Why, post Brexit, we must mind the governance gap

August is traditionally a quiet time for policy developments.  With Parliament in recess, most years we hear very little from governments as we all enjoy the late summer sun/cloud/rain (delete as appropriate). This August however, Westminster decided to buck the usual trend, and the UK Government released a series of position papers on some of the big issues relating to the UK vote to leave the EU.  So while many of us have been away on our summer holidays, the UK Government has sought to clarify their aspirations for the nature of our future relationship with the EU.

Wednesday’s paper entitled ‘Enforcement and dispute resolution – a future partnership paper’ was the most recent installment.  The RSPB, and our partners in the Greener UK coalition, were waiting for this paper, hoping it would clarify what the arrangements for enforcing environmental laws in the UK might look like post-Brexit.

All laws need to be enforced in order to have any impact – otherwise they are just pieces of paper. As you probably know, about 80% of our environmental laws stem from the EU. Establishing common legal standards across the board has been important for protecting our shared environment (since wildlife does not respect borders), as well as preventing any one member state from gaining a short-term economic advantage over others by trashing their environment.  On that basis, it also made perfect sense for us to have shared, EU-wide institutions to carry out the monitoring and enforcement required in order to hold all member states to those common standards.

The European Court of Justice (ECJ) has played an important part in this. Unlike the UK’s Supreme Court, the ECJ can ultimately impose fines on a government if it fails to comply with the ECJ’s judgement based on EU environmental legislation – a strong incentive. Whilst these powers are rarely used in practice, the threat of their use gives extra ‘teeth’ to the court process, and means that most cases are resolved without resorting to the court itself, as we hope will happen with our complaint about management of protected blanket blogs in northern England.

Moor burn photo by Andy Hay (rspb-images.com)

As the UK withdraws from the EU, it’s important that we ensure there’s no weakening in enforcement of environmental laws in the UK.  We need institutions in place to identify when environmental damage is occurring, who is to blame, and to hold them to account for their actions.

Sadly, this week’s Government position paper gave us no further clarity on exactly what future enforcement might look like and was instead focussed on the governance of a future UK/EU relationship – another critical area where environmental protections need to be considered, and which I will come back to in a future blog. 

So we still don’t know how environmental laws will be enforced in the UK post-Brexit.  We assume that the UK Government is still intending to rely on judicial review and the parliamentary processes.  Judicial review is an important mechanism, but it is inadequate and incomplete for this task and is another issue I will return to in a future blog.