Making the Repeal Bill an environmental success
The Repeal Bill, set to be published today, will play a major role in shaping the environmental outcomes of Brexit.
The Bill aims to do two things: repeal the European Communities Act, which took the UK into the EU in 1972, whilst also transferring all EU legislation into UK law. In other words: delivering huge change, whilst maintaining significant continuity.
The Bill will affect a huge range of policy areas. Yet given the volume and importance of EU environmental legislation, the content of this Bill, and its passage through Parliament, will have a major impact on whether the Government can meet its goal of leaving the environment in a better state than we inherited it. There is little room for error.
A potent piece of legislation
Make no mistake; the Repeal Bill is a massively complicated undertaking. The House of Commons Library deems it “potentially one of the largest legislative projects ever undertaken in the UK”, whilst the Institute for Government has called it “the most potent piece of legislation that has passed through Parliament in decades”.
The Government set out its broad approach to this challenge in its March White Paper, affirming that the Bill would not seek to make any policy changes, ensuring that the same laws will apply “wherever practical and sensible”, while giving Ministers the power to correct or remove laws that would otherwise not function” outside the EU.
While the aim may be clear, the detail of how this can be achieved is crucial. Moving EU law on to the UK statute book is not just a cut-and-paste job. As the previous Environment Secretary, Andrea Leadsom, said, between a quarter and a third of environmental legislation cannot be transferred in a simple manner.
Three essential environment tests for the Repeal Bill
So what does the Repeal Bill need to do to be an environmental success?
First, the Bill should transfer the whole body of EU environmental law into UK legislation. This should include the environmental principles found within EU treaties – such as polluter pays – and the preambles to EU legislation that contain vital context on the application of regulations and directives. Specific assurances that international environmental commitments will not be weakened, under a principle of non-regression, would be welcome.
Second, the Bill should allow no opportunity for gaps in domestic environmental protections to open up without full parliamentary scrutiny. Delegated powers given to Ministers to make technical amendments to EU-derived law – for example replacing a reference to the European Commission with an appropriate UK institution – should be strictly limited to the purpose of faithful conversion, and time limited to lapse at the point the UK leaves the EU. Any non-technical changes to these laws should only be made by primary legislation with full parliamentary scrutiny.
Finally, the Bill should make sure that the law is properly implemented and enforced. This means introducing new domestic governance arrangements to ensure equivalent provision of the regulatory, monitoring, oversight, accountability, enforcement and other functions currently provided by EU institutions such as the Commission and the Court of Justice of the European Union. The absence of suitable domestic governance arrangements could compromise the Government’s aim to maintain existing levels of environmental protection.
Comprehensive, democratic, enforceable
In simple terms then, the Bill should be comprehensive – transferring all EU legislation into UK law; democratic – with no policy change without scrutiny; and enforceable – replacing the role of EU institutions with new domestic governance arrangements. Alongside 23 other organisations, under the banner of Environment Links UK, we have explored these three essential features in detail in our response to the Government’s White Paper.
With a tiny majority, dependent on the DUP, achieving Parliamentary support for the Repeal Bill may be a considerable challenge for the Government. It will be closely scrutinised, and amendments should be expected. If the Bill is to meet the Government’s, and the public’s environmental aspirations, then the three essential tests outlined above must be met.
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