So much for taking back control. Hywel Davies, CIBSE Technical Director, highlights some concerns about the EU Withdrawal Bill.

Post Brexit, the Government’s message was that all EU legislation will be copied into domestic UK law to ensure a smooth transition and to avoid a “black hole in our statute book” on the day after the UK leaves the European Union.

This was the promise of the White Paper on leaving the EU, which was published in March 2017. To deliver this, the European Union (Withdrawal) Bill is the key plank of legislation, which sets out to replace the 1972 European Communities Act. However, ClientEarth, an organisation of activist lawyers committed to protecting the environment, has looked at the draft of the Withdrawal Bill and it has raised some serious concerns that in its current format not everything in EU law will be transposed into UK law.

In relation to fully transferring current EU requirements into UK law, there has been a long running issue over the status of the text of Regulations and Directives which precedes the numbered Articles. This text appears in numbered paragraphs known as Recitals. Whilst in mainland Europe these are clearly understood to be part of the legal text, and set out the philosophy or spirit of the legislation alongside the specific provisions of the Articles. In UK law this is not the case, and the important background principles set out in the Recitals are not treated as being part of the law. There is an extension to this in that there are principles which are set out in the EU treaties and underpin EU legislation. ClientEarth have noted that these principles are not retained at present in the drafting of the EU Withdrawal Bill.

Another concern raised is that the Bill transfers too much power from MPs and Peers to Government Ministers and the civil service by allowing important decisions to be made behind closed doors. This is because most EU legislation is implemented in UK law using secondary legislation – Statutory Instruments such as the Energy Performance of Buildings Regulations in England and Wales. These Regulations are prepared by Ministers and officials and laid in Parliament without any significant scrutiny. Where this was done to transpose EU legislation into UK law, the parent EU measure would have been through extensive consultation during its development, and had been approved by the European Parliament and the Council of Ministers on behalf of the Member States.

But now the secondary legislation will be open to amendment or repeal without any such safeguards. This opens the UK Government to exactly the same criticisms of unaccountability many Brexiters levelled at the European Commission. ClimateEarth refers to this lack of accountability as a ‘democratic deficit’.

I would argue that for detailed engineering and technical regulations there is also a serious risk of a technical deficit too if ministers change laws without taking advice, or are poorly advised by civil servants or sectional interests. There may be potentially serious unintended consequences which could be avoided with a bit of proper engagement with those who really understand the technical requirements in a way that the civil service may not.

Effectively, what ClimateEarth is saying is that if we are not very careful, ministers are going to be able to meddle with EU-derived law on a whim without proper public or parliamentary scrutiny. This could run the risk of ideologically-driven ministers changing laws that have been the subject of due process just because they don’t like them. That is wrong; there is a process to be gone through and an argument to be won. It is also not without precedent, as those familiar with the 2015 consultation on “improving and streamlining the Display Energy Certificate regime” will know. This was based on a thoroughly flawed technical analysis of the Directive and the Regulations, and proposed what many felt was a total gutting of an important energy efficiency measure.

Another ClimateEarth concern with the Bill in its current form is that it could lead to a reduction in standards. One reason for this is that UK law differs from European law in that most of Europe the law works on the basis of the principles and intent of the law (the precautionary principle), whereas in the UK we, pretty much, work on the letter of the law.

This difference becomes important because the treaties set out principles, so that when a European lawyer looks at a piece of European legislation, they do so in the context of what Europe is trying to achieve. This is why ClimateEarth say that the Bill fails explicitly to retain the overarching principles of EU environmental law, such as the precautionary principle, that shape and direct environmental law and policy, assist in the interpretation of environmental law, and which are currently part of EU law.

Basically, if the UK government is not firmly committed to the precautionary principle, then if something is not written down in the letter of the directives a UK court could say: ‘Ministers have talked about the precautionary principle, but since it is not written into UK law it is not binding’. This is a serious concern.

ClimateEarth also highlights an issue that the Bill does not “fully convert EU Directives by losing recitals and provisions including important environmental safeguards and obligations - including crucial reporting and reviewing obligations - that are currently incorrectly or incompletely transposed in UK domestic law.

There has, for example, been a longstanding concern that the UK has not properly implemented the EPBD. As it stands the Withdrawal Bill means that if we haven’t properly transposed a piece of EU law, then there will be no scope to fix it after we leave. I think this could be an issue that is particularly relevant to revisions to the EPBD, which are likely to come into force before we leave the EU and should, therefore, be transposed. However, the incomplete and incorrect transposition mechanism might mean that if the revisions are published close to the UK’s departure date that they might not be transposed and there will be nothing we can do about it.

The last major concern highlighted by ClimateEarth is what it calls ‘a governance gap’. This is the result of the UK not adequately setting out a pathway for replacing governance functions, such as ensuring proper implementation, compliance and enforcement of environmental law, which are currently undertaken by EU institutions.

Last month, Michael Gove, Secretary of State for DEFRA, announced the formation of a new ‘commission-like body’ to enforce environmental law after Brexit. There is, however, no guarantee that the new body will fully address this governance gap after the Minister signalled that the government would consult on the role and powers such a new body might have.

The gaps identified by ClientEarth in the Withdrawal Bill could have crucial environmental and democratic significance for the UK post Brexit. There is only a short timeframe in which to amend the Bill. Let’s hope that the government does so and soon, because the environmental issues EU laws were brought in to address are as valid now, if not more so, than they were when the laws were first introduced.

Julie Godefroy’s opinion piece ‘Achieving a green Brexit’ in the CIBSE Journal also addresses this issue.  

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