BW3_devolved nations

“If they pass legislation (the UK internal market bill) then we will have no intention of implementing that”, said Michael Russell, member of Nicola Sturgeon’s cabinet. The UK internal market bill would give to Westminster powers to force on Scotland and Wales new standards on food, environment and animal welfare agreed in future trade agreements. These policies are normally overseen by the devolved administrations, but a Westminster-led trade policy could restrict policy flexibility in these devolved areas. In addition, the devolved administrations have no formal role in negotiating or approving trade treaties. Leaked notes and official statements by American officials show US intention to pressure the UK into accepting lower food standards (chlorinated chicken, pork produced with lower welfare standards etc.). A leaked Downing Street memo called for “no specific policy” on animal welfare in the US trade talks. Welsh and Scottish ministers are concerned by the “mutual recognition” regime proposed in the internal market bill, which could force them to accept controversial products from the US.

If the devolved nations do not implement legislation passed in London, the UK government needs to go to court to enforce it. This would apparently be the biggest constitutional conflict between London and Edinburgh since the 2016 Brexit referendum.

A white paper on the bill and the government plans to rush it through in the autumn are expected in the coming weeks.

Article by Financial Time

The Welsh Government made clear its goals and suggestions for the future partnership EU-UK. It disagrees with the tight negotiation timetable decided by the UK government and insists that a cliff edge in December 2020 must be avoided if a comprehensive agreement cannot be reached over the coming year. The text reads that the UK must prioritize a trade agreement with the EU over other countries. It also says some aspects must go beyond the Political Declaration agreed by the Prime Minister Johnson in October 2019:

• agreeing to a broad level playing field, including alignment on environmental, social and labour market standards
• dynamic alignment with EU rules and regulations necessary to ensure no new trade barriers come into force
• participation in EU bodies and agencies such as the European Chemicals Agency to support dynamic alignment

The Welsh Government on the future UK-EU relationship

Researchers from the Brexit and Environment network have stated that the Environment Bill needs to be amended in order “to work effectively and legitimately” in Northern Ireland (NI). This extension was a necessary step in order to avoid gaps post-Brexit (see more in Brexit Watch n°13). The main adjustments that will need to be made relate to objectives and principles, as well as the Office for Environmental Protection (OEP).

The researchers have called for binding objectives and principles, including non-regression or environmental improvement that should apply to all actors during all stages of environmental governance. An over-arching environmental objective should also be defined in the Bill.

It is also essential to take into account the special political and biogeographic case of NI. Authors point to NI’s history of poor environmental governance, and the limitations of financial resources and political will on environmental issues. In addition, its independent environmental agency (Northern Ireland Environment Agency) is situated within government offices. The OEP should therefore include provision for NI expertise for example through an additional office in NI, and by appointment of NI members.

Brexit and Environment article

Brexit Watch n°13 on the extension of the Environment Bill to Northern Ireland

The Welsh government initiated a public consultation on the Environmental Bill due to fill the gaps of environmental principles and governance post-Brexit. This piece of legislation comes as part of a series of environmental legislation of this kind that must be adopted in the UK as a result of Brexit. Westminster has already conducted pre-legislative scrutiny, Scotland is currently holding a public consultation and Northern Ireland will be included in England’s draft Bill.

The Welsh document put out to public consultation highlights that Wales is in a different starting position compared to the rest of the UK, in that it has already built a legislative framework based on environmental principles and bodies. The Well-being of Future Generations (Wales) Act ensures that a set of environmental principles guide the development and implementation of policies. Bodies responsible for supporting the delivery of environmental legislation have also been reformed.  

Consultation documents
BBC article

Northern Ireland and UK departments are working together on including Northern Ireland into the draft Environment Bill, which could pull the UK further into alignment with EU environmental rules.

The draft Environment Bill was due originally to apply only to England, as environmental policy is a devolved matter in the UK. This could have led to a regulatory gap in Northern Ireland post-Brexit, as since 2017 there has been no sitting Assembly able to legislate.

A letter from the Department of Agriculture, Environment and Rural Affairs (DEAR) of Northern Ireland confirmed that discussions are undergoing to include Northern Ireland in the draft Environment Bill. Officials from both governments are said now to be working on co-designing the application of the provisions. The focus mainly lies on extending the remit of the Office for Environmental Protection, as well as of the environmental principles.

Northern Ireland shares with Ireland cross-border protection mechanisms and site management, which could arguably have an impact on the Bill itself. As an example the letter notes that special attention needs to be given to transboundary issues such as air and water pollution, and must therefore be solved jointly with Ireland. Moreover, Mary Creagh, Chair of the Environmental Audit Committee, considers that in the event of the backstop coming into force, the whole of the UK would have to regard regulatory alignment with the EU.

Department of Agriculture, Environment and Rural Affairs’ letter to House of Commons
Climate Home News article

(16 February 2019) The Scottish government published earlier this month a consultation paper on environmental principles and governance after Brexit, echoing the draft Environment Bill issued by the Government in Westminster. The paper postulates that the high environmental standards gained during EU membership by the UK could be put at risk under future trade relationships, and therefore must be safeguarded. 

Scottish authorities plan to focus on four key EU principles (precautionary, polluter pays, prevention and rectification) accompanied by a statement of interpretation and application, to which Ministers must pay regard to in the formation of policy. This has the potential to start discussions on the recognition of human rights related to the environment, within the process of developing a new Scottish Human Rights Framework. The governance section envisages four parts, somewhat similar to the Environment Bill provisions: monitoring, scrutiny of government’s performance, a mechanism for complaints and enforcement.

Responses to the consultation will be received until 11 May 2019, meaning a regulatory gap will open in the case of a no-deal Brexit.

Scottish Government’s consultation paper
Brexit and Environment’s article on Scotland’s public consultation

Brexit raises dark environmental prospects for Northern Ireland. The Environment Bill proposed by the UK government will only cover England, as environment is a devolved matter in the UK legal system. While Scottish and Welsh governments have promised to uphold high environmental standards and also have commenced preparations, nothing has been planned in Northern Ireland (NI). Green Alliance highlighted that as NI has not had a functioning government since January 2017, there is a real risk of the environment being left behind. There is further cause for concern considering that NI is the only country in the UK without an independent protection agency and where environmental governance is allegedly already weak. Poor environmental governance will not only affect NI, but also the rest of the UK and Ireland. Moreover, the Office for Environmental Protection (OEP) as set out in the Environment Bill will not be able to replace the Commission’s role, which amongst others is to ensure that EU Member States do not harm each other.

While NI is not able to participate in the co-designing of the UK Bill without a Minister, one solution has been to leave open the potential to extend the remit of the Bill to NI.

Green Alliance article on Northern Ireland