A Thought Experiment: To Consider the Possibilities for Habitat Regulations after Brexit

The 1972 European Communities Act (ECA) allows European law to take direct effect in member countries. There is some European legislation that has direct effect on member states, but conservation legislation arises from Directives, and has legal effect through the ECA. Once the UK leaves Europe, and perhaps before, the ECA will be revoked. In theory then, all legislation given effect under it will no longer stand.

The anti-European sentiment expressed in opposition to conservation law argues that it places an excessive bureaucratic burden on the UK, that it increases costs, particularly of development and infrastructure, and that in meeting it’s requirements it significantly slows down projects. Others have noted that the derogation requirements (licensing) do not necessarily benefit conservation, particularly at the member state level. So it would be expected that there would be some pressure to change conservation legislation as part of Brexit.

Status Quo

It is not just conservation legislation that is given effect through the ECA; a whole range of laws adopted since 1972 would, in theory, be rescinded by striking down the ECA. While regulators could go through the laws and make changes to some and agree others could be rescinded, that would be time consuming indeed. To maintain the status quo, a simple legislative mechanism could be enacted that would precede Brexit, enabling European-driven legislation to stand.

In this scenario, it would be business as usual until Parliament decided to look at the Habitats Regulations with a view towards amending them. Then the process of altering various Acts could take place in due course.

Revocation

It is possible that all conservation law arising from the ECA is revoked if no retaining mechanism is provided. If the Habitats Regulations are revoked, what would happen to the species and habitats identified under the Habitats Regulations (found in Annex IV of the Directive)?

Prior to 1994, when the Habitats Directive first took effect, there were mechanisms in place under domestic legislation that protected species from disturbance. The planning system can require mitigation irrespective of the status of the species in question; and any unauthorised disturbance/loss/destruction of species can be prosecuted principally under the Wildlife and Countryside Act, (although there is other domestic legislation that protects native flora and fauna.)

What is sometimes forgotten is that the Habitats Directive built on the Bern Convention (1982) to which the UK is a signatory and this Convention is still in effect. It protects most of the same species found in Appendix IV of the Habitats Directive, and provides principles of protecting identified habitats, although it is more general and less prescriptive in comparison to the Habitats Directive, which could be seen as more pre-cautionary. Bern also has derogation, which is the legal concept underpinning licensed disturbance to species and habitats. Licensing was not required prior to the adoption of the Habitats Directive.

Besides the Bern Convention, protected habitats and species are covered by legislation, principally the Wildlife and Countryside Act (1981). The CROW Act (2000) post-dates the Habitats Regulations, and there are elements of the National Planning Policy Framework that also address the protection of species and habitats. As long as we remain signatories to the Bern Convention, some sort of supra-national regime of protection, albeit somewhat looser, will remain.

So if there was a complete revocation of the Habitats Regulations, there would still be similar, though broader, legal protections for most of the species and habitats protected by those laws.

What is Likely to Happen?

There will be a strong lobby arguing for revocation: the Habitats Directive came into force out of Natura 2000, which was a process of defining a network of species and habitats needing protection at the European, trans-national level. Brexit would argue that we need not consider species and habitats that way, as it has led to certain problematic anomalies (e.g. great crested newts, which are not rare when looked at only at the level of the British Isles). As with much of the sentiment behind Brexit, it would be argued that we would be best off going back to the way we did things before Europe started meddling. There is other legislation, not conservation-related, that falls into this category.

I would therefore predict that either shortly before, or just after Brexit, the government will rescind problematic legislation, such as the Habitats Regulations. My thinking is that they would use Brexit as a house-keeping exercise to get rid of targeted EU- driven regulation. They may introduce further legislation, or amend existing legislation.

Licensing

If the Habitats Regulations are gone, what will happen to licensing? While licensed disturbance does not completely depend on the Habitats Regulations, by far the majority of the licensed activities developers have to fund arises from it. It is already under review, see our earlier newsletters discussing this – March and April 2016. Again, Brexit could be an opportunity to undertake a major overhaul of this unpopular requirement, and I would predict a government strongly committed to leaving Europe and reducing the legislative burden would take it.

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