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Brexit, Henry VIII Clauses and Environmental Law

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Brexit, Henry VIII Clauses and Environmental Law Brexit and Environmental Law Brexit, Henry VIII Clauses and Environmental Law September 2017 The UK Environmental Law Association is the foremost This report is the frst in a series to be published by body of environmental lawyers in the UK. UKELA aims UKELA on the implications of Brexit for to promote better law for the environment and to environmental law. improve understanding and awareness of environmental law. UKELA is composed of 1,400 Other titles include: academics, barristers, solicitors, consultants, and judges involved in the practice, study and formulation 1. Brexit and Environmental Law: Exit from the of environmental law across England, Scotland, Wales Euratom Treaty and its Environmental and Northern Ireland. Implications UKELA remained neutral on the Brexit Referendum. In 2. Brexit and Environmental Law: Enforcement and order to ensure regulatory stability and continued Political Accountability Issues environmental protection UKELA considers it imperative that the UK ‘s current environmental 3. Brexit and Environmental Law: The UK and legislation is preserved pending proper review, and International Environmental Law after Brexit full and open consultation on options for change. UKELA’s full position on Brexit can be found at 4. Brexit and Environmental Law: Environmental www.ukela.org/ukelaposition. Standard Setting Outside the EU UKELA’s Brexit Task Force was established in 5. Brexit and Environmental Law: the UK and September 2016 to advise on all matters relating to European Environmental Bodies and arising from the UK’s decision to leave the European Union insofar as this impacts environmental 6. Brexit and Environmental Law: Wales, Brexit and law, practice and enforcement in the UK. The Task Environmental Law Force has been examining the legal and technical implications of separating our domestic environmental laws from the European Union and the means by which a smooth transition can be achieved. With the assistance of UKELA’s specialist working parties the Task Force aims to inform the debate on the efect of withdrawal from the EU, and draw attention to potential problems which may arise. The UKELA Brexit Briefng Papers have been produced under the guidance and approval of UKELA’s Brexit Task Force chaired by Andrew Bryce and Professor Richard Macrory, and with input from relevant UKELA Working Parties and individuals. They do not necessarily and are not intended to represent the views and opinions of all UKELA members. First published in Great Britain in 2017 by: UK Environmental Law Association (UKELA) One Glass Wharf, Bristol, BS2 0ZX www.ukela.org © UK Environmental Law Association ISBN: 978-1-9997986-3-5 All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the publisher of this book. Table of Contents Background and Purpose of the Report .................................................................... 3 Our Analysis..................................................................................................................... 5 Summary of numbers of clauses requiring Henry VII powers ............................... 7 Individual Acts of Parliament....................................................................................... 9 Ancient Monuments and Archaeological Areas Act 1979 ........................................................................................................ 9 Climate Change Act 2008 ..................................................................................................................................................................... 9 Control of Pollution (Amendment) Act 1989................................................................................................................................. 10 Control of Pollution Act 1974 .............................................................................................................................................................. 10 Countryside and Rights of Way Act 2000 ........................................................................................................................................ 10 Electricity Act 1989.................................................................................................................................................................................. 11 Endangered Species (Import and Export) Act 1976.................................................................................................................... 11 Energy Act 2004 ....................................................................................................................................................................................... 11 Energy Act 2008 ....................................................................................................................................................................................... 12 Energy Act 2010 ....................................................................................................................................................................................... 12 Energy Act 2011 ....................................................................................................................................................................................... 12 Energy Act 2013 ....................................................................................................................................................................................... 12 Energy Act 2016 ....................................................................................................................................................................................... 13 Environment Act 1995 ........................................................................................................................................................................... 13 Environmental Protection Act 1990.................................................................................................................................................. 16 Food and Environment Protection Act 1985 ................................................................................................................................. 18 Marine and Coastal Access Act 2009 ................................................................................................................................................ 18 National Parks and Access to the Countryside Act 1949 ........................................................................................................... 19 Natural Environment and Rural Communities Act 2006............................................................................................................ 19 Planning (Listed Buildings and Conservation Areas) Act 1990 ............................................................................................... 20 Planning Act 2008.................................................................................................................................................................................... 20 Planning and Compensation Act 1991 ............................................................................................................................................ 21 Planning and Energy Act 2008............................................................................................................................................................ 21 Pollution Prevention and Control Act 1999.................................................................................................................................... 21 Town and Country Planning Act 1990.............................................................................................................................................. 22 Water Industry Act 1991........................................................................................................................................................................ 22 Water Industry Act 1999 (as amended)............................................................................................................................................ 23 Water Resources Act 1991 .................................................................................................................................................................... 23 Wildlife and Countryside Act 1981 .................................................................................................................................................... 24 Appendix: Withdrawal Bill extract, Clause 7.............................................................. 25 Endnotes .......................................................................................................................... 27 1 2 Brexit and Environmental Law Background and Purpose of the Report 1 Clause 7 of the European Union (Withdrawal) Bill (“the Withdrawal Bill”) gives the Secretary of State power to make regulations to deal with ‘defciencies’ in EU law that is rolled over after Brexit as retained EU law1. ‘Defciencies’ are given a non-exclusive defnition but will include, for example, provisions that have no practical application in the UK after Brexit or which
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