MCS and ClientEarth legal challenge to Brexit powers over wildlife risk

By: Clare Fischer
Date posted: 20 June 2019

MCS and environmental lawyers, ClientEarth, are challenging an unlawful misuse of Brexit powers, relating to the EU Withdrawal Act.

Seal underwater
© Mark Thomas

The management of marine protected areas is not strong enough under current legislation and allowing these changes will mean weaker protections for vulnerable species and habitats.

Sandy Luk,
MCS Chief Executive Officer

The two environmental groups, working with Leigh Day Solicitors, have today launched a High Court challenge to the UK government’s Brexit laws, over sweeping new powers that they say may weaken protection for seas and wildlife in the UK.

The measures which the government has introduced behind the scenes put seals, otters, dolphins and seabirds and many other vulnerable animals, plants and precious sites around the UK, at risk.

The legal challenge focuses on new powers that allow ministers to alter and reduce standards for protected sites – and which will fundamentally change how the law operates in the UK.

ClientEarth and MCS say that by introducing words which weren’t in the original Habitats Regulations, such as “adapting the network”, “proportionate” and “distinct area” with regards to managing the network of Marine Protected Areas (MPAs), gives the government substantial new powers to potentially allow damaging activity within our MPA network.

If the change was allowed to happen, the groups argue, it would be a total breach of the UK government’s promises of a “green Brexit” and repeated assurances that only technical changes would be made to modify our laws under the Act.

MCS CEO, Sandy Luk, said: “Whatever you think of Brexit, the government must keep its promise to the UK public that its seas, countryside and wildlife will not be worse off if EU protections are no longer in place.

“The management of marine protected areas is not strong enough under current legislation and allowing these changes will mean weaker protections for vulnerable species and habitats. We could even see the possibility of protected areas being abolished after Brexit.

“We cannot allow hard-won ocean protections, which will safeguard future generations and marine wildlife such as treasured dolphins and seabirds, to be lost or watered down.”

Marine Protected Areas (MPA) are parts of the sea that are partially or fully protected from damaging or extractive activity. MPAs have traditionally been put in place to protect habitats or species or both from damage and/or allow wildlife or habitats to recover in places that have been damaged. Out of a total of 355 MPAs in UK waters, 227 sites were set up under the Habitats and Birds Directives under EU laws. Many of these could be under threat because of the new legislation.

MCS and ClientEarth have fought for many years to ensure that sites like the beautiful Fal and Helford Special Area of Conservation (SAC) in Cornwall are protected from dredging and trawling. Such changes, as proposed by Defra, could lead to large-scale industrial dredging being permitted in this vulnerable site.

ClientEarth UK law and policy advisor, Dr Tom West, said: “The UK government has repeatedly promised that the environment would be safeguarded after Brexit. So, it is extremely concerning that the government has quietly and unlawfully introduced sweeping new powers behind the scenes that weaken environmental protection.

“Quite rightly, the public has been concerned by the use of so-called powers that give too much discretion to ministers to make new laws, with little scrutiny from parliament, the public or civil society.”

Specifically, the charities are challenging the Department for Environment, Food and Rural Affairs (Defra) over parts of two Statutory Instruments (SI), made under the European Union (Withdrawal) Act of 2018, which change the existing regulation of habitat and species conservation.

Defra’s changes include potential alterations to the obligation to manage recognised conservation sites, and limits to the types of areas set aside to protect marine animals that range over wide areas.

Defra has created 122 statutory instruments under the Act, which will replace EU laws after Brexit, and more than 500 have been submitted by other government departments.

Actions you can take

  1. Report your wildlife sightings
  2. Browse Marine Protected Areas

Did you know?…

Over 170 parliamentarians from across the political spectrum signed up to our Marine Charter calling for a network of ‘marine protected areas’ in UK Seas

To the shelf limits, Scotland has 61% of UK waters, of which 23% are now in existing or new ‘marine protected areas’

Over half a million people have voiced their support for ‘marine protected area’ designation in the UK through our campaigns