Brexit and Environmental legal changes – What happens next?

OK, I know, we’ve all got Brexit fatigue, and with the clock running down we are still no clearer on our position, so I don’t want to muddy the waters with more conjecture and crystal ball gazing.

However, in preparing to carry out environment and health & safety legal audits recently, I have been asked if the day after Brexit anything will actually change as regards compliance?

The EU Withdrawal Act 2018 made it clear that in order to avoid mass confusion, it will (amongst other things) ‘convert’ and ‘preserve’ law.

That is to say that on Brexit day all EU legislation which currently applies to UK businesses will be ‘converted’ into domestic law. So for example the requirements to comply with Regulation (EU) No 517/2014 on fluorinated greenhouse gases in governing the frequency of leak checks on air conditioning systems will remain the same, and non-compliance will result in prosecution through UK rather than EU courts.

We will then ‘preserve’ all UK law that has been made through implementing an EU Directive or Regulation. After all it’s already a UK law so it would be foolish to rip it up and start again just because it has its roots in the EU.

Both these mechanisms add up to what is called retained EU law. It will be for the government to decide in the future whether it amends or revokes any of this law, and it is only at that point where UK law will start to diverge from EU law.

But what happens in the event of ‘No Deal’? In that scenario all of the above still stands, however certain contingencies have had to be made where we share legal schemes with Europe, such as REACH for chemical registration, and EU-ETS for carbon emissions trading.

In the event of no deal for REACH, a UK IT system would be put in place allowing UK based businesses to transfer across their registrations to a UK system. This transfer of registration would have to occur within 60 days. Importers of chemicals from the EEA to the UK would need to notify the HSE (The UK REACH regulatory body) where they don’t hold registration for those chemicals, allowing a continuity in supply. They would have 180 days for this.
For those businesses in the EU ETS scheme, The UK would be excluded from participating in the EU Emissions Trading System in a ‘no deal’ scenario. Current participants who are UK operators of installations would therefore no longer take part in the system and they would very likely lose access to the EU registry. Some commentators are suggesting setting up an account in an EU country and transferring their EUAs to these accounts in order to maintain access even in case of a no deal scenario.

So the main message as we approach the deadline date is don’t panic but do be prepared. In the event of a deal you should see little change in compliance requirements in the short term, but in the event of no deal be prepared for how import / export and links to European schemes may affect your business.

For more information or for a chat bout how EHS Management Consultancy can help you determine your environmental legal obligations please get in touch. Jamiebearman@outlook.com

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