An environmentally ambitious Brexit

Brexit is an opportunity for Britain to lead the world in environmental law, argue Justine Thornton QC and Richard Macrory.

Despite the very real challenges involved, Brexit will provide an opportunity to review and reformulate national environmental
law. At times, Britain has been world-leading in its approach to protecting the environment. In the early 1990s, the UK led the way in Europe by introducing an integrated approach to pollution control. In 2008, the UK again was the first country to introduce legally binding targets to reduce climate change. An environmentally ambitious Brexit could make Britain world-leading again, by placing individual responsibility and core environmental principles at the heart of its environmental protection law.

Core environmental principles have formed the bedrock of EU environmental protection over the last twenty years. The polluter should pay for environmental damage caused; we should proceed cautiously in allowing potentially damaging activities in the absence of clear scientific evidence about their impacts. The focus should be on preventing environmental damage rather than simply clearing up after the event. Environmental protection should be woven into other policy areas.

Whilst a central part of EU jurisprudence, such broad principles have rarely been given expression in UK legislation concerning the environment. Unless there has been a clear steer from the Court of Justice of the European Union (CJEU), case-law suggests the British courts handle these principles with a good degree of caution.

Legislation transposing EU environmental laws into our national system rarely make explicit reference to the EU environmental principles, and the national courts are reluctant to fill the gap. Equally, aside from the Supreme Court, the higher courts in the UK have historically been reticent in referring environmental cases to the CJEU for authoritative guidance on how to interpret the legislative question.

Of interest however is the evidence suggesting that environmental principles that have been developed within the UK rather than ‘imposed’ externally by the EU may be treated more sympathetically. “No net loss of biodiversity” is an example of a developing principle, and one that featured in Parliamentary Select Committee proceedings for the HS2 Bill for Phase 1 of the railway. Contemporary environmental law and regulation is undoubtedly complex. It embodies all sorts of legal techniques, from the creation of criminal offences to the use of economic instruments. Apart from the formal requirements found in national black letter law, guidance and policy documents elaborate on the content of the law. Some are developed at international level, others by semi-private bodies.

International law and policy increasingly influence and constrain sovereign nations. This challenging and often confusing legal landscape has been described by some as typically characteristic of so-called “post-modern law” where clearly defined legal architecture and certainties have been replaced by something much more fluid and intricate. In this context, environmental lawyers such as Nicholas De Sadeleer have argued that environmental principles could play a particularly valuable role. They can bring some sense of coherence and underlying purpose, while not jeopardising the more flexible and adaptable legal approaches found in modern environmental law.

Even after Brexit, it would be naïve to think that we can return to a simple system where environmental law is simply composed of national formal law and no more. Contemporary environmental challenges and how we can best respond to them are simply too complex for such an approach. We should therefore seize the opportunity by asking how environmental principles could best be incorporated within our legal system post-Brexit, and what those principles should be.

We already have examples in the United Kingdom of broad brush environmental duties being imposed on public bodies. The Natural Resources and Rural Communities Act 2006 provides that all public authorities “must, in exercising functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity”. The Well Being of Future Generations (Wales) Act 2015 has imposed sustainable development duties on all public bodies within Wales.

But perhaps it is all too easy to impose broad legal duties on public bodies. After all, the behaviour of all of us, whether as an employer or an individual consumer, has impacts on the environment. Post-Brexit environmental law could reflect this extended notion of environmental responsibility. It need not be in a heavy-handed or over-instrusive way. It could be done by sending broad legal signals of the direction of travel and being used – as has long been the classic role of principles – to assist in legal interpretation and the resolution of difficult disputes.

The Health and Safety at Work etc. Act 1974 provided a broad model of employer responsibility which has stood the test of time for over forty years:

It shall be the duty of every employer to ensure, so far as reasonably practicable, the health, safety and welfare at work of all his employees.

The duty forms the bedrock of health and safety – which is elaborated in more detailed regulations and guidance – and importantly, expressed in language that every employee can understand.

More ambitiously, individual responsibility could be placed at the heart of environmental protection in the UK. The 1998 German draft Code of the Environment did just this by providing a broad principle that “Every individual shall bear his or her responsibility for the protection of the environment”. The Code was never brought into effect, but more recently the Dutch Environmental and Planning Act 2016, which comes into effect this year, has done something similar. The Act is an ambitious exercise in consolidating and rationalising much of the national environmental law, and modelling it round the goal of sustainable development. Article 1.6 provides that:

Every party shall take sufficient care for the environment, [and goes on to require those that suspect their activities may have adverse environmental effects must take preventative or remedial action.]

UK environmental law is often prone to complex and convoluted legislative drafting styles which are intelligible only to legal specialists. Regulations on contaminated land and environmental liability are examples. This is not to deny that complexity and detail is sometimes required. Equally however, we should not forget the potential power and significance of broad based legal principles. A principle of individual environmental responsibility implemented in UK jurisprudence in a meaningful way could be transformative for the environment. We should raise our eyes from the foothills and seize the opportunity of Brexit to make the UK a world leader in environmental protection.