Although Michael Gove has recognised the need to “create new institutions to demonstrate environmental leadership and even greater ambition”, the EU Withdrawal Bill does not make clear what, if any, domestic governance arrangements will be put in place to replace the European Commission and European Court of Justice (ECJ) and the systematic oversight they provide in the monitoring, accountability and enforcement functions, ensuring the effective implementation of waste and resources legislation. The UK government has not yet set out an adequate plan for filling the domestic governance gap
The government’s continued insistence it will end the direct jurisdiction of the ECJ in the UK is very significant for resource policy: there is a large body of case law that sets the rules for waste treatment, and compliance on waste targets and product standards is ultimately subject to ECJ decisions. While the government’s position paper on the ECJ
indicates that it may take account of EU decisions after we leave the union, considerable room for divergence remains, with the paper noting: “The extent to which this approach may be valuable depends on the extent to which there is agreement that divergence should be avoided in specific areas.” As EU decisions continue to be made, therefore, the UK may end up with conflicting rules on product standards, which would hinder trade, and on waste rules, which could strand investments in UK waste treatment facilities.