IEEP UK blog | Retained EU Law & the legitimacy of environmental law

Author: David Baldock

Environmental law is not untouchable and should be reviewed and amended where necessary, but the Retained EU Law (Reform & Revocation) Bill is based on a flawed approach unlikely to yield strengthened environmental legislation.

The Government’s package of fiscal measures aiming to promote growth has suffered a dramatic demise, but an equally radical proposal to sweep away and modify large swathes of legislation remains on the table. The Retained EU Law (Revocation and Reform) Bill, or REUL Bill for short, already has begun its passage through Parliament, unaccompanied by either any overview of the specific laws considered to be problematic or a substantive impact assessment. If enacted, it would have a disproportionate and damaging impact on current environmental legislation whilst potentially stifling the benefits of any replacement measures arising from the exercise.

The intent is to remove a tranche of suspected regulatory burdens, not only by eliminating legislation but by bringing in a generation of new measures instead. The government is quoted as hoping that it “will allow us to rapidly develop new laws and regulations that best fit the needs of the country, removing needless bureaucracy to stimulate growth…” In effect, measures based originally on law agreed in the five decades when the UK was an EU member are considered to be less satisfactory than others on the statute book. Retained EU laws have been selected for special attention as the Government questions aspects of their legitimacy and fitness for a post Brexit future in the UK.

If enacted, the REUL Bill would apply a fast-moving deregulatory engine to an exceptionally large range of legislation and some associated case law, covering topics as diverse as fisheries policy, workers’ rights and animal health. However, the effect on environmental law would be particularly great as so much of this law has been introduced since the 1970s during the era of EU membership. Hundreds of measures could be affected. Furthermore, the political context for the review process is far from neutral. The Bill comes on top of the increasingly explicit plans to roll back important elements of (primarily English) environmental law in the Government’s growth plan. Habitat protection, planning law, fracking and farming related legislation are all in the frame. For the environment in England REUL seems poised to accelerate a de-regulatory programme, despite Government assurances to the contrary.[1]

However, this this is not to say that environmental law is untouchable.

The essential idea of reviewing legislation, including environmental law, and taking account of changing circumstances, including Brexit, is unobjectionable. Indeed, improvements will be required to meet new and in principle more ambitious English environmental targets, such as those due at the end of October under the terms of the Environment Act. At a UK scale there is a case for improving UK REACH, the domestic legislation adopted post Brexit to regulate chemicals, for example.

But the question is, how should such reviews be conducted? As UK governments have advocated for many years, review should be undertaken in an orderly, evidence-based and accountable framework, following appropriate processes. This requires thorough internal assessment of the issues concerned, including scientific evidence, full stakeholder engagement, due consultation and cooperation with the other three administrations within the UK and a credible impact assessment. It should be based on a workable timescale for the review and the development of new approaches, where required. Sufficient resources need to be secured within the government departments responsible for a large and highly inter-locking exercise, assuming there are other urgent demands on officials – as indeed there are in the case of Defra, which already is behind in meeting many of its commitments, should be close to publishing a crucial new set of long-term targets this autumn and is facing pressure to reduce staff numbers.

Furthermore, reviews should be planned in a coherent, structured way looking at regulatory impacts in the round and giving stakeholders notice of what to expect. This is critical for reducing regulatory uncertainty and also maintaining the incentive to invest. From a coherence perspective, reviewing environmental laws in a structured way, and in thematic batches dealing with one topic at a time, e.g., the control of water pollution, has much to recommend it. The next Defra five-year Environmental Improvement Plan, due in2023, would provide an opportunity to review priorities in the light of fresh objectives.

By comparison, the Bill advances a process that:

Provides for the automatic removal of all legislation in scope by the end of December 2023 via a sweeping sunset provision with an inexplicably short and apparently random timetable. This seems designed to create a strong bias in the exercise towards letting measures fall, with or without assessment. It militates against a systematic approach with a proper role for stakeholders, unless the option to extend to 2026 is widely used, in which case the 2023 sunset deadline simply increases uncertainty and should be removed from the start.
In setting this timetable, brings the practicality and credibility of the exercise into serious question given the other pressures on Defra, the administrations in the other UK countries and amongst stakeholders. It strongly suggests that there will be little opportunity to assess any sensible amendments to legislation giving due regard to detail, let alone prepare and present impact assessments.
Grants sweeping powers to ministers rather than Parliament to remove, amend and replace legislation classified as REUL, particularly under Clause 15. Rather than increasing Parliamentary scrutiny, as might be expected when ‘domesticating’ EU law, this is being largely dispensed with.
Stipulates in Sub-section 5 of Clause 15 an extraordinarily restrictive list of conditions that any replacement legislation should meet, including that there should be absolutely no additional administrative burdens and no impact on profitability. It will not be easy to design measures that address higher environmental ambitions effectively but can be shown to be compatible with such criteria, let alone do so at breakneck speed.
Requires the devolved administrations to engage in a huge review exercise of unknown dimensions to entirely unnecessary deadlines at the expense of other priorities.
Only considers Retained EU law [emphasis added] rather than all relevant environmental legislation in force, on the basis that at present the origins of current legislation seem of greater concern than its content or coherence.

Given that the internal priorities of the exercise as well as the outcomes are unknown the REUL Bill itself already has created uncertainty. This is compounded by the fact that there is as yet no authoritative list of REUL environmental measures. The current Cabinet Office “Dashboard” does provide a first list, a sizeable share of which is the responsibility of Defra. However, this is incomplete and there may be hundreds more measures in the Defra realm alone, and amongst these a significant number of specifically environmental laws. The scope of this unprecedented review and sunset process has, in effect, yet to be properly revealed although the Bill is already in Parliament. The full dimensions of the portfolio of legislation that devolved administrations will be impelled to address irrespective of their other obligations and priorities have not been revealed either.

According to the “Benefits of Brexit” report, which inspired the Bill, the aim is that “The UK will use its regulatory freedoms to become the best regulated advanced economy in the world”. The REUL Bill hardly seems a promising start.

If it becomes law, it will create an approach that amplifies the powers and discretion of ministers while curtailing the role of parliamentarians, devolved authorities and external stakeholders. At the same time, it creates unreasonable pressures on Defra and its counterparts in the other nations of the UK to conduct an exercise that needs to be undertaken steadily, systematically and with an eye to meeting future goals. It steers the review process towards a de-regulatory rather than an evidence basedevidence-based approach. For these reasons it does more to undermine the legitimacy of a sizeable portion of environmental legislation than to strengthen it.

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[1] ‘[we] will not undermine our obligation to the environment in pursuit of growth’, Ranil Jayawardena, Twitter, 27 September