one, the European Communities Act 1972 (ECA) has thus far provided a legal basis for the application of EU law. Once this is repealed, EU legislation within the UK becomes invalidated. In order to combat this, the Government have proposed that the Great Repeal Act will be enacted on “exit day” to restore the legality of instruments, previously rooted in the ECA, by converting them into primary law. In order to bring ‘the whole body of existing EU law’ into UK law the day we leave, the Government have indicated that a ‘copy and paste’ approach will be adopted, transposing EU legal instruments via a ‘continuance clause’. This, however, raises a number of issues.
Crucially, this approach will not directly transpose all EU legislation into UK law without further intervention. Therefore, careful scrutiny of regulations to identify those viable outside of the EU context will be required; in particular, those regulations which necessitate some form of EU involvement or authorization. Providing a clear example, the field of EU chemicals law is almost entirely compromised of regulations set out by the REACH programme. In a report carried out by the UK House of Commons Environmental Audit Committee (EAC), it was found that creating a domestic system to mirror REACH would be extremely complex and expensive for both the taxpayer and the industry. Yet, without translation of these substantive provisions, the UK risks regulatory uncertainty. Consequently, the EAC suggested that some cooperation should be maintained with the single market, at least if anything, to retain access to registration under the REACH programme. As Haigh further suggests, if the Government were to attempt to create an entirely new chemicals agency to replicate the European Chemicals Agency (ECHA) in the scenario that cooperation was not maintained, the UK would suffer major administration costs, jeopardize regulatory coherence and face complexities in regard to trade.

At the very least, transposition post-Brexit will generate some level of ambiguity. At the very worst, Brexit could strip away the entire infrastructure upon which regulatory provisions are founded. This is a complex challenge that the Government will need to overcome prior to fulfilling any ambition of leaving the environment in a better state than it was found.

Accountability

The lack of clarity regarding accountability for environmental standards post-Brexit has certainly raised alarm. Dubiously, the ‘continuance clause’ does not specify whether a mechanism for fining central Government or its agencies will be introduced; whilst the White Paper does provide that the power to correct the law would allow the Government to amend our domestic legislation to ‘replace the reference to the Commission with a UK body’, the likelihood seems a mere possibility. This is shown by the fact that, despite the House of Lords EU and Energy and Environment Sub-Committee’s report finding that evidence strongly suggested that ‘an effective and independent domestic enforcement mechanism will be necessary’, the Government have insisted that the current mechanisms of judicial review and parliamentary scrutiny are adequate.

Moreover, even if a replacement body were to be mirrored by the UK, it