Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider the European Union (Withdrawal) Bill, the government’s position paper on nuclear negotiations following withdrawal from Euratom, and the failure of a bid to judicially review a marine licence grant in respect of development works at Brighton marina.

“Great Repeal Bill” is introduced

The European Union (Withdrawal) Bill was introduced to the House of Commons on 13 July. Its substantive provisions occupy 13 pages, with a further 47 pages of schedules (much of the latter being devoted to devolution issues). The accompanying Explanatory Notes, despite describing themselves as “not, and not intended to be, a comprehensive description of the Bill”, are nevertheless of roughly equal total length.

The overall thrust of the Bill is relatively simple. Clause 1 reads: “The European Communities Act 1972 is repealed on exit day.” Sic transit gloria unitatis. The rest of the Bill adopts the anticipated course of a saving provision in clause 2 for EU-derived domestic legislation in effect at exit day, the incorporation by clause 3 of direct EU legislation operative at exit day, at clause 4 a saving provision in relation to direct rights under Treaties and then further provision concerning the future interpretation and application of EU law in domestic courts. By this method a body of ‘retained EU law’ is created.

The most controversial part of the Bill is contained from clause 7 onwards under the heading “Main powers in connection with withdrawal”. Provision in one form or another for ‘tidying up the loose ends’ (grossly to understate the task) is essential, however a great deal of constitutional debate is anticipated from the proposed method of ‘Henry VIII’ clauses empowering Ministers in very broad terms to amend primary legislation by statutory instrument for the purposes of dealing with deficiencies arising from withdrawal, complying with international obligations and implementing the withdrawal agreement. It is thought that up to 1000 such instruments may be needed. The width of ministerial power is reined in to some extent by the terms of associated schedules imposing affirmative resolution procedure upon the more sweeping exercises of power permitted by the provisions.

There is little doubt that ‘the devil will be in the detail’ of the resulting subordinate legislation. The Bill itself is addressing Brexit at a very high level of abstraction. Neither any reference to any specific EU environmental measure nor indeed the word ‘environment’ is to be found in it. Interestingly, the Explanatory Notes do choose such an item of legislation as an example of “Possible uses of the power to correct problems arising from withdrawal”. In paragraph 25 of the Notes, references in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to “other EEA states” are identified as in need of correction by deleting the word “other”. Who would have thought it? The reader might doubt that this is the most egregious example of the potential difficulties.

One consolation for practitioners and exponents of environmental law is that a great deal of EU environmental control has originated in Directives which have been implemented by domestic secondary legislation in terms which can continue to operate effectively in a seamless way. Further, that legislation, at any rate in some areas, has been substantively implemented in practice by improvement of processes and infrastructure in a manner which is capable of enduring if they are properly operated and managed. The real future battle is likely to be over the extent to which continued compliance in those areas, and the attainment of compliance in areas where it has not yet achieved, will be effectively enforced in the absence of the continuing overarching scrutiny of the European Commission. That body has during the UK’s membership found the latter’s environmental regulation to be significantly wanting in a number of respects, including recently in relation to sewer overflows and, notoriously, air quality. Such matters are unlikely to be pursued domestically by the Government with greater fervour post-Brexit than they were pre-Brexit or indeed pre-Brentry.

Government publishes position paper on nuclear negotiations

The Department for Exiting the European Union has published a position paper on the UK’s stance in Brexit negotiations following its withdrawal from Euratom. The paper states that the UK proposes to work with the Euratom Community according to the following high-level principles:

• Ensuring a smooth transition to a UK nuclear safeguards regime with no interruption in safeguards arrangements;
• Providing certainty and clarity to industry and others wherever possible;
• Collaborating on nuclear research and development in order to maximise the benefit of shared expertise and resources;
• Minimising barriers to civil nuclear trade for industry in the UK, Euratom and third countries;
• Ensuring mobility of skilled nuclear workers and researchers; and
• Collaborating on areas of wider interest, including regulatory cooperation and emergency preparedness.

Initial discussions in negotiations will focus on nuclear safety arrangements and provision of legal certainty on immediate issues related to nuclear material in both the UK and Euratom. The latter includes ownership of special fissile material, the validity of existing contracts for the supply of nuclear material and arrangements for spent fuel and radioactive waste.

It is unclear to what extent this position paper has been drawn up following initial discussions with representatives of the EU. However, it is clear that the UK will need a close future relationship with Euratom and its members. Although this is recognised in repeated references to “strong mutual interest”, there is nothing in the wording of the position paper that implies that the UK proposals have yet to be discussed in any detail. If so, this only serves to highlight the complexity of the on-going negotiations and the risk of significant impact felt by the UK post Brexit.

The position paper can be found here

Judicial review of marine licence grant fails

A bid to judicially review the decision of the Marine Management Organisation to grant a marine licence in respect of development works at Brighton marina has failed.

In Powell v Marine Management Organisation [2017] EWHC 1491 it was submitted that the Marine Management Organisation had been obliged to consider whether the proposed works would constitute an actionable interference with public rights of navigation and that if there was such an interference, the Marine Management Organisation was not empowered to grant a licence.

Unfortunately for the Claimant, the Court held that this was a fundamental misunderstanding of the Marine and Coastal Act 2009. The Marine Management Organisation had to have regard to the need to prevent interference with legitimate uses of the sea, not specifically to public rights of navigation. Furthermore, it was for the decision maker to decide how much weight be given to any particular consideration as part of its decision-making process, even if the decision maker was obliged to take a particular subject into account as part of that process.

Parliament’s current intention is to try to streamline marine licensing, in order to create a simple licensing and proportionate licensing system such that only activities that posed a significant risk to other legitimate uses of the sea would be subject to regulation. The Claimant’s arguments flew in the face of this intention, identifying as they did a very narrow ground within the over-arching topic ‘use of the sea’ which it argued should dictate the outcome of the entire decision-making process.

Please note that next week the Environmental Law News Update will be published on Tuesday, instead of the usual Monday.

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