Sunset Stripped: Brexit, Retained EU Law And The Environment

Five years ago - almost to the day - the then Prime Minister, Theresa May, published a document setting out Government's long-term commitment to the environment.

It was a plan which, she insisted, would leave the UK's natural resources "in a better state...and pass on to the next generation a natural environment protected and enhanced for the future" (https://www.gov.uk/government/publications/25-year-environment-plan).

One key part of that process was leaving the European Union, a move which, it was said, would provide "opportunity to strengthen and enhance the protections our countryside, rivers, coastline and wildlife habitats enjoy".

It is only relatively recently, though, that we have had an idea as to how ministers intend to follow through on that promise.

Tomorrow marks a further key stage in the progress of a piece of legislation entitled the Retained EU Law (Revocation and Reform) Bill. It has arrived at the Report Stage in the House of Commons, after which it will have a Third Reading to MPs before moving on to the House of Lords for consideration.

To say that the Bill has stirred the emotions in Westminster and beyond in its relatively rapid passage through Parliament so far would be something of an understatement.

It was announced last September by Jacob Rees-Mogg who, at the time, was Secretary of State for Business. Boasting that it amounted to a Brexit Freedoms Bill, he said that it was intended to "remove years of burdensome EU regulation in favour of a more agile, home-grown regulatory approach that benefits people and businesses across the UK" (https://www.gov.uk/government/news/uk-government-to-set-its-own-laws-for-its-own-people-as-brexit-freedoms-bill-introduced).

There, I would suggest, lies one of the fundamental difficulties which has made it so polarising. Whilst many of those who voted to remain in the EU would no doubt acknowledge that improvements can and should be made to some laws passed down from Brussels, it is important to recognise that not every directive or regulation is as onerous as some leavers have made out.

A significant percentage of very important and useful UK environmental law, for instance, is drawn from the EU. From waste management, to water and air quality, to the protection of habits, much of our environmental protection has a European instrument at its heart.

Seeking to scrap, almost on a point of principle, as many as 4,000 separate pieces of legislation which remained on the UK's statute book after Brexit took place has already been characterised as a "bonfire of insanity" (https://www.theneweuropean.co.uk/bonfire-of-insanity-the-unwelcome-return-of-the-retained-eu-law-bill/).

As things stand, any retained EU law which isn't supported or claimed by ministers will disappear at the end of this year under what is known as a 'sunset clause'.

To highlight the scope of what was entailed, the Government made available a 'dashboard': an interactive tool allowing anyone who was interested the chance to scrutinise the outcome of an inquiry by Lord Frost into the economic sectors most impacted by EU law (https://www.gov.uk/government/publications/retained-eu-law-dashboard).

As it later turned out, however, his review had neglected more than 1,000 other laws (https://www.theguardian.com/politics/2022/nov/08/government-finds-extra-1400-laws-scrap-rees-mogg-brexit-bill).

The potential for important laws sourced from the EU to be repealed on December the 31st simply because they were overlooked is a prospect hardly worth thinking about.

It means that even as the Retained EU Law Bill makes its way through Parliament, we do not yet know for sure which pieces of environmental law the Department for Environment, Food and Rural Affairs (DEFRA, for short) will choose to keep and which will disappear (by choice or by default).

With relatively little time left until the intended 'sunset clause' is scheduled to take effect, we can be fairly confident that there isn’t sufficient time to do a full and proper review. It would be a herculean task - and undertaken against the clock adds an immense degree of difficulty to any assessment process.

In a House of Lords' debate last November, a current DEFRA minister, Lord Benyon underlined that sticking to the Government's environmental pledges could not be achieved "by just getting rid of regulations...what we want is better ones" (https://www.theyworkforyou.com/lords/?id=2022-11-24b.1474.1&s=speaker%3A13112).

That, I agree, is key to the whole reform process, regardless of one's political standpoint.

If the aim of this entire legislative exercise is to create a mechanism by which deficiencies in retained EU law can be identified and addressed for the better, then that is a good thing – but the process must address those areas in a positive way – not sweeping away environmental protections and leaving nothing in their place.

As Aristotle is supposed to have said: "Nature abhors a vacuum".

There are other practical issues. For example, if enacted in its current form, the Bill allows Appeal Courts in England and Wales to depart from EU caselaw that has served as an important tool to the interpretation of the very laws that may be earmarked for retention by civil servants.

When it comes to the law and the fine detail of environmental protection, clarity is critical. So, to retain the laws but to create doubt as to how they should be used and understood is as unhelpful as sweeping the laws aside.

As for businesses trading with customers in Europe and having to grapple with inconsistent sets of regulations, that is another headache that is equally capable of stirring fiery debate.

It is to be hoped that once the Westminster rhetoric dies down and the detail becomes known, Theresa May's five-year old Environment Plan is not only a pipedream but still very much achievable.