Brexit and Environmental Legislation

Now that Bexit has been triggered what will happen to the UK’s environment law? The law has been based on the EU directives – which is turn were based on the UK’s example of how to implement environment law. Although the law hasn’t been enacted in the same way throughout the UK the laws have mainly the same basis -  that of the European directives and the requirement to follow the same path.

Some have been critical of the European process – but it did mean that it provided a level playing field for those which were operating within the EU. How will Brexit effect this?

How the process of disentangling the environment legislation will work without the backing of a Directive is going to be challenging – will this be seen as an opportunity to actually review and improve the environmental legislation and in bring one set of legislation and enforcement throughout the UK or will it be what some fear - that there are many parties with strong commercial interests who will see article 50 as an opportunity to deregulate with economic interests taking centre stage? The recent fines for environmental issues – although they are small when compared to those levied against some of the same companies for financial issues are seen still as disproportionate and so pressure to change the law in favour of business will be a significant pressure.

One of the problems is that environmental law is a complex system which has a process of governance and enforcement that crosses country borders and does not stand alone within any one EU country. The environmental law also relates to laws about internal market, agriculture and fisheries policies which also have some influence on expenditure.

Defra are currently undertaking a mapping exercise which looks at where UK environmental law has come from, how has it come for EU law and actually how effective it is?. This will show the areas where there are gaps not just in legislation and enforcement – but also between the different areas of the UK.

Trying to sort the UK’s environment policy out in the light of Brexit carries many risks as well as opportunities. The Great Repeal Bill will make EU laws part of the UK legal system and then convert existing EU law into domestic law wherever practical, however, the extensive nature of environmental legislation will not make this easy – and time will tell whether a coherent environment policy for the UK can emerge from this – lets hope that this is an opportunity which is taken and provides strength to the UK environmental processes and enforcement.

Louise Smail is the author of Waste Regulation Law, and is co-author of Corporate Liability: Work Related Deaths and Criminal Prosecutions and of HSE and Environment Agency Prosecution: The New Climate. Most of our published titles are also available on Bloomsbury Law Online.


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