Farm Minister, former UKIP parliamentary candidate and Brexiter (Brexiteer? Brexetier?) George Eustice today displayed a continuing failure to have absorbed anything useful during his now considerable time at the Department allegedly for the Environment, Defra.
Speaking to the Guardian he stated that, if the UK left leave the EU “the Birds and Habitats Directives would go”. This is self-evidently true.
But in case anyone was concerned that the protection afforded by the Directives would also be removed, Eustice sought to reassure:
“A lot of the national directives they instructed us to put in place would stay. But the directives’ framework is so rigid that it is spirit-crushing.
“If we had more flexibility, we could focus our scientists’ energies on coming up with new, interesting ways to protect the environment, rather than just producing voluminous documents from Brussels.”
Eustice seems to be implying that the transposing legislation – the Habitat Regulations and all the other regulations and laws originating from EU environmental Directives, would stay in place, even if the UK was no longer subject to EU law. There is just one small problem with this – well actually more than one. The Regulations refer, throughout, to the Directives, generally and specifically. I’m no lawyer, but I would find it difficult to imagine these Regulations being even legal, without the UK being signatory to the Directives.
Here’s an example from The Conservation of Habitats and Species Regulations (2010)
“conservation” has the meaning given by Article 1(a) of the Habitats Directive;
Since the UK would no longer be a signatory to the Habitats Directive, how could we continue to use a definition of “conservation” derived from it? the phrase “Habitats Directive” appears in the Regulations 43 times.
Even if the wording remained the same and we continued to use the definitions created by the Directove, what about enforcement? Failure by government to implement part of an EU Directive would (and often does) trigger legal action ultimately ending in a European Court of Justice decision – and these can mean very big fines for the UK. This would of course no longer apply if Brexit occurred. So where would the buck stop?
As I mentioned previously, the European environmental Directives strength also lies in the case law that has developed around them. Case law that applies across the EU, including here in the UK. Following Brexit, the UK would presumably be no longer subject to this case law, so every subsequent decision taken – say by a Planning Inspector, or a Planning Committee, or a Government Department, would no longer be subject to that case law. Which means that hundreds of individual pieces of statutory guidance will need to be rewritten. Once rewritten the protection afforded by those decisions will also be removed.
For the Birds and Habitats Directives, the main, though not the only, mechanism to pursue the holy grail of “favourable conservation status” for species and habitats listed on the Directives, is to designate, protect and manage Special Protection Areas and Special Areas of Conservation. Take away the special protection afforded because they are designated under the birds and habitats directives, and they revert to just being Sites of Special Scientific Interest. They lose a whole tier of protection and also funding for management (through the LIFE programme.)
Unless Eustice is suggesting that those SSSIs which are currently European Sites (SPAs and SACs) will be given additional protection, compared with those SSSIs which are not European Sites, the suggestion that the Habitat Regulations (and other transposing legislation) remain in place and carry on working as before, makes no sense at all.
Eustice suggests that Brexit would give the UK more flexibility over protecting our environment. This is true, but not in the way he is implying.
Taking away the European protections afforded some of the UK’s wildlife, would enable some landowners to take a more flexible approach to protecting it – by not protecting it.
For more information about the implications of Brexit for the environment, see this comprehensive report from IEEP.