THE GREAT REPEAL BILL: WHAT WILL THIS MEAN FOR ENVIRONMENTAL LEGISLATION?

The post below was first published on our UK Real Estate Development blog

Authors: Julie Vaughan, Senior Associate, Environment and Helena Thompson, Associate, Planning and Environment, London

On 2 October 2016, Prime Minister Theresa May announced at the Conservative Party's annual conference that all existing EU law – and therefore, environmental law – will be kept when the UK leaves the EU.  A "Great Repeal Bill" will be announced in the next Queen's Speech, to repeal the European Communities Act 1972 ("ECA") with effect from our exit of the EU. The ECA gives effect to EU law within the UK, provides for its supremacy over UK law where the two conflict, and provides the enabling powers to make secondary legislation to implement EU Directives. May has stated that when the ECA is repealed, all EU law will no longer have effect in the UK, and the existing EU law will be converted into domestic law ("Converted EU Legislation").

It wasn't clear from May's speech exactly how EU law will be converted. Directly applicable EU law (i.e. EU Regulations) could be deemed, rewritten, or copied into, primary legislation; and UK secondary legalisation implementing EU Directives will be saved by various means.  However, the intent is that all EU environmental law will in some manner continue to have effect in the UK. May stated that Parliament will be able to amend, repeal or improve the Converted EU Legislation, and David Davis added that the Great Repeal Bill would include powers for ministers to make some changes by secondary legislation, causing alarm in some quarters that substantive changes could be made without full Parliamentary scrutiny. However, the power to make environmental legislation is devolved to the regions – Scotland, Wales and Northern Ireland – and it is unclear how the Great Repeal Bill will deal with the devolved powers.

Important questions remain unanswered (discussed below in this post):

1. How will we interpret Converted EU Legislation?

2. How will references to EU legislation, guidance or bodies be dealt with in the Converted EU Legislation?

3. Are we stuck with EU legislation at the point of Brexit?

1. How will we interpret Converted EU Legislation?

The Prime Minister said "we are not leaving only to return to the jurisdiction of the European Court of Justice", implying that its judgments will no longer hold sway after Brexit. The definition of "waste" is perhaps the most significant use of EU judge-made law, with what is and isn't regulated as waste depending on a string of CJEU decisions. A few options exist for how the UK will interpret the term following Brexit:

(a) We will continue to use CJEU judgments on the interpretation of "waste" issued up to the point of Brexit to interpret the meaning of waste in UK domestic laws, but ignore subsequent CJEU decisions. Going forward, our courts would then be able to make decisions on the interpretation of "waste" that diverge from the CJEU judgments. However, this raises a couple of issues:

• (i) What we view as waste may become out of kilter with what our EU neighbours view as still subject to waste controls. Products no longer classified as waste in the UK may continue to be so in the rest of the EU and therefore not be accepted for shipment to EU counterparts without compliance with transfrontier shipment procedures.  We would still be bound by our obligations with regard to waste in international conventions as would the EU.
• (ii) EU and English law are interpreted differently. EU law is interpreted "purposively", with reference to the introductory recitals in EU legislation and earlier drafts and proposals that lead up to its adoption (so-called "travaux preparatoires").  English law is mostly interpreted literally, ignoring to a large extent the context, history, explanatory notes or guidance. How will these two approaches be combined? EU legislation is drafted in a looser way that gives room for the purposive approach. By using the stricter English method to interpret Converted EU Legislation, we could end up with unanticipated results.

(b) Option a) applies, however the courts can (but don't have to) have regard to CJEU judgments and are directed to interpret using a purposive approach.

(c) The courts have full rein to ignore or reopen past interpretation by the CJEU, and interpret Converted EU Legislation from scratch using the English method of interpretation. This could have a wide ranging effect on UK environmental law and guidance that relies on the current interpretation of "waste".

2. How will references to EU legislation, guidance or bodies be dealt with in the Converted EU Legislation?

It will be difficult to disentangle Converted EU Legislation from EU law and guidance due to the degree to which it contains express references to EU legislation and relies on 'live' ongoing processes enshrined in the EU regime, for example:

(a) The Environmental Permitting Regulations, which consolidate the principal environmental permits required in the UK, cross-refer directly to various EU Directives, such as the Mining Waste Directive, Waste Framework Directive and Industrial Emissions Directive rather than include the full text of the EU requirements. If left unchanged, what happens if a relevant provision in those EU Directives is amended or repealed? It's likely the UK provisions would continue to refer to the EU law as at the date of Brexit only.

(b) The Conservation Regulations refer to species listed in the Wild Birds Directive and Habitats Directive. A change to the EU list will no longer be automatically replicated in the UK.

This will need to be dealt with by the legislation. For example, references to EU bodies may need to be replaced by references to UK bodies or persons – eg the Environment Agency or the Secretary of State.  Cross references to EU legislation could stand or be read as references to the UK legislation converted from the relevant EU legislation, in which case there would be no automatic updating. That latter approach seems most likely.

3. Are we stuck with EU legislation at the point of Brexit?

• Existing EU environmental legislation will be effectively frozen at Brexit and converted into domestic law. We query how regimes which are subject to frequent changes and updates, such as the REACH chemicals regime, will be dealt with. Parliament could amend Converted EU Legislation to mirror each EU change that it accepts as necessary or desirable, however this requires a close watching brief on EU developments.
• Furthermore, what happens to EU legislation that is not yet in force at Brexit? For example, the Commission has proposed Effort Sharing Regulations plus "complementary legislative proposals" to help achieve reductions in carbon emissions for non-Emissions Trading Scheme sectors, including the buildings sector. If they have all been adopted as law before Brexit they will presumably be implemented even if the UK implementation date falls after our exit. If the Regulation is law but the supporting legislation is not agreed by the date of Brexit as part of a package of measures, will the new requirements of the Regulation be workable without the UK also adopting the supporting legislation at a later date?

There are doubtless other scenarios that will arise and which will take some time to resolve.

The Prime Minister's speech also begs the question, despite there being 'no change' on the day of Brexit itself, just how soon changes to the Converted EU Legislation might be tabled and hence whether the starting gun has now effectively been fired for industry groups to consider what changes that they would like to propose be made. Environmental campaign groups are likely to be vociferously in favour of maintaining the status quo or even changes involving enhanced protection. Hence bodies looking for change would be wise to consider their position.

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