In a call involving more than 250 leading businesses, Prime Minister Johnson invited the UK industry to come up with ideas for regulatory and legislative reform to support future economic growth. However, changes to existing environmental and social legislation could be constrained by the non-regression obligation in the EU-UK Trade and Cooperation Agreement.
The UK government has launched a consultation on enabling the use of gene-edited crops. The EU does not ban the use of GMOs or gene-edited food, but its approval process is stringent. The EU process is based on the precautionary principle, which the UK committed to respect under the EU-UK Trade and Cooperation Agreement.
The UK government has announced that it plans to create a new UK internal market law that will limit the ability of Scotland and Wales to adopt higher environmental standards. This has been labeled ‘a full-scale assault on devolution’ by Nicola Sturgeon, First Minister of Scotland and leader of the Scottish National Party, making this a ‘constitutional crisis’.
The internal market bill, expected in autumn this year, would set in stone the principle of mutual recognition which means that the ‘rules governing the production and sale of goods and services in one part of the UK are recognised as being as good as the rules in any other part of the UK, and they should therefore present no barrier to the flow of goods and services’ (UK Internal Market White Paper). The devolved nations – Scotland and Wales – would be obliged to accept products and services with lower standards, if those standards were in place in England.
This is substantially different from the ‘Common Frameworks’ approach established after the Brexit referendum, when the UK government and its devolved nations started working together to set standards in key areas of devolved competence, including environment, food and chemicals. To date, there has been slow progress on the Common Frameworks.
‘The British government is in essence rejecting a consensual, bottom-up approach of handling internal market differences in favour of top-down legislation’, an expert stated in the Financial Times.
This reinforces the picture of a UK government determined to get rid of all controls that could interfere with its deregulation plans.
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).
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