Questions about how the UK will set new environmental standards and effectively enforce these rules once the country leaves the European Union were raised this week by Lords on all sides of the House.
The House of Lords debated on Thursday 23 March the EU Select Committee report on Brexit and climate change. The Committee found there was little confidence in the UK government’s ability to hold itself to account without an independent domestic enforcement mechanism being set up.
The Committee was told that “there was a risk of legislation becoming ‘zombie legislation’,” said Baroness Sheehan of the Liberal Democrats, by “either [being] no longer enforced or no longer updated to the latest scientific understanding.”
“The key issue is not regulations or laws but implementation and enforcement,” said Lord Teverson, who sits on the EU Energy and Environment Sub-Committee and is the Liberal Democrat Lords spokesperson on energy and climate. “We can have lots of laws and lots of good intentions, but we have to have adequate enforcement.”
Setting New Rules
A series of questions were raised during the debate concerning how EU law would get translated into UK law. Some 80 percent of all environmental regulations the UK currently follows are derived from the EU. And the secretary of state in the department for environment, food and rural affairs (Defra), Andrea Leadsom, has acknowledged that about one third of the 1,100 pieces of environmental legislation that need to be put into British law will be difficult to translate.
“We pursued that further and asked her and her officials what that one third is,” explained Lord Teverson. “We had a very flakey reply which suggested to us that not only is that roughly one-third going to be difficult but we do not yet know what it is going to be.”
There is also the question of who and what will influence the new environmental standards. What data will be used, how will it be evaluated, and who can challenge it before it gets set in law asked Lord Hunt of Chesterton, Labour, who worries that the rules will come into effect “almost unchallenged.”
Related concerns about how quickly this can all be done were raised by several people during the debate. As Conservative peer Baroness Anne McIntosh of Pickering pointed out, many of the current EU directives on water, for example, are undergoing revision.
“These will all be concluded exactly at the time that we leave the EU in 2019,” she said. “So the question to the Minister is, will we sign up to and abide by those directives, as revised, or will we simply transpose them? Obviously, we cannot do that through the great repeal Bill as they are not in place at this time.”
Two years is not a lot of time to sort out all the nuances many noted, with some pointing to the fact that the government has yet to reveal it new emissions reduction plan despite originally promising to do so by the end of 2016. “I ask the Minister, where is it?” said Baroness Lynne Featherstone, a Liberal Democrat. “Is it ever disappearing into the future?”
“There is no sense of urgency currently from the Government about meeting our targets or taking new actions and producing new policies to help us reach the level of emissions reductions that the Paris agreement committed us to,” Baroness Featherstone criticised. “That was not an EU commitment but a world commitment.”
Lord Christopher Grantchester, Labour shadow spokesperson for Business, Energy and Industrial Strategy, added that Defra has had nearly nine months since the referendum vote and “has not really laid out its thinking and approach to the tasks other than to promise the great repeal Bill and underline certain fundamental basics, such as that the UK’s climate goals have not changed.”
He also questioned whether Defra has the resources to properly tackle this issue, noting that the department’s budget was cut by 30 percent by former Chancellor George Osborne and that it must find a further 15 percent in savings by 2020. “Has the Minister made any further request to the Treasury, beyond the meagre recruitment of 30 new posts?” he asked.
Defra under-secretary of state Lord Gardiner of Kimble said the department has set up an EU exit programme to help “co-ordinate, plan and assist” teams working on the issue.
The question of whether the new rules would be stable over the long term, safe from short-term political goals, was also raised by Lord Alexander Trees, a cross-bench member of the EU Energy and Environment Sub-Committee. “Environmental policy is a long game,” he said. “There needs to be consistency and stability in policy and execution which, it has to be acknowledged, the EU has provided. Once the custody of our environment is entrusted to a single Government with a five-year time horizon, there is intrinsically rather less long-term certainty.”
He continued: “We need to ensure that there are systems and mechanisms in place so that, whatever the ephemeral policies of different Governments dictate, they will protect our environment for future generations.”
Following the Rules
Once Britain has sorted out how to translate the many, many environmental regulations into UK law the next step is enforcing the rules. To-date, this has been done by the European Court of Justice (ECJ), the European Environment Agency, and the European Commission. The power of these two bodies is that they can impose harsh fines for violating environmental law. However, one of Prime Minister Theresa May’s top Brexit priorities is to no longer be bound by the ECJ.
But without these mechanisms, many questioned how well the UK would uphold environmental standards. The example of the UK failing to address the country’s growing air pollution problem was raised repeatedly as an example. “I am afraid the standards provided by the UK Government may well come under some suspicion because there have been some dodgy practices with air quality in London in the last couple of years,” said Lord Hunt of Chesterton.
Following Brexit, it would be left to domestic courts to enforce compliance with environmental legislation. Typically, this would be done through judicial review. However, as evidence provided by ClientEarth to the Committee argued, the cost of going through a judicial review can be prohibitive and time consuming – meaning it can deter people from actually challenging the government’s performance.
These questions come at the same time as an European Parliament committee report seen by Politico argues that the UK to still be bound by the European Court of Justice after it leaves the EU.