The Environmental politics of Brexit – Speech by Tom Burke
UK Environmental Law Association Conference
October 13th, 2017
39 Essex Chambers, London
Let me begin by thanking you for inviting me to speak today. This conference connects two issues that, more than most, will shape the lives of everyone in Britain this century, especially if they are under forty: Brexit and the Environment.
And, it connects them in a particularly important way, through an examination of both the role of, and the rule of, law.
In this context I would like to recognise the importance of the distinctive contribution that UKELA is making to informing the public conversation on what Brexit means for the environment.
We live in a time of declining public confidence in institutions, falling financial and analytic capacity in government departments and a continuing coarsening of public discourse. We have a Secretary of State for the Environment who believes we have ‘had enough of experts.’
In such times the value of dispassionate, disinterested and informed voices grows markedly. I applaud UKELA’s initiative in adding such a voice to the debate on the implications of Brexit for the environment. It will mean that whatever the outcome of the torturous politics of Brexit the environment will better protected than it would otherwise have been.
There are a great many champions of the environment in Britain. Our environmental bodies have, between them, several times the membership of all the political parties in Britain combined.
I think it is possible that they know rather more about the will of the people than the political leaders who somehow managed not to mention the environment at all in making their case, either way, in the debate on Brexit.
Those organisations are gearing up to make sure that as the Withdrawal Bill makes its way through Parliament that omission is corrected. UKELA’s initiative provides authoritative advice to all the various parties, including the government, with a stake in this debate.
It does not need to, and nor should it, campaign itself. But all of those who are campaigning, from whatever position, will do so more effectively with the help of the series of reports that UKELA is issuing.
I must admit to having been a bit disconcerted when Richard Macrory, who invited me to speak, added that what he wanted me to do is to talk about the politics of Brexit, the environment and the law.
As I was searching for some inspiration about how to tackle such a challenging task the old, and probably apocryphal, tale of the Irishman asked for directions by some tourists came to mind, ‘Ah, says himself, if I wanted to go there, sure I wouldn’t start from here.’
I suppose, in the context of Brexit, this advice would be recast as: ‘If I wanted to go anywhere I wouldn’t start from here.’ If I wanted to improve the environment I certainly wouldn’t start from here.
It would not be an exaggeration to say that Brexit will have more immediate impact on our ability to manage the growing stresses on the environment than any other single political development in the past 50 years.
I say this because the nature of environmental problems poses a particular challenge for policy and law. Many of the most serious problems are geographically blind. They pay no attention to political borders or legal jurisdictions.
The poor air quality in London is undoubtedly a product of the failure of our own government to enforce the law here. But there are days when even if the law were fully enforced pollution blown across the Channel from France, Holland and Belgium would damage the health of Londoners.
We may well regain control of our geographically defined fisheries as we leave the EU. We will not however, be able to prevent climate change, as it warms our waters, from driving those fish back out of our control. This will raise some fascinating and complex jurisdictional issues about the beneficial ownership of particular populations of wild fauna but would probably not help fishermen much.
Seeking, either to ameliorate environmental damage, or to obtain redress for it, across political boundaries is both difficult and expensive. This is so for nations and, even more so, for communities or individuals.
It is simply an inescapable feature of the world we live in today that successfully, and affordably, tackling environmental problems, in common with other contemporary scourges such as the trafficking of drugs and people, mass migration, organised crime or the spread of pathogens, requires a pooling of sovereignty.
The European Union is the world largest and most successful experiment in pooling sovereignty. Britain’s membership of the Union has been an immense benefit to the health of the British public and to its environment.
This is so not the least because it has created a whole new route by which the will of the British people on the environment could find effective expression.
As a bird watcher, I for one, will regret the loss of my government’s ability to continue protecting Britain’s migratory species from the depredations of Southern European hunters.
The environment has become so pervasive an issue in public and political discourse these days that it is easy to forget how recently this happened.
When I joined a local Friends of the Earth group in 1970 there was no Department of the Environment. There was virtually no domestic environmental legislation and even less international legislation. Such institutions as we had to protect the environment were fragmentary and weak.
One way of characterising what has happened over the last forty odd years is as a sustained endeavour, in which I have been a keen participant, to extend the rule of law over the previously uncolonised frontier of the environment.
It has had its successes. There are now some thirty major British statutes governing our environment.
We are party to a similar number of major international treaties on environmental matters and, of course, subject to a large body of European environmental legislation which Britain has played a significant, if not widely recognised, role in shaping.
There is now a government department with a clear mandate to protect the environment. We have two strong agencies in the Environment Agency and Natural England, which have the powers, if not always the resources and independence, to be effective guardians of the environment.
We have a Government that has made, and repeated, a clear promise to be the first to leave a better environment to its successors than it inherited. This is a big promise. There can be no doubting the Government’s environmental ambition.
Whether it can meet its ambition and fulfil this promise will largely be determined by how well it manages the environmental aspects of Brexit.
Immediately, this means getting the Withdrawal Bill right. So, the transposition of current EU law into domestic UK law must not leave the regulatory and institutional frameworks for protecting Britain’s environment weaker than they are today.
In the longer term, whatever future arrangements with the EU and other trading partners are finally agreed must offer not just a better level of environmental protection – if the promise it to be kept – they must also offer similar levels of regulatory stability and cost.
With this is mind, it is worth looking at some of the ways in which our membership of the EU currently supports the Government’s environmental ambition.
It offers a set of clear principles for the development and interpretation of environmental law. These can be, and are, tested judicially. This helps to build consistency across the different fields of environmental policy and law.
It offers regular environmental action programmes that set a forward-looking agenda for the development of policy. This makes it possible for businesses and civil society organisations to plan strategically for their participation in policy development.
This also offers a clear sense of the direction of travel for policy development which allows potentially affected parties the time and confidence to invest in innovative approaches to environmental solutions.
It offers a testable mechanism for the enforcement of EU legislation, and therefore the achievement of its environmental goals. It is a mechanism that backs the power of persuasion with the prospect of sanctions.
It offers stronger influence on the development of global regimes to manage the environment than would be available to any one of the 28 present members acting on their own.
The size of the EU market is such, and the rewards of access to it so large, that its environmental legislation on matters such as chemicals, for example, shapes the development of policy in other parts of the world.
This not only brings considerable benefits to the environment it also reduces the costs of compliance to business by reducing the costs of complying in different policy regimes.
It is not, of course, a regime without its problems. There are certainly things that could be better. Legislation takes a long time, sometimes too long, to develop. It can be inflexible in the face of changes in knowledge or technology.
Let’s assume, however that the Withdrawal Bill succeeds in its goal of transposing the text of the seventy percent or so of EU environmental law directly into UK successfully. Let’s also assume that it can fill the gaps for the other thirty percent. As we have heard, this may not be as straightforward as originally imagined but let’s start with the best possible case.
Even so, there will be some important changes which could make it more difficult for the Government to deliver on its better environment promise.
There is no formal place in British policy practise for the writing into legislation of principles such as the polluter pays principle or the precautionary principle. This weakens the strategic guidance to policy makers and judges as to the tests that should be applied in policy formation or implementation.
There is no equivalent in British environmental policy making practise of the series of environmental action programmes produced by the Commission over the past four decades.
The publication of ‘Our Common Inheritance in 1990 was the Britain’s first comprehensive statement of policy on the environment to offer guidance to business and civil society by a forward look at the longer-term development of environmental law.
In the 27 years since then there has been no further publication of a framework for the future development on environmental policy and law in the UK.
What we have seen instead is a succession of Government’s whose attention to environmental policy has been intermittent. On occasion, there have been outbursts of arbitrary and rapid policy change destructive of both business and civil society confidence.
The loss of regulatory stability will be accompanied by an increase in the cost of regulation. The UK will have to mirror a number of European agencies whose costs are currently shared by 27 other countries.
For example, membership of Euratom meant that it handled the nuclear safety and safeguards regime under which Britain’s nuclear facilities are operated. The Office of Nuclear Regulation will now have to take on the additional staff and equipment to discharge the functions currently carried out by Euratom.
Both the Environment Agency and Natural England will have to take on additional regulatory burdens without any guarantee that they will be absolved from the current and future rounds of spending cuts.
As we have seen, the European Court of Justice, has acted as a powerful incentive on member states to comply with the requirements of European environmental law.
This has largely worked, flexibly and efficiently, by encouraging negotiated settlements of disputes. An approach to compliance that we in the UK have long favoured.
However, the ability of the Court, as a last resort, to impose sanctions has been a powerful incentive to settle. The UK found this out to its cost when a failure to properly transpose the Water Frameworks Directive properly led to the imposition of fines costing hundreds of millions of pounds.
The UK Courts have no such ability. And, as we have seen in the recent cases on air quality, have considerable difficulty getting the UK Government to comply with the law, even while the prospect of an eventual sanction by the ECJ remains.
These changes set a clear bar for the Government’s forthcoming 25 Year Environment Plan to clear if Brexit is not to lead a decline, let alone, an improvement in Britain’s environment.
It will need to show how the Government will transpose not only the text of European legislation, but also its functionality. Without the functionality the text can make little difference to outcomes. It is environmental outcomes that matter to the people of Britain, not environmental words, not matter how warm.
There is, of course, a wider political context into which these environmental challenges must fit. I am finding it as difficult as I suspect most people, including the Cabinet, are to see through the fog of possibilities for the end state of Brexit.
Making the best sense I can of the Prime Minister’s Florence speech and subsequent statements, there are three broad possible outcomes from this process. We crash out into a so-called ‘hard’ Brexit. We could, possibly, change our mind and decide to stay. Or, we could find whatever, other than the Atlantic Ocean, lies between Canada and Norway.
Of the three options, I am in no doubt which one would be best for the environment: changing our mind. It is also the one that is least likely for the moment.
I am also in no doubt which would be worst. A ‘hard’ Brexit would leave Britain exposed to an economic hurricane. The pressure to grow the economy at any cost would wash away all the warm words and environmental ambition we have been promised in tsunami of deregulation.
That leaves us with the option of the creativity to which the Prime Minister has referred on several occasions. But since, like everyone else, I have no idea what might lie between Canada and Norway I am hard put to say anything about what this option means for the environment – other than it would be better than a hard Brexit, especially if there is a transition period in which the current EU legislation and other instruments would remain in place.
So, which will we choose? Immediately after the election, Michael Heseltine was asked by a BBC interviewer how long he thought the Prime Minister would last. In his magisterial way, he looked over at her and said, ‘You’re asking the wrong question. What you must understand is that events are in charge now, not people.’
I think the same is absolutely true about the wider politics of Brexit. We seem to be slipping inexorably down an ever-steeper slope towards a hard Brexit that no-one but a tiny number of highly motivated obsessives wants and which will be very bad for our ability to protect the environment.
What this suggest to me is that it will not be enough for those of us in the environmental community to focus effort on our particular policy priorities in the Bill. We will also have to think how we can best intervene in the wider politics of Brexit. Can we play a part in breaking and, if possible, reversing, the headlong slide to an outcome that will not only defeat the Government’s environmental ambition but also our own best efforts to leave our children a better environment than we inherited.