Retained EU law: Habitats and Species – Calm Before the Storm?
This is one of a series of articles and blog posts based upon presentations given as part of a webinar – ‘Environmental law and “retained EU law”: where we now stand and what lies in store?’ held by FTB on 1 July 2021. The presentations can be viewed here.
The Conservation of Habitats and Species Regulations 2017 (“the Conservation Regulations”) (and the equivalent offshore SI) is “retained EU law” under the EU Withdrawal Act 2018 (“EUWA 2018”) and, more specifically, “EU-derived domestic legislation”. This post briefly examines what that means, what further changes may be expected and some issues arising.
The current position
The Conservation Regulations continue to have effect in the post-Brexit world – which means in effect that the EU Habitats and Wild Birds Directives which they implement continue to have effect in England and Wales. Indeed, it may be noted that the EU Directives are directly incorporated into the domestic framework. Regulation 9 of the Conservation Regulations provides (among other things) that:
“The appropriate authority, the nature conservation bodies and, in relation to the marine area, a competent authority must exercise their functions … so as to secure compliance with the requirements of the Directives.”
In addition, by EUWA 2018 s.5(2) the principle of supremacy of EU law continues to apply – that means that to the extent that the Conservation Regulations are inconsistent with pre-2020 domestic law, the Regulations prevail (although Government is free to make laws overriding EU habitats law post-2020 – about which more below).
Habitats and species protection in England and Wales therefore finds itself in a kind of holding position. The established protections to which domestic lawyers are now well-accustomed remain in force. The several judicial cases to consider this area of law since January are clear that there has been no substantive change – see e.g. R (Keir) v Natural England  EWHC 1059 where, among other things, Holgate J confirmed that the approach taken by Natural England to bat licensing in March 2021 “must accord with the precautionary principle”.
The law is not completely unchanged. One of the reasons for treating domestic regulations as “retained EU law” was to enable amending regulations to be made under EUWA 2018 s.8 addressing “deficiencies” – effectively gaps or redundancies – caused by the departure of the UK from the EU. For the Conservation Regulations, this was primarily done by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019, the intention of which was, according to the Explanatory Memorandum:
“to ensure habitat and species protection and standards as set out under the Nature Directives are implemented in the same way or an equivalent way when the UK exits the EU. There is no change to policy.”
The EU Exit Regulations made three main types of change. First, is the nationalisation of terminology. The Natura 2000 network of sites, is now the “national site network”. Similarly, “Community interest” is now “the national interest”. However these are changes in name only: the basis for the assessment of significance (etc.) remains to all intents and purposes the same. Second, is the transfer of functions belonging to the Commission to the Secretary of State. For example, it now lies with the Secretary of State to give an opinion on whether imperative reasons of overriding public importance (IROPI) exist (other than public health or environmental reasons) where impacts cannot be ruled out on priority species or habitats. Reporting obligations under Articles 16 and 17 of the Habitats Directive are also brought ‘in house’ – which means in effect means self-reporting (with a role for the JNCC). Third, substantive site management obligations under Article 6(1) are retained through a new Regulation 16A.
That last change was the primary trigger for a judicial review claim brought by ClientEarth and the Marine Conservation Society (“MCS”) in 2019 – see  EWHC 2682 (Admin). The claimants took issue with the power included in Regulation 16A for the Secretary of State “where necessary [to] adapt” the national site network and the insertion of the words “so far as is proportionate” in the management objective in Regulation 16A(2). Lieven J refused permission for the claim to proceed following an oral hearing, although she commented that if the Secretary of State were to use either provision to go beyond the EU law position or “to water down the effect of the Directive” that may well be ultra vires: in other words, the claim was premature and the Government may well be held to its commitment of no change in policy.
The ClientEarth/MCS challenge however gives an indication of the sensitivity around any attempts by the Government to reduce habitats and species protection, and leaves the door open for future claims.
In his recent speech at the Cheshire Wildlife Trust’s site in the Delamare Forest, the Secretary of State George Eustice drew attention to potential changes to habitats and species law being brought forward in the Environment Bill – which is currently before the House of Lords. He said:
“… we are also taking a power in the Environment Bill to re-focus the Habitats Regulations to ensure our legislation adequately supports our ambitions for nature, including our new world leading targets. We want to ensure that the targets and governance framework in the Environment Bill becomes our compass in future …
While we are seeking a power to make some changes to the Habitats Regulations, we will take a cautious approach to reform.”
A small group of individuals (including Tony Juniper, Rebecca Pow and Chris Katkowski QC) have been appointed to look at this, but it is not known whether or not they have yet reported. On the face of it, however, there is a tension between repositioning the compass – which sounds quite radical – and “a cautious approach to reform”.
The Environment Bill – which is not the main subject of this post – contains a host of provisions relevant to habitats and species protection: a new long-term biodiversity target, a new species abundance target, the requirement for an environmental improvement plan, reporting and monitoring, as well as new “species conservation strategies” and “protected site strategies” (under clauses 105 and 106 respectively ). There is therefore considerable scope for overlap – or even conflict – between the Bill and existing protections in the Conservation Regulations.
Moreover, two even more recently added clauses to the Environment Bill (clauses 108 and 109  ) provide for the power to amend existing Regulation 9 (containing the duty of compliance with the EU Directives) and Part 6 (on the assessment of plans and projects) of the Conservation Regulations. The Government has produced a memorandum stating that neither clause will reduce the level of environmental protection, but that the provisions are brought forward to “adapt” the provisions to the emerging domestic position and pursue potential “opportunities to deliver our ambitions in relation to protected sites more strategically”.
That commitment finds statutory expression in the following safeguard included in both clauses:
“The Secretary of State may make regulations under this section only if satisfied that the regulations do not reduce the level of environmental protection provided by the Habitats Regulations.”
However, the question of whether or not the level of environmental protection is reduced is one over which there is likely to be controversy. What species or habitats should be the focus of the question? What is the timeframe under consideration? Leaving the matter to the Secretary of State’s discretion – subject, presumably, only to the limited safeguard of judicial review – seems a poor substitute for the extensive and detailed consideration that would generally go into creating or amending a legal regime for the protection of internationally important flora, fauna and their habitats.
As far as retained EU law – the starting topic of this post – is concerned, the position is also complicated. EUWA 2018 s.6(7) defines retained EU law as including the body of law “as [it] is added to or otherwise modified … by other domestic law”. On the face of it, then, the Conservation Regulations will remain “retained EU law” even if modified by the Environment Bill. Piecemeal changes and overlapping powers in the retained Conservation Regulations and the new Environment Bill may create an unnecessarily complicated legal picture.
The position therefore is of interim calm – only very limited change to date – but an incoming tide of potentially far more radical change.
It may be useful to reflect that the Environment Bill – as originally introduced into Parliament – was not intended to alter the established protections for habitats and species under EU law, although it included a biodiversity target and various other provisions (including notably conservation covenants) that would supplement those protections. It may therefore be seriously questioned whether it is sensible to lay the foundations for potentially radical changes to that legal framework by way of amendments introduced en route to what is an already ambitious and wide-ranging Bill. Moreover, as far as this author is aware, there has been no impact assessment or even report from the small group established by the Secretary of State on the potential nature of such reforms. It is hard to escape the impression that what is now proposed is too much, too fast.
The international context is also instructive. Government has said – in its 25 Year Plan and elsewhere – that it remains committed to the UN Convention on Biodiversity and other international habitats and species conventions. Some of these, including in particular the Bern Convention (on the Conservation of European Wildlife and Natural Habitats) contain obligations that were implemented through the Habitats and Wild Birds Directives. The last word may be left to Stroud and others, who note in their short new publication International Treaties in Nature Conservation: A UK Perspective (2021, p.38):
“There is … a risk that there may be an appetite to replace well-established processes and priorities, developed in partnership with EU States, with unique UK approaches, without reference to their efficacy. While there is always room for improvement, including of existing EU processes, it is important that any such improvements build on existing systems and lessons learnt, and avoid causing delays and disruption that would take time we do not have, given the urgency of the challenges we face.”
Ned Westaway is a barrister at Francis Taylor Building, an honorary member of the UCL Centre for Law and the Environment and the current Chair of the UK Environmental Law Association.