The future of environmental protection: law, process and the Retained EU Law (Revocation and Reform) Bill
The Retained EU Law (Revocation and Reform) Bill (the REUL Bill) is technically complex. But beyond the technicalities, it represents a fundamental rejection of legal protection and established processes, intensifying a trend that has become familiar to environmental lawyers in England. The Bill’s ‘sunset’ of retained EU law converts established procedures of law-making into matters of discretion. The retention of EU law through the EU (Withdrawal) Act 2018 was a recognition both that some law with its origins in the EU would suit the UK after Brexit, and that amending the rest would take time: time for proper expert and democratic processes, including impact assessment, consultation and public participation, as well as Parliamentary input.
Making sense of the REUL Bill
Clause 1 of the REUL Bill will automatically revoke ‘EU-derived subordinate legislation’ and ‘retained direct EU legislation’ (not retained law contained in Acts of Parliament). Clause 3 will repeal section 4 of the EU (Withdrawal) Act 2018 at the end of 2023, so ending the retention of directly effective rights. Clause 4 will abolish the supremacy of EU law, which had been retained vis-à-vis domestic legislation passed before Brexit. Clause 5 will abolish the interpretive role played by the general principles of EU law. The Bill also includes efforts to encourage (measures ‘facilitating’ according to the Explanatory Memorandum) courts to depart from retained case law (Clause 7).
Much of the substance of our environmental law is subject to the threat of repeal under Clause 1. Retained EU law may be ‘saved’: secondary legislation under the Bill may exclude provisions from the sunset (Clause 1(2)); or may extend the sunset, up to 23 June 2026 (Clause 2) – ten years from the referendum. Legislation surviving under these clauses is ‘assimilated’ law (Clause 6). The Bill also grants ministers powers to restate, revoke or replace retained secondary law by regulation, as discussed below.
Perhaps the sunset clause is just a hurry-up to the (already extraordinarily hard-pressed) civil service, given that Government anticipates that all law subject to sunset will be considered and individually addressed by regulation, notwithstanding the time pressure. But even if that is the intention, and reckoning without mistakes, the REUL Bill is based on the freedom to avoid the processes that usually go along with repealing laws: it is worth repeating that sunset is automatic, unless legislation has been ‘saved’. The fundamental role of Parliament and publicity in repealing secondary legislation becomes essentially discretionary. If Government chooses to do nothing, legislation simply falls. And negotiating in the dim light of sunset adds another dimension to the fragility of the parliamentary role in passing secondary legislation. Further, whilst this blog focuses on England, this UK-wide Bill has potentially major implications for the devolved nations.
Why does it matter?
This dismissal of law and process matters. The hardest part of environmental work is not setting environmental targets, from net zero to tree cover, important and admirable as that can be. It is ensuring that high ambitions are integrated into the day-to-day decisions of government and others, at every level. This is supported by legal obligations to consider the evidence and open that evidence up for testing, to include those with different views, to explain and justify decisions, and to place compliance with environmental ambitions at the centre of decision-making – even when the process is inconvenient and the external views unwelcome.
Government presumably does not intend a legal vacuum at sunset, and debate about the REUL Bill concentrates on the powers granted to Government to replace retained EU law through statutory instrument. The scope of the powers is very wide. To take two cases, first, Ministers have the power to ‘restate’ ‘secondary retained EU law’, before the end of 2023 (Clause 12) or assimilated law before 23 June 2026 (Clause 13). This power goes beyond ordinary understandings of ‘restating’: restatements can use different ‘words or concepts’ from the restated law (Clause 14(2)), and as the minister ‘considers appropriate’ can make changes for the purpose of ‘resolving ambiguities; removing doubts or anomalies; facilitating improvement in the clarity or accessibility of the law’ (Clause 14(3)). Second, Clause 15 contains powers to revoke without replacing, or revoke and replace, secondary retained EU law (or assimilated law until 23 June 2026). Described by the Hansard Society as a ‘do whatever you like’ power, this allows ‘such alternative provision as the relevant national authority considers appropriate’. In principle measures more environmentally protective than retained law are possible – but doing whatever you like does not extend to doing what the minister ‘considers’ will ‘increase the regulatory burden’ (Clause 15(5)), with regulatory burdens defined to include ‘a financial cost’ or ‘administrative inconvenience’ (Clause 15(10)).
Clause 10 and Schedule 3 contain provisions on Parliamentary process for these regulations, replacing the efforts already made in Schedule 8 of the EU (Withdrawal) Act 2018 to reflect the status and gravity of retained law. In most of the cases under clauses 12,13 and 15, a sifting procedure applies so that Committees of both Houses of Parliament can make recommendations as to whether the regulations should be subject to the affirmative (rather than the negative) procedure; although the Minister has the final say. The weaknesses of Parliamentary scrutiny of secondary legislation are well-known. The challenge of adequate Parliamentary and broader civil society scrutiny is amplified by the quantity and complexity of secondary legislation that will be generated if this Bill passes, as well as the looming prospect of automatic repeal.
The REUL Bill cements the government’s disdain for process
The REUL Bill need not be de-regulatory; but it is not unreasonable to fear that it will be. Given the scale of the risk, it may be invidious to focus here on any particular pieces of law. But my concern with process takes us to environmental assessment. Environmental assessment law provides clear and enforceable procedural obligations in respect of developments and activities that are likely to have significant effects on the environment, requiring information to be brought together and published, and allowing space for civil society to contribute to decisions. The Habitats Regulations have already been singled out for concern by environmental NGOs such as the RSPB and the Wildlife Trusts. These regulations also make demands around evidence, and often work alongside environmental assessment, adding substantive obligations so that development or activities that are especially damaging to protected habitats and species can only go ahead if especially strongly justified and ecologically compensated.
Further, these pieces of legislation are already subject to reform; the REUL Bill will make scrutiny and challenge even harder. Among the powers granted to ministers under the Environment Act 2021 was the power to amend the Habitats Regulations (sections 112-113). The Nature Recovery Green Paper consulted on the exercise of these powers, and raised also (amongst other things) the possibility of amending environmental assessment law. The overwhelming theme of the Green Paper was a frustration with legal process, an assertion that ‘process has become king and crowded out individual judgment on individual cases’ and that there is an ‘obsession with uniformity of procedure’, which is the ‘scourge of modern government’. The Green Paper calls for ‘space for calibrated judgements to be exercised on a case-by-case basis’, and for ‘a legal framework of long-term statutory targets and then a government that has the powers needed to deliver those targets, freed from the distractions that have held back progress in recent decades.’ As a solution to our complex environmental challenges, a turn away from settled processes (on evidence gathering, on holding proposals up to challenge, on considering environmental ambitions) to reliance on ad-hoc good judgment, is not particularly plausible.
But in another indication of disdain for process, the Green Paper consultation was overtaken – on the very day that it closed – by the publication of the Levelling Up and Regeneration (LUR) Bill. All sorts of good things might be done under this Bill’s powers to introduce regulations requiring plans and projects to be assessed against the ‘environmental outcomes’ to be ‘specified’ in those regulations. But regardless of the quality (or in some cases even the existence) of replacements, the LUR Bill as published empowers government to alter or repeal habitats and environmental assessment legislation.
The Nature Recovery Green Paper challenges legally protected processes and substantive standards (in the case of the Habitats Regulations), and the LUR Bill as it stands provides mechanisms to remove those legal protections. The REUL Bill goes a step further. It makes removing these protections even easier, as well as extending concerns about the legal protection of process and substance across a huge expanse of environmental laws. It asks Parliament for extraordinary powers so that this and future governments can choose to comply or not with their political rhetoric of high environmental ambition, and to comply or not with basic processes for evidence gathering and democratic decision-making. The REUL Bill goes beyond environmental administration, to the legislative process, converting legal and constitutional expectations into matters of discretion for the Government. It can only be passed by our representatives in Parliament. But a rich democratic culture needs more than Parliament, it needs space and time for alternative understandings and visions, and for the exposure of evidence to scrutiny. The REUL puts at risk, not only environmental standards and processes, but also that rich democratic culture.