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10 May 2017

Article 50 ways to leave your lover


It has been just over a month since I was in Los Angeles, speaking to the American Bar Association about the environmental impacts of Britain's decision to leave the European Union. The day before I spoke, the British Prime Minister, Theresa May, served the Article 50 Notice, triggering BREXIT – rarely has one of my presentations been so topical.

I thought that it would be interesting to keep a monthly track of BREXIT developments over the next two years and to write a series of short blogs to keep you updated on the latest developments in the UK and Continental Europe and how these will impact on environmental law and protection. So here it is – the first blog entry…

When I was speaking at the ABA conference, I explained that serving the Article 50 Notice meant that the UK had two years to negotiate two deals - one which would see the UK leave the EU (the divorce settlement); and one which would set the rules for a new trade deal post-BREXIT (the agreement by which the UK can go on dates with EU member states, but can still see other countries). Two years is a short time, particularly when various political and economic distractions will crop up during that time, further reducing the available 24 months. You'd expect (hope?) that the first month post-Article 50 would be spent with some serious discussions, scene-setting and introductions to enable the next 23 months to get off to a flying start – after all, the service of the Article 50 notice was talked about for many months and we all knew it was coming. So what's happened since the end of March? Well, nothing particularly constructive...

  • Theresa May called a shock General Election, hoping to secure a mandate for BREXIT by increasing her Parliamentary majority. The election will be on Thursday 8 June.
  • The President of the European Commission, Jean-Claude Juncker, had dinner with the British PM. Details of the JCJ's post-dinner comments were leaked and he was reported as saying that he left dinner "10 times more sceptical [about BREXIT] than I was before". Mrs May retaliated by attacking Brussels claiming that European politicians were making threats against Britain and trying to influence the general election result. Extraordinary.
  • On the more positive side, the European Council agreed some guidelines on BREXIT negotiations. The guidelines make clear that the divorce talks come first and only when "sufficient progress" has been made, will negotiations move to the future relationship.
  • The EU's chief negotiator, Michel Barnier, indicated his negotiation stance, in a paper to the European Council, setting out the scope of the withdrawal arrangements, in which he argued for a "single financial settlement" to be paid by the UK, which has reported as being as much as 100bn euros. The UK's BREXIT Secretary, David Davis, will pay what's due, but "not just what the EU wants".

Formal BREXIT negotiations begin in June, which is just as well, seeing as the PM will spend this month on the campaign trail and there are only so many insults and brickbats that can be thrown until you have to get down to some proper work.

I just called to say I leave EU

Having had a month of political posturing and with another month of name-calling and finger-pointing across the English Channel to come, what is happening with environmental law? Well, we still don't know. However, the British Government has published a White Paper on the Great Repeal Bill – the means by which the UK will rip-up the European Communities Act 1972 and will convert existing European laws into domestic law. The White Paper is thin on detail, but it does say this (and only this) in relation to environmental protection (at page 17):

"The Government is committed to ensuring that we become the first generation to leave the environment in a better state than we found it.

The UK’s current legislative framework at national, EU and international level has delivered tangible environmental benefits, such as cleaner rivers and reductions in emissions of sulphur dioxide and ozone depleting substances emissions. Many existing environmental laws also enshrine standards that affect the trade in products and substances across different markets, within the EU as well as internationally.

The Great Repeal Bill will ensure that the whole body of existing EU environmental law continues to have effect in UK law. This will provide businesses and stakeholders with maximum certainty as we leave the EU. We will then have the opportunity, over time, to ensure our legislative framework is outcome driven and delivers on our overall commitment to improve the environment within a generation. The Government recognises the need to consult on future changes to the regulatory frameworks, including through parliamentary scrutiny" 


I'll publish another blog post in a month's time. We won't know who our next PM is, nor will we know how much BREXIT will cost us, and it's unlikely we'll know how environmental law will work in two years' time. But ​I will tell you all about the latest comings and goings, and chances are there will be a bad musical pun in there too.


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