European Law Monitor

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The legislative impact of Brexit on environmental protection in the UK

Under the EU legislative system, there are two main ways in which EU law applies – through either Regulations or Directives. Regulations, once passed at EU level, apply automatically across every EU country, without having to be passed as law at national level, as do decisions, and other EU legal instruments.   Directives, once passed at EU level, have to be implemented by national legislation as well; Directives implemented by UK legislation consequently form part of the UK legal system, whereas Regulations do not.

According to the UK Parliament

“Section 2(1) [of the European Communities Act] means that provisions of EU law that are directly applicable or have direct effect, such as EU Regulations or certain articles of the EU Treaties, are automatically "without further enactment" incorporated and binding in national law without the need for a further Act of Parliament... So, when an EU Regulation enters into force, it automatically becomes part of national law, as it does in the other 26 Member States on the same day. The uniqueness of section 2(1) is that it gives effect to directly applicable or effective EU law without the need each time for implementing legislation, as would usually be required for the incorporation of other obligations assumed under international law by a dualist State”[1].

This means that in the event of Brexit and the European Communities Act 1972 being repealed, Directives that had been enacted into UK law would remain part of the UK legislative system but Regulations would not (unless they applied by virtue of international law or because they had been implemented into UK law anyway).

So if the UK left the EU and repealed the European Communities Act 1972 (which incorporates the provisions of the EU treaties into UK law), it would need either to implement all existing EU law into the UK legal system (the so-called drag and drop approach), and/or develop new national laws in these areas, depending on what exit route is chosen.

This causes a major problem for people concerned with environmental protection in the UK, as the following Regulations would no longer apply once the European Communities Act was repealed, as it is only thanks to the existence of this Act that these Regulations have legal effect. In that situation, the following EU Regulations would cease to apply to the UK.

Climate change

Emissions trading regulations

Regulation on Emission performance standards of new passenger cars

Regulation on Type approval of motor vehicles and engines with respect to heavy duty vehicles

Regulation on Emission standards that apply to light commercial vehicles

Regulation on Climate change research and funding -

Regulation on Monitoring of greenhouse gases and climate change at national and EU level

Regulation on substances that deplete the ozone layer

Regulation on European Earth Monitoring Programme(GMES) -

Regulation on Fluorinated greenhouse gases -

Waste

Regulation on Ship recycling

Regulation on the prohibition of organotin in ships

Regulation on Shipments of waste

Regulation on the European Pollutant Release and Transfer Register

Regulation on Persistent organic pollutants

Regulation on Detergents

Food safety

Rules on GMO food -                                                                                  

Regulation on Community reference laboratories for GMOs

Rules relating to food additives -                                                              

Regulation on maximum levels for certain contaminants in food

Chemicals

REACH -                                                               

Regulation on the Export and import of hazardous chemicals

Protection of animals

Regulation on controls on animal welfare                                                            

Regulation on the protection for animals being killed or slaughtered


Regulation on trade in seal products

Regulation on the prevention, control and eradication of BSE -

Regulation on how stud animals are kept and stud products handled and stored -

Regulation on the Pet passport -

Protection of plants and habitats

R                             Regulation on the use of biocides

                                Regulation on plant protection products                              

Regulation on the monitoring of forests and environmental interactions

Regulation on Invasive species -

Regulation on Grasslands

Regulation on Nuclear Safety

Environmental labelling

Regulation on the EU Ecolabel

Regulation on EMAS

Regulation on eco design requirements for ovens

Regulation on eco design requirements for dishwashers

Regulation on eco design requirements for vacuum cleaners

If the European Communities Act was repealed and all the above Regulations ceased to apply to the UK, then this would have a substantial effect on the environmental protection framework in the UK.               

 


[1] http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63304.htm