Retained EU Law and the Environment

An expert panel event by UCL Centre for Law and the Environment, Greener UK and UKELA

The Retained EU Law (Revocation and Reform) Bill has the potential to initiate huge change for the legal systems of the United Kingdom, and is set to have particularly profound impacts for environmental law. This seminar, jointly convened by Greener UK, the UCL Centre for Law and the Environment and UKELA, discussed the Bill’s potential implications for the environment sector over two expert panels. The event took place at the same time as the Bill was being debated in the House of Commons - a debate overshadowed by old Brexit battlelines. Significant issues explored by the expert panels at UCL Faculty of Laws included fundamental constitutional concerns, the absence of established democratic process, and the risks the Bill poses for key environmental legislation. 

Watch a recording of the discussion. The discussion was based on the REUL Bill as it stood on 18 January 2023. 

Panel 1: Scene-setting: the Retained EU Law (Revocation and Reform) Bill
Chaired by Ruth Chambers (Greener UK)

“One of the most important issues facing us as environmentalists, legal experts and practitioners.” Ruth Chambers

Ruth Chambers set the scene by explaining that the REUL Bill is particularly significant for the environment in part because of the sheer amount of retained EU law in the sector. The number of retained EU laws that falls within Defra’s remit far exceeds that of any other government department - at the time of writing, the number of pieces of retained EU law listed for Defra on the government’s Retained EU Law Dashboard had reached 1,781, a significant increase from the 570 listed at the time of the seminar. 

 

“… very serious constitutional problems with the bill. Indeed, I don’t think we have seen any other bill quite like it before.” Professor Jeff King.

Professor Jeff King (7mins) emphasised the importance of the Bill’s “sunset” clause. If retained EU law is not identified and “replaced” or “restated”, it will, automatically and without any parliamentary input, be revoked at the end of 2023 (Clause 1(1)), or no later than 23 June 2026 (Clause 2). He described this “sunset” provision as at odds with the normal democracy-preserving effect of sunset clauses and, drawing on the Bingham Centre for the Rule of Law’s Submission to the House of Commons Public Bill Committee, as creating an “artificial emergency” within the UK legal system. It is within this context that the executive has been given what he described as “totally unprecedented” powers under Clause 15 to either revoke retained EU law or replace it with such provision “as the relevant authority considers appropriate”, conflicting with rule of law principles at the heart of the UK constitution. 

“Things are even more complex, and even more problematic and even less democratic if you consider devolution.” Dr Viviane Gravey.

Dr Viviane Gravey (19mins) explained that these concerns apply equally in the devolved context, along with devolution-specific issues (of which there are many). Even the initial exercise of identifying retained EU law is complicated by the variation in the transposition history of retained law across the regions. She was also concerned that the Bill will exacerbate tensions between central and devolved governments. Devolved governments are particularly concerned with power the Bill gives to central government to restate, replace or revoke any retained EU law that applies in Scotland, Wales, or Northern Ireland, without the consent of the devolved administrations. The picture in Northern Ireland is further complicated by the current absence of a government, and provisions which place the Bill in conflict with the Northern Ireland Protocol and which risk undermining North/South cooperation central to the Belfast/Good Friday 1998 Agreement.

“Our biggest priority is to preserve what we need by the end of 2023.” Becky Shrubsole.

Becky Shrubsole (32mins) from Defra, explained that Defra was currently working to catalogue all retained EU law that falls within the scope of the Bill. She confirmed Defra’s default position would be to preserve retained EU law, and that powers to revoke or replace would only be used when there was very good reason. She confirmed Defra was committed to delivering the 25 Year Environment Plan, as well as complying with the targets contained in the Environment Act 2021, and non-regression clauses in the EU-UK Trade and Cooperation Agreement (the TCA). This, she said, should ensure Defra’s work around retained EU law is geared at delivering positive environmental outcomes. She acknowledged the work created by the REUL Bill was a “huge undertaking” for Defra, but said that it was committed to delivering it while still driving through the department’s other programs of work. 

“…a really fundamental democratic deficit, not just for parliamentarians… but also for us as ordinary citizens…” David Wolfe KC.

David Wolfe KC (44mins) looked at the provisions on regulatory change in both the Aarhus Convention and the TCA. In his view, the absence of public participation in the development of the REUL Bill was a “fairly obvious” breach of Article 8 of the Aarhus Convention (which requires governments to strive to promote public participation on the draft text of legislation where there may be a “significant effect on the environment”). This is because of the default position of revocation under Clause 1 of the Bill, and the absence of any “safety net” for retained EU environmental law. He explained the failure to consult also disregards the UK”s commitment under Article 346 of the TCA to consult the public on any major regulatory measures. Taken together, the Bill raises serious democratic issues for ordinary citizens. 

Panel 2: The detail of the Bill
Chaired by Professor Eloise Scotford (UCL)

“A big distraction to Whitehall from the much more pressing matters that it has at hand, in particular…delivering on … very ambitious environmental commitments, which are incredibly pressing.” Jake White.

Jake White (1h10) began the second panel discussion by looking in more detail at the powers contained in Cause 15 of the Bill. He explained the Bill fails to detail on its face which powers (to revoke, replace or restate) should be used in what circumstances, and this grants the executive wide discretion to rewrite large areas of legislation. He also explained that Clause 15 will operate in a deregulatory manner, putting at risk significant pieces of environmental regulation and the environmental protection that they entail. The reason for this is the proviso at Clause 15(5) which specifies that any provision made cannot “increase the regulatory burden”. Given that regulatory inconvenience is an inevitable consequence of moving from one regulation to another, and upfront costs of environmental protection are often high even if lifelong costs are low, the reality is the powers under this clause will be used in a broadly deregulatory manner, encouraging regressive change. 

“The front line is probably the sunset clauses and clause 15, but it’s really important … what happens to EU case law.” Ned Westaway. 

Ned Westaway (1h20) considered the implications of the Bill for retained EU case law. Higher courts can already depart from decisions of the CJEU (s.6 of the European Union (Withdrawal) Act 2018), subject to the same test applied when departing from the Supreme Court’s own case law, i.e. it must be “right to do so” – it is not enough that the earlier decision was wrong, and the test is narrowly applied. The Bill seeks to amend this test, with the aim of widening the scope of courts’ ability to depart, by listing factors to which the court must have regard when making such a decision. Among other things, the Bill also introduces a procedure for “law officers” (e.g. the attorney general) to make references to the higher courts on questions of retained EU law, once the relevant proceedings have been concluded. This appears to put government in a privileged position by allowing it to re-argue points, despite the Bill saying that the reference cannot influence the outcome of proceedings. 

“[These] provisions … mean that the ways in which we understand and apply environmental law could still change really significantly under the bill. Saving the legislation isn’t going to be enough.” Professor Maria Lee.

Professor Maria Lee (1h33) reiterated concerns with the Bill’s focus on revocation, but explained that even if key environmental laws are “saved” from “sunset” (whether in the Bill itself or by Ministers afterwards), the REUL Bill will still fundamentally change the way we understand and apply environmental law. Clause 4, for example, abolishes the doctrine of supremacy of EU law (which applies for the purposes of interpreting domestic law passed before the UK left the EU). The Bill instead requires retained direct EU law to be read and given effect in a way which is compatible with all (including earlier) domestic enactments. This risks re-opening debates on the interpretation of legislation and undermining taken for granted legal clarity. Further, Clause 5 abolishes the general principles of EU law, which have been crucial in the interpretation and day-to-day application of key environmental legislation in the UK. These clauses will change the ways we understand and apply a vast number of environmental laws, even if the laws themselves in principle survive. 

“We have got more constitutional unorthodoxy, more challenges of legal certainty, [and] risks to environmental protection”. Professor Eloise Scotford.

Professor Eloise Scotford (1h44) ended the discussion by highlighting the “conceptual challenge” the Bill poses for domestic environmental law. Requirements in the Bill to interpret retained EU law in line with domestic legislation is at odds with -  a complete reversal of - the way in which the body of law was constructed. Even the Environment Act 2021 which sets the scene for post-Brexit environmental law in the UK, was created on the basis that retained EU law would continue to exist. Opening up retained EU environmental law to revocation or replacement risks greater fragmentation and complexity within the body of environmental law: “this is not just confusion; this is really harming the certainty of our body of law”. 

Annabel Walker 
LLM student 2022-23, UCL

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