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”.
This means that in the event of Brexit and the European Communities Act 1972 being repealed, Directives that had been enacted into UK law would remain part of the UK legislative system but Regulations would not (unless they applied by virtue of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So if the UK left the EU and repealed the European Communities Act 1972 (which incorporates the provisions of the EU treaties into UK law), it would need either to implement all existing EU law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protection in the UK, as the following Regulations would no longer apply once the European Communities Act was repealed, as it is only thanks to the existence of this Act that these Regulations have legal effect.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.
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 -
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
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
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
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.