How to mind the “environmental governance gap” created by Brexit

Laws are only as effective as their enforcement.

So what happens when enforcement powers are lost? It surely follows that the effectiveness of the law diminishes?

This is our fear when the UK leaves the European Union.   

As a new report published today by IEEP and Client Earth highlights, EU institutions including the European Commission and the European Court of Justice provide us with a range of monitoring, compliance and enforcement mechanisms meaning there is robust implementation of and governance for EU environmental laws.

Two guillemot, a bridled guillemot, a razorbill and a shag perch on a rock on the Isles of Scilly (Ed Marshall rspb-images.com)

When the UK leaves the EU, it will therefore lose an important element in the governance of its environmental standards. This is important, not just because current EU arrangements ensure that environmental laws are properly implemented but because any shared environmental standards agreed as part of the future relationship between the EU and the UK will depend on having effective enforcement mechanisms in place. In their absence, there is no guarantee that any agreed environmental rules/commitments in a future UK/EU deal will be met.

Let me explain. 

The European Commission’s monitoring of Member States’ implementation of required legislation, backed up by the European Court of Justice’s ability to impose effective sanctions, has been vital in helping to ensure that our environmental legislation is effective and enforced.

Perhaps the most totemic example of this was our legal challenge on Lappel Bank in the 1990s.  The internationally important intertidal mudflats Lappel Bank were excluded by the UK Government from the Medway Estuary and Marshes SPA for economic reasons and destroyed to extend a Port.  This was challenged by the RSPB and subsequently found to be unlawful. The proceedings were referred to the European Court of Justice (ECJ). The ECJ confirmed an important issue of principle, namely that sites that qualify as SPAs must be classified on their scientific merits and economic reasons cannot be taken into account at the designation stage and that compensatory habitat was needed to replace what was lost.

Our experience suggests that the domestic courts have important roles to play in environmental governance but are often insufficient on their own to ensure effective implementation and enforcement of environmental law. As I have written before, judicial review is too narrow in terms of scope and remit (usually focusing on due process), too restrictive in terms of access, and too limited in terms of remedies and sanctions. The system does not compare to the existing arrangements within the EU, with no appointed overseer taking those actions. Basically our domestic institutions on their own are not adequate as things stand to fill the governance gap-in terms of scope, resource, expertise or accessibility.  

This poses problems both for the UK Government’s commitment to ensure that environmental standards are maintained and enhanced and also for the EU 27, who have emphasised the importance of avoiding unfair competition arising from any potential weakening of environmental protection in the UK post-Brexit. In addition, it is clear that any lowering of standards in the UK or the EU could have negative environmental implications for both sides given that issues such as species conservation and air and water pollution do not respect borders/are transboundary in nature.

Tackling this “governance gap” will require action on a number of fronts. In particular, new, independent institutions in the UK will be required with the responsibility and powers to ensure monitoring is carried out, possible breaches highlighted and compliance ensured, meaning environmental standards are enforced. In addition the important role of civil society needs to be recognised and their ability to get involved not limited as a result of Brexit. Therefore we need new governance mechanisms that will be able to effectively fill this governance gap. Given that environmental matters are largely devolved, this will require the UK and devolved governments to work closely together to address this gap. These new mechanisms need to:

• Monitor and measure the state of the environment transparently
• Ensure proper implementation of environmental law and policy. For example, by supervising plans that give effect to environmental law, overseeing permitting regimes (including responsibility for granting exemptions), and ensuring robust and consistent application of the law.
• Check compliance with environmental law and policy by government, business and other actors. This includes reviewing progress against plans, assessing the legality of decisions and scrutinising whether targets, conditions and requirements are being adhered to.
• Enforce environmental law by initiating investigations into possible breaches and responding to complaints from citizens and civil society organisations. Breaches must be identified and acted on, with the application of appropriate remedies and sanctions.
• Review and report information regarding both the state of the natural world and performance against policy objectives.
• Publish environmental information fully and transparently.

The European Union (Withdrawal) Bill is designed to bring the European acquis into domestic legislation. However, as currently drafted (and as I have written previously here), it fails to require and ensure that the governance functions that we have as members of the EU are replaced at domestic level.

If the UK Government wants to be true to its promise not to weaken levels of environmental protection as it leaves the EU, this has to be addressed and done quickly.