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At the time of writing, there are literally hundreds of laws and regulations that protect nature and wildlife in the UK. Anyone interested in the protection of wildlife and farmed animals will want answers to two looming questions: firstly, which of these laws will remain beyond the end of 2023 and secondly, which laws will in practice provide the stated protections.
Unsurprisingly, given our 40-year membership of the EU, much of our environmental protection legislation derives from EU law and regulations. Surprisingly, the government does not currently know exactly how many such laws and regulations relating to the protection of nature and wildlife there are (see below).
In the Retained Law (Revocation and Reform) Bill 2022) (‘the REUL Bill’) which received its second reading in October 2022, it is proposed that all retained EU laws (on the government’s current estimate somewhere in excess of 2,400 pieces of legislation) will be removed from the statute book by the end of 2023, unless expressly preserved and ‘assimilated’. This deadline can only be extended by ministerial exception to no later than 31 December 2026.
These proposals are controversial both in principle and practice. For example, no general principles of EU law are to be part of domestic law after 2023 – this may be said to include proportionality, which is now so engrained in domestic law that it may need judicial determination to clarify whether and how, for example, there remains an obligation on public bodies to act proportionately. The REUL Bill contains a range of powers enabling retained EU law to be revoked, replaced, restated or updated in line with what the government determines are the UK’s needs. The Wildlife Trusts are understandably concerned in this context by the characterisation in the REUL Bill of environmental protections as ‘burdens’. The UK and devolved governments (including individual ministers) will have the power to shape these laws by statutory instrument, thus avoiding the level of parliamentary scrutiny afforded to primary legislation. There is no requirement for consultation with the government’s own advisory bodies or groups of expert stakeholders. This would suggest that the remedy for challenging government decisions in relation to environmental and specifically wildlife protections will have to be judicial review. However, this potential safeguard has to be seen in the context of the repeated emphasis by iterations of this government (including the current Lord Chancellor, Dominic Rabb) that it seeks to drastically reduce the availability and scope of judicial review to challenge government decisions.
In practice, completion of the proposed assessment and action in respect of all retained EU Laws (‘REUL’) over the next 10 months appears wholly unrealistic. The government in the form of the then Minister for Brexit Opportunities and government Efficiency, Jacob Rees-Mogg, published in June 2022, what it described as ‘an authoritative catalogue of REUL’ creating a REUL Dashboard, which purports to set out the REUL still in place. On the Dashboard, 570 pieces of legislation have been identified which are the responsibility of DEFRA, although a recent report by The Wildlife Trusts considers that there may well be around 300 more pieces of legislation for which this department is responsible. (The government stated that the dashboard will be updated quarterly as REUL is repealed and replaced, or more REUL is identified.)
Of those 570 pieces of legislation on the Dashboard, 70 have been amended and 63 repealed. With the remaining 473 described as ‘unchanged’ it is unclear whether these have been subject to any scrutiny and assessment or not.
The Wildlife Trusts’ 2022 briefing for the media on this subject reports that only three full-time equivalent officials have been working on REUL at DEFRA, with no senior civil servant responsible for secondary legislation. This absence of resources is only likely to get worse with budget cuts due to the current economic circumstances.
The briefing continues:
The tight timescale means we risk seeing replacement legislation written in haste and poorly executed, leading to ineffective legislation and lack of clarity that then has to be challenged through the courts. We could also see greater uncertainty as case law rules and principles fall away, leading to increased legal challenges through Judicial Review, or complaints to the Office for Environmental Protection.
Far from removing red tape, the REUL Bill is set to create extra work and uncertainty for both industry, conservation organisations, and Whitehall.
Much of the rhetoric of recent governments has been on the removal of ‘red tape’ and ‘burdens’ in the planning system (eg the widely publicised but poorly particularised ‘investment zones’ where the emphasis on ‘growth’ clearly relates to commercial activity rather than, for example, biodiversity). There is profound and increasing concern that the government’s priorities will be at the expense of habitats. These are currently protected by the Habitats Regulations 2017 (as amended in 2019) which are inextricably linked with and make effective domestic legislation including the Wildlife and Countryside Act 1981 and the Marine and Coastal Access Act 2009). Should the Habitats Regulations be repealed or significantly weakened as a result of the REUL processes described above, then there is legitimate concern, as expressed by the Wildlife Trusts, that there will be:
The consequences of these processes jeopardise the reputation of the UK as an environment leader in a global context and risk compromising our ability to meet domestic and international nature targets, including compliance with Bern and Ramsar Convention commitments.
Even with domestic environmental legislation, which does not appear to generate the ideological heat directed at REUL, there is little reassurance that this will provide effective safeguards for wildlife. The Environment Act 2021 (which took over three years to pass its parliamentary stages to enactment on 9 November 2021) establishes an environmental watchdog, the Office for Environmental Protection (OEP) and makes provision for environmental improvement plans among other things.
One of the requirements under the Environment Act was the setting of environmental targets including for biodiversity, by 31 October 2022. On 28 October 2022 the Environment Secretary, Thérèse Coffey MP, provided a written ministerial statement in which she confirmed that the government would not be issuing environmental targets in accordance with the statutory deadline.
The OEP commented that the delay is ‘regrettable’. It can formally investigate DEFRA for failure to meet its statutory obligations, but whether or not it will and if so when and in what form remains to be seen.
This then leads to the second question posed at the start of this article, which laws will in practice provide the stated protections?
It should go without saying that animal welfare will only be protected if the relevant legislation is in place and is enforced. This is the focus of a recent report by The Animal Law Foundation and Animal Equality called The Enforcement Problem – The Case for Stronger Enforcement of Farmed Animal Protection Laws in the United Kingdom. Using case studies and data analysis of different sectors within animal farming, the report paints a harrowing and dispiriting picture of inspection and enforcement in relation to UK farms. The practical oversight and enforcement of the protections afforded by the Animal Welfare Act 2006 (and equivalent legislation in Scotland and Northern Ireland) is at times confused and uncertain, divided as it is between a number of bodies and agencies whose distinct responsibilities are not always clear.
In respect of the period between 2018-21, the following were identified in respect of inspections, compliance and repercussions:
Further, the report concludes:
Over the past five years at least 65 covert investigations have been conducted. In every case some form of illegality was witnessed, including direct cruelty, untreated lameness, mutilations without anaesthetic, ammonia-caused body burns, prolonged suffering at slaughter and more. The low rate of official inspections means the scale of the problem is not fully understood and the illegality is going largely undetected and therefore unpunished. Even where illegality is filmed and reported to the relevant authority, our data shows that over 60% of cases led to no legislative enforcement action.
This is illustrative of just one aspect of animal welfare where confusion, inconsistency and presumably lack of resources appear to result in remarkably little active enforcement of the relevant legislation. Arguably, the nature of protections in relation to wildlife which might be seen to conflict with planning and industrial growth will present even more difficulties than the enforcement of legislation dealing with the welfare of farmed animals.
The problems created by the rush to dump REUL without adequate scrutiny and the manifest failure to enforce existing statutory protections risks the UK slipping backwards in respect of animal welfare to a position that is inconsistent with that which should be expected from a major economy wishing to position itself in the vanguard of environmental protection. Lawyers concerned about this are going to have to be creative and relentless to reverse this decline.
Damian Woodward-Carlton KC is a family practitioner at 42 Bedford Row and regularly appears in complex cases involving a range of public law matters. He is actively involved in 42 Bedford Row’s new Animal Welfare group.
At the time of writing, there are literally hundreds of laws and regulations that protect nature and wildlife in the UK. Anyone interested in the protection of wildlife and farmed animals will want answers to two looming questions: firstly, which of these laws will remain beyond the end of 2023 and secondly, which laws will in practice provide the stated protections.
Unsurprisingly, given our 40-year membership of the EU, much of our environmental protection legislation derives from EU law and regulations. Surprisingly, the government does not currently know exactly how many such laws and regulations relating to the protection of nature and wildlife there are (see below).
In the Retained Law (Revocation and Reform) Bill 2022) (‘the REUL Bill’) which received its second reading in October 2022, it is proposed that all retained EU laws (on the government’s current estimate somewhere in excess of 2,400 pieces of legislation) will be removed from the statute book by the end of 2023, unless expressly preserved and ‘assimilated’. This deadline can only be extended by ministerial exception to no later than 31 December 2026.
These proposals are controversial both in principle and practice. For example, no general principles of EU law are to be part of domestic law after 2023 – this may be said to include proportionality, which is now so engrained in domestic law that it may need judicial determination to clarify whether and how, for example, there remains an obligation on public bodies to act proportionately. The REUL Bill contains a range of powers enabling retained EU law to be revoked, replaced, restated or updated in line with what the government determines are the UK’s needs. The Wildlife Trusts are understandably concerned in this context by the characterisation in the REUL Bill of environmental protections as ‘burdens’. The UK and devolved governments (including individual ministers) will have the power to shape these laws by statutory instrument, thus avoiding the level of parliamentary scrutiny afforded to primary legislation. There is no requirement for consultation with the government’s own advisory bodies or groups of expert stakeholders. This would suggest that the remedy for challenging government decisions in relation to environmental and specifically wildlife protections will have to be judicial review. However, this potential safeguard has to be seen in the context of the repeated emphasis by iterations of this government (including the current Lord Chancellor, Dominic Rabb) that it seeks to drastically reduce the availability and scope of judicial review to challenge government decisions.
In practice, completion of the proposed assessment and action in respect of all retained EU Laws (‘REUL’) over the next 10 months appears wholly unrealistic. The government in the form of the then Minister for Brexit Opportunities and government Efficiency, Jacob Rees-Mogg, published in June 2022, what it described as ‘an authoritative catalogue of REUL’ creating a REUL Dashboard, which purports to set out the REUL still in place. On the Dashboard, 570 pieces of legislation have been identified which are the responsibility of DEFRA, although a recent report by The Wildlife Trusts considers that there may well be around 300 more pieces of legislation for which this department is responsible. (The government stated that the dashboard will be updated quarterly as REUL is repealed and replaced, or more REUL is identified.)
Of those 570 pieces of legislation on the Dashboard, 70 have been amended and 63 repealed. With the remaining 473 described as ‘unchanged’ it is unclear whether these have been subject to any scrutiny and assessment or not.
The Wildlife Trusts’ 2022 briefing for the media on this subject reports that only three full-time equivalent officials have been working on REUL at DEFRA, with no senior civil servant responsible for secondary legislation. This absence of resources is only likely to get worse with budget cuts due to the current economic circumstances.
The briefing continues:
The tight timescale means we risk seeing replacement legislation written in haste and poorly executed, leading to ineffective legislation and lack of clarity that then has to be challenged through the courts. We could also see greater uncertainty as case law rules and principles fall away, leading to increased legal challenges through Judicial Review, or complaints to the Office for Environmental Protection.
Far from removing red tape, the REUL Bill is set to create extra work and uncertainty for both industry, conservation organisations, and Whitehall.
Much of the rhetoric of recent governments has been on the removal of ‘red tape’ and ‘burdens’ in the planning system (eg the widely publicised but poorly particularised ‘investment zones’ where the emphasis on ‘growth’ clearly relates to commercial activity rather than, for example, biodiversity). There is profound and increasing concern that the government’s priorities will be at the expense of habitats. These are currently protected by the Habitats Regulations 2017 (as amended in 2019) which are inextricably linked with and make effective domestic legislation including the Wildlife and Countryside Act 1981 and the Marine and Coastal Access Act 2009). Should the Habitats Regulations be repealed or significantly weakened as a result of the REUL processes described above, then there is legitimate concern, as expressed by the Wildlife Trusts, that there will be:
The consequences of these processes jeopardise the reputation of the UK as an environment leader in a global context and risk compromising our ability to meet domestic and international nature targets, including compliance with Bern and Ramsar Convention commitments.
Even with domestic environmental legislation, which does not appear to generate the ideological heat directed at REUL, there is little reassurance that this will provide effective safeguards for wildlife. The Environment Act 2021 (which took over three years to pass its parliamentary stages to enactment on 9 November 2021) establishes an environmental watchdog, the Office for Environmental Protection (OEP) and makes provision for environmental improvement plans among other things.
One of the requirements under the Environment Act was the setting of environmental targets including for biodiversity, by 31 October 2022. On 28 October 2022 the Environment Secretary, Thérèse Coffey MP, provided a written ministerial statement in which she confirmed that the government would not be issuing environmental targets in accordance with the statutory deadline.
The OEP commented that the delay is ‘regrettable’. It can formally investigate DEFRA for failure to meet its statutory obligations, but whether or not it will and if so when and in what form remains to be seen.
This then leads to the second question posed at the start of this article, which laws will in practice provide the stated protections?
It should go without saying that animal welfare will only be protected if the relevant legislation is in place and is enforced. This is the focus of a recent report by The Animal Law Foundation and Animal Equality called The Enforcement Problem – The Case for Stronger Enforcement of Farmed Animal Protection Laws in the United Kingdom. Using case studies and data analysis of different sectors within animal farming, the report paints a harrowing and dispiriting picture of inspection and enforcement in relation to UK farms. The practical oversight and enforcement of the protections afforded by the Animal Welfare Act 2006 (and equivalent legislation in Scotland and Northern Ireland) is at times confused and uncertain, divided as it is between a number of bodies and agencies whose distinct responsibilities are not always clear.
In respect of the period between 2018-21, the following were identified in respect of inspections, compliance and repercussions:
Further, the report concludes:
Over the past five years at least 65 covert investigations have been conducted. In every case some form of illegality was witnessed, including direct cruelty, untreated lameness, mutilations without anaesthetic, ammonia-caused body burns, prolonged suffering at slaughter and more. The low rate of official inspections means the scale of the problem is not fully understood and the illegality is going largely undetected and therefore unpunished. Even where illegality is filmed and reported to the relevant authority, our data shows that over 60% of cases led to no legislative enforcement action.
This is illustrative of just one aspect of animal welfare where confusion, inconsistency and presumably lack of resources appear to result in remarkably little active enforcement of the relevant legislation. Arguably, the nature of protections in relation to wildlife which might be seen to conflict with planning and industrial growth will present even more difficulties than the enforcement of legislation dealing with the welfare of farmed animals.
The problems created by the rush to dump REUL without adequate scrutiny and the manifest failure to enforce existing statutory protections risks the UK slipping backwards in respect of animal welfare to a position that is inconsistent with that which should be expected from a major economy wishing to position itself in the vanguard of environmental protection. Lawyers concerned about this are going to have to be creative and relentless to reverse this decline.
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