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Taking back control from Brussels – but where to?

Brexit has been described as “taking back control”, but that simple statement inevitably fails to reflect the complexity of the future that lies ahead. International environmental law obligations, provide the background to much of what is done in a more detailed way in relation to environmental protection by the EU and the UK. These obligations will take on new significance and even continue to constrain the UK’s freedom of action, once withdrawal from the EU is complete. As well as looking outside the UK, we have to look within, at the devolution arrangements which means that when Brussels ceases to be responsible for key environmental legislation, most powers will be moved not just to London, but to Edinburgh, Cardiff and Belfast. There are major challenges ahead in settling how these three levels – international, UK and devolved – will interact.

The role of international law is obvious when it comes to the big climate negotiations such as those last December leading to the Paris Agreement, but the UK is a party to important treaties on many other matters such as: air pollution, marine pollution, dangerous chemicals, trade in endangered species, and ensuring public access to environmental information. The extent of such treaty obligations can be easily overlooked since in recent decades the measures needed to give effect to them have often been introduced into the UK through EU law.

These legal commitments will continue, regardless of membership of the EU, and will be a constraint on the UK’s ability to develop its own environmental policies; new trade agreements with the EU and other nations may further affect environmental standards. In practice, though, there are significant differences between obligations in international law and those under EU law. International obligations tend to be expressed in less detailed and strict language, sometimes closer to aspirations than precise legal duties. International regimes usually lack the strong (if slow) measures provided by the EU structures to enforce compliance by states. Moreover, whilst the courts in the UK are bound to ensure that individuals can enjoy the rights conferred by EU law, the same doesn’t apply for international law.

A further issue is the UK’s status in relation to various treaties. Where treaties have been agreed within areas of the EU’s exclusive competence, steps will have to be taken for the UK to become a party to the treaty in its own right (or it will need to decide to withdraw). In other areas the implementation measures needed by the UK will have to be disaggregated from those agreed at the EU level. Thus, for example, in relation to the Paris Agreement, the UK will now have to propose its own separate Nationally Determined Contribution setting out its own climate action plan, as opposed to being covered by the EU’s commitments.

A big question is the role that the devolved administrations will have in the UK’s international dealings. Foreign affairs are reserved to the UK government, but carrying out the steps necessary to implement international obligations may lie at devolved level. Yet international commitments, under environmental or trade treaties, may not align with the policies of devolved governments. The tension here is not new, and exists in relation to EU matters, but there are some marked differences between the EU and international arrangements.

It is the UK which is the Member State of the EU and, therefore responsible for all negotiations, and accountable for ensuring compliance with EU law. This is reflected in the legal framework since the devolution legislation makes it clear that the devolved authorities have no legal power to legislate or act in ways contrary to EU law and the UK authorities have full power to act to ensure compliance, even in areas of devolved competence. Actions breaching EU law can therefore be restrained by the courts and there is a specific power for London to act.

[UK’s] legal commitments will continue, regardless of membership of the EU, and will be a constraint on the UK’s ability to develop its own environmental policies; new trade agreements with the EU and other nations may further affect environmental standards.

For international law things are different. Again, the devolved authorities have no competence to negotiate or reach international agreements – everything must be done through London. On leaving the EU, control of agreements over access to fish in British waters is taken back to London, even though the bulk of the waters lie off, and the bulk of the fleet is based in, Scotland. However, in contrast to the position with EU matters, the devolved authorities are not legally prohibited from acting in ways incompatible with international law. Instead compatibility with international obligations is ensured through the powers of the Secretary of State to intervene. In order to prevent such incompatibility, s/he can prevent Bills going for Royal Assent, revoke subordinate legislation or direct that any other action is, or is not taken by the devolved administrations. This means that any disagreements are not calmed through resolution by the courts, but require political intervention which is likely only to exacerbate the dispute.

This emphasis on London’s direct control – which feels quite different from the sense of participation in the much wider EU arrangement where everyone has to make compromises – may risk heightening tension in various areas. Thus changes to energy policy, including subsidies for renewables, have been  seen as undermining Scotland’s plans for its own energy future. Trade agreements offer another potential area of dispute. For example, what will happen if a trade agreement made by London has the effect (intended or not) that products including genetically modified organisms must have access to the UK market, while Scotland and Wales maintain their opposition to such products?

At a less dramatic level, the removal of the need to comply with EU law will risk greater divergence within the UK in relation to environmental law. Even where the different administrations do not have the desire – or as significantly, the capacity – to develop dramatically different policies and standards, there will inevitably be greater fragmentation as each country works with its own distinct administrative structures and the timetables for introducing changes are affected by different electoral schedules and the space in legislative programmes. There may therefore be a case for structures where co-operation and co-ordination can be discussed, to ensure efficiency and avoid unnecessary fragmentation. The Joint Ministerial Committee established as part of the devolution settlement has not been a striking success, whereas less political bodies such as the Joint Nature Conservation Committee may offer a better model.

The overall message is how many different things have to be taken into account as questions of “hard”, “soft”, or any other type of Brexit are settled. Membership of the EU has dampened the risk of fragmentation of environmental law within the UK and placed disagreements between London and the devolved administrations in a wider (and hence less confrontational) setting. It has also obscured the extent to which international law can affect what happens not only in dealings beyond the UK but also within it. It is a multi-dimensional process that has been set in motion, not just a question of what happens between London and Brussels.

Featured image credit: River, UK. CC0 Public Domain via Pixabay.

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