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Nature protection

June - September 2017

Summary

Environment Secretary Michael Gove has publicly pledged that the UK will not weaken environmental standards after Brexit but will, rather, be a world leader. This process could provide an opportunity to deal with gaps in existing nature policy, for example, by creating a goal to restore nature. Michael Gove has also acknowledged the governance gaps that Brexit will create although, so far, no remedies have been proposed. Publication of the Withdrawal Bill has confirmed that the government does not plan to incorporate the environmental principles enshrined in the EU treaties into domestic law, despite these principles being a fundamental part of the environmental acquis, underpinning nature protections. Furthermore, the government’s recent position paper on Northern Ireland and Ireland failed to appreciate fully the broad range of cross-border environmental matters, such as cross-border protected nature sites, that could be affected by Brexit.

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Principles & strategies
The government intends that the EU Withdrawal Bill will “ensure that the whole body of existing EU environmental law continues to have effect”. However, as currently drafted, the bill fails to carry across the general principles in the EU treaties that underpin nature protection, such as the goals of sustainable development and a high level of environmental protection, the precautionary principle and the polluter pays principle. The bill also fails to carry across the directives that set the policy frameworks, and the strategies that set out trajectories for achieving policy goals.

The UK government is working on a 25 year plan for the environment that is expected to set out the direction for future nature conservation policy after the UK leaves the EU. This process could provide an opportunity to deal with gaps in existing policy, if given a statutory underpinning, for example, by creating a goal to restore nature.  However, the plan’s publication has been beset with delays for more than a year and there is still no confirmed date for its publication.
Legislation
The government intends that the EU Withdrawal Bill will “ensure that the whole body of existing EU environmental law continues to have effect in domestic law”. This broad commitment is reassuring, yet it is stated elsewhere that the bill will only convert EU law into domestic law “wherever practical and sensible”, and it is not yet clear whether this could create gaps in nature policy. The bill also contains extensive powers for ministers to alter that law during the two years following the UK’s exit. We remain concerned about the level of scrutiny given to statutory instruments used in the conversion process, particularly given the short timeframe. 
Capacity & funding
Defra is due to see a 15 per cent reduction in its resource spending between 2015 and 2020, although more civil servants are being drafted into the department. The EU environment, agriculture and fisheries acquis are extensive, and it is unclear whether the department will be able to cope with, first, any additional workload associated with the transposition of all EU rules to the UK, and then the monitoring of existing policy and creation of new policy. Most of this effort has happened at EU level thus far.
Governance
The EU Withdrawal Bill envisages that existing EU case law will remain applicable by domestic courts. However, the role currently played by the European Court of Justice (ECJ) together with other EU institutions in providing the monitoring, oversight, accountability and enforcement functions required to ensure the effective implementation of nature legislation will no longer exist.  Although the government has proposed several options to replace the ECJ’s role in resolving cross-border disputes, its eventual position will depend to some extent on what sort of future relationship is negotiated with the EU. And the options paper does not set out an adequate plan for filling the domestic governance gap.
 
Environment Secretary Michael Gove has declared his ambition for the UK to “design potentially more effective, more rigorous and more responsive institutions, new means of holding individuals and organisations to account for environmental outcomes.” His department must set out soon how it plans to do so.
Co-operation
The Prime Minister’s speech in Florence stated that the UK and EU share a commitment to high environmental standards, and outlined her preference for a new economic relationship that is underpinned by those standards. However, the UK’s recent position paper on Northern Ireland and Ireland made only one mention of the environment, simply referencing it as one of the six areas of co-operation agreed by the North South Ministerial Council as established under the Good Friday Agreement. As such, it failed to fully appreciate the broad range of cross-border environmental matters, such as cross-border protected nature sites, that could be affected by Brexit. Although the latest round of Brexit negotiations apparently saw a recognition on the UK side that cross-border co-operation between Northern Ireland and Ireland is built on the EU legal framework, the details of the UK’s position on how such co-operation can be maintained post-Brexit remains unclear.

The UK continues to participate in and provide inputs to EU discussions on a proposed action plan for nature and biodiversity. However, there is continued uncertainty surrounding any co-operation or co-ordination between Westminster and the devolved administrations. A promised 25 year plan for the environment is long overdue, and it remains unclear whether this would address England and Wales only, or the UK as a whole.