Retained EU Law (Revocation and Reform) Bill - what next for environmental law in NI?

Environment laws in the UK could soon be operating in a deregulatory ‘free for all’ since the Retained EU Law (Revocation and Reform) Bill was published in September 2022.

This Bill aims to fast-track reform of EU-derived law and other than regulations which the government specifically chooses to retain in its current form, EU derived environmental law will be either amended, repealed or replaced by the end of 2023.

Read our legal insight to find out about the objectives of the Bill and what this means for navigating environmental law in NI going forward.

Legislative Background and Objectives

To maintain legal certainty as the Brexit transition period ended, the European Union (Withdrawal) Act 2018 allowed for the retention of most EU law as it applied in the UK legal system on 31 December 2020. The latest plans however now propose to accelerate a change to domestic legislation since the Retained EU Law (Revocation and Reform) Bill “REUL Bill” facilitates the amendment, repeal or replacement of Retained EU Law by the end of 2023 unless positive steps are taken to retain it (with an extension to 2026 possible for some regulations).

Further it aims to repeal the principle of supremacy of EU law (to the extent it still applies) by the end of 2023 and further facilitate domestic courts’ ability to depart from retained case law.

What is being revoked?

Two categories of EU law will be revoked at the end of 2023:

• EU-derived subordinate legislation; and
• Retained direct EU legislation.

From an environmental perspective, some of the key legislation in NI falling under EU-derived subordinate legislation includes:

• the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2017 (as amended);
• the Conservation (Natural Habitats, etc.) Regulations (Northern Ireland) 1995 (as amended); and
• The Costs Protection (Aarhus Convention) Regulations (NI) 2013 (as amended).

However, it is not clear from the wording of the legislation whether such Regulations have been included in the repeal plans. Whilst some would undoubtedly welcome their removal, the impact for example on planning policy, regulation of industry and decision-making in general would probably cause more uncertainty and risk of legal challenge, not to mention impacts on the environment.

The situation remains fluid, however, since the Government confirmed that its list of EU-derived legislation is not exhaustive and will be updated quarterly as new legislation is identified to be amended, repealed or replaced.  Environmental campaigners will undoubtedly seek to closely scrutinise the Bill and its associated changes to try and prevent any roll-back from environmental protections.

Schedule 1 of the REUL Bill

The REUL Bill also specifies amendments to the following legislation at Schedule 1:

• Environmental Protection Act 1990
• Waste and Contaminated Land (NI) Order 1997
• Environment Act 2021

The Bill aims to modify powers in statutes like these, to facilitate their use to amend retained direct EU legislation in the same way that they can be used to amend domestic secondary legislation. The proposed rationale is to ensure that retained direct EU legislation is downgraded from ‘primary’ to ‘secondary’ legislation. This suggests the UK Government’s direction of travel such that it will allow environmental legislation to be amended more easily.

Another significant change involves the establishment of a new ‘priority rule’ for retained direct EU legislation to be interpreted and applied subject to domestic legislation. However the Government and devolved administrations also have a power to specify what direct EU legislation can instead take priority. It is difficult to predict the priorities of changing governments (or lack thereof in Northern Ireland) but it is clear that reforms to the hierarchy of legislation are not going to be straightforward to navigate. In a jurisdiction where legal challenges are already commonplace, this seems like an invitation for more, since uncertainty and change often generate fresh litigation.

What does this mean for the Courts?

The REUL Bill proposes the abolition of general principles of EU law– which have been developed by the Court of Justice of European Union in its case law. This essentially means that these principles will no longer influence the interpretation of legislation in the UK. Key EU environmental principles that have guided the courts for decades include for example the ‘precautionary principle’ and the ‘polluter pays principle’.

Under the new proposals, Higher Courts (Supreme Court, Court of Appeal) may depart from retained EU case law subject to a new test that they must consider:

• the fact that decisions of a foreign court are not usually binding;
• any changes of circumstances which are relevant to the retained EU case law; and
• the extent to which the retained EU case law otherwise restricts the proper development of domestic law.

Higher Courts may also depart from domestic retained case law that has been determined or influenced by retained EU law having regard to second and third factors listed above.

It may be that Courts are reluctant to depart from well-established principles established in EU case law, but since the new rules permit such divergence this will undoubtedly add uncertainty for future environmental cases in a time when climate litigation is also on the rise. Again this seems like a recipe for further litigation, particularly for issues that at present could be considered settled law.

Further, the REUL Bill provides a mechanism for the Northern Ireland Attorney General of Northern Ireland to intervene in cases regarding retained case law, or refer them to an appeal court, where relevant. There is no guarantee that such an intervention would result in a departure from retained EU case law however.

NI Protocol Bill

Another Bill relevant to NI was also introduced in June 2022. The UK government introduced the Northern Ireland Protocol Bill, which if it manages to pass through the House of Lords will amend the operation of the Northern Ireland Protocol. It includes provisions which aim to create a dual-regulatory regime for the regulation of goods, which would allow Northern Irish businesses to choose to comply with either UK or EU regulations (or both) for goods regulated by Annex 2 to the Protocol. The EU legislation listed in Annex 2 includes a broad range of environmental areas and can be found at link.

Next steps

It will now be for the REUL Bill to work its way through the Parliamentary process at Westminster and it is therefore likely to be subject to extensive debate and scrutiny but as they stand, the reforms which are on their way have the potential to be significant and rapid.

Implications

The REUL Bill is not an easy read and its full implications seem somewhat obscure. Its interaction with Northern Irish regulation – particularly in light of the NI Protocol Bill - appears to add a further layer of complexity and uncertainty. Whether the Bill ultimately leads to a ‘bonfire of the regulations’ and loss of significant environmental protections is, in our view, not wholly clear at this stage. It seems almost inconceivable that significant environmental regulatory controls could simply be discarded with no reasonable alternative put in its place. That said, in light of recent events in the political sphere, perhaps nothing is impossible.

Please click here for a copy of the Bill.

TLT’s Belfast-based Planning, Environment & Clean Energy team advises on all aspects of planning and environmental law in Northern Ireland and are qualified in Northern Ireland, England & Wales and the Republic of Ireland. For more information, please contact Andrew Ryan or Sarah Mulholland

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2022. Specific advice should be sought for specific cases. For more information see our terms & conditions.