As drafted, the Bill proposes the automatic repeal of almost half a century of EU legislation (over 2,000 measures) at the end of 2023 – the so-called ‘sunset’ provision in clause 1. Ministers will have a discretionary power to delay such repeal until 2026, or to replace the legislation with domestic secondary legislation at any time before – clause 15. Clause 1 has received the majority of the headlines, but clause 15 is also significant. This posits a power for ministers (in each of the respective jurisdictions of the UK) to revoke and replace retained EU law with “such provision as the relevant national authority considers appropriate” (or in alternate drafting “to be appropriate and to achieve the same or similar objectives”).
Clause 15(5) underscores the deregulatory nature of the proposal:
“No provision may be made by a relevant national authority under this section in relation to a particular subject area unless the relevant national authority considers that the overall effect of the changes made by it … in relation to that subject area does not increase the regulatory burden.”
Together, the proposals in the Bill put at risk a vast body of environmental legislation. If the Bill is passed in its present form legislation such as the Environmental Permitting Regulations, the Habitats Regulations, the various Environmental Impact Assessment Regulations, and the Urban Waste Water Treatment Regulations would simply disappear at the end of 2023 unless ministers decided to delay their automatic repeal, or replace them with equivalent legislation.
The task for civil servants and ministers would be Herculean – and very likely impossible (even at current staffing levels before the Autumn budget). The political pressures would also be enormous. The danger to the interests of conservation and environmental amenity is obvious. Less immediately evident but equally important is the risk to commercial and business interests. Regulatory vacuums and hastily drafted legislation lead to financial uncertainty, impacts on investment, wasted costs and potential litigation. Far from boosting growth, therefore, such changes can adversely affect the provision of infrastructure, buildings and other development. To some extent, this has been recognised in the field of financial services as the ‘sunset’ provision in clause 1 does not apply to retained EU law set out in Schedule 1 to the (anticipated) Financial Services and Markets Act 2022 and other existing rules and/or generally applicable requirements.
The landmark new legislation for England (and Northern Ireland), the Environment Act 2021, does not fulfil a similar function. Instead, it – and the targets proposed under it – expressly contemplate retained EU law remaining in force: see e.g. ss.112-113 of the Act in relation to the Habitats Regulations. The Overarching Impact Assessment, published alongside Defra’s recent consultation on environmental targets states:
“The UK has a range of existing environmental commitments, some of which are from retained EU law, which will remain in place. Targets will complement the existing legislative landscape, but there are gaps in mechanisms to drive improvements and improve the state of our environment …” (underlining added).
The rushed repeal of existing environmental laws therefore also potentially puts England’s new environmental governance regime at risk.
The Bill is controversial and it is not certain how it will fare in Parliament. However, there is scope for fireworks. FTB will provide updates and briefings as the Bill progresses.
Robert McCracken KC is barrister at Francis Taylor Building and a past Chairman of the UK Environmental Law Association. He has appeared in many of the leading environmental law cases, including Fish Legal, in the highest courts of the United Kingdom, the Commonwealth and the European Union. He is co-author of “Statutory Nuisance” (Bloomsbury 4th edition 2019).
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.
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