Brexit legislation unravelling protections for UK marine life and fisheries

pipes smallThis post is by Sarah Denman, an environmental lawyer at ClientEarth

Whilst the Brexit drama plays out in parliament, the leaving process is being managed behind the scenes. As part of the UK’s withdrawal from the EU, the UK government has had to produce a large number of SIs (or statutory instruments) to convert the existing body of EU law into our domestic statute book and make it fit for purpose.

These SIs are serious and, as they could have negative consequences for our environment, they should be getting much more attention. Although they were intended to simply ‘correct’ EU law to make it operable in the UK, many of the amendments made have resulted in significant policy changes that could unravel the effectiveness and oversight of existing environmental law.

Fisheries is one area that brings this problem into sharp focus. During the parliamentary scrutiny process, Greener UK raised the alert over a number of provisions where changes were made that could have lasting and profound effects on marine protection and sustainable fishing in the UK.

Reduced governance
One of the most worrying outcomes of the UK’s withdrawal from the EU is the loss of existing EU oversight functions, such as the European Commission and the European Parliament. Not only do these bodies perform a vital role in monitoring progress against environmental targets, but they also hold the UK to account for both the implementation and delivery of environmental law.

Perhaps unsurprisingly, the SIs removed references to existing EU oversight functions and institutions on the basis that the UK will no longer be a member of the EU. Whilst it would not be appropriate for the UK to continue to be subject to the jurisdiction of these bodies post-Brexit, the decision not to replace monitoring, reporting and other governance functions could undermine the proper functioning and full effectiveness of the law. Their removal sets a dangerous precedent; ‘correcting’ EU law should not result in a worse outcome for the environment.

When we challenged Defra they suggested that these functions could be provided by the new Office for Environmental Protection (OEP), proposed under the draft environment bill. However, the OEP will not take on all functions of EU institutions and, in the event of no deal, there would be a significant governance gap before the OEP comes into being. Greener UK is therefore recommending that Defra holds a public consultation around how best to retain these EU oversight functions to ensure a truly green Brexit.

No replacement of technical and advisory functions
Brexit also means that we will lose various EU advisory functions that help to create effective environmental policy and provide sound technical and scientific advice. References to the European Fisheries Control Agency and the Scientific Technical and Economic Committee for Fisheries, both of which play a hugely important role in the shaping and implementing of sustainable fisheries management policy, have been removed by the SIs.

Whilst the UK will no longer be a part of either body once we leave the EU, existing requirements to consult these bodies should have been replaced with obligations to consult an existing or new domestic alternative. Their removal could allow the government to instigate environmentally damaging policy with no obligation to consult experts in sustainable fisheries management.

Removal of existing emergency and conservation measures
Lastly, the SIs have removed EU provisions in relation to emergency and conservation measures. These have been invaluable in protecting marine species and habitats, including encouraging selective fishing to minimise the risk of catching endangered species and the establishment of fish stock recovery areas in biologically sensitive areas.

Defra argued that a combination of a new Fisheries Bill to govern UK fisheries management post-Brexit and existing domestic legislation would sufficiently replicate these measures. However, there are serious concerns about the green credentials of the bill as currently drafted, particularly as it allows the government to set fishing limits above levels that would ensure the sustainability of fish stocks.

This sorry tale further highlights the danger of the government rolling back environmental protections once we leave the EU, removing important conservation measures from existing EU legislation without ensuring that comparable commitments replace them.

Why we have to get it right
The changes made by the SIs highlight the ever increasing risk of regression in environmental standards once we leave the EU. The government has shown little interest in making further amendments to SIs, meaning that it is essential that proposed new Brexit legislation, including the Fisheries Bill and the Environment Bill, put sustainable fishing at their heart and establish new governance mechanisms that adequately replace EU functions. If they don’t, fisheries management post-Brexit will fall far short of the ‘gold standard’ that Michael Gove has promised.

[Image: rusty pipes on a beach in Dawlish, Devon. Courtesy of Mark Coleman via Flickr]

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