Experts have suggested that an independent Britain is unlikely to abandon environmental regulations based on the precautionary principle, which the government signed up to under the Maastricht Treaty, but warned that there are clear gaps that need to be addressed as Britain disengages from the EU.

A discussion was held on Wednesday in the House of Lords’ Environment Sub-Committee, which was taking evidence on the environment and foreseeable changes to environment law in an independent Britain. The Committee heard from experts representing some of Britain’s most prestigious research institutes.

Also on Wednesday, faming minister George Eustice announced in a written Parliamentary response that the government is looking at regulation of controversial genetically modified (GM) crops, sparking speculation that an independent UK government would green-light these crops for cultivation, though Britain’s devolved governments have banned them.

Almost all of the UK’s environmental law and standards are tightly bound up with the EU, and unpicking legislation will prove to be a huge task, and one which legislators will only have two years to complete once Article 50 is invoked to trigger Britain’s exit.  

Prof Andy Jordan from the Tyndall Centre for Climate Change Research noted that green groups and conservationists in the UK are very anxious about the prospect of Brexit and what it means for the environment, pointing out that “The environment… wasn’t really an issue during the referendum and wasn’t really discussed very much in David Cameron’s new settlement,” which was struck ahead of the Referendum as an incentive for voters to choose to remain part of the EU. He said it is “At real risk of being forgotten” in Brexit negotiations and suggested that swingeing cuts at Defra could affect its ability to strike a deal that’s good for the environment, or to cope with new regulations once these have been renationalised.

Prof Jordan said there is widespread concern that the government isn’t taking the opportunities presented by Brexit to improve environmental legislation, and truly ‘green the economy’ by reforming the Common Agricultural Policy, amongst other things.

Richard Macrory environmental law professor UCL, added that there must be a smooth transition of regulations, with no gaps in new laws that can be exploited, and that new legislation should give at least as much environmental protection as current EU laws. He said “Not everything is right with EU law and the structure of EU law… and there will be opportunities to improve things, if we want to.”

The Great Repeal Bill - will UK accept EU law as national policy?

The ‘Great Repeal Bill’, which the government intends to introduce, would see almost all EU law that currently affects the UK becoming British law as the country withdraws from the Union.

All of the experts questioned said there is a difference between directly transferable EU regulations and directives, which may be more difficult to simply shift into UK law. Defra secretary Andrea Leadsom acknowledged when questioned by a separate government committee earlier in the week that there is still uncertainty around the fate of roughly a third of current environment legislation.

Maria Lee, a UCL professor specialising in European environmental law, questioned whether all EU law really will become enshrined in UK law; she said controversial issues like chemical regulations still raise some questions - like whether the UK will simply continue to use products licensed at the EU level and observe bans on those that are currently prohibited, or will strike out on its own. She said, “These aren’t simple questions, and they aren’t technical questions. They’re actually quite profoundly political questions about who will be governing us,” and added, “Unpicking [EU law] will be very complicated, and political.”

Whilst environment groups have petitioned the government to maintain standards at current levels after Brexit, and to keep the EU’s risk-averse approach in environmental matters, the National Farmers’ Union has been lobbying the government to adopt a new attitude to regulation, wherein responsibility would lie with civil society groups and government agencies to prove a product or action is doing harm before it’s regulated against, rather than making it the company’s responsibility to assure that their product won’t cause harm. The NFU and other groups in favour of deregulation maintain that the current precautionary approach ‘stifles innovation’ though EU legislators insist that it protects the environment and public health.  

In light of the controversies in Europe over the regulation of neonicotinoid pesticides and the ongoing struggle over relicensing of glyphosate, Prof Lee said that regulation of pesticides or other chemicals after Brexit could well depend on the sort of trading relationship the UK has with the EU. Questioned about ‘science-based’ regulation by Lord Rooker, she said, “I think it’s quite legitimate that when we assess environmental quality and consumer safety… it’s not just about science, but what kind of world we want. That happens at the EU level and it certainly happens at the UK level.” Whatever the trading situation, she said, “If [EU legislators] have banned a product, we can’t export it to the European Union,” but noted, “This will usually be quite subtle; it won’t be a GMO [genetically modified organism] case where everybody’s very upset and there’s huge disagreement.”

The Duke of Montrose also asked the panel about the application of the precautionary principle and the current risk-averse set-up. Prof MacRory responded, “It’s not a free-standing principle, it underpins how you design and interpret the legislation. If we were completely out [of the EU] it would still probably be a policy principle of the government, but whether or not you put it into some form of legislation… that’s going to be up to the government to decide.”

Dr Lee added, “The precautionary principle isn’t a single thing, it’s been interpreted in a certain way by the European Court of Justice. It’s simply a principle that takes uncertainty very seriously, and I can’t imagine why we would want to be without a principle like that.”

The experts were asked about ensuring compliance with existing rules and the possibility of creating a body to oversee environment law, replacing the EU Commission. They said there is a possibility for judicial review to be used, or for an environmental ombudsperson’s office to be created, and given powers to act on infractions of environment law.

UCL’s Prof Macrory said he’s concerned that “the environment dies in silence”, and that neither the suggested examples nor the current state of affairs would offer adequate protection. He said judicial review remains a drawn-out, expensive process and that courts in judicial reviews may need to be “tougher in their remedies” and added, “I think we will have to consider creating some form of environmental ombudsman… the example that kept on coming up [from Europe] was the Hungarian Parliamentary Commission for Future Generations. This is a post that provides opinions on legislation, initiates investigations and can take [court] action. We may have a gap in that area.”