What Brexit means is becoming clearer, and the Withdrawal Bill shows it is not only a matter of politics, but also of engineering principles and environmental regulations. Serious concerns about the bill – including a lack of scrutiny by parliament and the civil society, lower environmental standards and reduced environmental governance – have been raised by environmental and legal organisations, including ClientEarth1 and the Public Law Project.
In the UK, 80% of environmental regulations derive from EU legislation. Under the current Withdrawal Bill, most of these regulations would be treated as secondary legislation, which is meant to cover ‘small’ legal and technical issues and can be modified by government and civil servants without much debate by parliament and the wider society. This sounds far from the promise that Brexit would bring control back from opaque, distant EU bodies. Decisions may be made without guarantee of impartial advice; they would also be subject to political manoeuvring and electoral cycles, rather than the long-term view and cross-border collaboration required on many environmental issues.
In the series of court cases on air pollution successfully brought by ClientEarth against the UK government2 for failing to meet obligations under the Air Quality Standards Regulations 2010, for example – with amendment of the regulations being possible via secondary legislation – theoretically, a government might simply attempt to amend air quality objectives with minimal parliamentary or public scrutiny, rather than acting to reduce levels of particulate matters or NOx. There is no suggestion that the government is planning such changes, but it illustrates the potential impact of the bill.
Another concern is that the bill could lead to a reduction in standards by failing to retain all EU environmental law, and by removing the wider framework for UK law.
There has been a concern the UK has not properly implemented the Energy Performance of Buildings Directive.1 Upcoming revisions, even if they come into force before we leave the EU, are likely to be missed too.
“Removing the precautionary principle would be a downgrade in standards”
In addition, the Withdrawal Bill does not retain elements of the EU Treaties, which are fundamental in setting the context and wider objectives for legal decisions and future law-making, in particular the precautionary principle and polluter-payer principle. It means that, in the future, a UK court could, in theory, rule that the precautionary principle is not written into UK law, so is not binding.
This matters symbolically – the practical application of the precautionary principle is sometimes disputed but removing it without alternative or justification would be a downgrade in standards for the protection of the environment and public health. It would singularly contradict the stated ambition of environment secretary Michael Gove for a ‘green Brexit’.
The Engineering Council and Royal Academy of Engineering’s professional principles state engineers should ‘minimise both actual and potential adverse effects for their own and succeeding generations’. This can be complex to put in practice when technological developments happen fast, knowledge is incomplete, and consequences may only appear in the long-term, as was the case for asbestos.
The precautionary principle does not prevent innovation. Instead, it sets a framework for high standards of responsible innovation, enshrining the need for risk assessments and reviews of scientific evidence. In case of ‘plausible danger’, the burden of proof shifts, so it is not the concerned parties having to prove potential harm, but those seeking the new introduction that have to demonstrate it is safe.
Finally, much of the implementation, compliance and enforcement of environmental law is currently done by EU institutions, and there are no clear replacement plans.
The Withdrawal Bill could have crucial environmental and democratic significance. This needs to be addressed because the environmental issues covered by EU laws are as valid now as when the laws were first introduced – if not more so – as highlighted in the recent ‘Warning to Humanity’ letter signed by 15,000 scientists.
Defra is expected to consult on policy and governance proposals in early 2018. CIBSE will be engaging with the consultation, and members should contact us if they would like to contribute.
You can also let your MP know if the issue matters to you.
- Thank you to Dr Tom West, associate researcher at ClientEarth, and Richard Benwell, head of government affairs at Wildfowl & Wetlands Trust, for their advice.
References:
- ClientEarth, Report – The Withdrawal Bill: Destination and Journey, September 2017.
- The latest is due in February 2018: ClientEarth, News, UK government will face court hearing over toxic pollution, 5 December 2017.
Julie Godefroy is head of sustainability development (maternity cover) at CIBSE