Although Director Chris Cathrine published an article on the implications of Brexit for Devolved Environmental Law in Scotland just three months ago, a lot has moved on since (read the blog on the original article here). Using responses received from UK Government and Scottish Government officials, as well as newly published documents, Chris authored an update article which has been published in the latest issue of Chartered Institute of Ecology and Environmental Management (CIEEM) In Practice. This new article adds clarity to the future of environmental law in Scotland, however there remains much uncertainty, particularly as UK Government responses to queries relating specifically to devolved law made reference to policy which only applies to England. The new article can be downloaded from the Caledonian Conservation publications page.
The politics of Brexit continue at a rapid pace, and since this article was written the UK Parliament has voted on a number of amendments to the EU Withdrawal Bill (formerly known as ‘the Great Repeal Bill’) relating to both the future of environmental law and devolution. Of particular note are the votes which rejected New Clause 67 and the amendments to Clause 11, the implications of which are summarised below:
- New Clause 67: The UK Government has stated that all EU environmental legislation will be transposed in to UK law after Brexit through the EU Withdrawal Bill. However, in its current form the EU Withdrawal Bill does not transpose the key foundation principles of EU environmental law in to UK law. New Clause 67 was proposed to amend the EU Withdrawal Bill so that it does transpose these principles in to UK law after Brexit. MPs voted against this amendment, with UK Government instead making reference to the ’25-Year Environment Plan,’ promising that the principles will be included in policy, and committing to a new independent environmental watchdog body. There are a number of issues with this approach for the entire UK, with additional implications for devolved countries:
- Law built on a foundation of policy is more difficult to enforce than if the principles were also defined in legislation. It is therefore unclear how the independent watchdog will be able to enforce environmental legislation underpinned by these key principles. Without these principles, there is an enforcement gap – ie many elements of environmental protection law become unenforceable, or open to wider interpretation.
- At present, the ’25-Year Environment Plan’ has an English scope only, and so it is unclear how this policy document will, or can, apply to Scotland.
- Environmental law is currently fully devolved to Scotland. At present UK Government have declined to state which devolved areas will become reserved to Westminster (wholly or in part) after Brexit, and say this will be resolved after the UK leaves the EU. Therefore, it is unclear whether UK Government environmental policies would apply to Scotland after Brexit.
- Amendment to Clause 11: While the EU Withdrawal Bill gives sweeping new powers to UK Government Ministers, it adds new restrictions to Ministers of devolved administrations. Furthermore, powers currently exercised at an EU level within areas fully devolved to Scotland would return to UK Government after Brexit. MPs voted against an amendment to Clause 11 which would have resolved this issue. As such, the First Ministers of Scotland and Wales have both recommended that their parliaments do not give Legislative Consent to the EU Withdrawal Bill. UK Government can still progress with the EU Withdrawal Bill in its current form without Legislative Consent – although this would break political convention, and further damage trust between governments, the same approach has been taken with renewable energy powers and Article 50 via the European Union (Notification of Withdrawal) Act 2017 (also known as ‘the Brexit Bill’). This clause and the UK Government’s willingness to break political convention adds uncertainty as to which areas will be devolved after Brexit, and the level of influence devolved administrations will have over future environmental law.
Unfortunately, these developments since writing the update article have failed to add further clarity to devolved environmental law after Brexit, and instead have increased uncertainty.