Brexit: Environment and Climate Change

Lord Trees Excerpts

Thursday 23rd March 2017 Lords Chamber

[Lord Trees (CB)]

My Lords, as a member of the EU Energy and Environment Sub-Committee, I thank the noble Lord, Lord Teverson, for his excellent chairmanship of the committee and of this report, and I thank our clerks for their excellent hard work in producing it.

The Treaty on the Functioning of the European Union sets out, very early on, the objectives for its environmental policy. The main bullet points are:

“—preserving, protecting and improving the quality of the environment,


—protecting human health,


—prudent and rational utilisation of natural resources,


—promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change”.


I am sure that we would all agree that those are excellent aspirations. So it is no surprise that a huge proportion of our environmental improvements, brought about by the legislation underpinning them, has emanated from the EU, which the noble Lord, Lord Teverson, referred to in his introduction—some 80% of legislation. That is not to say that, irrespective of the EU, we might not have done these things ourselves—who knows?

However, the fact is that, according to Defra, there are something like 1,100 core pieces of EU legislation relevant to Defra, to which the noble Lord, Lord Teverson, previously referred. These comprise regulations, directives and decisions, but also guidance and case law. Therefore not only are there a large number of measures but a diverse range, comprising the EU acquis in this area. While the great repeal Bill will convert EU law into domestic law, the complexity of this environmental legislation—the number of different instruments involved—will present considerable challenges. As one of our witnesses said:

“There is a question over whether it will be, literally, all EU law, Treaties, Regulations, Decisions and Directives, or whether it is just EU law that currently finds its home in the domestic system through secondary legislation. If we do not do all EU law, then there will be an enormous gap because we will miss everything that has not already been put into secondary legislation”.


A second issue to consider is the long-term stability of environmental policy and regulation. Environmental policy is a long game—there needs to be consistency and stability in policy and execution which, it has to be acknowledged, the EU has provided. Once the custody of our environment is entrusted to a single Government with a five-year time horizon, there is intrinsically rather less long-term certainty. So there are challenges relating to transposition of EU legislation in its broadest sense into UK law, and challenges to the stability of environmental policy and law.

However, my major point concerns what I call the “governance gap”, which, without using that term, the noble Lord, Lord Teverson, and the noble Baroness, Lady Sheehan, have referred to briefly. Many witnesses expressed concern to us about the fact that, post Brexit, we will lose the oversight and enforcement potential of the EU Commission and the Court of Justice of the European Union. Much maligned as they have been in UK public opinion, these bodies have provided an independent refereeing system to reassure us citizens that the environmental improvements proposed and agreed by EU member states are indeed being enacted. They have had the power to hold member state Governments to account and to fine them for infringements. The loss of that potent external governance role is a matter that we need to consider carefully going forward.

It has been suggested that the UK courts can adequately fulfil this role, typically by judicial review, but I understand that there are limitations to the potential of the application of judicial review, particularly related to its costs. There are also limits to the power of our UK courts. Notably, as one of the witnesses commented,

“The Commission can fine. The Supreme Court does not fine.”


Although this vulnerability—this governance gap—may extend to all EU laws and their transposition into UK law in lots of areas, the environment is particularly vulnerable because, as one of our witnesses, Professor Macrory, told us, there is,

“no clear economic owner to protect it”.

Ministers reassured us that they want to leave a better environment than they inherited, and that is an undoubtedly sincere and commendable aspiration, but of course the current Government may not be the Government in five, 10 or 15 years’ time. We need to ensure that there are systems and mechanisms in place so that, whatever the ephemeral policies of different Governments dictate, they will protect our environment for future generations.

What are the responses to these challenges—to the governance gap? It has been argued that the electorate can hold Governments to account, and indeed this gives me some personal confidence that our current standards will be maintained and improved. We have in the UK a very high level of awareness of the status of our environment. We have very influential NGOs and charities, such as the RSPB, the Wildlife Trust, the National Trust and so on. They are very active lobbyists and their role in the future will be hugely important. We also have within Parliament the Commons Environment, Food and Rural Affairs Committee and the Environmental Audit Select Committee, which maintain scrutiny of the Government to hold them to account on environmental matters.

Notwithstanding that, given the governance gap that will follow Brexit, I suggest that there is a case for further strengthening the monitoring of the actions of future Governments in environmental matters, as the noble Baroness, Lady Sheehan, suggested. Perhaps this is an area where this House could play a valuable role, given the remarkable range of expertise that we have here. Ultimately, there will not be a need in the post-Brexit era for our EU Select Committee and its sub-committees, but maybe we should consider one or two new committees to deal with the regulatory deficits—the governance gap—that will arise post Brexit.