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Time Running Out to Effectively Transpose EU Environmental Acquis into UK Law

  20/11/2017
Last Updated:  20/11/2017

The Society for the Environment, alongside six other professional bodies within the Environmental Policy Forum (EPF), warn that time is running out to effectively transpose EU environmental acquis into UK law.

The EPF is a network of UK environmental professional bodies and learned societies promoting environmental sustainability and resilience for the public benefit. The EPF’s member bodies have a collective membership of around 70,000 environmental professionals, many of whom are individually chartered in environmental practice, science and engineering disciplines.

Following our recent letters and briefings to Ministers and MPs regarding our concerns about the EU (Withdrawal) Bill, we welcome those amendments that align with our concerns relating to environmental governance when we leave the EU. We recognise that the Government needs to ensure the EU (Withdrawal) Bill meets the overall purpose of enabling full transposition of EU law into UK law in a timely manner. However, we remain deeply concerned by the apparent lack of parliamentary scrutiny and the lack of time remaining for the development of the secondary legislation required for a working statute book on exit day. It is essential that sufficient time and resource is made available for parliamentary committees to review and decide upon the appropriate level of scrutiny necessary for each statutory instrument.

A number of recent developments, whilst generally welcome, compound our concerns over the lack of time remaining to effectively transpose the EU environmental acquis into UK law.

1. A proposed Environmental ‘Commission’

On 1st November 2017, the Environment Secretary, giving evidence to the Environmental Audit Committee, suggested establishing a new “commission-like body” to hold government and other public bodies to account on all matters of environmental law. The EPF welcomes this suggestion, which exactly aligns to our call for a new independent body for environmental governance and enforcement, submitted to the Secretary on 4th September. We also welcome the Secretary’s commitment to a consultation process on the matter, during which we will actively consult with our respective memberships to inform our response. Given the time constraints, the EPF is asking government to consult on the new body and to agree its formation before exit day. We support the Secretary’s every effort to actually establish the new body before exit day or as soon as possible thereafter.

2. The powers of DEFRA’s NDPBs

In the same evidence session, the Environment Secretary suggested that the Department of Environment, Food and Rural Affairs’ family of non-departmental public bodies could gain responsibilities that have been, until Brexit, the function of European agencies. We believe that, where powers which currently reside with European agencies are conferred on an existing body, or a new body is established, this should be done through the affirmative parliamentary scrutiny procedure with prior public consultation.

3. Exit day

On 9th November 2017, the Prime Minister announced that the Bill will be amended to state an exit date of 29th March 2019. However, there was no further clarification regarding the ‘Henry VIII powers’ through which Ministers may, without any parliamentary consultation, set different exit dates for different matters, merely that the date would be added “on the front page”. We are disappointed by this missed opportunity to assuage concerns of excessive Ministerial powers and we urge that the opportunity for rectification is taken now. As the Bill is currently drafted, Ministers would retain the power to set other exit dates until the ‘headline’ exit date has passed, which is significant to the related expiration of extended powers (two years from the exit date). The EPF calls for further consideration and clarity here, while we support recommendations that the statutory instruments used to set exit date(s) are subject to the affirmative procedure.

The EPF stands ready to advise or otherwise assist in consultation processes. The Environment Secretary stated in a letter dated 29th September 2017 to the Chair of the EFRA Committee that his department is "considering how best to engage and consult with stakeholders on our secondary legislative programme by setting up a consultation group to provide external advice and challenge on our proposed methodology." The EPF’s collective expertise is ideally placed to contribute to this consultation group.

For any enquiries, please contact Dr Tatum Matharu, Policy and Parliamentary Lead at the Society for the Environment.