Last month’s general election was meant to have delivered certainty. After years of minority administration and parliamentary deadlock over Brexit, the Conservative’s victory means that the UK will finally leave the European Union at the end of January. Ironically, however, a clause in the very bill that will make Brexit a reality has the potential to create a great deal of uncertainty, say legal experts.
Under the European Union (Withdrawal) Act 2018, passed under the tenure of former Prime Minister Theresa May, the vast majority of EU case law will be transposed onto the UK statute book at the end of the transition period. After that, the UK courts would be bound by existing case law. The exceptions are the Supreme Court and the High Court of Judiciary in Scotland, which will be able to deviate from EU law.
Transposing EU law post-Brexit was intended to provide stability by ensuring that the UK remained in broad alignment with the Europe. However, the current European Union (Withdrawal Agreement) Bill, which was introduced to parliament in the immediate aftermath of the election, enables UK law to diverge from EU law more quickly. Clause 26 of the bill, which is currently being considered by the House of Lords, creates a power for the government to draw up regulations that would mean any court, not just the Supreme Court, could diverge from EU case law.
Under the bill's terms, ministers can only draw up such regulations following consultation with the most senior judicial figures in the country. As Colin Reid, professor of environmental law at the University of Dundee, put it in a briefing note on the bill: "To some extent, this power at least acknowledges the constitutional concern over a provision that enables the government to tell the courts how to interpret the law."
However, Simon Ricketts, a partner at planning law firm Town Legal, believed that the power afforded to the government through the bill is, at present, too broad. "The introduction of the ‘political sieving’ by ministers by way of the power to allow lower courts to overturn [EU case law] in specified circumstances is troubling," he said. "It would be better for the circumstances to be set out in the bill itself and subject to full debate."
The introduction of the clause – assuming it is not amended and the bill passes – could have a major impact on environmental protections and therefore planning, say commentators. The environmental protections afforded by EU directives have already been enshrined in domestic law, but much of how they should be interpreted has been a matter of case law established in the Court of Justice of the European Union (ECJ) in Luxembourg.
In recent years, a number of ECJ court judgments have had a major impact on English planning, such as the April 2018 People over Wind ruling (see panel). All such cases could be subject to challenge in the UK courts from 1 January 2021.
"The bill gives more scope to reinterpret EU case law than was previously given in the 2018 Act, and case law is a fundamental part of the strength of much EU environmental legislation," said Richard Cowell, a professor of environmental planning at Cardiff University and leader of the consortium of academics conducting Royal Town Planning Institute (RTPI) research directed at increasing planners’ understanding of the implications of Brexit."
What’s more, the move to allow multiple courts to diverge from EU case law could lead to different courts coming to different decisions, observers pointed out. "Important areas of domestic regulation and assessment with a European basis, such as project and plan environmental impact assessment and habitats assessment, will be susceptible to conflicting decisions between higher and lower courts until domestic legislation is changed or the Supreme Court reaches a final and settled view," said Iain Gilbey, senior planning partner at law firm Pinsent Masons.
That might lead to a lot more work for lawyers, but it would also create huge uncertainty for developers, planning authorities and environmental campaigners. "We can expect to see the courts busy in new areas of interpretation [and] increasingly expected to overlay a UK-centric interpretation on laws and regulations that were originally designed to engender a level playing field across the EU," Gilbey added. "Inevitably, this will mean more cases with a planning and environmental focus finding their way to court, seeking definitive judicial interpretation."
Key ECJ decisions that have impacted on planning
The People Over Wind case, April 2018.
Also known as Sweetman v Coille Teoranta, this judgment related to a proposed electricity cable serving a wind farm in the Republic of Ireland near an EU protected site. It stated that, under the Habitat Regulation Assessment (HRA) process, a full "appropriate assessment", rather than a less arduous screening process, is required in plan-making and decision-making where plans or projects have a potential impact on internationally protected sites, regardless of proposed mitigation measures. Commentators said the decision meant that far more plans and projects would have to go through the more onerous appropriate assessment process. Some emerging local plans were held up by the case and the National Planning Policy Framework (NPPF) was revised to take account of it.
Grace v An Bord Pleanala, July 2018.
This judgment, again from the Irish Republic, provided further clarification on the HRA process. It dealt with the question of what mitigation measures can be taken into account as part of an appropriate assessment. The ECJ found that where mitigation measures are designed to compensate for a development’s negative effects - as opposed to merely reducing or avoiding harm to a habitat – then approval can only be granted if the planning authority is satisfied that there are "imperative reasons of overriding public interest" in the scheme going ahead.
The Dutch Nitrogen case, November 2018.
Two joined cases regarding nitrates pollution arising from farming, this also tightened HRA rules
under the EU Habitats Directive. It raised the bar that development projects would have to clear when undergoing an appropriate assessment. The ECJ judges said that assessing authorities should not take mitigation measures into account "if the expected benefits of those measures are not certain at the time of that assessment". The ruling prompted government advisor Natural England to issue guidance last year that resulted in councils in the Solent area of Hampshire blocking planning permissions for thousands of new homes because of the potential impact on nitrate levels in the Solent. Meanwhile, Herefordshire Council put applications for more than 1,000 homes on hold because of high phosphate levels in a protected EU site.