The UK would be vulnerable to a legal challenge from the World Trade Organisation if the government’s border policy plans are implemented. The UK government said that full border controls will not be put in place until July 2021, despite leaving the EU at the end of 2020.
This warning was privately expressed by Liz Truss, International Trade Secretary, in a letter to senior members of the cabinet that was leaked to the press. She also fears the government’s plans could damage the UK’s reputation at the World Trade Organisation and undermine its international trade policy. Some UK stakeholders say the letter validates their concerns about the UK’s readiness for the end of the transition period at the end of December 2020.
Prime Minister Johnson is expected to publish soon the Government’s full plans on border controls.
There is an enforcement gap in the UK according to Unchecked which is a new UK organisation studying the erosion of regulation in the UK and its enforcement.
Their research shows that years of cuts to the budgets of UK local and national regulators have resulted in huge declines in staffing. From 2009/10 to 2017/18, the budgets of major regulators fell by over 50% in real terms and the number of staff has plummeted by around 30%. For example, the UK Environment Agency experienced a real-terms reduction of over 60%.
As a consequence, many watchdogs may no longer have the tools to carry out their responsibilities. Enforcement activities such as inspections, sampling and prosecutions have fallen sharply. From 2009-18, the number of water pollution samples taken by the Environment Agency fell by a third. Their workload has been further increased by preparing for Brexit. Unchecked thinks this situation, unless properly addressed, has the potential to undermine the vital protections in different areas, including environment.
Minister Johnson’s team have worked on an amendment to the Withdrawal Agreement
Bill which will make it impossible for the UK to ask for an extension of the
transition period (due to end on 31 December 2020). The move comes as a result of
a promise in the Tories’ manifesto to “get Brexit done”.
the risk of falling off a cliff edge exit on 31 December 2020, into a WTO
rules-based system for the UK minus Northern Ireland, in case there is no trade
deal agreed by this date. EU officials are doubtful of whether a trade deal can
be achieved in this short timeframe, with slightly more chances of just agreeing
a basic deal.
(30 October 2019) A letter signed by 23 experts in environmental law and published in the Telepgraph draws attention to the defective UK Environment Bill. Signatories complain that former Government’s promises on ensuring high environmental standards are maintained post EU departure have not yet been delivered. The Bill does not provide any commitment to non-regression of existing standards and does not enshrine environmental principles into law. The legislative framework allegedly allows for a set of standards to be repealed (such as air and water quality) and gives the executive questionably significant control over choosing which standards will be set over compliance.
The Environment Bill passed its second reading but dropped with the dissolution of Parliament. All major parties plan to bring back the Bill post-election.
(15 October 2019) The UK Environment Bill sets out a process for amending the UK’s REACH law. UK’s REACH replica is largely a copy of the EU’s chemical safety law, REACH, though with significant differences concerning governance arrangements. The Environment Bill covers a wide range of environmental provisions (nature, air, waste and product standards) and now includes two specific REACH-related sections: re-amending the UK regulations to enforce UK-REACH (setting penalties etc.) and creating an amendment process for the Articles in the main UK-REACH text. This process would allow the Government to amend major parts of the UK-REACH and thus deviate from the EU’s approach. However, it also lists a number of “protected” articles which cannot be modified.
The UK government has previously announced a “Brexit
red tape challenge’” aimed at deregulation. As mentioned above, it has
also removed text from the former Political Declaration which said that
the UK would “consider aligning with Union rules in relevant areas” in
order facilitate co-operation with EU chemicals agency ECHA.
(2 October 2019) The UK government has set out its proposals for a Brexit deal, which drops a customs union and with no commitments for “extensive level playing field arrangements” which were put in place in the Protocol on Ireland/Northern Ireland. Annex 4 of the Protocol notably established a non-regression clause on the level of environmental protection and required the UK to respect EU Treaty principles, including the precautionary principle. The discussion on “open and fair competition” should be developed in the EU-UK future relationship, according to the UK.
(21 June 2019) Client Earth announced a High Court challenge to the UK’s government Brexit legislation, more specifically over parts of a statutory instrument changing the habitat and species conservation regulation. This would give new powers to Ministers, allowing them to “alter and reduce standards for protected sites”. Stakeholders argue this change would represent a breach of the “green Brexit” promised by the UK government.
Dr Tom West from Client Earth fears government
will continue using its power in this manner, thus requiring improved
scrutiny from all fronts.
The subject of the Office for Environmental Protection (OEP) dominates more than half of EFRA’s report, including detailed assessment and recommendations on the functions of the watchdog (appointments, funding, complaints processes, fines, territorial extent etc.). EFRA concedes that the UK cannot replicate EU’s governance framework, but emphasizes that the Government should take this opportunity to deliver the “world leading watchdog” promised by the Secretary of State.
independence of the OEP appears again as a key matter of the future
body. EFRA argues it must not be seen as “just another arm’s length
public body attached to Defra”, especially since the OEP must hold the
Government accountable for breaches of environmental protection. The
status of a “non-departmental public body” is not considered sufficient,
instead EFRA asks for a constitutionally innovative model (despite a
lack of a precedent). This status is also not financially adequate, as
it does not ensure budgetary independence. EFRA advises the Government
to provide additional financial protections, through a multi-annual
budgetary framework negotiated directly with the Treasury and then voted
on by Parliament. The appointment procedure is also crucial for
ensuring the OEP’s independence, thus EFRA finds it inappropriate for
solely the Secretary of State to select a Chair and other non-executive
members of the board.
On procedural aspects, EFRA finds it
important for the OEP to be able to launch investigations into
environmental law breaches even in the absence of a complaint. Fines are
not seen as an adequate mechanism for enforcement, instead proposals
are given to provide greater personal accountability. The distinction
between the OEP’s two functions (advisory and scrutiny) must also be
clarified, putting a focus on its duty to hold the Government
accountable. The watchdog must not be overwhelmed with advisory matters,
and this function should be kept at a high-level to avoid adopting
functions currently undertaken by other UK specialist statutory bodies
(e.g. the Environment Agency).
The Environment, Food and Rural Affairs Committee (EFRA) of the House of Commons released last month a pre-legislative scrutiny of the Draft Environment (Principle and Governance) Bill. The main message of the report is that the environmental framework put forward by the Government does not match current EU environmental protections. The report also describes a range of issues that emerged during EFRA’s assessment and inquiries throughout January – March 2019.
In introducing the
report, the Committee regrets not being able to assess the full Bill, as
the final contents are yet to be published in the next parliamentary
session. This has limited the scope of the inquiry and hindered a
holistic assessment of the Bill. EFRA is therefore calling on the
Government to allow enough reviewing time when they introduce the
remaining clauses in Parliament.
principles into the UK system continues to raise problems, chiefly the
lack of an overarching principle, i.e. the EU’s objective of “a high
level of protection for the environment”. The legal status of the
principles (policy statements) is also questionable as it marks a
regression from EU environmental principles which are legal provisions.
Policy statements are weaker and can be easily revised. Moreover, these
environmental principles place a weak duty on Ministers (with an
obligation only “to have regard to”).
EFRA calls on the
Government to consider rewriting some of the definitions provided by the
Bill, notably on the “environment” which should be more holistic. Given
the departure from the EU’s legal acquis, the report recommends including a reference to international law within the definition of “environmental law”.
the report stresses the importance of setting up a co-operation
framework between the UK Government and the devolved administrations.
This should entail common standards and principles, or even a specific
mechanism of cooperation and data sharing in the event that separate
environmental bodies are created at devolved level.
Under no-deal pressures the UK government has been in a hurry to complete the copy across of the EU’s acquis and has already laid 515 Statutory Instruments, a quarter of them coming from Defra.
Greener Alliance argue that as NGOs have only analyzed a small part of the laws, the Brexit delay now brings an opportunity to further scrutinize the Government’s legislative work and possibly push for amendments where required.
According to Green Alliance, the fast passage process of legislation has diminished stakeholder involvement and parliamentary debate. It has also resulted in mistakes which will have important consequences on environmental protection. Defra did put in place a mechanism for advance viewing of legislation and for gathering ideas and advice, but this apparently came too late in the process to have meaningful impact and address deficiencies.
For example, the UK replica of the chemicals safety legislation REACH, had to be amended after complaints from industry arose concerning transitional arrangements to avoid supply chain disruptions. Further, environmental NGOs have pointed to greater deficiencies, which are believed to lower protection levels (by deviating from the REACH governance system on stakeholder engagement and commitment to future outcomes).
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