Author: Nigel Haigh

EU environmental policy has developed over some 40 years. It is worth reflecting on its achievements and looking ahead over a similar period.

Over the next 40 years the major environmental issues will not be just local or national, but will be long range and long term. Climate change will not go away. Reversing biodiversity loss will become more difficult as a growing, and richer, world population increases demand for food, water and natural resources. Pollution of the seas will rise on the agenda. Environmental policy can only become more important internationally. ‘Sustainable development’ is only achieved at a global level as we are all interdependent.

During the referendum campaign the environmental NGOs emphasised how EU legislation had raised environmental standards in the UK, pointing in particular to the habitats and bathing water Directives. This may have encouraged the rank and file to vote, but the Brexiteers countered that the UK could do this perfectly well by itself and that we did not need foreigners to make our laws for us. The argument was not easily countered and ‘taking back control’ won the day.

What was not adequately emphasised was that the EU has enabled its Member States to achieve results which they could never have achieved on their own. The EU has influenced policy on the ozone layer and climate change.

Among the achievements of the EU can be counted:
•  Higher standards, so that weaker Member States were brought up to the standards of the stronger;
•  Collaboration, meaning that states learn from each other and policy making benefits from economies of scale;
•  New EU wide institutions such as the European Environment Agency (EEA), the Chemicals Agency (ECHA), the IPPC Bureau in Seville (which provides guidance documents on best industrial practice);
•  New concepts and principles. The ‘Precautionary Principle’ for example was elaborated in Germany and then spread so as to be enshrined in the Treaty. But many concepts were developed at EU level such as the ‘waste hierarchy’ and ‘proximity principle’ in the waste field, and ‘burden sharing’ which was promoted by the Netherlands to deal with acid rain and then became a key element in the global climate change agreements. Concepts are important. Policy making does not just consist of scientists identifying problems and then policy makers finding solutions. Policy is mediated through existing concepts and sometimes we have to develop new ones; 
•  Global impact. EU environmental legislation is now the most mature and coherent in the world and is regarded as a point of reference by third countries; 
•  Originality. Some EU legislation is unlike anything in any Member State, but was developed specifically to deal with problems that demand collaboration between countries. Obvious examples are acid rain, the ozone layer and climate change. Chemicals policy is another example which deserves special attention. 

Chemicals policy and REACH

Unlike other areas of environmental policy (water, air, nature protection) where Member States had long-established institutions before the EU was involved, chemicals policy developed in the 1970s at EU level before MSs had developed institutions of their own. The subject was first identified by OECD as a complicated one that needed international collaboration, and EU policy built on OECD’s pioneering work. It was quickly realised that working together would be more efficient than each country having its own system. The EU now has a single Chemicals Agency which maintains a database on hazardous chemicals and has powers under REACH to make restrictions on marketing and use, so that there is no need for each Member State to have its own. Brexit could mean that the UK will now have to establish a system of its own. This will be costly for government and inconvenient for industry which will have to register chemicals in both the EU and UK. Standards in the UK and EU could diverge. The Commons Environmental Audit Committee is now inquiring into this problem. 

Both the EU and UK will be weakened by Brexit

The EU will continue to develop its policies – the ‘circular economy’ being one area – but without the benefit of input from the UK Government (UK industry will try to find ways to have its voice heard). Internationally its influence will be lessened. In the next 40 years the big players will be China, USA, Russia, the EU and some others. Why should the UK be listened to? It could become just a bit player. It will be obvious that I voted ‘Remain’, and I still believe that Brexit is not in the national interest. In the environmental field this is obvious. In other fields this will become more evident. If enough MPs acknowledge this they could still decide not to repeal the European Communities Act 1972. 

Let me turn finally to the domestic scene.

Let us assume that the so called Great Repeal Bill correctly transposes all existing EU environmental legislation, so that on Brexit day the law in the UK is the same as EU law. What then happens when new EU legislation emerges on, say, the circular economy? The Parliamentary timetable will be so overloaded that new UK primary legislation will be unlikely. If there are to be ‘Henry VIII’ powers – circumscribed no doubt – is there a case for Ministers to be given powers to adapt existing legislation to reflect advances in EU law? If not, UK environmental law risks being fossilised on Brexit day.

If there are to be Henry VIII powers, they will doubtless be circumscribed, but Parliament will have great difficulty trying to scrutinise any changes. So let me make a modest suggestion. The House of Lords EU scrutiny committee will be out of a job on Brexit day. It has developed a high reputation for scrutinising EU policy. Could it be reconstituted to scrutinise any changes proposed by Ministers under their Henry VIII powers?