Key review measures have been stripped from most of the EU green laws transferred onto UK statute books, study suggests
With so much attention on the unfolding coronavirus crisis and its myriad impacts, Brexit has taken more of a back seat in the political theatre in recent months. But with EU-UK trade talks set to start up again in earnest shortly and key green legislation now making its way through Parliament after a short break, the long-term ramifications for environmental laws and regulations has again fallen under the spotlight.
Today fears have re-emerged that Brexit risks weakening environmental standards in the UK, with a report warning that EU green laws and regulations retained in UK law ahead of Brexit may quickly be rendered ineffective and out of date due to a failure to include regular review and update measures in the legislation.
Around 80 per cent of UK environmental laws and regulations are estimated to derive from the EU, and concerns have long been voiced by green businesses and campaigners that these should all be fully retained in UK law after Brexit to avoid a ‘race to the bottom’ on green standards. Moreover, calls have consistently come for strong oversight domestic measures to ensure these laws are properly enforced once the UK leaves the auspices of the European Commission, with campaigners also making the case for the inclusion in UK law of so-called “non-regression” clauses so that future trade deals with countries outside the EU should not undermine these domestic green standards either.
But a report by Brexit&Environment today warns that, regardless of efforts to avoid backsliding on green standards in future legislation and trade deals, there is in fact already a danger of a “back door form or regression that happens by default through a lack of timely review and revision”.
There are around 500 separate items of EU environmental law, and transferring them to UK law – as the government has promised to do – is seen as crucial for avoiding future gaps in UK environmental policy, yet making sure this is delivered with the necessary scrutiny in the short period of time ahead of the Brexit deadline is a challenging task.
Researchers at the independent academic network carried out a detailed study of 24 EU green laws and compared them to the 20 Brexit-related UK statutory instruments – a form of secondary legislation for which Parliamentary oversight can be delegated to a smaller committee – which were used to modify them in order to retain them in British law.
The study found that, while the original EU laws contain within them review and revision clauses to ensure they remain relevant and effective in light of changing economic circumstances, new scientific evidence, and technological developments, these clauses have effectively been stripped out when they were transferred over to UK law.
Researchers said that in the “vast majority” of transferred UK environmental laws they looked at, these review and revision clauses had been removed, which they warned could put UK environmental regulations at risk with “potentially important long-term policy consequences”.
“This change, made at relatively great speed with little democratic scrutiny, appears to have escaped the attention of many observers, including many parliamentarians,” the study states. “The removal of so many clauses means there is a significantly greater risk that the retained environmental policy protections will gradually succumb to what the Parliamentary Environmental Audit Committee has termed ‘zombification’, i.e. they will formerly exist on the UK statute book, but will gradually become outdated and thus environmentally less effective over time.”
The Department for Environment, Food and Rural Affairs (Defra) has promised to deliver a wave of environmental legislation to govern the UK’s environmental laws, targets, and standards post-Brexit, much of which has been steadily making its way through Parliament.
The proposed Environment Bill includes provisions for new binding targets on air pollution, biodiversity, and other areas, and enables the creation of a new Office for Environmental Protection (OEP) to be established to enforce these targets and other green laws. Meanwhile, the Agriculture Bill, which is due for its third reading in Parliament tomorrow, promises to establish a new post-Brexit subsidy scheme for farmers that would incentivise ‘public goods’ such as tree planting and flood protection measures.
Green groups have broadly welcomed the promised new regulatory regime, but they have also repeatedly called for these proposed laws to be strengthened in a number of areas to avoid backsliding on environmental standards in the UK in future, not least for the OEP to be given stronger powers and for the legislation to include statutory commitments to ensure ‘non-regression’.
However, the latest Brexit&Environment study findings raise fresh questions not just about the strength of new legislation currently being drafted, but also about the level of oversight given in Parliament to even existing environmental laws.
Defra was considering a request for comment at the time of going to press, but the lead authors of today’s study – Professor Andrew Morgan and Dr Brendan Moore at the University of East Anglia – said the “apparent disappearance of so many clauses is certainly a stark reminder that the UK lacks a public plan for what to do with all the retained EU law”.
They also said their findings had potentially significant ramifications for the trade deal the UK is looking to strike with the EU, as a ‘zombification’ of green laws in the UK would undermine the ability to maintain a ‘level playing field’ on standards between the two parties – a key sticking point in the trade discussions so far. The report comes at a time when the UK and EU negotiating teams are reportedly at loggerheads over the critical issue of whether continued adherence to the Paris Agreement should be explicitly included in a new trade deal, with Number 10 said to be resisting calls for its inclusion.
Today’s study argues the government could avoid further escalating the row with Brussels by using its executive powers to insert review and revision clauses into transferred green legislation, while giving stronger powers to the OEP to oversee and report on the status of EU law.
“It is worth remembering that policy review and revision are key components of the EU’s Better Regulation agenda,” the study authors said in a blog post today. “The EU will understandably expect the UK to be as firm an advocate of that agenda outside the Union as it was when it was a member state.”
The report comes as the UK and EU gear up for their third round of post-Brexit trade talks at a decisive summit next month, with both sides due to decided by the end of June whether the current deadline for negotiating an agreement should be extended beyond the end of December. Prime Minister, Boris Johnson, has so far remained adamant that the transition period should not be extended, even despite the huge disruption wrought by Covid-19, and Labour leader Keir Starmer has also refused to explicitly back calls for an extension.
As it stands, therefore, time and capacity looks to be in short supply to agree a trade deal in 2020, further heightening fears that the UK could crash fully out of the bloc without a trade deal – a scenario environmental campaigners have long warned would pose a major threat to green standards.
The risk to environmental standards was further highlighted this week, with former Trade Secretary Liam Fox decrying steadfast commitments to high standards in trade deals with other countries as “virtue signalling” in an article for the ConservativeHome website. Fox argued the UK should be willing to accept some lower standards from other countries in order to secure future trade deals.
It was a point that won immediate praise from government Trade Policy Minister Greg Hands, who described Fox’s article as “excellent”, as he warned that amendments to the Agriculture Bill set to be voted on in Parliament tomorrow threatened to kill the prospects of a future trade deal with the US. The amendments in question – which have been backed by green groups – seek to ensure food imports in future trade deals meet the UK’s current environment, animal welfare, and biosecurity standards.
Excellent article from @LiamFox on @ConHome on agriculture and trade : “The amendments that could kill free trade deals with America, developing countries and the Commonwealth this week” https://t.co/ene1ZszIVi
— Greg Hands (@GregHands) May 11, 2020
Not all Conservative MPs take the same view, however. Also writing for ConservativeHome, chair of Parliament’s EFRA Committee Neil Parish argued his Agriculture Bill amendment should be adopted by the government “if it is serious about maintaining high standards in trade deals”.
“There is no point having world-leading standards in the UK if we do not expect trade partners to reciprocate,” he wrote today. “We must ensure the progress we have made on climate change, loss of biodiversity and concerns over the welfare of the farm animals we rear are not traded away on the altar of cheap food.”
As the economy falls into a recession the Bank of England warns could be the UK’s worst in several hundred years, the stakes for the UK’s trade negotiations are now even higher than they were before coronavirus hit. Campaigners fear the pressure on the government to erode environmental standards in pursuit of new trade deals is likely to intensify. But at the same time, the government has repeatedly stressed that it remains committed to world-leading environmental standards post Brexit and public opposition to slashing regulations remains intense. The clock may be ticking down towards yet another Brexit crunch point, but the same debates over the future of environmental regulation, sovereignty, and the relative merits of an EU or a US trade deal remains as unresolved as ever.