BW1_UK legal

The precautionary principle was given as the reason for authorising use of a bee killing pesticide for sugar beet production, by the UK Secretary of State, George Eustice.

He said: “The emergency authorisation required for a neonicotinoid in sugar beet is a great example of the precautionary approach in action.”

This is an inversion of the precautionary principle, invoking it to protect business interests instead of human health and the environment. The principle is normally put in practice where it is decided not to allow a particular course of action unless there is strong evidence it is safe.
 
The UK Environment Bill creates a duty for ministers to have due regard to the precautionary principle in making policy. Green Alliance, a UK green group, argues that because of “unhelpful framing” the principle is more likely to “fall victim to an overly zealous fixation on new technologies”. Historically, the UK has not been an enthusiastic proponent of the precautionary principle.
 
The UK committed to respecting the “precautionary approach” in the Brexit deal as well.
 
The recently published UK draft policy statement on environmental principles is disappointing. Several caveats have been identified by Green Alliance: exclusions for some government departments, an ability for future governments to change the statement and sideline the principles with relative ease.
 
Green Alliance blog post by Ruth Chambers
Secretary of State for Environment, George Eustice, intervention in the House of Commons (4 March 2021)

The binding targets in the UK Environment Bill are embedded in a weak framework.

The Bill foresees several environmental targets such as on air quality, water, waste, biodiversity. But Client Earth UK points to several weaknesses, relating mainly to a lack of mandatory action.

First of all, the Secretary of State is instructed to prepare an environmental improvement plan, the main task of which is to improve the environment, not to reach the targets. No minimum content requirements are mandated.

If targets are missed, the Secretary of State must publish a report presenting steps that have or will be taken to address the issue. But there is no obligation to actually implement those steps.

Finally, if there are “changes in circumstances” and targets become too hard to be achieved, the government can change their scope or revoke them.

These loose provisions leave judges with few instruments to enforce the targets, according to Client Earth UK.

From “A Greener UK Webinar in partnership with Leigh Day Environmental Review – fit for purpose?”

Earlier this week, the UK Government postponed again its Environment Bill, which Prime Minister Johnson has previously called ‘the huge star of our legislative programme’.

UK environmental groups such as RSPB, WWF and Greener UK are unhappy with the delay as it risks weaker environmental protections. The aim of the Bill is to bridge the governance gap created by Brexit, by establishing a domestic framework for monitoring and enforcing environmental laws.  

‘Our only hope is that this delay is used to improve the bill’, said Beccy Speight, the RSPB’s chief executive.

For example, campaigners are calling for improvements to the environmental targets in the Bill (including legally binding interim targets) and for environmental principles (such as the precautionary principle) to be strengthened, i.e. via a duty on government to apply them.

This is the third time the Bill has been delayed, on which work first began in July 2018. According to the UK government, it will return in the next Parliamentary session (spring 2020), which means it’s unlikely to pass Parliament before autumn 2020.

BBC on the delay of the Environment Bill
Previous Brexit Watch articles on the Environment Bill and the Office for Environment Protection: BW 27, BW 21, BW 20, BW 15, BW 12, BW 5.

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.

Article by The Financial Times on call with businesses (subscription needed)
Article by The Financial Times on gene-edited food consultations (subscription needed)

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.

Institute for Government on devolution after Brexit
UK government on Common Frameworks
Institute for Government on Common Frameworks and internal market bill
UK Internal Market White Paper
Financial Times on the internal market bill and UK government collision with devolved administrations

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.

Article by Business Inside

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.

Unchecked website
Unchecked, briefing on the UK’s enforcement gap

Prime 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”.

This raises 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.

Guardian article on Boris Johnson statement (Dec. 2019)

(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.  

The letter signed by the 23 experts

(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.

Latest news on the UK Environment Bill