Brexit: Potential impacts on our natural environment legal framework

Penny Simpson, Freeths, Nottingham

Many of you will no doubt be concerned about the impacts of the Brexit decision on our natural environment legal framework and the health of our natural environment. Those of you involved in property and infrastructure development may be concerned about uncertainties in environmental regulatory frameworks arising from the Brexit decision and may wonder whether there may ultimately be commercial benefits from a weakening of existing legislation.

I have been considering these issues and set out comments on a number of points below.

In summary my thoughts at this stage are that:

• Immediately after Brexit Day our natural environment legislation is likely to look the same as, or very similar to, the present, at least for the immediate future. Any future changes to our domestic natural environment legislation are likely to be some considerable way off.
• It is potentially open to the Government to seek a “soft” Brexit under which the withdrawal agreement (to be negotiated with the EU) could continue to require the UK’s ongoing compliance with EU environmental legislation and even Court of Justice of the European Union (“CJEU”) caselaw. However this does not at present appear to be the Government’s intention. The Habitats and Birds Directives are therefore very unlikely to remain legally binding on the UK post-Brexit Day. This at first sight would appear to present a basis for potential weakening of domestic legislation in the long term. However a number of international conventions ratified by the UK are likely to have the effect of restricting any proposed weakening so that domestic legislation in the long term is unlikely to be very different to that seen at present. This is particularly the case for EU protected species, whereas for EU protected habitats the restrictions are a little looser;
• The key “unknown” (and therefore the main concern for many) is the future interpretation by our courts of our domestic legislation, given that (i) the current strictness of EU nature conservation law is in large part due to the judgments of the CJEU; and (ii) there is real uncertainty as to the standing and influence of those judgments in the UK following Brexit Day.
1. What is the Article 50 process?

Under the process envisaged in Article 50 of the Treaty of the European Union:
• The UK must first decide to withdraw from the Union – this is currently being considered by the House of Lords;
• The UK must then give notice to the European Council of its intention to withdraw from the EU;
• The EU will then negotiate and conclude a withdrawal agreement with the UK setting out the arrangements for the UK’s withdrawal, taking account of the framework for the UK’s future relationship with the EU; and
• “Brexit Day” will be the date that the withdrawal agreement comes into force or, failing that, 2 years after the date of giving notice.
In a recent seminar given by barrister Mr Alex Goodman of Landmark Chambers in London, Mr Goodman explained that Article 50 envisages the withdrawal agreement “taking account” of the framework of its future relationship with the Union, but not itself setting out that future framework. On that basis he suggested that the withdrawal agreement may well establish a set of transitional arrangements and that, following the withdrawal agreement, there might well then be a separate treaty establishing the future relationship with the EU.

2. How certain is the announced timetable for the Article 50 process?

In her speech at the Conservative Party Conference, the Prime Minister announced that notice under Article 50 will be given no later than the end of March 2017. This means that completion of the UK’s withdrawal from the EU can expected no later than two years following that date.

Despite this, there are some uncertainties relating to the timetable.

It has been reported in Business Insider (http://uk.businessinsider.com/brexit-how-does-article-50-work-2016-7) that some legal experts have advised that, once invoked, the UK could not be forced to go through with the Article 50 process if it did not want to. In other words the UK could change its mind if, for example, there were a change in Government during that process. As the Business Insider article states, the political consequences of such a change of mind would be substantial, so it seems very unlikely that this would happen.

The Government has recently confirmed that the withdrawal agreement will likely require ratification by Parliament. Subject to the point made in the paragraph above, this will not however hold up the timetable once the Article 50 notice has been given. This is because Article 50 makes clear that, once notification has been given, withdrawal takes effect whether or not a withdrawal agreement has been negotiated.

3. What will happen to natural environment law after the Article 50 notice has been given and whilst we wait for the Article 50 process to run its course?

During this time it is business as usual. Existing EU nature conservation / environmental law continues to apply as before, as does domestic natural environment law. Ecologists, developers, local planning authorities and statutory nature conservation bodies should continue operating as before.

4. What is the position for any EU Directive which must be implemented by Member States whilst we await completion of the Article 50 process?

The prime example of this is the Environmental Impact Assessment Directive 2014/52/EU which must be implemented by 16 May 2017. This Directive makes a number of significant changes to existing EIA requirements.

The Scottish and Welsh Governments have already commenced public consultations on the changes to be made to domestic EIA legislation so as to implement this Directive. At the time of writing no similar consultation had commenced in England.

As long as the UK remains a Member State, it is required to implement Directives within the specified timeframes. Failure to implement this EIA Directive within the required timeframe could lead to infraction proceedings from the European Commission, although the likelihood of this happening is perhaps lower than it was before 23 June 2016.

Nevertheless, since the existing EIA Directive has in the past been held by the CJEU to have “direct effect”, an objector to a planning application for example, could, in the absence of domestic implementing legislation expect to succeed in a judicial review claim to quash a planning consent granted in breach of the new Directive. If implementing legislation is not therefore adopted this will leave planning authorities in a potentially very difficult situation. Therefore it can be expected that England will follow the Welsh and Scottish examples and consult on this very soon.

5. What will happen to existing domestic natural environment legislation immediately following Brexit Day?

In short, we can expect that immediately after Brexit Day our domestic natural environment legislation will be the same as, or very similar to, the present, at least for the immediate future.

Theresa May has announced that there will be a “Great Repeal Bill”. This will repeal the European Communities Act 1972 (“ECA 1972”) (the key domestic legislation which authorised UK membership of the (then) EEC) and re-enact, into UK legislation, existing European legislation, up until the point of withdrawal.

This is important as, without a Great Repeal Act, repeal of the ECA 1972 would have serious implications for much domestic secondary legislation. This is because many European Directives relating to the environment have been implemented through secondary legislation under the ECA 1972 (ie Regulations or Orders, rather than Acts of Parliament). Examples are the Conservation of Habitats and Species Regulations 2010 which implement (in England and Wales) the Habitats Directive and some aspects of the Wild Birds Directive; and the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 which implement in England the Environmental Liability Directive. Once the ECA 1972 is repealed, the secondary legislation adopted under it would immediately lapse unless some legislative mechanism were put in place to preserve this legislation. The Great Repeal Act will address this. The Great Repeal Act is also expected to preserve the effect of European Regulations, which are currently “directly applicable” (ie binding on the UK without the need for transposition) and which, in the absence of domestic provisions to give effect to the EU Regulations, would lose their force in the UK.

The Great Repeal Act will have to consider how to deal with certain aspects of existing natural environment legislation which currently refer to European institutions or the Directives.

As an example, regulation 62(2) of the Conservation of Habitats and Species Regulations 2010 is relevant where a competent authority is not able to conclude that a plan or project will not have an adverse effect on integrity of a European site under regulation 61. Under regulation 62(2) a competent authority may only agree to such a plan or project if there are no alternative solutions and the plan or project must be carried out for imperative reasons for overriding public interest. In the case of priority habitats or species the imperative reasons of overriding public interest may only “relate to human health, public safety or beneficial consequences of primary importance to the environment” or “any other reasons which the competent authority, having due regard to the opinion of the European Commission, consider to be imperative reasons of overriding public interest” (emphasis added). References to the nature Directives are also found in the interpretation provisions of these Regulations. It is clear that a decision will need to be made as to whether these Regulations will continue to refer to the European Commission / the Directives and if not, what amendments will be made. Andrea Leadsom, Secretary of State for the Environment, Food and Rural Affairs, has already recognised the challenge this will present, noting that a third of our current EU legislation cannot be “rolled forward with just some technical changes” (https://environment-analyst.com/50553/government-may-not-transpose-third-of-eu-environmental-law).

6. What will happen to our natural environment legislation in the longer term?

This is the “million dollar” question. The answer hinges on political choice and negotiations with the EU.

If the politicians so wished, they could opt for a “soft” Brexit ie negotiate a withdrawal agreement with the EU on the basis that, in relation to environmental issues, the UK will remain subject to both existing and future EU Directives and Regulations and even the jurisdiction of the CJEU. This is a matter of political choice and negotiation. The advantage of this would be to preserve stability in environmental law whilst the longer-term arrangements for our relationship with the EU are negotiated. Following the withdrawal agreement, a future agreement setting out the detail of our long term framework with the EU could also adopt this approach.

This, however, seems highly unlikely based on the Government’s comments to date. Furthermore, even if such a “soft Brexit” were to transpire, there would still have to be careful selection of the EU environmental laws which would continue to apply to the UK and the question then is “would they include the Wild Birds and Habitats Directives?” It can obviously be argued that EU nature legislation should remain binding on the UK since a European-wide approach to protection of species and habitats is ecologically important / essential. However, the nature Directives are not without their critics and other environmental Directives / Regulations may be regarded as having a greater priority since they have a more direct impact on trade with the EU (eg chemicals regulation; transport of waste; labelling; emissions trading).

A clue to this can be found in the “Norway” model. A post-Brexit model based on the UK joining the European Free Trade Area and the European Economic Area (EEA) (which, in any event, at present seems not to be the approach favoured by the Government) might well require the UK to maintain ongoing compliance with most EU environmental laws, including the Environmental Impact Assessment Directive and EU environmental regulatory regimes relating to matters such as air, chemicals, waste and water. However, the existing EEA Agreement carves out any requirement to comply with the Habitats and Wild Birds Directives and linked nature conservation provisions within the Environmental Liability Directive and Water Framework Directive (it also carves out any requirement for compliance with the Bathing Waters Directive). So this would suggest that, even if a “soft Brexit” were to emerge, the nature Directives might well still cease to be binding.

However even if (as appears likely) the UK will not remain subject to the EU nature Directives after Brexit Day, this does not mean that our devolved governments will necessarily decide to alter or weaken their domestic legislation in the long term.

First, “if it ain’t broke, why fix it”? Many commentators would argue that the existing nature conservation legislation system is not “broke” and that it strikes an effective balance between economic interests and conservation.

Secondly and perhaps more persuasively, the UK has ratified a number of international conventions with which compliance will be expected.

7. What do the international conventions require?

Whilst there may be detailed arguments about the exact legal position in relation to any individual convention ratified by the UK, the starting point is that any changes made to domestic natural environment legislation should be consistent with the UK’s international law obligations. In her speech at the Conservative Party Conference, Theresa May appears to agree with this. She stated “When the Great Repeal Bill is given Royal Assent, Parliament will be free – subject to international agreements and treaties with other countries and the EU on matters such as trade – to amend, repeal and approve any law it chooses”.

Whilst it is true to say that international conventions give rise to less rigorous enforcement of their provisions than is the case for EU law, and that our domestic courts do not at present allow international treaty provisions to be relied upon directly before our national courts, it would be a surprising outcome if the UK made changes to domestic legislation in direct breach of its international convention obligations.

A few of the relevant conventions are considered in brief below.

7.1 EU protected species

In terms of protected species, the Convention on the Conservation of European Wildlife and Natural Habitats (the “Bern Convention”) is key. It entered into force on 1 September 1982 and was ratified in the same year by the United Kingdom. The primary aim of the Habitats Directive was to give effect to the Bern Convention obligations across the EU and so, not surprisingly, there are strong parallels between the two.

The Bern Convention offers protection to listed wild flora in Appendix I; and to listed wild fauna species (both birds and other animals) in Appendices II (those requiring “special protection”) and III (those requiring a lesser level of protection than Appendix II species).

Most of the Habitat Directive’s Annex IV(a) list of “European Protected (animal) Species” (EPS) (which are relevant to the UK) are included in Appendix II of the Bern Convention. Exceptions are the common pipistrelle bat and dormice (Muscardinus avellanarius). Other bat species, Great Crested Newt, otter, sand lizard, wild cat, and certain listed Cetacea species are covered by Appendix II of the Bern Convention. The Bern Convention’s legal regime for these Appendix II animal species, including its derogation (licensing) regime, is almost identical to that found in Articles 12 and 16 of the Habitats Directive. There is only one main difference: the prohibition against “damage or destruction of a breeding site or resting place” under the Bern Convention requires the prohibited act to be carried out “deliberately”, whereas this requirement is absent under the “strict liability” (no fault) offence of the Habitats Directive.

All of the Habitat Directive’s Annex IV(b) list of EPS plants (which are relevant to the UK) are included in Appendix I of the Bern Convention. Again, the Bern Convention’s legal regime for these plant species, including its derogation (licensing) regime, is almost identical to their protection under Articles 13 and 16 of the Habitats Directive.

Based on these points, beyond the issue of common pipistrelle bats and dormice, there would be very little scope for a “Bern Convention-compliant” weakening of the protected species provisions of the Conservation of Habitats and Species Regulations 2010.

The Bern Convention applies a certain level of protection to almost all wild bird species either through Appendix III or Appendix II (Appendix II contains the stricter protection). A detailed comparison between the Bern Convention and the Wild Birds Directive is needed but, on first analysis, there are strong parallels, although the Wild Birds Directive does appear to offer some additional protection for all wild birds.

7.2 EU protected habitats

The Bern Convention also contains provisions for protected habitats.

The Bern Convention requires (Article 4.1) each party to take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of the wild flora and fauna species (especially those in Appendices I and II) and the conservation of endangered natural habitats. Further, each party must (Article 4.2), in their planning and development policies, have regard to the conservation requirements of the areas protected under Article 4.1 so as to avoid or minimise as far as possible any deterioration of such areas.

It can be seen from the reference in Article 4.2 to “the areas protected under Article 4.1” that the intention of the Bern Convention is that specific areas are to be protected under Article 4.1 as part of the “measures” to be taken, even though Article 4.1 does not expressly require classification / designation of protected areas. There is therefore a clear parallel with the site classification / designation requirements of the Wild Birds (SPAs) and Habitats Directives (SACs).

Further, whilst Article 4.2 does not mirror the prescriptive and precautionary regime for the assessment of impacts of plans or projects on SPAs and SACs under Article 6.3 Habitats Directive / Article 7 Wild Birds Directive, there is still a requirement that any deterioration of these areas must be avoided or minimised as far as possible. This obligation would also need to be read in light of the Article 4.1 obligation “to take appropriate and necessary legislative and administrative measures to ensure the conservation of the habitats of the wild flora and fauna species (especially those in Appendices I and II) and the conservation of endangered natural habitats”.

Finally, under Article 9 Bern Convention, a party may make exceptions (derogations) from the provisions of Article 4 Bern Convention if certain tests are met. These tests are that: there is no other satisfactory solution; that the exception will not be detrimental to the survival of the population concerned; and that the exception must be for a certain public interest need, such as public health and safety or other overriding public interests.

These three tests are similar to the derogation tests found in Article 6.4 Habitats Directive. As Article 9, Article 6.4 requires that there is no alternative solution. Article 6.4 also requires that there must be imperative reasons of overriding public interest which may be of social or economic nature (i.e. so potentially going wider than Article 9 of Bern, which does not expressly include social or economic factors). Finally, Article 6.4 requires delivery of compensatory habitat measures to ensure the coherence of the Natura 2000 network,
whereas Article 9 requires “no detriment to the survival of the population concerned”. It is difficult to see how one could ensure no detriment to the population unless one was prepared to provide compensatory habitat.

In addition, the UK also ratified the Ramsar Convention in 1976. Under this Convention the parties must designate suitable wetlands as Ramsar sites (Article 2.1) and promote the conservation of these wetlands (Article 3.1). Article 4.2 then states that “where a party in its urgent national interest, deletes or restricts the boundaries of a wetland included in the List, it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the protection, either in the same area or elsewhere, of an adequate portion of the original habitat”. To the extent, then, that SACs or SPAs are also Ramsar sites (which is not uncommon), Article 4.2 Ramsar Convention goes some way towards duplicating the “habitat compensation” requirements of Article 6.4 of the Habitats Directive.

In conclusion, the habitat protection regime envisaged by the Bern Convention (and to some extent the Ramsar Convention) is similar to, albeit less prescriptive, than that in the Birds and Habitats Directives. It could be argued that the Habitat Directive’s express precautionary rules over the assessment of impacts of plans and projects on protected sites would be “gold plating” assuming that we leave the EU without the need for continued compliance with the nature Directives. The success of this argument however is far from certain given the wording of Article 4.1 Bern Convention. A complete scrapping of the site protection provisions of the Conservation of Habitats and Species Regulations 2010 is very unlikely to be “Bern Convention-compliant”, particularly where the domestic SSSI protection regime in the Wildlife and Countryside Act 1981 and national planning policy is unlikely to be adequate (eg they do not apply in full the derogation tests as per Article 9 of the Bern Convention).

8. How will the domestic Courts interpret our natural environment legislation after Brexit Day?

This is the issue of greatest concern to many.

The decisions of the CJEU on interpretation of the nature Directives, which are at present binding on our domestic courts, have been extremely important in achieving protection of our natural environment.

As already noted, it would be open to the Government to agree, in the withdrawal agreement or even in a long term agreement, that the UK will, in relation to environmental issues, remain bound by both existing and future EU environmental legislation and decisions of the CJEU.

However the Government’s present intention appears to be to remove the UK from all influence of the CJEU after Brexit Day. Therefore, unless there is a change in the Government’s view, which in turn leads to a “soft Brexit”, the existing supremacy of (i) EU law over domestic law; and (ii) CJEU decisions over UK court decisions will be removed on Brexit Day.

This leaves us with somewhat of an “unknown” in relation to the domestic court’s likely interpretation of our domestic natural environment law going forward.

After Brexit Day (and in the absence of a “soft Brexit”), a domestic court would not regard future CJEU judgments on the Habitats and Birds Directives as binding on the UK. As regards CJEU judgments already existing on Brexit Day, the domestic court may be willing to regard them as persuasive. This would be on the basis that domestic legislation, under the Great Repeal Act, will reflect European legislation as at Brexit Day. However even this is not clear.

Our domestic Supreme Court and Court of Appeal judgments will of course remain binding on lower courts. But one can see arguments that if a particular Supreme Court or Court of Appeal judgment had been influenced by CJEU decisions which are no longer strictly binding on the UK, then those domestic judgments may also not be regarded as binding in the future.

Until the time comes and these arguments are made, we will not know how judges will respond. This issue is perhaps the most significant, since the strictness of the EU nature conservation regime is in large part attributable to CJEU interpretation of the legislation, rather than the letter of the law.

Penny Simpson
Partner
+44(0)845 017 1133
penny.simpson@freeths.co.uk

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