How Brexit could lead to a rise in ‘waste tourism’

Conor McGlone
14 Mar 2019

Brexit is opening up the doors to the prospect of divergence in environmental standards across the UK, finds Conor McGlone, setting the scene set for an increase in ‘waste tourism’

With just two weeks until Brexit day, fears are emerging that a divergence in national standards following the UK’s withdrawal from the EU could lead to a scenario where businesses shift waste across national borders to save money.

In carrying out the EU Withdrawal Act, DEFRA had hoped that it would be able to transfer legislative functions to the secretary of state to exercise on behalf of the UK.

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European Union (Withdrawal) Act 2018

In force/
Current
Legislation
England, Northern Ireland, Scotland, UK, Wales
Published
07 Jul 2018

Commentary

03/07/2018 Commencement Regulations ( SI 2018/808) published.
04/03/2019 Commencement (No. 2) Regulations (SI 2019/399) published., 28/03/2019 Amending Regulations (SI 2019/718) published.
11/04/2019 Amending Regulations (SI 2019/859) published.

Compliance Dates

26/06/2018 Received Royal Assent, 26/06/2018 Section
8-11, 13, 14, 16-18, 20-22, 23(1)-(4), 23(6), 24 and 25 and Schedule 2, 4, 6 and 7 enter into force, 26/06/2018 Paragraphs 4, 5, 21(2)(b), 48(b), 51(2)(c), 51(2)(d), 51(4) of Schedule 3, and Sections 12(8) and 12(12) insofar as relate to those paragraphs, paragraph 41(10), 43 and 44 of Schedule 8 and section 23(7) so far as relating to those paragraphs, enter , 26/08/2018 Sections 12(2), 12(4), 12(6), 12(7) and 12(8) and paragraphs 1(b), 2, 3(b), 24(2), 24(3), 25, 43, 57 and 58 of Schedule 3 enter into force for regulation-making purposes under the devolution Acts (Scotland Act 1998, Government of Wales Act 2006, and , 26/12/2018 Draft Bill setting out a set of environmental principles due to be published
04/07/2018 Sections 5(6), 6(7), 12(9)–(11) and (13), 15(2), 19, 23(7) and (8), paragraph 1(2)(b) and (3) of Schedule 1, paragraphs 2 and 4 of Schedule 5, paragraphs 18, 20, 22(d) and (e), 31–34, 36 and 40 of Schedule 8, and Schedule 9 enter into force (see SI 2
12/04/2019 Section 23(8) and Schedule 9 insofar as they relate to the repeal of the European Union Act 2011 (to the extent not already commenced) enter into force (see SI 2018/808and SI 2019/718), unless the withdrawal agreement is adopted in the UK Parliament
01/03/2019 Paragraph 41(3) to (9) of Schedule 8 enters into force (see SI 2019/399)

Legal Status



This Act sets out provisions to repeal the European Communities Act 1972 and to make other provision in connection with the withdrawal of the United Kingdom from the EU. It covers, among other things, the transposition of the existing body of EU law into domestic legislation at the time of exit (including in a number of environmental areas). The Act received Royal Assent on 26 June 2018. It extends to England, Wales, Scotland and Northern Ireland, as well as in some cases to Gibraltar (Sections 8(1) and 23). Provisions relating to main powers in connection with withdrawal, devolution, parliamentary approval of the outcome of negotiations with the EU, financial provision, maintenance of environmental principles, family unity and customs arrangements enter into force on 26 June 2018, as do provisions intended to restrict legislative competence of devolved administrations in relation to retained EU law (see Compliance Dates). The remainder of provisions are brought into force by Commencement Regulations. They have been subsequently amended, most relevantly by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 (SI 2019/859) to change 'exit day' to 31 October 2019.

LEGAL OUTLINE

This Act covers, amongst other things:

  • the repeal of the European Communities Act 1972 on exit day;
  • incorporation of direct EU legislation applicable to the UK into domestic law, so that any direct EU legislation (EU Regulations, EU Decisions and delegated and implementing acts) in operation on exit day is retained. EU legislation which is not yet in force or does not yet apply will not be retained. Provisions that apply before exit day but take effect after exit day will be retained.
  • retention of EU-derived domestic legislation so that it continues to have effect in domestic law after exit day, including legislation passed but not yet in force;
  • grants power to Ministers to make secondary legislation to prevent, remedy or mitigate failures of retained EU law to operate effectively and any other deficiency in retained EU law that arise from the UK’s withdrawal from the EU, including:
    • provisions that have no practical application in relation to the UK,
    • functions carried out by an EU agency or institution on behalf of the UK,
    • reciprocal or other arrangements, between the UK and the EU or an EU entity or other EU Member State, that no longer exist or are no longer appropriate (including such arrangements that are no longer appropriate as a result of the UK no longer being a party to the EU treaties), and
    • EU references that are no longer appropriate;
    Such Regulations may not impose or increase taxation or fees, make retrospective provision, create a criminal offence, establish a public authority, be made to implement the withdrawal agreement, amend, repeal or revoke the Human Rights Act 1998 (or any subordinate legislation) nor amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998 (except to make supplementary, incidental, consequential, transitional, transitory or saving provision, including provision re-stating any retained EU law in a clearer or more accessible way).
  • devolution, in particular to:
    • safeguard terms of the Northern Ireland Act 1998 and the Belfast Agreement and to disallow secondary legislation that create or facilitate border arrangements between Northern Ireland and the Republic of Ireland that feature physical infrastructure or checks and controls that did not exist before exit day and are not in accordance with an agreement between the UK and the EU,
    • grant powers to devolved authorities to make secondary legislation to prevent, remedy or mitigate failures of retained EU law to operate effectively and any other deficiency in retained EU law that arise from the UK’s withdrawal from the EU, jointly with Ministers of the Crown, or alone if the provision is within the devolved competence of the devolved authority,
    • grant powers to devolved authorities in relation to implementing the withdrawal agreement,
    • restrict powers of the Scottish Ministers, Welsh Ministers, and Northern Ireland department so that the devolved administrations cannot modify any retained EU law, and consult with the Secretary of State before making Regulations under this Act that deal with deficiencies in retained EU law relating to reciprocal arrangements between the UK (or any part of it) and the EU or another Member State, or arrangements under the EU treaties, that are no longer appropriate or no longer exist, and
    • require consent of a Minister of the Crown or Secretary of State, joint exercise or consultation with a Minister of the Crown where it would otherwise be required;
  • the requirement for Parliamentary approval of the negotiated withdrawal agreement and framework for the future relationship with the EU;
  • maintenance of environmental principles (Section 16), in particular through:
    • the requirement for the publication by 26 December 2018 of a draft Bill setting out a set of environmental principles, which are to consist of:
      • the precautionary principle,
      • preventative action to avert environmental damage,
      • rectification of environmental damage at source,
      • polluter pays,
      • sustainable development,
      • integration of environmental protection requirements in the definition and implementation of policies and activities,
      • public access to environmental information,
      • public participation in environmental decision-making, and
      • access to justice in relation to environmental matters,
    • imposing a duty on the Secretary of State to publish a statement of policy on the application and interpretation of those principles, and
    • impose a duty on Ministers of the Crown to have regard to that statement of policy in specified circumstances;
  • publication and rules of evidence;
  • future interaction with the law and agencies of the EU, so as to allow the UK to replicate in domestic law any EU law made on or after exit day, and to continue to participate with the agencies of the EU after exit day; and
  • additional repeals of legislation (Schedule 9).

Amendments

The Act has been subsequently amended by:

  • the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 (SI 2019/718) to change exit day from 29 March 2019 to 12 April 2019, if no deal is agreed in the UK parliament by 29 March 2019 at 11pm, or 22 May 2019, if a deal is agreed in the UK parliament by 29 March 2019 at 11 pm; and
  • the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 (SI 2019/859), to change exit day to 31 October 2019 at 11 pm.

Characteristics

Subject

General policy

Source

OPSI (Office of Public Sector Information)

Affected Sectors

Cross-sector
ECM

European Union (Withdrawal) Act 2018

Document Status: In force/Current

Scope: England, Northern Ireland, Scotland, UK, Wales

Key Dates SHOW

Commentary:

03/07/2018 Commencement Regulations ( SI 2018/808) published.
04/03/2019 Commencement (No. 2) Regulations (SI 2019/399) published., 28/03/2019 Amending Regulations (SI 2019/718) published.
11/04/2019 Amending Regulations (SI 2019/859) published.

Compliance:

26/06/2018 Received Royal Assent, 26/06/2018 Section
8-11, 13, 14, 16-18, 20-22, 23(1)-(4), 23(6), 24 and 25 and Schedule 2, 4, 6 and 7 enter into force, 26/06/2018 Paragraphs 4, 5, 21(2)(b), 48(b), 51(2)(c), 51(2)(d), 51(4) of Schedule 3, and Sections 12(8) and 12(12) insofar as relate to those paragraphs, paragraph 41(10), 43 and 44 of Schedule 8 and section 23(7) so far as relating to those paragraphs, enter , 26/08/2018 Sections 12(2), 12(4), 12(6), 12(7) and 12(8) and paragraphs 1(b), 2, 3(b), 24(2), 24(3), 25, 43, 57 and 58 of Schedule 3 enter into force for regulation-making purposes under the devolution Acts (Scotland Act 1998, Government of Wales Act 2006, and , 26/12/2018 Draft Bill setting out a set of environmental principles due to be published
04/07/2018 Sections 5(6), 6(7), 12(9)–(11) and (13), 15(2), 19, 23(7) and (8), paragraph 1(2)(b) and (3) of Schedule 1, paragraphs 2 and 4 of Schedule 5, paragraphs 18, 20, 22(d) and (e), 31–34, 36 and 40 of Schedule 8, and Schedule 9 enter into force (see SI 2
12/04/2019 Section 23(8) and Schedule 9 insofar as they relate to the repeal of the European Union Act 2011 (to the extent not already commenced) enter into force (see SI 2018/808and SI 2019/718), unless the withdrawal agreement is adopted in the UK Parliament
01/03/2019 Paragraph 41(3) to (9) of Schedule 8 enters into force (see SI 2019/399)
Legal Status SHOW

Legal Status



This Act sets out provisions to repeal the European Communities Act 1972 and to make other provision in connection with the withdrawal of the United Kingdom from the EU. It covers, among other things, the transposition of the existing body of EU law into domestic legislation at the time of exit (including in a number of environmental areas). The Act received Royal Assent on 26 June 2018. It extends to England, Wales, Scotland and Northern Ireland, as well as in some cases to Gibraltar (Sections 8(1) and 23). Provisions relating to main powers in connection with withdrawal, devolution, parliamentary approval of the outcome of negotiations with the EU, financial provision, maintenance of environmental principles, family unity and customs arrangements enter into force on 26 June 2018, as do provisions intended to restrict legislative competence of devolved administrations in relation to retained EU law (see Compliance Dates). The remainder of provisions are brought into force by Commencement Regulations. They have been subsequently amended, most relevantly by the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 (SI 2019/859) to change 'exit day' to 31 October 2019.

LEGAL OUTLINE

This Act covers, amongst other things:

  • the repeal of the European Communities Act 1972 on exit day;
  • incorporation of direct EU legislation applicable to the UK into domestic law, so that any direct EU legislation (EU Regulations, EU Decisions and delegated and implementing acts) in operation on exit day is retained. EU legislation which is not yet in force or does not yet apply will not be retained. Provisions that apply before exit day but take effect after exit day will be retained.
  • retention of EU-derived domestic legislation so that it continues to have effect in domestic law after exit day, including legislation passed but not yet in force;
  • grants power to Ministers to make secondary legislation to prevent, remedy or mitigate failures of retained EU law to operate effectively and any other deficiency in retained EU law that arise from the UK’s withdrawal from the EU, including:
    • provisions that have no practical application in relation to the UK,
    • functions carried out by an EU agency or institution on behalf of the UK,
    • reciprocal or other arrangements, between the UK and the EU or an EU entity or other EU Member State, that no longer exist or are no longer appropriate (including such arrangements that are no longer appropriate as a result of the UK no longer being a party to the EU treaties), and
    • EU references that are no longer appropriate;
    Such Regulations may not impose or increase taxation or fees, make retrospective provision, create a criminal offence, establish a public authority, be made to implement the withdrawal agreement, amend, repeal or revoke the Human Rights Act 1998 (or any subordinate legislation) nor amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998 (except to make supplementary, incidental, consequential, transitional, transitory or saving provision, including provision re-stating any retained EU law in a clearer or more accessible way).
  • devolution, in particular to:
    • safeguard terms of the Northern Ireland Act 1998 and the Belfast Agreement and to disallow secondary legislation that create or facilitate border arrangements between Northern Ireland and the Republic of Ireland that feature physical infrastructure or checks and controls that did not exist before exit day and are not in accordance with an agreement between the UK and the EU,
    • grant powers to devolved authorities to make secondary legislation to prevent, remedy or mitigate failures of retained EU law to operate effectively and any other deficiency in retained EU law that arise from the UK’s withdrawal from the EU, jointly with Ministers of the Crown, or alone if the provision is within the devolved competence of the devolved authority,
    • grant powers to devolved authorities in relation to implementing the withdrawal agreement,
    • restrict powers of the Scottish Ministers, Welsh Ministers, and Northern Ireland department so that the devolved administrations cannot modify any retained EU law, and consult with the Secretary of State before making Regulations under this Act that deal with deficiencies in retained EU law relating to reciprocal arrangements between the UK (or any part of it) and the EU or another Member State, or arrangements under the EU treaties, that are no longer appropriate or no longer exist, and
    • require consent of a Minister of the Crown or Secretary of State, joint exercise or consultation with a Minister of the Crown where it would otherwise be required;
  • the requirement for Parliamentary approval of the negotiated withdrawal agreement and framework for the future relationship with the EU;
  • maintenance of environmental principles (Section 16), in particular through:
    • the requirement for the publication by 26 December 2018 of a draft Bill setting out a set of environmental principles, which are to consist of:
      • the precautionary principle,
      • preventative action to avert environmental damage,
      • rectification of environmental damage at source,
      • polluter pays,
      • sustainable development,
      • integration of environmental protection requirements in the definition and implementation of policies and activities,
      • public access to environmental information,
      • public participation in environmental decision-making, and
      • access to justice in relation to environmental matters,
    • imposing a duty on the Secretary of State to publish a statement of policy on the application and interpretation of those principles, and
    • impose a duty on Ministers of the Crown to have regard to that statement of policy in specified circumstances;
  • publication and rules of evidence;
  • future interaction with the law and agencies of the EU, so as to allow the UK to replicate in domestic law any EU law made on or after exit day, and to continue to participate with the agencies of the EU after exit day; and
  • additional repeals of legislation (Schedule 9).

Amendments

The Act has been subsequently amended by:

  • the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019 (SI 2019/718) to change exit day from 29 March 2019 to 12 April 2019, if no deal is agreed in the UK parliament by 29 March 2019 at 11pm, or 22 May 2019, if a deal is agreed in the UK parliament by 29 March 2019 at 11 pm; and
  • the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 (SI 2019/859), to change exit day to 31 October 2019 at 11 pm.

For a complete overview:

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