The Retained EU Law (Revocation and Reform) Bill & The Environment
Following Brexit, EU legislation which applied either directly or indirectly to the UK before 11pm on 31st December 2020 has been retained in UK law. After the UK formally withdrew from the EU on 31st December 2020, any new EU laws made after that date do not apply in the UK.
Currently, we have retained EU law, which will more often be referred to as EU-derived legislation, and this continues to have a significant influence over UK legislation.
The Retained EU Law (Revocation and Reform) Bill
Now, the Retained EU Law (Revocation and Reform) Bill is in the report stage at the House of Commons and if it proceeds, would by default revoke EU derived laws at the end of 2023 under the ‘sunset provision’.
The ‘sunset provision’ is a clause that is occasionally included within a parliamentary statute to provide an expiry date of some form to part of a Bill. The ‘sunset provision’ applies to the clause within the Retained EU Law (Revocation and Reform) Bill to revoke any EU derived laws from UK legislation that parliament has not identified and retained by the end of 2023.
Under the Bill, the powers of the Minister of the Crown are to remove, revoke or replace current EU-derived legislation. Parliament may revoke any secondary EU law without replacing it or may replace it with any provision the government feels appropriate. Where parliament is to replace EU-derived legislation, they are able to legislate new means of achieving the outcome that the previous legislation achieved. A term which is so broad, it could expose the UK to unprecedented legislative changes.
This can be exemplified by environmental protection laws. Given that combating climate change is an explicit objective of EU environmental laws, if Parliament decides to replace an EU-derived law that has this objective, it could do so by replacing it with legislation that achieves positive impact through any means.
On the whole, it is anticipated that if the bill where to gain Royal Assent, it will create legal uncertainty and establish holes in our current legislation and EU derived UK laws would need to be rewritten. Over time we can expect to see a move towards UK divergence, which is the legislative separation of England & Wales, Northern Ireland and Scotland, as different laws will soon be made across the different devolution states.
What impact can we expect to see regarding environmental laws?
In January 2023, the UK Environmental Law Association welcomed Becky Shrubsole from the Department for Environment, Food & Rural Affairs (DEFRA) to their conference on Retained EU Law and the Environment. Shrubsole commented on how there are approximately 570 pieces of legislation that DEFRA need to work through and review before the end of 2023. For legislation that the department does not manage to address and retain, it will be lost and could pose a threat to the UK’s conservation of the environment and ecology.
The proposed bill and accompanying fast-approaching sunset date threatens UK Environmental protection. There is not nearly enough time for parliament to review, replace, or restate the vast amount of environmental EU-derived laws, to offer the same amount of environmental protection and conservation that the UK is presently accountable to.
In a post COP 27 climate, the UK is under immense pressure to take a proactive stance towards environmental conservation and establish an achievable net zero carbon emissions target. The Retained EU Law (Revocation and Reform) Bill could not only problematic but also counterproductive from an environmental perspective and its passage will be watched closely. We’ll keep you informed as it progresses.