Craig advises on contentious and non-contentious environmental, health and safety and regulatory matters. …View Profile View all
On 2 October 2016 Theresa May announced at the Conservative Party Conference that all existing EU laws will be converted into UK domestic law, before the UK leaves the EU.
Good news, you may think, and it certainly answers the question that many have been asking. But will it also bring a relaxation of existing environmental controls?
The Government’s announcement is not really a surprise. It is a sensible and efficient solution, with minimal change to UK laws. Most commentators have said that a wholesale review of EU laws in the UK is not possible in the time available.
Brexit supporters who want the UK to have a greater control over its domestic laws may be disappointed with the lack of immediate change. But a number of factors could lead to significant differences between UK and EU environmental legislation, over a relatively short period of time.
Once the UK has converted EU laws into domestic laws and has left the EU, the government will be free to change those laws, either by an act of parliament, or by secondary legislation.
Until now, the UK has been obliged to incorporate changes in EU law, but that obligation would no longer exist. EU law could quickly move to the beat of a different drum in the rest of Europe.
The Court of Justice of the EU will no longer have jurisdiction to hear UK matters, and its functions will be dealt with by UK Courts after we have left the EU. If a UK Court reaches a different decision to the Court of Justice of the EU on a similar point of law, it could see the same law interpreted differently in the UK.
At present, if the UK government fails to put in place EU derived legislation the European Commission can and does bring enforcement, or ‘infraction’ proceedings against the UK, which can result in significant fines. It is very unlikely that there will be a similar mechanism in place, post Brexit.
Does it really matter? It may not matter to UK businesses, as long as contracting parties are clear on which laws govern their transactions. When it comes to maintaining the current high standard of environmental controls, it may be far more significant.
Business interests and environmental protections can often bump up against each other. For example, waste management, industrial emissions, bathing and fresh water quality and habitat preservation are protected by EU derived controls. Some of these controls involve significant expenditure and are perceived to impact upon production and the productivity of industry. The balancing exercise between these competing considerations will now be a decision for the government of the day.
Some commentators worry that a government who is less committed to protecting the environment would find it easier to erode or water down existing environmental safeguards. In a country which has already started to feel the effects of global warming, this would undoubtedly be a backward step.
As we contemplate our departure from the EU, and the benefits that this may bring, we should not lose sight of the importance of preserving and protecting our environment for future generations.
For further information please contact Craig Burman, Director, Environmental and Regulatory Team