As lawyers it is our professional and moral duty to highlight the grave environmental risks from Brexit while there is still a narrowing window of opportunity to do so. Once most people are aware, it may be too late to pull the emergency brake. The British people deserve the chance to have their final say, based on facts,about the rights we all risk losing.
The tale of The Emperor’s New Clothes is an increasingly apt analogy for environmental law in the context of Brexit. Since the referendum of 2016, many in the environmental movement have watched on with dismay. UK Ministers heralded that they would ‘dismantle red tape’, then claimed an epiphany; existing environmental rights would be upheld, even exceeded. We would be “taking back control” – no mention that many environmental issues are a matter of international as well as EU law. Civil society was warned with consequences if it pointed out the inherent flaws and risks in this charted course.
Many have spent the last three years trying to respect a referendum result that was held out as an act of democracy, due to an unwillingness to criticise something perceived to go against popular opinion and the imperative to salvage something from the Brexit wreckage. But facts are now coming up against inescapable reality. The anticipated legal challenges are now starting. The misuse of wide-ranging powers forced through Parliament by the Withdrawal Act are now evident, together with many substantive policy changes made without due scrutiny. This is not how to develop meaningful law on the most pressing issues of our generation. Rather than progression, we are witnessing a dismantling of the rule book with no clear view of how to replace it.
There are presently no legal guarantees about what will happen to our environmental laws in future. There has only been sight of the, now heavily criticised, draft Environmental Principles and Governance Bill because amendments made to the Withdrawal Act during its passage mandated it be made public. Not quite the earlier promised green utopia.
Calls from NGOs for the Government to confirm in policy terms that it will honour its promises, even those promises the Secretary of State for Environment, Food and Rural Affairs Michael Gove has made only this week, have not yet been answered. Current policy may change. Post our departure from the EU that change could happen with speed. In the event of a no-deal, the environmental matters will become quickly overshadowed by short-term demands and a coveted US/UK trade-deal. The glaring absence of legal guarantees will inevitably result in messy, after-the-event, environmental litigation.
We will remain part of the European Convention on Human Rights, at least for now. Yet we know that a no-deal Brexit is likely to be incompatible with existing domestic and international human rights laws, including as they apply in the environmental field. That is why we are now in such unchartered waters: illegality is increasingly being re-labelled as pragmatism. History warns us just how dangerous a path this is.
In reality, the latest mooted proposals of a new ‘eco-ministry’ do not put the environment at the heart of government: something we urgently need to see. Rather, it distorts a genuine policy call. In practice, the current Government appears unable to engage fully with the magnitude of the climate and ecological crisis. This can be seen in its declaration of a climate emergency without the mandated follow-up actions this requires. Setting science-based targets is important, but if laws are to go beyond providing mere cover from judicial review challenge, something more is needed.
In the event of a deal, there are some important legal environmental guarantees now contained within the Withdrawal Agreement. These will be linked to our future trade arrangements with the EU. But the promised domestic guarantees are not yet assured. There are no provisions for dynamic alignment in future. Even in the best possible scenarios, none of this will deliver an equivalence to our current environmental rights and protections.
Maybe it will all be all right in the end, but that is now an increasingly remote possibility. Most people have not even been informed about the existence of this impending cliff-edge for environmental protections. Three years on from the 2016 referendum, it is clearer than ever, democracy and the choices that have brought us to this juncture, now demand that people have the final say for all our futures. The Brexit Emperor still has no clothes when it comes to protecting our environment!
By Susan Shaw, Solicitor, Living Law