A significant shift is anticipated in the landscape of environmental governance and environmental protections in the UK with the Retained EU Law (Revocation and Reform) Act 2023 now in effect. The Act is part of the post-Brexit legal landscape, aiming to re-evaluate and potentially revoke European Union-derived laws and regulations that were retained after Brexit.
The change will herald a new era of divergence in relation to agricultural policy and environmental protection (among others) and will mark a departure from the EU frameworks and norms.
What does it do?
The 2023 Act essentially enables the UK government to review, revoke or amend laws that were originally derived from the EU. This process involves identifying which aspects of retained EU law should be kept, changed or discarded. The Act provides mechanisms for either retaining these laws as domestic UK law, adapting them to better fit the UK’s post-Brexit legal framework or eliminating them altogether if they are deemed by ministers to be burdensome or unnecessary.
The initial goal of the Act was a comprehensive repeal of retained EU law by the end of 2023. Due to extensive opposition to this approach, a complete overhaul was averted. However, the Act still grants ministers substantial leeway in modifying it. Despite extensive debates in parliament on amendments for environmental protection safeguards, these remain notably absent from the Act. The UK government in parliamentary debates consistently assured its commitment to preserving and enhancing environmental protections, arguing that a clause for non-regression of environmental protection was unnecessary. Defra has indicated that retaining EU law would be the norm unless strong reasons for repeal or amendment exist. It is argued that clarification is still needed on how domestic commitments to non-regression of environmental standards will be applied under the Act.
Both the UK and the EU have pledged to uphold environmental protection as of 31 December 2020 under the EU-UK Trade and Cooperation Agreement. Many of the UK’s international environmental commitments were implemented in EU law and frameworks. Although the deadline for reviewing under the Act has been extended to 23 June 2026, scrutinising EU environmental laws remains a significant task due to their complexity and public interest. In practice, this may lead to regulatory authorities being heavily involved in the review process, potentially reducing their focus on environmental regulatory duties.
There are negatives…
From an environmental perspective, the Act raises several concerns:
- It allows UK courts to diverge from EU case law. Judges may now interpret and apply retained EU law in ways that might diverge from previous European Court of Justice rulings, which opens the door to a wider range of interpretations, in turn potentially leading to greater legal divergence and variability in judgments. In contentious areas like nutrient neutrality, judges may now revisit past decisions influenced by EU law, leading to new legal interpretations and outcomes, which might potentially reshape aspects of environmental law in the UK.
- Many environmental regulations that protect the environment in the UK were rooted in EU-derived laws, such as regulations for environmental assessments and habitat and species conservation both on and off land. The possibility of a removal or watering down of these protections could significantly impact the UK’s environmental framework and pose risks to natural habitats and species.
- The Act contains a clause that restricts the increase of regulatory burdens, which might lead to a deregulatory approach, as any regulatory change could be seen as increasing the regulatory burden.
- The process of reviewing and potentially revoking or replacing hundreds of pieces of legislation is a massive undertaking for Defra. There is a risk that the ambitious environmental commitments may not be met due to the time and resources required for this process.
- As the Act allows the UK government to revoke or amend existing EU-derived environmental laws, this could impact on lowering existing environmental standards including food safety and animal welfare. For farmers and landowners, lowered environmental standards might affect land management practices and compliance requirements and impact on agricultural trade as the EU may impose stricter import requirements to maintain its environmental and safety standards.
… but also positives
However, there are also potential wins for the environment from the Act, particularly from an agricultural perspective, as it allows for the creation of bespoke environmental protections that could be more suited to the UK. January 2024 marks the end of the Basic Payment Scheme, which was part of Common Agricultural Policy and a cornerstone of EU agricultural policy. The replacement of the BPS with new schemes like the Environmental Land Management Scheme marks a significant shift in policy from the EU’s CAP. ELMS focuses on paying farmers for delivering environmentally sustainable practices such as improving biodiversity, water quality and soil health. The Act will provide the legal basis for the implementation of the new ELM schemes and could ensure that they are consistent with UK law and priorities.
Other opportunities that the Act affords include the potential flexibility to create a legal framework that is more tailored to the UK’s specific needs and not just in relation to agricultural practices. This could pave the way for the development of new, innovative policies and regulations in environmental protection generally. It also offers the chance to streamline regulations, potentially reducing bureaucracy and fostering a more business-friendly environment.
Challenges ahead
The Act’s impact on divergence in environmental law and regulation is complex. It presents both challenges and opportunities for the UK. The extent and nature of this divergence will be shaped by the specific ways in which the UK government chooses to reform or replace EU-derived laws. The Act’s potential to create legal, regulatory and policy divergence within the UK as well as between the UK and the EU poses significant considerations for policymakers, businesses, environmental groups and other stakeholders.
Jill Crawford is a senior associate solicitor at Irwin Mitchell
