As a Belgian immigrant in the UK; I am following the debate on the UK leaving the EU with a deep interest. I believe the whole debating process mounting up to the actual referendum is a great opportunity to hear about how the EU is perceived and to reflect on its strengths and weaknesses. As an environmentalist loving the outdoors and being completely in love with the UK’s countryside, I am particularly interested in the possible impact of the UK leaving the EU on the UK’s Environment.
Over the last few months numerous groups of environmental and legal experts and organisations have raised warnings about a very likely negative impact of a Brexit scenario on the UK’s environmental legislation and environment - is this true? The former chief executive of the Environment Agency and a member of the Environmentalists for Europe (E4E) steering committee, Baroness Young, suggested that leaving the EU could lead to huge gaps in environmental law. Legal experts support this view saying that large parts of environmental law depend on the European Communities Act 1972 (ECA) – the Act of the Parliament that provides for the incorporation of European Union law into the domestic law of the United Kingdom– which would be repealed if the UK left the EU.
There are two types of laws that depend directly on the ECA and would lose effect if it is repealed: EU regulations and secondary legislation (directives or decisions), which is implemented in domestic law by statutory instruments (SI’s) (1)(2). EU law implemented by an act of UK or Scottish Parliament would remain in domestic law unless repealed separately. Since many EU directives are enacted by Statutory Instrument (SI), a great part of the environmental laws in place in the UK could lose effect in case of a Brexit; leaving important loopholes in the environmental legislation and giving scope to challenge the basis of lots of environmental regulation. (1)(3)
The European Union Law is made out of treaties and legislation (such as directives and regulations) and can have direct or indirect effect on the European Member States laws.
In short, EU Law has different sources of law:
- Primary source:
Treaties establishing the European Union and its functioning. These need to be enacted, as in the ECA 1972.
- Secondary source: depend on the treaties:
Regulations: directly applicable in member state, no need to be enacted. National law only has to deal with enforcement and penalties e.g. REACH, CLP and Biocidal Products Regulation
Directives: order to pass legislation; need to be enacted in domestic law, is binding as to the result to be achieved, but leaves to the national authorities the choice of form and methods. E.g. Birds and Habitat Directives, 2000 Water Framework Directive, Waste Framework Directive 2008/98/EC, Ambient Air Quality Directive 2008/50/EC.
Decision: law that addresses a specific issue and needs to be enacted, is binding in its entirety and is binding upon the member state it is addressed to.
- Case-law of the EU Court of Justice
EU legislation which is not directly applicable (e.g. directives and decisions) can be enacted either by primary (Act of Parliament) or secondary legislation (Order, Statutory Instrument). (1)(4)
As a report written by the Institute of European Environmental Policy’s (IEEP) states the EU has established “what is now one of the most influential bodies of environmental law in the world”(5). According to the report, leaving the EU would present “UK law- makers with a huge challenge in terms of writing decades of complex environmental laws”
Because the EU legislation is based on the principle of a shared and a comprehensive effort; it has been able to create stable measures allowing for long term planning in order to tackle the environmental challenges we face today. (6)
Leaving the EU would also render the environmental legislation more dependable on the political agendas of governments in place. It might mean that the UK has more space to improve its standards, but there is a risk that environmental issues will not be a priority for politicians. Pointing in that direction is the fact that David Cameron has omitted any reference to the environmental law in the EU reforms that he negotiated with the European Council that would become effective if the UK decides to remain a full member of the EU. One of the underlying aims of those reforms¬, i.e.to reduce the burden on business¬, is feared to result in lowering EU environmental standards over a period of time. (7)
In the case of an intermediate scenario of the UK leaving the EU but joining the European Economic Area (EEA) and still enjoying preferential access to the Single European Market, the UK will still have to abide by the acquis communautaire – the rules and regulations governing the operation of the single market, including many environmental rules existing today - with the exception of some of the most environmentally significant policies, such as the directives on bathing water, birds, habitats, and aspects of the water framework directive(8). Moreover, in this scenario, the UK will have little influence over the content of key European laws to which it will still remain subject, for example pollution controls on industry or rules on product policy. (8)(9)
In conclusion, I will join the green voices that have asked for both IN and OUT voters and campaigners to take into consideration the future of the UK environment. I believe in times of great and global challenges like we are facing today, collaboration is key. We all know that Nature does not respect national boundaries and neither do the pressures it is facing. That is why I believe UK’s fish, birds, bees and trees can only benefit from being part of the greater good one way or another.
(1) MC Nab Steven, Brexit: the implications for environmental law http://www.elexica.com/en/Resources/Microsite/Brexit/Environment
(2) Early Catherine, Full Brexit could decimate environmental regulation, The Environmentalist, 28 april 2016, http://www.environmentalistonline.com/article/full-brexit-could-decimate-environmental-regulation
(3) Miller Vaughne, Making EU law into UK law, Standard Note, Section SN/IA/7002, 22 October 2014
(4) Fairhurst John, Law of the European Union (Foundations series), 9/E, Birmingham City University, 2012, Pearson
(5) IEEP, The potential policy and environmental consequences for the UK of a departure from the European Union, http://www.ieep.eu/assets/2000/IEEP_Brexit_2016.pdf
(7) EEB. 6 European Council. Conclusions adopted by the European Council at the EC meeting 18 and 19 February 2016
(8) Burns Charlotte, The EU Referendum and the Environment, Environment Department, University of York, Expert in EU Environmental Policy. https://www.foe.co.uk/sites/default/files/downloads/eu-referendum-environment-81600.pdf
(9) Foe, Environmental Audit Committee inquiry: Assessment of EU/UK environmental policy, November 2015. https://www.foe.co.uk/sites/default/files/downloads/foe-written-submission-environmental-audit-committee-inquiry-into-extent-which.92787.pdf
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