“To repeal or not to repeal, that is the question…”

On Thursday of this week the UK Government published its ‘European Union (Withdrawal) Bill or ‘Repeal Bill’ as it is more commonly known. They dropped the term ‘Great’ when it was announced in the Queens Speech in June but it is not an unreasonable term given that it involves an estimated 12,000 pieces of individual legislation. It is very pleasing to note that it was that the DEFRA 25 year environment plan has been officially referenced in the bill.

Earlier in the week I was in Brighton, where I took part in a debate organized by The European Parliament to discuss ‘BREXIT what does it mean for the Environment?’ My fellow panelists were: MEP Catherine Bearder; Prof Donald McGillivray, University of Sussex and; Ali Plummer, RSPB.

In my opening address I spoke around two themes that CIWEM’s activities will follow as we play our part in securing a safe and sustainable future outside of the EU.

My themes were:

Key concerns that is the things we must proactively keep an eye on and; potential opportunities that we must grasp.

  1. Key concerns

The environment is transboundary. We cannot be parochial about the way that we manage the UK’s environment. Sentiments about UK sovereignty and the UK regaining control need to be heavily measured against this simple fact.

Fundamentally the UK’s participation in the EU has brought us two environmental benefits:

  • Impetus and drive for environmental improvements
  • Supervision and enforcement that is not influenced by local and prevailing government policies.

The drive has come from some 12,000 pieces of environmental legislation and governing frameworks. Some of this legislation will require amendment due to the intrinsic linkage with the EU and some will be at risk of future repeal. These include: 

  1. The Habitats Directive
  2. The Birds Directive
  3. The Bathing Waters Directive
  4. The Water Framework Directive

The Birds and Habitats Directives and the Bathing Waters Directives will not be applicable once we leave the EU, (although as they have already been transposed into UK law they would need to be repealed or modified by Parliament in order for them to disappear). These hugely valuable protections for our national wildlife would come under pressure if they were perceived as a brake on the pace of development.

The farming minister George Eustace described the Habitats and Birds Directives as “spirit crushing green directives”.

Should we also leave the European Economic Area (EEA), as is now expected, then the Water Framework Directive, Pesticides Regulation, the Packaging Waste Regulation, REACH, the Air Quality Directive, the Environmental Impact Directive and the Renewable Energy Directive will no longer be relevant and will be susceptible to change.

The UK is also party to the Common Agricultural Policy and the Common Fisheries Policy which provide the frameworks for agricultural subsidies and fishing quotas, and the environmental protections that these bring.

As well as being highly vigilant to change during the process of transfer we must also be proactive in championing the long term role of these laws in protecting the environment.  We cannot ignore the fact that this will be a huge burden on the capacity of government. Around 1/4 of the 12,000 EU Laws relate to Defra which has already experienced a 25% cut in resources.

The second fundamental benefit is the Supervision and Enforcement.

The European Court of Justice (ECJ) holds national governments’ feet to the fire in the form of infraction proceedings. After Brexit there will be no equivalent monitoring by an enforcement body which has powers to levy fines to make sure the UK government abides by environmental protections.

The majority of cases that have been brought to the ECJ are in the environmental sector. The reasons suggested for that are that in most areas of law there are very clear economic and legal interest groups who will protect their rights. The environment is unowned. As environmental lawyer Ludwig Krämer chillingly put it “The environment dies in silence.” 

Let’s be optimistic, we are a nation of entrepreneurs

Let’s start with a basis for optimism that there are opportunities to be had. The Brexit White Paper states that:

“The Government is committed to ensuring we become the first generation to leave the environment in a better state than we found it”. 

Also, the UK has often been a leader rather than a detractor in its handling of EU Environmental Policy. I predict that there will be significant public backlash to any damaging changes to the major legislations covering air, bathing waters, habitats and birds.

Several new bills were mentioned in the Queen’s Speech and we must look to proactively engage with these. Those with a direct or indirect influence over our environment include bills for: Fisheries, nuclear safeguards, customs, trade, international sanctions, EU approvals and agriculture.

It is the last of these, agriculture, where CIWEM see great opportunity to change the way we manage our land with multiple benefits. A replacement for CAP should ensure that public money is used efficiently to deliver sustainable food production whilst improving the provision of public goods including ecosystem services, public health, high water quality and catchment level flood resilience.

There will be heavy and varied demands on the distribution of funding post-BREXIT. Although we have an opportunity to design better polices and subsidies to benefit the environment, the difficulty will be in persuading the general public that public money should be spent here when NHS funding was a key topic in the referendum campaign.

Saving graces will include the fact that future trading arrangements with the EU will require compliance on meeting environmental standards and the EU might insist on all environmental law remaining applicable. Most businesses, certainly the most forward thinking and successful, do not regard environmental regulation as a great burden. They plan for it and adapt to it, investing accordingly and they will typically be more resilient as a result.

The common business request in this context is long-term regulatory certainty to enable planning and the ability to raise capital and a level playing field to guarantee fair trade.

Economy, trade and growth will be the primary concerns of government and so this is how we must chose our language and frame our arguments if we are to make a convincing cases for preserving and enhancing our environment.

The government has said that it:  “is committed to ensuring we become the first generation to leave the environment in a better state than we found it”. 

I applaud that statement in some ways but I would say that it is not ambitious enough to measure our success against a baseline that was far from where we needed it to be. We must be bolder and that is why CIWEM is calling for environment to be at the heart of an EU exit, not a subsidiary.

We will be promoting our activities around the following principles:

  1. Government must commit to providing equivalent or better protection and at least live up to its pledge that it “is committed to ensuring we become the first generation to leave the environment in a better state than we found it”. 
  2. Any trade deal must treat environmental standards as non-negotiable.
  3. The ‘precautionary principle’ and ‘polluter pays principle’ are the fundamental foundations of environmental protection and these must be transposed into UK Law.
  4. The civil service must be given enough capacity to deliver.
  5. The replacement of the CAP is a significant opportunity to improve sustainable delivery of food, ecosystem services, public health, high water quality and catchment level flood resilience.