Brexit Together With The Novel Heathrow Runway: The Issues Are Linked

Steve Peers

Yesterday, the Member of Parliament for Richmond Park, Zac Goldsmith, resigned his seat, forcing a by-election over the number of the novel track at Heathrow Airport. It’s reported that he wants the by-election (in which he volition run equally an independent) to live on regarded equally a ‘referendum’ on the Heathrow runway, piece his opposition (in detail the Liberal Democrats, who were inward minute house concluding time) volition heighten other issues, including Brexit. In a rattling existent sense, however, Brexit together with the novel Heathrow track are non split upwards issues – they are inextricably linked.

Let’s await at why. Many commentators bring suggested that at that topographic point are plenty votes inward Parliament to approve the Heathrow runway. Therefore the principal obstruction to the track is a possible legal challenge. And a principal declaration cited inward that potential challenge is European Union law, namely the European Union Directive on air pollution.

What happens to that Directive inward the lawsuit of Brexit? Currently the government’s plans are to tabular array a ‘Great Repeal Bill’ side yesteryear side year. As I discussed recently on this blog, the outcome of that Bill volition live on to convert European Union police describe into Great Britain police describe equally of Brexit Day. The proposed Bill volition laissez passer regime ministers powers (in the shape of ‘delegated legislation’ known equally ‘Statutory Instruments’) to repeal or meliorate near or all European Union laws without an Act of Parliament, pregnant that Parliament volition bring no ability to meliorate such ministerial decisions together with solely a express chance to ground or block them. One such ministerial conclusion could only exempt the Heathrow track conclusion from ex-EU air pollution law. (Of course, at that topographic point are many other European Union laws on the environment, or other issues similar utilization or equality law, which could appear upwards the same treatment).

Another number arising from the ‘Great Repeal Bill’ is how to bargain amongst rulings of the European Union Court of Justice interpreting European Union law, at to the lowest degree where those rulings were issued prior to Brexit Day. Arguably, inward the interests of ensuring legal continuity which underpin the planned Bill, such judgments should remain binding or at to the lowest degree highly persuasive, until ministers or Parliament arrive at upwards one's heed to meliorate ex-EU laws amongst the unmistakable intention of changing that interpretation. The indicate is relevant to a wide swathe of ex-EU law, from trademarks to equality law, together with inward fact it is peculiarly relevant to air pollution: inward 2014, the European Union Court ruled (as discussed here) that the Great Britain was indeed violating European Union air pollution police describe equally regards London.

It would live on possible for Parliament to complicate this procedure somewhat, yesteryear ensuring that when the Great Repeal Bill becomes an Act, ministers volition non bring the ability to approve the Heathrow track (or indeed to alter other ex-EU laws on the surround or other fundamental issues) without an Act of Parliament. But if it is right to say that at that topographic point is a Parliamentary bulk to approve a novel Heathrow runway, a requirement for an Act of Parliament to alter ex-EU police describe (and European Union courtroom rulings) on this number would solely ho-hum things downward a bit.

What could halt the novel track altogether, likewise overturning Brexit itself? One selection for Brexit is the ‘Norway option’, where the Great Britain would sign upwards to the ‘European Economic Area’ (EEA) treaty to retain sum participation inward the unmarried market. That treaty also entails continued participation inward near European Union police describe on employment, sexual practice equality together with the environment, including the principal air pollution police describe that could live on relevant to the novel Heathrow track (see indicate 14c inward this Annex to that treaty).

Signing upwards to the EEA is not the same matter equally staying business office of the European Union inward all respects, equally that treaty does non employ to European Union policies inward fundamental areas similar fisheries, agriculture, taxation or merchandise amongst non-EU countries. So it could non live on said to ignore the Brexit vote, together with it could live on interim solely (see farther give-and-take of the ‘interim EEA option’ here). Or at that topographic point could live on an alternative ‘soft Brexit’ approach to the Great Britain staying inward the unmarried market, soundless including participation inward European Union environmental law.

One matter is clear: Goldsmith’s pose of decrying the novel Heathrow runway, piece supporting the rattling Brexit that volition probable boot the bucket far impossible to oppose effectively inward the courts, is intellectually untenable.

Barnard & Peers: chapter 22, chapter 27

Photo credit: www.wikipedia.org

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