There are a great many champions of the environment in Britain. Between them, our environmental bodies have several times the membership of all the political parties in Britain combined. They probably 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, on Brexit.

Brexit will have more immediate impact on our ability to manage the growing stresses on the environment than any other single political development of the past 50 years. Environmental problems pose particular challenges for policy makers. Many of the most serious problems are geographically blind. They pay no attention to political borders or legal jurisdictions.

Consider the poor air quality in London, which 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 damages the health of Londoners.

We may well regain control of our traditional 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.

Britain’s membership of the European 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.

This Government has made, and repeated, a clear promise to be the first ever to leave a better environment to its successors than it inherited. This is a big promise. There can be no doubting its 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. This means getting the Withdrawal Bill right. 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 they must also offer similar levels of regulatory stability and cost. Otherwise the promise will be broken.

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. 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.

It offers a 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, shapes the development of policy in other parts of the world.

What will be different after we leave? There is no 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 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 Britain’s first comprehensive statement of policy on the environment to offer guidance to business and civil society over the longer-term development of environmental policy. In the 27 years since then there has been no further publication of a framework for the future development on environmental policy in the UK.

What we have seen instead is a succession of Governments 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. This loss of regulatory stability will be accompanied by an increase in the cost of regulation as the UK mirrors domestically the work of European agencies whose costs are currently shared by 27 other countries.

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 implement the Nitrates Directive properly led to a crash spending programme in Northern Ireland of some £240 million to avoid the possible imposition of fines that could have cost even more. The UK Courts have no such ability to fine the British Government.

These changes set a clear bar for the Government’s long delayed 25 Year Environment Plan to clear if Brexit is not to lead to the Government breaking its environmental promise. The plan will first have to appear. It will then 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, no matter how warm.

Tom Burke
October 16th 2017