Government creating gaping Brexit environmental legal loopholes warn charities

15 November 2017

WWT and a major coalition of 28 environment and wildlife organisations are today warning that despite welcome commitments on environmental protections, the UK Government could still create loopholes in environmental law as part of the Brexit transition. This could have damaging consequences for the environment and animal welfare.

The warning coincides with amendments being debated during ‘environment day’ (today Weds 15 Nov) in the Committee stage of the (EU) Withdrawal Bill. These amendments could help close these legal loopholes if they are backed by MPs.

Environmental groups have warmly welcomed recent commitments to a strong new environmental regulator in England and to consult on retaining environmental principles. However, they are concerned that the UK Government has omitted vital EU legal principles, which protect our environment, from the current Withdrawal Bill. They are warning that unless the full range of environmental principles are underpinned with legislation, we are at risk of drastically weakened environmental legal protections which could have major repercussions.

Martin Spray CBE, Chief Executive of WWT, said:

‘The environmental integrity of decision-making could be compromised if MPs leave out these core green principles. But by integrating them properly in law and policy the UK could set a new global standard in environmentally-rational thinking. We welcome the Secretary of State’s announcement of a consultation and urge him to give the House confidence that any principles policy will have a strong foundation in law.’

Elaine King, of Environment Links UK, said:

‘Michael Gove has said that he wants to achieve a gold standard on the environment, but the EU Withdrawal Bill without these principles is set to provide tin can protection. It is essential the UK Government offers the same or stronger legal protections as the EU if we are to protect the UK's natural world.’

Around 80% of our environmental law and policy is currently based on EU law. Standards jointly adopted with our European neighbours have enabled the UK to meet national and international environmental targets. So it is essential that these EU environmental and animal welfare protections are completely translated into domestic law as part of the EU Withdrawal Bill. The Withdrawal Bill does not currently set out a clear pathway for this, and the risk is that essential environmental protections will be lost if amendments to the Bill are not made.

In addition to specific EU directives relating to environmental and animal welfare protection, the main principles guiding EU environmental action are enshrined in law, as part of the EU treaties. They are essential requirements for governments, statutory agencies, as well as businesses, and if necessary an aid to interpretation by the Courts, and include:

the polluter pays principle; which states that those who cause pollution should pay for the damage. This acts as a financial deterrent to businesses and others polluting the environment.
the dealing with damage at source principle; which ensures that the cause of any pollution or damage to the environment has to be addressed at source to prevent further harm, rather than just dealing with the resulting damage in the wider environment.
the precautionary principle; which means where there is a possibility of serious environmental harm, the absence of scientific certainty can’t be used as a reason not to take action.
and the animal sentience principle; that recognises animals as ‘sentient beings’ and requires that their welfare is ensured.

These legal principles have been responsible for massive environmental wins, such as:

the largest ever UK marine area closure in Lyme Bay, protecting swathes of sealife from over-fishing
playing a key role in decisions like the EU ban on imports of hormone-fed beef, and control of the release of Genetically Modified Organisms in the EU.
instrumental in driving £8 billion of investment in UK waste water treatment since 1990
Helping to prevent the decimation of our native bee populations by non-native invasive Asian hornets

The current version of the Withdrawal Bill would fail to ensure all the principles from EU law are specifically brought across into domestic law. The coalition is supporting essential amendments to the Withdrawal Bill which include enshrining these principles into law. These amendments will be debated on Wednesday 15 November 2017 and the group urges MPs to give them their backing to help protect our much loved natural world.

On Saturday 11 Nov in an article in the Telegraph Michael Gove committed to ‘create a new policy statement setting out the environmental principles that will guide us’ and this would ‘underpin future policy making.’ The EU principles currently underpin law-making as well as policy and NGOs believe that they should therefore be founded in primary legislation.

Powers relating to most environmental matters are currently devolved to Scotland, Wales and Northern Ireland. It is therefore essential for the UK and devolved governments to work together to address these concerns.

The coalition is calling for:

Environmental legal principles to be put into domestic law through the Withdrawal Bill amendments to ensure that they are binding and enforceable.
The legal principles which are translated across into domestic law should include the Lisbon Treaty Article 191 principles and the other environmental principles that have been incorporated into the EU Treaties – these are listed in proposed amendment NC28 to the Withdrawal Bill.
These principles should apply across all parts of governments in the four nations, and should be applied as over-arching requirements to future legislation and policy as the current EU principles do.