Brexit: Potential impacts on our natural environment legal framework

Many of you will no doubt be concerned about the impacts of the Brexit decision on our natural environment legal framework and the health of our natural environment. Those of you working in the ecological services industry may be fearful of the implications of Brexit on your work and businesses. Those of you involved in property and infrastructure development may be concerned about uncertainties in environmental regulatory frameworks arising from the Brexit decision and may wonder whether there may ultimately be commercial benefits from a weakening of existing legislation.

I have been considering these issues and set out comments on a number of points below.In summary my thoughts at this stage are that

• Any changes to our domestic natural environment legislation are likely to be some considerable way off in the future;

• Although the Habitats and Birds Directives are unlikely to remain legally binding on the UK in a post-Brexit model (and therefore this does at first sight appear to present a basis for potential weakening of existing domestic legislation), a number of international conventions ratified by the UK are likely to have the effect of restricting any proposed weakening so that domestic legislation is ultimately unlikely to be very different to that seen at present. This is particularly the case for EU protected species whereas for EU protected habitats the restrictions are a little looser;

• Perhaps the key “unknown” (and therefore the main concern for some) is likely to be the future interpretation by our courts of our domestic legislation, given that (i) the strictness of EU nature conservation law is in large part due to the judgments of the Court of Justice of the European Union (“CJEU”); and (ii) the standing and influence of those judgments in the UK will be in question following Brexit.1. Any changes to domestic legislation are likely to be some considerable way off.

• http://www.theguardian.com/politics/2016/jul/19/government-awaits-first-legal-opposition-to-brexit-in-high-court.) Assuming it happens next year, we would be looking at the UK’s withdrawal from the EU in 2019.

• Further delays could arise if Parliamentary consent is needed to invoke Article 50. As some of you will have read, this question is the subject of litigation. Article 50 states that a Member State may decide to withdraw from the EU “in accordance with its own constitutional requirements”. What are the UK’s constitutional requirements? Do they require Parliament’s involvement? The Government’s view is that this a matter for its prerogative powers so that no Parliamentary consent is needed. But others disagree. The irony is that this question may ultimately have to be referred by the Supreme Court to the Court of Justice of the European Union for their view.It has also been reported in Business Insider (http://uk.businessinsider.com/brexit-how-does-article-50-work-2016-7) that some legal experts have advised that, once invoked, the UK could not be forced to go through with the Article 50 process if it did not want to ie the UK could change its mind if, for example, if there were a change in Government during that process. As the Business Insider article states, the political consequences of a change of mind would be substantial so it perhaps seems unlikely that this would happen.

• See also 4. below: “What is the position for existing domestic natural environment legislation after the UK has left the EU?

2. What happens to natural environment law whilst we wait for the Article 50 process to be invoked / to run its course?

3. What about any EU Directive which must be implemented by Member States whilst we wait for the Government to invoke Article 50 / completion of the Article 50 process? here to read more. The Scottish and Welsh Governments have already commenced public consultations on the changes to be made to domestic EIA legislation so as to implement this Directive. At the time of writing no similar consultation had commenced in England.As long as the UK remains a Member State, it is required to implement Directives within the specified timeframes. Failure to implement this EIA Directive within the required timeframe could lead to infraction proceedings from the European Commission, although the likelihood of this happening is perhaps lower than it was before 23 June 2016.Nevertheless, since the existing EIA Directive has in the past been held by the CJEU to have “direct effect”, an objector to, say, a planning application could, in the absence of domestic implementing legislation, expect to succeed in a judicial review claim to quash a planning consent granted in breach of the new Directive. If implementing legislation is not therefore adopted this will leave planning authorities in a potentially very difficult situation. Therefore it can be expected that England will follow the Welsh and Scottish examples and consult on this very soon

4. What is the position for existing domestic natural environment legislation after the UK has left the EU?

5. Does this mean that natural environment legislation will end up being watered down?

6. What do the international conventions require?

6.1 EU protected species

6.2 EU protected habitats

7. Will there be any immediate changes in relation to natural environment law when the Article 50 process is complete?