Taking back and sharing control? Brexit and the common environmental frameworks

Debates about Whitehall ‘grabbing’ power from the devolved powers have surrounded the EU Withdrawal Bill since its publication. Both the Scottish and the Welsh governments have stated that they will advise their respective parliaments not to give consent to the Bill as originally drafted.

While the UK Government does not require the consent of the devolved bodies for the Bill to go through, such a vote in Cardiff and Edinburgh would come at a high political cost – and profoundly undermine the credibility of the government’s pledge to deliver a Brexit which works for all parts of the UK.

Environment, agriculture and the ‘power grab’

At the heart of the bitter debate is Clause 11. It would see all EU powers return to Westminster – whether they are devolved or reserved. Devolved powers, such as environment, agriculture and fisheries, would only be released back to the devolved administrations at the discretion of UK ministers. Disquiet about Clause 11 has been brewing since the Autumn, but has escalated in the last two weeks as both Wales and Scotland produced their own alternative EU Continuity Bills.

In an attempt to settle the debate, the UK Government aimed to secure ‘support’ from the Welsh and Scottish governments (and NI civil servants) to a proposed amendment to Clause 11 and to a list of common frameworks at last week’s Joint Ministerial Committee meeting. The list, published two days after the JMC meeting, states which policy areas could go straight back to the devolved administrations, which would be subject to non-legal frameworks and those where legal frameworks ‘might be needed in whole or in part’.

The list mentions 153 policy areas, 49 requiring no further action at UK level, 82 for which no legislative frameworks may be required and only 24 for which legislative frameworks will be considered. All 153 policy areas are currently bound by EU legislation, which provides a framework for UK and devolved action. Hence, the UK Government’s plan is to abandon existing, EU-wide legislative frameworks in 5 out of 6 areas and to permit (even facilitate) greater divergence within the nations of the UK after Brexit.

Critically, this move away from shared frameworks affects environment and agriculture very differently. While almost all policy areas connected to agriculture are to be found among the 24 future legislative frameworks, environmental issues are spread across all three categories. This means that while the Government’s ‘Green Brexit’ message appears to bind together agriculture and environmental issues, in reality the sectors will be treated very differently – and are facing profoundly different risks and opportunities after Brexit.

Three classes of environmental issues

Environmental issues connected to product standards and economic activity – namely waste packaging, chemicals, pesticides – are among the 24 items requiring potential legislative frameworks, as are almost all agricultural issues. Conversely, biodiversity and clean air are presented as requiring only non-legislative frameworks, while water and land use require no frameworks at all.

In establishing this list, the UK government’s stated objective is to maintain the integrity of the UK internal market – to avoid new internal UK barriers to trade. Critically, EU environmental policy also historically developed to foster economic integration from the 1970s onwards. But the EU then, contrary to the UK now, considered water and air quality worthy of legal frameworks – in order to ensure fair competition, address transboundary pollution and avoid a race to the bottom in standards. These differences remind us that environmental issues are invariably closely connected to economic activity.

They further raise questions about the depth of commitment to a ‘Green Brexit’. Water policy is a good case in point. The 25 Year Environment Plan already moved the goalposts – pledging to replace the EU’s current 100% of waters achieving good ecological status by 2027 to ‘at least three quarters of our waters to be close to their natural state as soon as is practicable’. The proposed framework list opens up the way for England to change objectives and indicators (moving from ‘good status’ to the as yet undefined ‘close to natural state’) and for the devolved administrations either to follow England, continue using EU indicators or develop yet another set of metrics.

Such flexibility would give all four administrations the ability to experiment and adopt more ambitious rules, although they already have the right to be more ambitious under current EU law.  In essence the big change we see is that the absence of frameworks on water may allow one or more nations of the UK to lower standards (on ecological status of rivers, quality of bathing waters, diffuse nitrates water pollution from agriculture, etc) independently, without consulting the other nations that may be affected and with no recourse for those other nations to prevent this race to the bottom.

Another example is air policy. It is to be governed by non-legislative frameworks. Air quality is currently a thorn in the side of the UK Government – its air quality plans for England have been found to be insufficient on a number of occasions in UK courts. The 25YEP has made the commitment that the government would meet ‘legally binding targets to reduce emissions of five damaging air pollutants’.

But this commitment only concerns England: will a non-legislative framework be sufficient to hold the devolved administrations to a similar aim? How would it be enforced? And would such a non-legislative framework be sufficient to hold DEFRA to account were it to fail to meet its 25YEP goal?

Other issues arise for the 24 areas in which legislative frameworks are contemplated, especially agriculture. All 4 nations of the UK presently apply the EU’s Common Agricultural Policy differently and the present DEFRA consultation on future agricultural policy for England reiterated that future agricultural policy frameworks would ‘lead to a significant increase in decision-making powers for the devolved administrations’. But England appears to a be one step ahead in preparing future agricultural policy – it is critical for Wales, Scotland and Northern Ireland to engage with the current Health & Harmony consultation to avoid a policy designed for England ending up as the basis for UK-wide frameworks.

Unanswered questions

The Government’s proposals also leave unanswered some key structural questions.  Does a “legislative framework” cover parallel legislation in each country or require a single piece of legislation enacted at Westminster on a UK basis?  If the latter, what say will the devolved governments and parliaments have in its formulation and making?  How detailed and binding is a “non-legislative framework”, how is it made and what happens if one administration does not abide by it? Clear answers to these governance thorny questions will be needed before any package is accepted by all four parties.

The downsides of flexibility and consultation

The move reduce the use of legal frameworks shows that flexibility is a double-edged sword: the smaller administrations may be gaining (or maintaining) the right to set different standards and to experiment, but they are also losing any say on what happens in England and vice-versa. As England is the (much) dominant market, there is a clear risk for the other 3 nations – that if it triggers a race to the bottom, they may have no choice but to follow suit.

The devolved administrations will only feel that going it alone may mean a loss of influence if they are confident that their voice is being heard in London. That is far from the case – as this list exemplifies.  This list, a compromise firmly rejected by both Welsh and Scottish Governments, will nevertheless form the basis of the UK Government’s amendment to Clause 11 of the EU Withdrawal Bill.

For the time being, we are still a long way from knowing how far the UK government really intends to share the control it wrestles from the EU with the devolved governments of the UK.

About the authors

Viviane Gravey is a Lecturer in European Politics at Queen’s University Belfast. Colin Reid is a Professor of Environmental Law at the University of Dundee.


Image: ‘Green tea and banana sponge cake‘ by Bonbon

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