In the Queen’s Speech on 10 May 2022 announcing the UK government’s forthcoming legislative agenda for the next session of Parliament, it is probably the Brexit Freedoms Bill that has the most immediate significance and likely impact on environmental laws.
The formal language of the Queen’s Speech declared that -
“My Government will continue to seize the opportunities of the United Kingdom’s departure from the European Union, to support economic growth. Regulations on businesses will be repealed and reformed. A bill will enable law inherited from the European Union to be more easily amended.”
The i newspaper headline was more succinct –
“PM plans bonfire of EU laws to appease rebel MPs”.
The Prime Minister’s introduction to the Background Briefing on this Bill, issued on 10 May 2022 explained that the main benefits of the Bill would be -
“Ensuring that retained EU law can be amended, repealed or replaced with legislation which better suits the UK, without this taking decades of parliamentary time to achieve (emphasis added).
Modernising the UK’s approach to making regulations, improving the nimbleness and competitiveness of the UK economy whilst maintaining high standards.
Enabling the UK to be the best regulated economy in the world and creating a regulatory environment that encourages prosperity, innovation, entrepreneurship and the cutting of £1 billion of burdensome EU red tape for businesses.
Asserting the sovereignty of Parliament (emphasis added) by removing the supremacy of retained EU law over UK law in our legal system. “
The main elements of the Bill as outlined would be:
“ Creating new powers to strengthen the ability to amend, repeal or replace the large amounts of retained EU law by reducing the need to always use primary legislation to do so (emphasis added).
Removing the supremacy of retained EU law as it still applies in the UK.
Clarifying the status of retained EU law in UK domestic law to reflect the fact that much of it became law without going through full democratic scrutiny in the UK Parliament” (emphasis added).”
The Background Briefing on the Brexit Freedoms Bill adds that -
“As a condition of membership, the UK was required to abide by EU law, giving up its sovereignty and the ability to set rules that diverged from the EU. These laws were implemented into the UK legal system during our EU membership through the European Communities Act 1972 and other legislation. This EU-derived legislation was transferred into UK law as retained EU law. This was a bridging measure when we left the EU to ensure short-term legal stability, but in the knowledge that much of it was not right for the UK in the longer term.
The Government’s review of retained EU law has, to date, identified over 1,400 pieces of EU-derived law that have been transferred into UK law. Many of these were agreed as a messy compromise between 28 different EU member states and they did not always reflect the UK’s own priorities or objectives. Much of this law was also imposed and changed with minimal parliamentary scrutiny in the past.
The supremacy of EU law still applies to legislation passed before we left the EU; a total of 2,376 Acts of Parliament. By removing the principle of supremacy, the relationship between EU-derived law and those Acts of Parliament will be changed to ensure that EU-derived law no longer takes priority over laws passed by the UK Parliament. The Bill is an opportunity to address this, realise the benefits of Brexit and ensure that there is no higher law than an Act of Parliament.
The Bill will significantly reduce the amount of time needed to make retained EU legislation fit for the UK, meaning the Government can more quickly implement the benefits of Brexit (emphasis added). “
What this means in practice is that the UK government will take powers to be able to vary large amounts of ‘retained EU law’ by means of Statutory Instruments, which are drafted in Whitehall departments by government lawyers, and only subject to cursory Parliamentary scrutiny, or none, given the very large volume of such secondary legislation generated within government. This is ironic, given that one of the stated objections to retained EU law is that “much of it became law without going through full democratic scrutiny in the UK Parliament”.
This has very large implications for the way in which environmental laws in the UK could be amended or repealed, because, on some estimates, as much as 80% of UK environmental laws are based on EU laws. To the extent, therefore, that they are enacted in the form of ‘retained EU law’, they will be at risk, under these legislative proposals, of being amended or repealed without significant scrutiny by the UK Parliament. In effect, under this legislative proposal to “take back control”, power to legislate would be transferred to the Executive, not to Parliament, and significant changes could be made with very little debate or meaningful public participation. The principle of the sovereignty of Parliament is of the highest importance: the practice is rather different, if Parliament chooses not to exercise its sovereignty effectively.
EU environmental law is not perfect, and the ways in which it was made while the UK was a member of the EU were not perfect either, especially before the Amsterdam Treaty in 1999 extended co-decision by the European Parliament and thereby introduced more democratic participation in lawmaking.
Efforts to discuss and explain the issues under negotiation with the wider public within the UK were inadequate; although that was largely the fault of successive UK governments, and their choices as to how government was done. In my book on Making Environmental Laws Work in 1999, I noted that –
”There is scarcely ever any kind of public meeting in Britain to explain or discuss draft regulations...It is scarcely ever part of a British civil servant’s job to travel round his own country explaining the effect of forthcoming regulations to town meetings of citizens affected by them. Many American officials would find that idea and responsibility much less surprising...”
Other EU Member States took that obligation much more seriously, and discharged it much more effectively.
Parliamentary scrutiny of the level of detail of environmental legislation was also inadequate; but that was because Parliament failed to adapt its committees and scructures to the pace of negotiations. Again, other EU Parliaments managed more effective scrutiny and consultation. In the same book I noted that in a 1998 House of Commons Scrutiny debate on a major environmental Directive, only one article was specifically mentioned.As Vernon Bogdanor, a member of the Hansard Society Commission on the Legislative Process, remarked –
“Europe was seen as a discrete and separate issue which could be tacked onto Parliament’s traditional business as a kind of optional extra... Parliament and Government must abandon the ‘head in the sand’ approach that is sadly characteristic of too many Members and adjust their response to European Community legislation...”.
UK governments then, participated in making environmental and other European laws in a way which was highly centralised, with minimal public consultation and ineffective Parliamentary scrutiny, from the House of Commons in particular. However, UK Ministers were participants in that process, and EU environmental laws were made with very active participation by UK Ministers and officials. It is disingenuous to suggest that they were in some way foisted on the UK when it wasn’t looking.
EU environmental laws do have some significant advantages. As compromises negotiated across all Member States, they tend to reflect broadly what the public in most Member States will accept or expect. They tend to set clear objectives, so that it is transparent when States do, and do not, meet their obligations. The EU is serious about having both the legislative means and the political will to ensure that EU environmental laws are enforced. The UK government is not. It has enacted an Environment Act 2021 which closely controls the limited independence of the Office for Environmental Protection, which the Secretary of State appoints, funds and is able to direct. The Secretary of State sets the limits on how environmental principles are applied and how very limited environmental targets are selected, heavily qualified and applied. At the same time the demoralised agencies with functional responsibility for enforcement of environmental laws have had their budgets slashed, and slashed again.
The results of the UK’s approach to the non enforcement of its environmental laws are stark. Where the Water Framework Directive set standards for river quality in 2000 to be met by 2015, in 2020 0% of rivers met good chemical status and 84% failed to meet good ecological status. A recent study showed that as many as 65% of those offering waste collection services were not even registered as required by law, so are operating illegally, and the less than rigorous demands of such registration were underlined by environmental journalist and campaigner George Monbiot’s successful registration of his goldfish (Algernon Goldfish) as an upper tier waste carrier. Illegal waste sites proliferate in all parts of the UK and go largely unvisited by the environmental agencies. The UK government has resisted adopting really meaningful air quality targets based on WHO standards, and has repeatedly voted down Parliamentary efforts to reflect WHO standards in legislation.
The Brexit Freedoms Bill, as advertised, carries with it the potential for wholesale changes in environmental laws which are based on ‘retained EU law’ to be made by means of Statutory Instruments with minimal reference to Parliament. That is reported to be the clear intention of the legislation, and it could happen very quickly. To avoid that result, Parliamentary Scrutiny of environmental laws needs to be enhanced, not reduced, and the government called upon to explain and justify its proposals, not to cram them through with no scrutiny.
The UK government has sought to curb the right to protest, by legislation so widely drawn as to criminalise Gurkha veterans protesting about their pensions, or anyone who makes a noise on a protest. More such legislation is promised. But if Parliament steps back, again, from effective participation in the making and unmaking of environmental laws, no one should be surprised when citizens take their protests outside the Parliamentary process. Surely anyone interested in the sovereignty of Parliament should be doing more to show how Parliamentary democracy works to achieve results, with environmental laws that properly reflect the real concerns of the public on clean air, clean waters and waste?
It is time for the House of Commons EFRA and EAC Committees, and for All Party Parliamentary Groups on Air Pollution, Environment, Water and Water, Sanitation and Hygiene to redouble their efforts, and for environmental NGOs and active stakeholders to speak up for the aspects of ‘retained EU law’ that really matter. “Retained EU (environmental) law” may sound about as exciting as an obscure tree frog, but both have real conservation value.