While existing EU law is expected to be converted into UK law by the Great Repeal Bill, it is over time that change will be felt.   

As well as being the law maker, the EU acts as an environmental policeman. It holds governments across Europe to account for their environmental failings, for example, air pollution. In February, the European Commission issued final warnings to the UK, Germany, France, Spain and Italy for repeatedly failing to address breaches of EU air pollution law. The stakes are high. Air pollution is a silent killer, responsible for approximately 23,000 premature deaths a year in the UK.  

The government has also come under heavy pressure from the European Court of Justice (ECJ) and our domestic courts, which responded robustly when legal campaign group ClientEarth took legal action to force it to toughen up its air pollution plans. 

The Supreme Court ordered the government to produce a revised air pollution plan to meet its legal obligations. Forcing the government to act in this way was an unusual move because courts usually accept Whitehall’s word that it will take steps to meet its legal obligations. The court also ordered judicial oversight of the government’s plan making. Most recently, the High Court criticised the government for giving disproportionate weight to cost, politics and administrative difficulties, and not enough weight to public health.   

Tackling air pollution requires difficult political choices. The decision about an additional runway at Heathrow airport will also be a difficult political decision and the government will come under intense political pressure from all sides of the argument. Without EU law, our domestic courts look likely to become the frontline in these sorts of intense political environmental decisions. It remains to be seen how the judiciary respond to broader questions of their role in the post-Brexit landscape. 

The ClientEarth litigation may be said to demonstrate the willingness of the judiciary to intensify scrutiny of government decisions, where necessary. But our domestic courts may not have been as tough on the government in the ClientEarth litigation in the absence of EU law and a clear ruling from the ECJ.

Yet, the relationship between the judiciary and the European Court has been an uneasy one.   It took time for the judiciary to adapt to European principles of interpretation. There is evidence judges chafed against the supremacy of EU law.  

At times they expressed concerns about the quality of lawmaking from the ECJ. In contrast, there are some signs the courts have felt more comfortable tackling ‘homegrown’ concepts like the principle of sustainable development in the National Planning Policy Framework. Another interesting example is the concept of ‘no net loss of biodiversity’, developed recently in the context of HS2 and which has potential application as a post-Brexit domestic principle. 

The UK may be about to lose European principles like the precautionary and proportionality principles, but there are a series of broad statutory duties placed on regulators which could become the new home for these principles. Take for example, section 108 of the Deregulation Act which imposes a duty to only take regulatory action when necessary and to do so proportionately.  

Securing the proper boundary between the role of unelected judges in determining legality, and elected government in determining policy and priorities is never easy. Our courts will be fully aware of the sensitivities involved. Equally, however, the ClientEarth litigation has shown the courts are clearly determined not to allow the government to duck its legal duties to citizens.   

It seems clear that our departure from the EU looks likely to lead to a period of creative lawmaking for environmental law.


Justine Thornton is a QC for 39 Essex Chambers and specialises in environmental, planning and energy law.

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