Government creating gaping Brexit environmental legal loopholes warn charities

15 November 2017

A major coalition of twenty-eight environment and wildlife organisations [1] 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. [2] 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.

Elaine King, of Environment Links UK [3], said: ‘Michael Gove has said that he wants to achieve a gold standard on the environment [4], 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.’

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.’

Kierra Box, Friends of the Earth campaigner, said: ‘Michael Gove has, in the last few days, outlined proposals to create a new policy statement setting out the environmental principles. But we need legal certainty. So if Mr Gove is serious about getting this right, then why not commit to fully bring the principles into UK law to provide this assurance? The UK government has repeatedly been criticised for trying to lower the bar set by the EU on the environment and the Withdrawal Bill in its current form is looking too weak to deliver, failing even to maintain existing standards. Our environment deserves an ambitious, no-compromise approach.’

Debbie Tripley, Head of UK and EU Advocacy at WWF, said: ‘Our environment faces a risky future if the EU Withdrawal Bill does not include the environmental principles that have been key to protecting nature and the environment for decades. The Government wants the UK post-Brexit to be the “gold standard” in respecting nature, but without the right principles being enacted into law we risk falling well short of that.’

Claire Bass, Executive Director of Humane Society International UK, said: ‘Ministers have repeatedly stated their ambition to make animal welfare standards a unique UK selling point in the post-Brexit world. But if this is to become a reality, Britain must put into UK law the need to take animals' welfare into account. Without the overarching principle of animal sentience, animal welfare risks being sacrificed on the altar of trade, which would be a disaster for animals and for Britain's reputation as a compassionate nation.'

Further quotes from the coalition of charities can be found here.

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.

• 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. [5]

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.

Ends

• The coalition will be following each stage of the Bill which affects environmental protections carefully and are happy to provide media briefings, comment and interviews on any related issue. Please contact: Emma at Wildlife and Countryside Link (020 7820 8600, 07881785634, emma.adler@wcl.org.uk)
• Location filming can be carried out at case study sites where the environmental legal principles had big wins. Please use the contact details above if this is of interest and for further details of these case studies.
• For members of the public who would like to get involved in protecting environmental and animal welfare standards in the UK - Friends of the Earth and Compassion in World Farming both have actions you can take (see links).

1. The coalition includes: A Rocha UK, Amphibian and Reptile Conservation, The Angling Trust and Fish Legal, Bat Conservation Trust, Born Free Foundation, Buglife, Butterfly Conservation, Campaign for National Parks, Campaign to Protect Rural England, Freshwater Habitats Trust, Friends of the Earth, Greenpeace, Humane Society International UK, Institute of Fisheries Management, Marine Conservation Society, Northern Ireland Environment Link, Plantlife, The Rivers Trust, RSPB, Salmon and Trout Conservation, Scottish Environment Link, Wales Environment Link, Whale and Dolphin Conservation, the Wildlife Gardening Forum, WWF-UK, Wildfowl and Wetlands Trust (WWT), Wildlife and Countryside Link, Woodland Trust, ZSL.
2. See Michael Gove’s piece in the Telegraph.
3. Environment Links UK brings together environment and animal protection organisations to advocate for the conservation and protection of wildlife, countryside and the marine environment. The network comprises the combined memberships of Wildlife and Countryside Link, Scottish Environment LINK, Wales Environment Link and Northern Ireland Environment Link. Taken together, Environment Links UK members have the support of over eight million people in the UK and manage over 750,000 hectares of land.
4. One example of Michael Gove’s comments on this issue is from a speech given at WWF-UK on 21 July 2017 where he said that leaving the EU was an opportunity to be ‘a setter of gold standards in protecting and growing natural capital, an innovator in clean, green growth and an upholder of the moral imperative to hand over our planet in a better condition than we inherited it.’ See The Unfrozen Moment – Delivering a Green Brexit.
5. Powers relating to most environmental matters, including agriculture, fisheries, and aspects of energy policy, are devolved to Scotland, Wales and Northern Ireland. In fact, of all the policies areas where EU powers intersect with devolved competences, the greatest number relate to the environment. The loss of these common EU frameworks would risk significant regulatory divergence and a less co-ordinated approach to environmental governance. In addition, it could lead to an environmentally damaging process of competitive deregulation across the UK’s different jurisdictions.