Last year, the threat of sudden and large scale revocation of environmental law in the UK was removed by successful parliamentary and civil society resistance to key provisions of the REUL Bill, with the House of Lords particularly to thank for extracting political commitments from the government about not using the extensive powers granted them in the Bill to weaken environmental law. However, very extensive powers were created by the resulting Act and the Government’s appetite to use them is far from sated. How far will this impinge on the environment? David Baldock explores the enduring influence of an Act that has received much less profile since the December 2023 sunset provisions claimed headlines.

AUTHOR: David Baldock

A little background to REUL

The main purposes of the Retained EU Law (Revocation and Reform) Act 2023 have been both to change the legal status of Retained EU law (REUL) in the UK in the aftermath of Brexit and to purge unwanted items of such legislation from the statute book. Despite the removal of the December 2023 sunset provisions, the shadow of the Act continues to loom over the large portion of environmental legislation that happens to take the form of retained EU law, now known as assimilated law. Of the 6757 items of legislation assigned to this category in the most recent catalogue (the Dashboard), 1930 fall within DEFRA’s remit, nearly twice as many as any other government department. Between them, DEFRA and DESNZ account for about 36%  of all the legislation listed on the official REUL“Dashboard”.[1]

Exactly how much the powerful legislative devices created by the Act will be used in future and to what effect continues to be unclear. An element of uncertainty hangs over all the legislation that happens to fall into this category, not because of any inherent defect in its content but solely because of its origin within the EU at the time when the UK was a member, indeed a very active member. In a recent analysis, the UK Environmental Law Association commented that “REUL faces a further set of complex changes which may undermine its clarity, accessibility and comprehensibility and so the rule of law.”[2]

Targeting assimilated law

This month, the Government laid before Parliament a Statutory Instrument (SI) that set out a list of 73 items of legislation in the DEFRA domain that are proposed for revocation. Entitled “The Retained EU Law (Revocation and Reform) Act 2023 (Environment, Food and Rural Affairs) (Revocation) Regulations 2024“, this would result in all the measures on the list being revoked once the legislation is adopted. On this occasion, and in sharp contrast to a longer previous list, which appeared entirely without warning, prior notice of this list was provided to stakeholders, including the Office for Environmental Protection (OEP). Whilst it is difficult to be definitive when scouring such documents reasonably rapidly, there has been little serious dispute of DEFRA’s position that the measures in question are obsolete, inoperable or no longer required. This is just as well, given the limited amount of Parliamentary scrutiny that SIs like this are afforded.

No further lists of this kind appear to be planned at the moment by DEFRA, which is welcome. However, this remains possible, and the government’s wider ambitions to roll back REUL remain steadfast and a concern.  The Government has said that there is a target of removing about half of all assimilated laws from the statute book by the end of 2026. This is a large step from the present position, where about a third of the total has been revoked or reformed. In 2024 the intention is to “deal with’ around 500 items on the list, according to Kemi Badenoch’s recent evidence to the Commons European Scrutiny Committee.[3]  The recently reinforced smarter regulation programme in the Department for Business and Trade provides an invigorated capacity and momentum to move in this direction. How such targets are to be met without breaching government commitments, notably on the environment and workers’ rights, already raises an important question. Furthermore, the total number of pieces of assimilated law in the UK is still unknown with many new items still being discovered. Unsurprisingly, Kemi Badenoch, the minister overseeing the implementation of the REUL Act, remains wary of any commitment to an endpoint in the excavation exercise. These are hardly ideal conditions for setting arbitrary targets.

Is the environment an ‘administrative inconvenience’?

Irrespective of the pursuit of such targets, the government has acquired wide powers to revoke, replace and make alternative provisions for secondary retained law up until 23 June 2026, after which the special powers lapse. The process involved requires relatively limited parliamentary scrutiny, and engagement with stakeholders can be minimal. These powers could be used to remove or greatly modify key items of environmental law that may be assessed as obstacles to growth in the current climate, like those protecting habitats and water quality. Under Section 14, there is a condition attached to any new law or provision launched in this way such that it must not increase the regulatory burden, defined in a highly restrictive way and including “ an administrative inconvenience”. This means that there is a built-in bias towards deregulating when such powers are used and raising environmental standards this way will be difficult. Even if such powers are used infrequently, they create a potential threat and source of uncertainty that does not exist for laws of purely domestic origin.

Compounding the uncertainty are the changes made to the legal standing of past EU case law in Section 6 of the Act. Relevant appeal courts in the UK are no longer bound by EU case law in the way that they were before. This is significant for the environment because there are a number of important items of EU law, including the Habitats Directive, the interpretation of which depends not only on the text but also on certain historical cases and judgements made by the European Court of Justice. In future, the courts concerned in the UK must have regard to relevant changes in circumstances and the extent to which the case law in question restricts the “proper development of domestic law”. There is clearly room for more than one interpretation of proper development, and more generally, there will be scope for challenging established approaches based on past judgements in pivotal cases in the UK. Consequently, developers and others may be tempted to test established rulings and try to push back the boundaries of conservation legislation for example.

In these and other ways, the Act introduces fresh sources of uncertainty for erstwhile retained EU laws which do not apply to other categories of law, especially in the period to June 2026. In addition, the pressure to review REUL rapidly has created burdens of its own within and outside environmental authorities. Departmental officials are diverted into scouring the statute book for REUL, devolved authorities are sucked into the exercise and need to follow the Westminster process even though it is not their priority, and their capacity is more limited. Meanwhile, environmental stakeholders, at the very least, need to stay on the alert.

This unhelpful special treatment applies disproportionately to environmental law by accident rather than design. But it is the opposite of what is required to provide the level of confidence and momentum to meet the UK’s ambitions and tough targets for climate and the environment. Surely a better approach would be to put all environmental laws on the same footing and review obsolete or unhelpful measures as a matter of routine and as capacity allows. Should, as widely predicted, a Labour Government take power before the end of the year, the environment should be a key concern in deciding what approach to take to assimilated law and the powers that the Act provides.

[1] https://app.powerbi.com/view?r=eyJrIjoiMDY2MjAwZDMtMzcwOC00Zjc4LTk3NDQtMzNkNDIyMTlhYTcwIiwidCI6ImNiYWM3MDA1LTAyYzEtNDNlYi1iNDk3LWU2NDkyZDFiMmRkOCJ9

[2] https://drive.google.com/file/d/1AxVRtDdBsZLC-g7s80csuz57NM3KKSC9/view

[3] https://committees.parliament.uk/oralevidence/14479/pdf/

Photo by David Dibert on Unsplash.