16 Jan 2017

Great Challenges ahead for the Great Repeal Bill

How will the Great Repeal Bill 'transfer' EU law into UK law? In this blog post, Dr Apolline Roger (Sheffield Law School) argues we need to distinguish between substantive & institutional norms. This helps sketch out 5 types of environmental legislation and the challenges each faces.

The UK government’s ambition is to transfer all existing EU laws into UK law when leaving the EU. But what does this entail in practice? 

EU law, like all laws, sets ‘norms’ - rules of conduct. Some of these norms are ‘substantive’, they determine ‘what’ has to be done: for example, a dangerous substance is banned, companies should inform public authorities on the nature and quantity of the chemicals they use, or endangered species cannot be killed, etc. The others are institutional, they determine ‘who’ is in charge of implementing the substantive norms and how. For example, the European Chemical Agency is in charge of making sure that companies provide the correct information, the Member States share the load of identifying which substances are dangerous, etc.

The difficulty of the task facing the great repeal bill will depend on the nature of the EU norm at stake: is it substantive or institutional?

14 Jan 2017

What objectives for Brexit?

The House of Commons Exiting the European Union Committee released its first report today, on the UK's negotiating objectives for Brexit. The report calls for clarification ahead of triggering of article 50 on a number of issues; mostly Single Market & Customs Union membership. It also calls for a transitional arrangement, and a parliamentary vote on the final deal.

The report is almost silent on the environment -- although written evidence to the Committee, from the Greener UK campaign and from ourselves notably -- raised many environmental issues with Brexit. Yet some of the overall points the report make are particularly salient for the environment:

  • Need for "clarity on location of former EU powers between UK and devolved governments.
Agriculture, environment, fisheries are all devolved matters. Who will be replacing the CAP after Brexit? Will it be Westminster or the devolved administrations?
  • Concerns about the administrative capacity to deliver and implement new policies. 
This, as the report points out, will be especially difficult for DEFRA :

"On top of its existing commitments, DEFRA will need to develop a replacement for the Common Agricultural Policy; develop an approach to trade policy and relations with the EU; work through the implications for devolution of repatriating legislative competences in agriculture and environmental regulation; and decide its approach to existing EU legislation. This will be expected with a budget that by 2020 will be 34 per cent lower than it was in 2011 and with a staff headcount already 35 per cent smaller than it was in 2011."

Collating together evidence from many sectors, and achieving the backing of the whole committee (Hilary Benn MP told Radio 4 Today Programme that the report had been voted unanimously) means making tough choices in what is discussed and reported. This report is far from calling for a 'green' Brexit, but its lack of attention to the environment (mentioned 5 times), agriculture (3 times) or fisheries (twice) can be put into perspective: it only mentions immigration three time. 

4 Jan 2017

Fighting zombie legislation: latest Commons EAC report

The House of Commons Environment Audit Committee just published its new report on the future of the natural environment after the EU referendum. 

Building on more than 160 pieces of written evidence and more than 20 auditions, it raises  a number of concerns for both the UK environment and farming in the wake of the Brexit vote.

  • Environmental legislation is still at risk
Environmental legislation, even with the Great Repeal Bill, could become 'zombie legislation', not properly enforceable nor able to be revised. While the Great Repeal Bill addresses some regulatory gaps, up to a third of EU environmental legislation is hard to transpose and the underpining governance arrangements also need to be replaced. The MPs argue a new Environment Protection Act is needed to fill these gaps.

  • Lack of clarity of government policy 
While we hear much about the lack of clarity of Brexit negotiation goals overall, there is also no clear objectives for agriculture or the environment -- the 25 year plans have long been promised but not yet delivered. There is also no clear answers to need for coordination on environmental matters between devolved administrations and Westminster

UK agriculture is set to be one of sectors most affected by Brexit, which puts them in a 'triple jeopardy': the loss of CAP subsidies (with uncertainties surrounding future British agricultural policies), additional barriers to export to EU Single Market which will hit sectors like sheep farming toughest and risks that new trading arrangements will put UK farming into competition with international competitors with lower costs and animal welfare standards.

EUrefEnv authors have contributed to the report, giving both written and oral evidence, which were both cited in the final report. In the summary and discussion around the report, the idea of UK environmental legislation becoming 'zombie legislation' is repeatedly mentioned. EUrefEnv Andy Jordan first developed this idea of zombie legislation in his evidence to the House of Lords EU Select Committee in July and then in a blog post for the Environmentalist the following month.

19 Dec 2016

Brexit and UK-Irish relations: between low and high politics?

In a new blog post for The UK in a Changing Europe, Viviane Gravey, Andy Jordan and Charlie Burns react to the House of Lords's UK-Irish relations report. Looking at agriculture, energy and waste, they argue that 'in thinking about the UK-Irish and Northern Irish dimensions of Brexit it is vitally important to include the overall objectives of a deal (the high politics) – and which parts of the UK and of the EU would stand to benefit and lose the most from it – as well as the fine detail (the low politics) that enable modern economies to function effectively.'

8 Dec 2016

A greener UK after Brexit?

Prof Andy Jordan, University of East Anglia

The environmental movement has come together to launch Greener UK a major cross sectoral campaign to ensure that Brexit delivers stronger environmental protection across the UK.  Greener UK comprises 13 major environmental organisations with a combined public membership of nearly 8 million. It replaces Environmentalists for Europe, a cross sectoral alliance which campaigned during the referendum, as the sector’s main voice on all matters related to Brexit.

One of the centrepieces of the Campaign is a Pledge for the Environment, which has currently been signed by 145 MPs (around 23% of the total).  Those making the pledge endeavour to do everything in their power to ensure that the UK:

  • Is a world leader on the environment by committing to match or exceed current environmental, wildlife and habitat protections provided by the EU;
  • Leads on climate change by publishing robust low carbon investment plans and ratifying the Paris Agreement this year;
  • Is richer in nature by supporting farmers and landowners to deliver environmental benefits alongside a thriving farming sector.

These pledges echo a number of demands made by the sector in the immediate aftermath of the shock vote to leave the EU.  The CEOs of the core coalition have also written a letter in The Times today, alongside a full page advert.

28 Nov 2016

Environmental Governance after the EU: The Need to Ensure Accountability

Delivering Brexit raises fundamental political, legal and administrative questions, for the environment and beyond. In this blog post, Prof Maria Lee (UCL) and Prof Liz Fisher (Oxford) discuss the issue of environmental governance and highlight three necessary steps to ensure continued accountability once outside of the European Union.

Ensuring environmental quality is a feature of all functioning democracies and thus all such democracies have environmental law. But environmental problems are never solved by a statute or a court case. Legislation does not magic away waste. A court case will not ensure the enduring protection of endangered species. What is needed is the ongoing management of complex environmental problems in a reasoned and legitimate way that both complies with, and is within, the law. That is why environmental law is as much about environmental governance as environmental standards – it is about public institutions directing, regulating, authorising, guarding, and being responsible for environmental protection.

24 Nov 2016

#BrexitResearch: Parliament taps academic expertise

Prof Andy Jordan (University of East Anglia), lead author of the expert review on EU membership and the UK environment

In November, Parliament threw open its doors to academics specialising in Brexit. With the implications of the Brexit vote still opaque and much debated, Parliamentary staff, MPs’ researchers and academic researchers are keen to absorb as much new information as they can. They came together in Portcullis House to learn from one another.

In his opening address, the Director of Library Services, Patrick Vollmer, explained that over the summer, it had quickly become apparent that Brexit could not possibly be processed in the same ‘business as usual’ manner that Parliament had processed every other topic in the post war period. It was simply too systemic, too uncertain and too long term. Thirty two separate select committee inquires on Brexit are already in progress and that is before the ‘super’ Brexit committee chaired by Hilary Benn has properly got into its stride. 

Brexit: An Academic Conference was one of Parliament’s responses to the dawning realisation that Brexit presents an existential challenge to parliament and government. After a referendum campaign marred by disregard for ‘expert’ input, the organisers were motivated by the view that ‘it is more important than ever that Parliamentary scrutiny and debate is informed by robust and reliable evidence’.