Environmental protection after Brexit

16 May 2018 by

“When we leave the EU, we will be able to build on the successes achieved through our membership, and address the failures, to become a world-leading protector of the natural world. We have also published the 25 Year Environment Plan, which sets out this Government’s ambition for this to be the first generation that leaves the environment in a better state than that in which we inherited it. These good intentions must be underpinned by a strengthened governance framework  that supports our environmental protection measures and creates new mechanisms to incentivise environmental improvement.”

Michael Gove has announced his plan for a UK Commission on the environment, for which the consultation paper is out now. The paper sets out the principles laid behind the Environmental Principles and Governance Bill which will be published in November this year.  This proposed law is said to mark the creation of a “new, world-leading, statutory and independent environmental watchdog to hold government to account on our environmental ambitions and obligations once we have left the EU.”

The proposed Bill may not see the light of day, if today’s events are anything to go by.  This afternoon the House of Lords voted (294:244) to include the principles of environmental protection in the European Union (Withdrawal) Bill, rather than introducing a separate piece of primary legislation as set out in this consultation document: the successful amendment is first up here.

However things turn out in the Commons, it is worth attending to the plans for maintaining and enhancing environmental protection in a post-Brexit UK.

The proposed environmental bill promises

to enhance our environment by replenishing depleted soil, planting trees, supporting wetlands and peatlands, ridding our seas and rivers of rubbish, reducing greenhouse gas emissions, cleansing the air of pollutants, developing cleaner, more sustainable energy and protecting threatened species and habitats. It also outlines an approach to agriculture, forestry, land use and fishing that puts the environment first.

The environmental watchdog that will implement and supervise these proposals will take the place of the EU Commission, and “will be embedded in the UK’s parliamentary democracy.”  We have chosen to devolve environmental policy to the administrations of Northern Ireland, Scotland and Wales. Of course, the environment does not observe boundaries, which is why regulation by the EU is said to be more effective than state governance. This consultation paper therefore invites the devolved administrations in the UK  to address the issues in this consultation jointly, with a view to co-designing the proposals for the new environmental body and principles with them “to ensure they work more widely across the UK”.

There is a plenitude of international and regional principles relating to conservation, climate change, biodiversity and pollution. The ones that affect the UK directly are those enshrined in the Treaty of the Functioning of the European Union. The TFEU requires EU environmental policy to be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. As an example of how this works in practice, the CJEU case law on chemicals, waste and habitats indicates how the precautionary principle is applied and enforced in those areas. The proposed Bill promises to preserve this approach.

The consultation paper presents two alternative proposals. Option 1 is to have environmental principles enshrined in primary legislation which would show that the UK is strongly committed to leaving the environment in a better state than that in which we inherited it. It would also make sure that future governments do not change this commitment to well-established environmental principles without reference to Parliament. On the other hand, the authors of the paper acknowledge that not listing the principles (Option 2) would offer greater flexibility for Ministers to adopt different principles in their policy statement as scientific knowledge and understanding of the nature of the environmental challenges facing this country and the wider world evolves.

Whichever option is adopted, the aim of the scheme is to is to afford at least the same opportunities to submit environmental complaints and concerns as currently exist with the EU institutions and in domestic law, via judicial review and complaints to the relevant regulator or Ombudsmen. Unlike these other channels the new body would have the advantage of a “specific and confined focus on the environment.” It would also concentrate on issues concerning alleged failure by government authorities to implement the law rather than other matters dealt with by the Ombudsmen such as poor service or miscommunication.

The new body would also not face conflicting interests such as those presented to the European Commission in its role in enforcing EU law. As the paper points out, the EU’s activities sit within the unique circumstances of creating and enforcing a union and a single market among the Member States. The mechanisms that uphold the functioning of a single market are not always ones that ensure high environmental standards; in fact in some instance they lie flat against such interests.

The proposed procedures for environmental protection would only operate against public authorities. There is no question that the new body would be concerned with enforcing environmental law against third parties such as private businesses. These will remain the responsibility of delivery bodies such as the Environment Agency and Natural England. But those bodies themselves – broadly known as Non Ministerial Departments  – will be subject to scrutiny by the new body. Other Non-Ministerial Departments include the Forestry Commission, Ofwat and the Marine Management Organisation. Non departmental public bodies would also be subject to the jurisdiction of this new Commission, including utility companies such as water and power companies, the Crown Estate, as well as NDPBs such as the Coal Authority and Homes England.

However, the government’s view is that the new environmental watchdog would only be able to act against central government – like the EU Commission – thus ensuring that its focus sufficiently strategic (by addressing its powers to central government only), while still being able to require central government to address failures by other bodies.

At the heart of this consultation, and indeed the Westminster debates, is in the question: what is the target subject matter? The Germans have a good word for it: Umwelt.  Their noun is not as weighted as our “environment”.  One person’s “environment” is  agriculture, whereas another’s is plastic-free rivers. An institution tasked with the project of protecting and even enhancing the environment will have to bridge these gaps.  At least one potential area of dispute – climate change – is put beyond its reach.  Climate change is already covered by the Climate Change Act 2008 and its implementing body, the Committee on Climate Change. This is an independent, statutory body which advises the UK government and devolved administrations on emissions targets and reports to Parliament on progress made in reducing greenhouse gas emissions and preparing for climate change. The plan outlines this government’s intention to enhance our environment by replenishing depleted soil, planting trees, supporting wetlands and peatlands, ridding our seas and rivers of rubbish, reducing greenhouse gas emissions, cleansing the air of pollutants, developing cleaner, more sustainable energy and protecting threatened species and habitats. It also outlines an approach to agriculture, forestry, land use and fishing that puts the environment first.

Given that climate change is the remit of the CCC  it is proposed that the new body’s remit should not replicate this coverage.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: