Brexit Paper 28: Who will hold the Government to account on environment post-Brexit?

18 January 2019

Bar Council latest Brexit Paper asks: Will the new watchdog have enough power?

EU institutions currently have the power to fine the UK millions of euros if it fails to address breaches of EU set pollution limits, but who will police the Government on environmental standards when we leave the EU?

CLICK HERE TO READ: Brexit Paper 28 - Environmental Law & Regulation 

The Bar Council's latest Brexit Paper examines how environmental laws will be enforced after Brexit and warns that the new watchdog envisioned by DEFRA will have much less power, making it harder for UK citizens and businesses to make sure the Government follows even its own rules.

The Bar Council's latest Brexit Paper looks at environmental law, focusing on post-Brexit enforcement and regulation. It was co-authored by barrister and Bar Council EU Law Committee member Celina Colquhoun. She said:

"Under EU law, the European Commission can bring infringement proceedings or refer the UK to the Court of Justice, as it did in 2018 for not doing enough to tackle unlawful levels of air pollution, under the threat of imposing heavy fines.  But when the UK ceases to be a Member State, its obligations under EU law will cease and the EU Commission will no longer have any enforcement functions against the UK. Individual citizens' recourse to the EU complaint procedure will - as one might expect - also disappear.

"The question is: without the Commission, who will hold the Government to account if it fails to abide by the UK's own environmental laws or reneges on the terms of international environmental agreements?"

This latest Brexit Paper from the Bar Council explains that the Environmental (Principles & Governance) Bill, which is expected later this year, will create a new watchdog - the Office of Environmental Protection (OEP) - and give it powers to issue a 'Decision Notice' if an authority fails to comply with environmental law. A key difference between the current EU and future enforcement regimes is that neither the OEP nor the Courts will have powers to impose fines, even where a public authority fails to comply with such a Decision Notice. The next, and final, step would be for the OEP to make an application for a form of judicial review based on 'conduct' with the aim, it seems, of seeking compliance but without penalty for breaches.

As for international environmental agreements, according to DEFRA the OEP will not have a role in ensuring that the UK complies with such obligations, including those on climate change. It is not therefore clear how the UK would propose to give effect to any new environmental standards that form part of a future free trade or association agreement made with the EU.

Celina Colquhoun said: "If the UK Government is no longer constrained either by the UK courts giving effect to EU law, or by the EU Commission threatening or bringing proceedings against the UK in the CJEU, there is a significant risk of loss of enforceable rights for businesses and individuals, as well as to the environment.

"While removing the role of the Commission and the ECJ is an intrinsic part of the rationale for the UK's withdrawal from the EU, current plans for the OEP will arguably reduce the level of scrutiny and enforcement of agreed international norms. Whilst the new watchdog may be able to bark, it does not look like it will have much bite."


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