidable technical undertaking.

Brexit, of course, is as much a political as a technical legal exercise, and there is speculation over the fate of various aspects of EU legislation, including environmental. The Committee's concern is more with the quality than the purpose of law. Nevertheless, we note the government's repeated assertion, including in the Great Repeal Bill White Paper, that they intend to be the first government to leave the environment in a better condition than they found it.

Further complication arises from the UK's commitment to various international agreements, such as the Aarhus Convention. In some cases, the UK committed to these through its EU membership. In others, the UK is a direct signatory and thus our obligations will outlive our membership of the EU. Even then, however, our obligations are sometimes enforced via EU mechanisms - such as for Aarhus, or for the Bern Convention via the EU's Habitats and Birds Directives. The Law Society has argued that the government should review its non-EU international obligations and take steps to ensure that effective participation continues after Brexit.

Environmental concerns

While speculation over the future nature and extent of environmental law and policy will continue, there is considerable concern over the effectiveness of legislation and enforcement mechanisms post-Brexit.

While government's intentions signalled in the Great Repeal Bill and elsewhere seem clear, the prospect of their success in transposing legislation effectively is less certain. It has been widely reported that between one-quarter and one-third of EU legislation could not be easily transposed. Thérèse Coffey MP, Parliamentary Under-Secretary of State, has stated that chemicals, pesticides and greenhouse gases were particularly difficult. Yet beyond this, little has been revealed. The House of Lords EU select committee noted their disappointment with Defra's contribution to their inquiry.

Enforcement is another area where there is uncertainty. Even where legislation can be transposed, the designations and mechanisms by which it is enforced (e.g. Special Protection Areas, the European Court of Justice) will no longer apply in the UK. Government may designate existing or new arrangements to replace EU ones - but their view of previous judgements and practices is uncertain. Likewise, the means by which to undertake and measure compliance with environmental law may be uncertain: this may particularly be the case for international treaty obligations given specific definition through EU mechanisms.

Finally - and for all repatriated law - there are generic risks in attempting the transposition of a huge body of law, built up over several decades. Unforeseen consequences and challenges of interpretation are a strong possibility.

The PELC's approach

The Committee has identified Brexit as one of its top priorities in 2017.

While considering policy a matter for politicians and policy makers, the PELC recognises that there are considerable challenges and risks in repatriating the considerable body of environmental law (not simply black letter law but the wider ‘aquis’) from the EU.

Thus far, the Committee's approach has been primarily a ‘watching brief’, but background planning, connections with other organisations, and an initial shortlist of areas of interest have been established. The latter process highlighted particular interest in:

  • i. the Environmental Impact Assessment (EIA) directive
  • ii. the Aarhus Convention (not of EU origin but given effect by EU mechanisms)
  • iii. air quality legislation (related to the UNECE Gothenburg Protocol)
  • iv. the Strategic Environmental Assessment (SEA) directive
  • v. the Habitats Directive.

Our initial focus on these does not preclude activity elsewhere, and in part reflects the existing expertise on the Committee. In order to broaden and deepen the pool of environmental law knowledge at the Society's disposal, the Committee has called - through its monthly newsletter - for volunteers from the wider membership with the intention to form a dedicated Brexit reference group.

Our Brexit reference group will:

  • draw on the PELC members and non-members to broaden and deepen the pool of environmental law knowledge available to the Society
  • enable us to engage effectively with government, parliament and other organisations on questions concerning the effectiveness of environmental law post-Brexit (typical tasks for the group include responding constructively to government consultations, providing material to parliamentary and other inquiries and providing Society members and staff with insight and advice as required).
  • exist for as long as required, operating largely as a ‘virtual’ group, although occasional face-to-face meetings may be called.

The capability and capacity available to us via the reference group will shape our proactive offer to government and others. If you would like to be considered for inclusion on the group, please contact us.