12 FEB 2019


After Brexit, the UK will no longer be legally required to align its environmental policy with EU law. Tim Hill looks at what is likely to happen.

A key concern of business is how environmental policy will work post-Brexit, with fears that diverging UK policy could lead to surplus regulation and a reduction in environmental standards. 

Through the draft Environment (Principles and Governance) Bill, published in December 2019, the government has committed to  maintain environmental principles after the UK leaves the EU. The draft bill was published a week before the 26 December 2018 deadline enshrined in the EU (Withdrawal) Act 2018 and responds to concerns that post-Brexit, the UK will no longer be legally required to align its environmental policy with EU law. It is also intended to allay fears of a perceived “governance gap” in environmental decision making as a result of the UK no longer being subject to the oversight and scrutiny of EU institutions. 

The draft bill proposes nine environmental principles for the UK - precaution, preventative action, rectification at source, polluter pays, sustainable development, policy integration, access to information, public participation in decision-making and access to justice. These draft principles are drawn from a number of EU and international sources. 

The aim is to embed previously disjointed environmental principles into UK legislation and ensure that they are central to government policy and decision-making. These environmental principles will form the framework for a new governmental policy statement and influence environmental decision making across governmental departments. 

Another key focus of the draft bill is improvement of the natural environment through the publishing of government Environmental Improvement Plans (EIP) and a new legal body, the Office for Environmental Protection (OEP).

Alongside the EIP, which will be reviewed every five years, the OEP will report directly to parliament in order to ensure impartiality and independence, replacing the scrutiny function currently provided at EU-level. The OEP will assess the government’s progress in implementing any objectives in an EIP  and will have a broader role in monitoring and reporting on how environmental law is being implemented.

In addition, the OEP will be able to investigate complaints from any person into the actions or decisions of public authorities, where it suspects that, following an investigation, the authority has failed to take proper account of environmental law in decision-making. Following an investigation, where a breach of environmental law is found, the OEP may bring enforcement action (cumulating in judicial review proceedings) against a public authority. 

However, at present, there is a risk that the definition of a “public authority” in the draft bill is too broad and could potentially include “hybrid bodies” (for example - statutory undertakers) who are already heavily regulated by the Environment Agency. There is a danger of duplication of roles between the OEP and the EA which could cause uncertainty and ultimately lead to ineffective environmental regulation. 

Despite this, overall the draft bill does signal the government’s clear commitment to keeping core environmental principles at the heart of government policy and decision-making in the UK after Brexit. This should help to provide some comfort to anyone concerned that post Brexit the UK could become an environmental ‘pariah state’ on the edge of Europe.  

Tim Hill is a  partner in the Eversheds’ global corporate compliance group. His environmental experience includes defence of pollution and waste offences, challenges to and appeals against statutory notices, packaging waste and civil claims.


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