Will The Withdrawal Bill work for the Environment?
Though the triggering of Article 50 occurred just over 100 days ago, it has felt like the Great Repeal Bill has been coming for a lot longer. And this is the first big change we will have to make: the Great Repeal Bill is no more.
As it passes through parliament it will now be known as the European Union (Withdrawal) Bill. A title not quite as eye-catching but a lot more practical, and possibly an early indication of the government’s new approach.
As part of Greener UK, a coalition of thirteen major organisations, Green Alliance has been considering for some time what we would like to see in the bill. Greener UK’s briefing on the bill set out three key areas of concern for the environment that we hoped it would address.
Transposing all existing law, including principles
The bill published today sets out a good basis for moving across all existing environmental legislation into domestic law. Where it needs to go further is ensuring that the transposed legislation is put into primary law. This will ensure it can only be changed by parliamentary scrutiny in the future and not on the whim of a minister.
The principles of EU law have been the basis of many of our environmental laws and underpin their implementation and enforcement. The EU Withdrawal Bill will transfer only those principles that have been used as case law in the past. It is unclear whether the remit of a principle would therefore only apply to those case law circumstances in future. We believe that, to ensure a restored and protected natural environment, the principles, such as the precautionary principle, and the polluter pays principle, should be transferred fully.
As expected, the bill gives powers to government ministers, both at Westminster and in the devolved nations to amend those EU laws that need correcting to be established in UK law, or to make changes that will allow the UK to implement its new agreements with the EU. These powers are absolutely necessary to transfer such a large bulk of legislation across into domestic law, but the scrutiny and remit around these powers must be a lot tighter.
The powers have a sunset clause of two years after ‘exit day’. Such a clause is welcome but the definition of exit day is not clarified in the bill. Depending on the kind of exit agreement we get with the EU, particularly involving a transitional agreement, there is a possibility that these powers could end up lasting a lot longer than expected and the bill should address this.
Additionally, there are situations set out in the bill that would allow ministers to make amendments to law without any parliamentary scrutiny whatsoever, if the matter was deemed ‘urgent’ by the minister themselves. We believe that with 800-1,000 statutory instruments giving out these powers, there is a need for a parliamentary committee to provide appropriate scrutiny over the coming years.
Perhaps the biggest gap in the process of withdrawal remains governance. There is still no clear answer to who or what will provide the monitoring, implementation and enforcement of these laws once they have come across. The bill may give provision for the establishment of new public authorities in the UK to carry out functions but this is an option rather than a requirement and puts the government under no obligation to fill the gap currently supplied by EU institutions.
Some good news for the environment is that the bill commits to complying with the international agreements that we are already signed up to. Obviously, our air and water and species do not recognise borders and environmental damage will only ever be fully addressed at a multinational level. That the UK intends to continue to do this is welcome.
Admittedly, the government has no easy task ahead, and transferring such a large amount of legislation in a hung parliament is not an enviable position. If the government remains fully committed to its manifesto commitment to leave the environment in a better state than it was found, the European Union (Withdrawal) Bill will need strengthening in several areas. The question now is whether the government and parliament will make the changes needed to allay our concerns, and start on the route needed to make the UK a world leader on the environment.