What next for the environmental legislative regime under The Retained EU Law (Revocation and Reform) Bill 2022?

Background

On September 22, 2022, the Government introduced a landmark piece of draft legislation into Parliament that will automatically revoke retained EU law, whilst granting the Government with new powers to restate or replace such laws into domestic legislation.

The Retained EU Law (Revocation and Reform) Bill (the Bill) seeks to revoke all retained EU law on December 31, 2023 unless positive action has been taken by the Government to incorporate it into domestic law. Supporters of the Bill say that it is a landmark piece of legislation that affirms parliamentary sovereignty in the post-Brexit era. 

However, it has already faced fierce opposition from MPs, environmental lobbyists and activist groups that have all raised concerns as to the impact of the Bill on the environmental regime in the UK, which is largely founded on EU derived legislation. In addition, the Government recently sponsored an independent Regulatory Policy Committee (RPC) to review the impacts of the Bill. The RPC’s opinion was published on November 21, 2022 and concluded that the Bill’s underlying impact assessment is not fit for purpose because it does not sufficiently consider the full impact of the Bill and its practicalities. It therefore remains to be seen if the Bill will continue to make its way through Parliament or if the Government will have to fundamentally re-consider its approach to dealing with retained EU law.

Impact of the Bill

Post-Brexit, EU law was provisionally retained through the EU Withdrawal Act 2018 (as amended) (the EUWA) to ensure legal certainty and continuity in the UK. 

The EUWA identified categories of EU law that would be retained, including EU regulations, parliamentary legislation to implement EU obligations, and European Courts of Justice case law (REUL). However, it was never intended that REUL would remain part of the UK’s legislative landscape indefinitely and the Bill now seeks to remove it from the statute books.

Under the Bill all existing REUL will cease to have effect on December 31, 2023 (that date now known as the “sunset date”). This means that the Government and devolved administrations would have to proactively decide whether to restate, revoke, replace or update all REUL by that date. Where no action is taken, the REUL will simply cease to have effect. There are estimated to be nearly 2,500 separate pieces of REUL that would need to be reviewed by the relevant governmental departments by the end of 2023. There is, however, the ability to extend that date by “ministerial exception” to no later than June 23, 2026.

Additionally, the Bill also contains provisions to guide the development of domestic legislation and case law going forward.

i) Revocation and replacement powers

The power conferred by the Bill to governmental departments to restate, revoke or replace REUL will not be exercisable if doing so would increase “regulatory burden”. This means that, for example in respect of environmental law, DEFRA may not be able to introduce replacement legislation that would have the impact of increasing financial cost, administrative inconvenience or introducing obstacles to trade or innovation, efficiency, productivity or profitability. This has caused concern that environmental protections currently enshrined in REUL may be eroded.

ii) The role of the courts

The Bill seeks to alter rules on the application of existing case law where it has been determined or influenced by retained EU case law. Higher Courts within the UK (such as the Court of Appeal and Supreme Court) would have discretion to depart from domestic case law where it is “determined or influenced by retained EU case law” and where following such case law could be said to restrict the “proper development of domestic law”.

This could pose a risk to existing environmental protection in the Courts, for example if environmental protections established in EU jurisprudence are then balanced against Government objectives, such as the promotion of energy production or residential housing. 

Analysis of the Bill's impact on the UK environmental regime

Concerns have been raised about the threat the Bill poses to environmental protections in the UK. Lobby groups including the National Trust, the Marine Conservation Society and the Royal Society for Protection of Birds, have all publicly opposed the proposals. These concerns are supported more generally by the conclusions reached by the RPC, as outlined above.

In the UK, environmental protection is largely secured through EU derived law, including requirements for strategic environmental assessments, environmental impact assessments, and the protection and conservation of habitats and species, both on land and offshore. Under the proposed Bill, these protections would no longer be automatically secured and would be reliant on DEFRA taking appropriate action to restate or replace the relevant legislation with corresponding protections. 

For example, the EU Habitats Directive (92/43/EEC), ratified into domestic law through the Habitats Regulations 2017 (SI 2017/2012) designates areas to protect and preserve natural habitats and species which are considered to be under serious threat. The Bill, which seeks to remove “burdensome EU regulation” would require review of this established and complex piece of legislation. In total, it is estimated that DEFRA would need to review over 570 pieces of legislation by the sunset date.

Conclusion

The proposed Bill will have significant impacts on the UK’s legal system and on the environmental protections currently secured under it. However, the current Government’s stance on the Bill remains unconfirmed and it is coming under increasing pressure to scrap the Bill, both in light of the seismic impact it could have on the UK’s regulatory protections but also the practical challenges to implement its provisions within the anticipated timescales.

Further developments

The Bill has now moved to the Committee Stage and is open for consultation from stakeholders including representative bodies, lawyers and academics.

We will be monitoring developments over the coming months. If you have any questions or would like any further information about how these issues may impact development, please contact the Environment, Safety & Planning team.