EU Withdrawal Bill – certainty, continuity and control?

Yesterday’s publication of the European Union (Withdrawal) Bill is the start of a tough process through Parliament of the legislation needed to ensure the UK’s statute book can  continue to function after the UK leaves the EU.

Around two thirds of EU directives and regulations cover farming and the environment. Getting these right will be vital for the future of the countryside.

We’re a member of the Greener UK coalition, which aims to ensure Brexit enhances rather than undermines protection of the environment. Greener UK has set out what we think is needed from the EU Withdrawal Bill (also known as the Great Repeal Bill or the Repeal Bill) in order that protections aren’t undermined.

The Department for Exiting the EU say that the Bill will give certainty, continuity and control to businesses, workers and consumers.

In terms of certainty, the Bill is clearly needed to avoid “widespread and severe confusion for business, Government and wider society”, as the Bill’s impact statement puts it. But the process of Brexit is inherently uncertain. UK Cabinet ministers still have different views about what kind of relationship the UK should have with the EU and the UK’s negotiating positions are still not tied down.

At the same time, negotiations are starting with the EU’s team and behind them the European Parliament and individual national governments who have to approve the final deal. Domestically, the UK government needs to engage devolved governments in Wales, Northern Ireland and Scotland and get the deal passed by Parliament. All this, without a majority in either House of Parliament.

The Bill itself is designed to provide some certainty in terms of EU rules carrying on within UK law, but how that law will operate is unclear while the UK’s future relationship with the EU is still so vague. The tidal wave of secondary legislation needed is supposed to simply make EU laws and regulations work post-Brexit, but could well change their effect without the framework and institutions within which they currently sit.

In terms of continuity, one area where Greener UK wants to see clarity is about the status of principles like the precautionary and polluter pays principles. These are set out in some of the EU treaties and underpin the development of EU environmental law and policy.

The Bill implies that these could inform decisions of UK courts but other clauses seem to restrict this by only referring to when they have been applied in case law from the European Court of Justice, rather than to the principles themselves as set out in the treaties. [Any lawyers reading this – do correct me if I’ve got this wrong]

Finally, in terms of giving control to businesses, workers and consumers, the Bill is instead much more about giving control to Ministers. Regulations made through the Bill will have the status of full legislation (“Regulations under this section may make any provision that could be made by an Act of Parliament”, as it says in a number of places).

The Bill ensures that some of the most significant of these regulations will need a vote in Parliament (eg if creating a new public body), but the Bill also allows Ministers to by-pass Parliamentary scrutiny almost completely in “urgent” cases, with Parliament only retrospectively needing to approve the regulation after it has come into force. If it is the case that many fundamental decisions go to the wire in the Article 50 negotiations, we may well end up with a lot of secondary legislation going through at the last minute under this emergency mechanism.

At the same time, Government will be free from some of the checks on their powers that came from the EU. EU institutions monitored and enforced directives on things like air and water quality. It’s unlikely that judicial review and five-yearly elections will provide the same checks and balances to ensure that long-term sustainability is not sacrificed to short-term political expediency. Greener UK is therefore calling for a new Environment Act to address this gap.

As mentioned, this is the start of a process of negotiation between Ministers and Parliament about what Ministers will be able to get away with to get changes to EU rules they think are needed to avoid the system collapsing. But “technocratic” changes to make things work outside the EU will involve political choices as even small changes can have significant consequences when the surrounding framework is no longer there.

With Greener UK, we think further changes will be needed to the Bill to ensure that environmental protections remain strong and effective. Please contact your MP to remind them of their crucial role in defending our environmental laws as the EU Withdrawal Bill starts its progress through Westminster.

Richard Hebditch

External Affairs Director

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