Hidden amongst the dramatic politics of Brexit, a little noticed but nonetheless highly significant process has been unfolding: the transfer of 12,000 pieces of EU law into our domestic statute book. This has great significance for the environment as 80 per cent of environmental laws come from the EU. While the process is intended to ensure a smooth Brexit through the technical transfer of laws, the pace at which it has been done, as well as the challenge of faithfully replicating European laws at a domestic level, have meant this process has been far from straightforward.
Stakeholders have not been engaged properly
For the majority of environmental legislation that has been transferred in this way, there was no prior consultation or engagement with stakeholders. To its credit, Defra responded to Greener UK’s concerns by setting up a sounding board where stakeholders could air and discuss general concerns and provided advance viewing of draft legislation. While welcome, these measures came too late in the process for most issues or errors to be addressed.
The pace at which draft legislation has been processed has been relentless, with many different areas covered each week. Parliamentary scrutiny has been creaking at the seams with MPs and peers often admitting they haven’t had enough time to review the legislation thoroughly.
Significant changes are being made, not just technical
While much of the legislation is technical in nature and uncontroversial, there are worrying instances of more significant changes. Requirements for effective, dissuasive and proportionate penalties have frequently been removed. This represents the loss of a substantive safeguard and risks less sympathetic administrations seeking to weaken protections.
EU environmental law also requires reports on technical matters and legal implementation to be sent to EU institutions to aid effective functioning. These are being routinely removed from the law, requirements to report on ambient air quality and pollutant emissions, for instance, have been removed without replacement.
Environmental law is often technical and relies on the best available scientific and other specialist knowledge, as well as on independent advice and stakeholder participation. But these are often being stripped away in UK law. For example, changes are being made to pesticide legislation that do not appropriately replace the role of the European Food Standards Agency.
A real life example of what’s at stake
On the 25 February, the House of Commons discussed a very important piece of legislation setting out how chemicals would be regulated in the UK after Brexit. This was largely ignored in the media, with the The Times diary referring to it as “a dull statutory instrument on chemicals” and seeming more interested that the responsible minister had smattered her speech with pop song references, egged on in a dare by a ministerial aide.
Now, while the legislation itself may be dull – and also long, complicated and full of baffling legal jargon – its impact is anything but. The REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, to give it its thrilling proper title, is the measure by which the government plans to keep public health and the environment safe from the impacts of dangerous chemicals if there is no deal on Brexit or on the UK’s membership of the European Chemicals Agency (ECHA).
The legislation will replace the EU’s REACH chemicals regime which, for more than a decade, has been developing the world’s most comprehensive database on chemical safety, and protecting EU citizens from danger. The EU decided it needed a more strategic approach to chemicals in the early 2000s. Following alarming rises in diseases like testicular cancer and allergies, it acted to prevent the “serious damage to human health resulting in suffering and premature death and to the environment” caused by certain chemicals when they are not properly regulated.
So, this ‘dull’ SI sets out how the UK government intends to take over safeguarding its citizens and environment from some very real and terrifying threats. During the House of Commons debate, several MPs expressed concern that the legislation will leave UK citizens and the environment less protected upon our exit from the EU. Supporting expert committees, including one for risk assessment and one on socioeconomic impacts, that ensure decisions at the EU level are based on the best scientific advice, will disappear overnight. These also allow for stakeholders from industry, NGOs and unions to inform decisions and ensure balance. Such balance is highly unlikely in a UK system where the Health and Safety Executive (HSE), which will run the system, merely has to take independent knowledge into account “from one or more suitably qualified or experienced persons”.
The debate also saw government confirm that it will attempt to replicate the EU system at a cut price rate. The planned budget of £13 million a year, with allocation for 45-50 additional staff, will need to stretch to regulate nearly as many chemicals as are used in the EU. It represents a pale imitation of the European budget of around €100 million a year and nearly 600 statutory members of staff.
It’s important to learn from this process
So what next? Despite the best efforts of civil servants, errors and unintended consequences will undoubtedly have crept into our statute book. We urge the government to hold a ‘lessons learned’ exercise on the stakeholder engagement process and commit to correct any errors that are identified. Parliament also has a role to play and should consider how stakeholders can be better engaged in the scrutiny of secondary legislation, and launch its own call for evidence on the implications of the transfer process for the efficacy and accessibility of our increasingly important domestic statute book.