The UK’s environmental policy and legal landscape post-Brexit (April 2020 update)

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2020-04-01

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This article was co-authored by Alex Denby, Litigation Assistant. 

Boris Johnson’s “oven ready” deal to begin withdrawing the United Kingdom (UK) from the European Union (EU) received royal accent on 23 January 2020, following his success in the December 2019 General Election.

Our previous article included speculation on areas of environmental policy and law should a no-deal Brexit have taken place. Here we provide a brief update on developments in a couple of discrete policy areas, namely in relation to the Office Of Environmental Protection and the Environmental Bill (OEP) and Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), as businesses must carefully consider the changes to environmental legislation and regulation, both in the UK’s current transition period and in whatever form the law takes following the transition. 

The shape of the UK’s governance of environmental law, post-transition, remains to some extent unclear. There is still uncertainty on how far future legislation and standards will differ from those which formed the previous status quo dominated by the EU. As the coronavirus pandemic develops, Brexit negotiations may well take more of a back seat in parliament over coming months, but businesses should prepare nonetheless for the inevitable withdrawal in due course.

The 2020 Withdrawal Act

The European Union (Withdrawal Agreement) Act 2020 (the Withdrawal Act) repeals the European Communities Act 1972 (the piece of legislation that entered the UK into the EU) and states that the UK will remain in a period of transition until 31 December 2020.

During the transition period the UK will automatically lose membership to EU political institutions, such as the European Parliament and the European Commission. The UK will no longer have any voting rights in the European political institutions but will nevertheless be required to continue to follow EU rules and the European Court of Justice’s rulings.  

The Office Of Environmental Protection and the Environmental Bill

Following the general election, the Environmental Bill 2020 (EB) was re-introduced to parliament and is currently working its way through the House of Commons. The EB was introduced to “tackle the biggest environmental priorities of our time”. The content of the EB sets out, among other things, how the Office of Environmental Protection (OEP) will become a player in the UK environmental protection and enforcement landscape.  

The OEP will primarily be an “independent, domestic watchdog” which aims to monitor progress in improving the natural environment in accordance with the government’s domestic environmental improvement plans and targets. The OEP will be able to provide the government with specialist written advice on any proposed changes to environmental law.  

The EB allows the OEP to carry out investigations of public authorities if they receive a complaint that indicates:

  1. A relevant public authority may have failed to comply with environmental law, and
  2. If it has, the failure would be a serious failure.

The EB defines a ‘public authority’ as an organisation carrying out a function of a public nature. The courts have previously recognised that a business can act in more than one capacity (both public and private). Therefore, private businesses that undertake some public and some private functions may fall within the remit of a ‘public authority’.

The OEP has yet to create a strategy for its enforcement policy, to include details on how it will determine which failures to comply with environmental law fall within the ‘serious failure’ category.

The EB gives the OEP recourse to a new legal mechanism, called an ‘environmental review’, which forces a public authority to take action if a court finds they have breached environmental law. Although it is within the OEP’s power to take cases to court, it is expected that they will aim to uphold environmental standards mostly through non-court processes, such as direct engagement and formal notices.

The EB also requires an organisation whose functions are of a public nature to co-operate with the OEP, and give it such reasonable assistance as it requests (including the provision of information), in connection with the exercise of its functions. Therefore, local authorities and other public bodies will have to provide relevant documentation to the OEP once it has started an investigation.

Under the EB, the OEP is set to be up and running by 1 January 2021. However, there still remains a substantial amount of work to do before the OEP can perform its duties under the EB. The proposed legislation also does not address concerns in some quarters about the level of independence it would have and how it is funded.

Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and Chemical Regulation

The chemicals industry in the UK is regulated through a framework largely based on EU legislation. This will continue to be the case until 2021 at the very earliest. The UK’s current commitments and registrations to the European Chemicals Agency (ECHA) will remain valid until the end of the transition period.

The Health and Safety Executive has published guidance on what businesses need to know whilst the UK passes through the transition period, stating:

  • EU REACH will continue to apply in the UK and businesses do not need to take any action to comply with Reach Enforcement Regulation 2008.
  • There is no requirement to transfer UK held registrations to an EU 27 legal entity in order to retain EU market access.
  • Registrations, authorisations and restrictions in place before the UK left the EU continue to be valid.
  • The process for registering new chemicals under REACH remain unchanged, UK companies are still required to register with the European Chemicals Agency.
  • The UK will recognise all new decisions relating to REACH made by the EU.

The extent of the UK’s participation in REACH post-withdrawal will depend on the outcome of the UK’s negotiations with the EU.   

In October 2019, the Department of Food, Environment and Rural Affairs began a chemical stakeholders forum with the aim to work on a new approach to chemicals management. Due to the uncertainty over whether the UK would be withdrawing from the EU, with or without a deal, the project got off to a rocky start.

Following the election result and the passing of the Withdrawal Act, a ‘call for evidence’ is expected in late spring. Following this, there will be a formal consultation on the new draft approach to management in 2021 or 2022. The consultation will include members of the chemical stakeholders forum, The Health and Safety Executive, Public Health England and the Department for Business, Energy and Industrial Strategy.

Please contact the regulatory team at Kennedys if you would like more information on the ‘call for evidence stage’ on the new management approach. 

Comment

The future of the UK’s environmental policy and landscape still remains uncertain. Although the potential for a no-deal Brexit has diminished, the UK will now have to negotiate its future plans with the EU by the end of the year.

The EB provides an indication as to how some areas will function following the end of the negotiations and more will be known about the future of chemical regulation in the UK after the Government’s response to the aforementioned consultation.

Read other items in Health, Safety and Environment Brief - April 2020

Related item: The UK’s environmental policy and legal landscape post-Brexit