The Brexit election
Red, white, blue… and green?
This is the Brexit general election, called by prime minister Theresa May to strengthen her hand in the upcoming negotiations with the rest of the EU. Those drafting the party manifestos have therefore had to accomplish not one, but two tasks: set out general policy plans in areas unrelated to Brexit; and explain how the next government will deliver a smooth Brexit.
This post reflects on the likely shape of national environmental policies post-Brexit in light of the manifesto commitments made by the main, London-based political parties. To what extent does the environment feature in their visions for a post-Brexit UK? And how well do their visions correspond to the hopes (and concerns) that have been expressed by the main environmental organisations?
As is now well known, the EU has had a hugely significant impact on national environmental policy. Among the big Whitehall departments, the environment department (Defra) stands to be one the most heavily impacted by Brexit. It has estimated that it ‘owns’ around 1,100 items of EU legislation. Identifying practical ways to ensure that these function effectively after Brexit day – the day that the UK formally exits the EU – is proving to be a huge logistical task.
The declared aim of the Great Repeal Bill is to avoid the appearance of large holes in the existing statute book. Observers have underlined the need for new systems of national governance to prevent EU-derived protections from becoming stale and zombified. A green Brexit will be a Brexit that preserves existing legal and policy protections in a form that is integrated, comprehensive and above all, dynamic.
Since last June’s referendum, thirteen environmental organisations with a combined membership of 7.9 million people have coordinated their activities under the banner of Greener UK. A briefing note issued to MPs in February, shortly before the publication of the white paper on the Great Repeal Bill, identified three main priorities: the conversion of all existing laws into UK law; adequate procedures to make subsequent adjustments to EU laws post Brexit; and the introduction of adequate governance arrangements.
Avoiding regulatory holes
The first and in many ways the most fundamental test set by Greener UK is to ensure that all existing EU environmental laws and principles are converted into domestic law. The Green Party’s environment manifesto provides the most unequivocal statement in that regard: ‘all existing environmental laws’ will be retained or enhanced, ‘no matter our future relationship with the EU’. The guiding principles of EU law, such as precaution, prevention and sustainability, will also be converted and telescoped into what the party has promised will be a new Environmental Protection Act.
Labour's manifesto on the other hand proposes to rebrand the Great Repeal Bill as an ‘EU Rights and Protections Bill’ so there are ‘no detrimental changes to… environmental protections as a result of Brexit’. In spite of the rebrand, the central purpose of that bill - to convert and preserve existing legal protections - will remain the same. Labour acknowledges that EU law is very well worth preserving – it has had a ‘huge impact in securing…. environmental protections’ in the UK.
However, the manifesto rows back a bit on earlier pronouncements, noting that a future Labour government’s focus will be on ‘all EU derived laws that are of benefit… without qualifications, limitations or sunset clauses’. No further explanation is given as to what is or might be beneficial, but stresses that there will be ‘no rolling back on key rights and protections’. Nonetheless compared to the Green Party’s commitment to preserve ‘all existing environmental law’, Labour does appear open to the idea of entering into some post-Brexit deregulation.
Not surprisingly, the Tory manifesto recycles many ideas that were trailed in one or other of the pre-election white papers. The commitment to preserve all existing environmental protections, which was first made in the second white paper, is reiterated, but no mention is made of the beneficial effect of EU action in this area. A Conservative government will continue to be an international leader on climate change, habitats and species protection, but it would also enforce a ‘one in, two out’ rule across all policy areas.
Adopted under the coalition government, this rule did not affect EU legislation, changes to which generally require EU-level agreement. But after Brexit - when ministers have finally ‘taken back control’ of the UK statute book, things could conceivably change. We may learn more when the long-promised 25-year environment plan is finally published.
The Liberal Democrat manifesto is the most effusive in its support for existing EU policies, yet has the least to say about conversion, given that the party’s primary objective is to remain within the single market. Nonetheless, and presumably for the avoidance of doubt, the five new environmental acts that the party foresees would ‘incorporate existing environmental protections… and establish a framework for continual improvement’.
Political accountability and Henry VIII powers?
Greener UK’s second demand is to ensure any subsequent adjustments, ‘that significantly alter…. the original scope or intended purpose [of EU laws]… are made by primary legislation, giving a full and proper role to the Westminster parliament and, where relevant, the devolved administrations’. Prior to the election, concerns were expressed that the government would use the repeal bill to arrogate more power to itself, through the adoption of a Henry VIII clause. This clause would allow changes to be made through secondary legislation, with little or no effective scrutiny by MPs or the devolved administrations. In its white paper, the government acknowledged that a tricky balance would have to be struck between regulatory efficiency and effective scrutiny; it called for ‘a discussion… as to the most pragmatic and effective approach to take’.
In fact, none of the manifestos really advance that discussion. Labour promises to give parliament a ‘meaningful role’ throughout the negotiations; the Lib Dems’ major stand out promise is to give voters a final say in a second referendum. Meanwhile, the Greens promise to negotiate ‘with and alongside the devolved administrations’ and the Lib Dems pledge to take their interests ‘fully… into account’. The Conservatives do, however, repeat the claim - first articulated in the white paper - that Brexit will result in a ‘significant increase’ in the decision-making powers of each devolved administration.
Out with the old and in with a new system of governance?
The third and final test relates to adequacy of broader governance arrangements post Brexit. Here, there is even less detail in the four manifestos, and also some notable differences and blank spaces. Removing the UK from the legal ambit of the European Court of Justice (ECJ) was one of several important red lines that May first laid down in her autumn conference speech. The Greens promise to establish a new environmental court to replace the ECJ. Labour, meanwhile, promises only to consult on the establishment of a new environmental tribunal. Labour and the Lib Dems undertake to enhance the existing system of judicial review, which in a hard Brexit scenario will de facto become the main mechanism though which environmental organisations are able to hold the government to account.
Finally, the Greens and the Conservatives pledge to establish new regulators, albeit with very different mandates. The new environmental regulator proposed by the Greens could conceivably take on some of the policy enforcement tasks that are currently discharged by the European Commission; the Tories will create a body to provide ‘clear governance and accountability’ albeit to facilitate the exploitation of shale gas.
In summary, the manifestos have the most to say about conversion and the least to say about governance. In many ways, this is not entirely surprising. Conversion is largely a technical-legal task that can be undertaken by civil servants working at desks in Whitehall. From a political and an economic perspective it is probably the most important of the three to accomplish quickly, given that it is a vital prerequisite for any new trade agreements that the UK hopes to negotiate with its trading partners. Unless there is clarity about the regulatory equivalence (or otherwise) of two trading systems, by definition, trade negotiators cannot know what they are actually negotiating about.
As the political parties debate the technicalities of legal conversion, there are evidently plenty of opportunities for the environmental organisations to keen flagging up the intimately interlinked issues of adjustment and governance. If they continue to be neglected throughout the Article 50 process, the risk of zombification will rise.
And of course there are many other salient issues that are not even mentioned in the manifestos. For example, what will be done to ensure that Whitehall is properly resourced to handle the massive workload associated with Brexit? What about the international agreements that the UK has committed in partnership with the other 27 member states? What of the UK’s membership of important EU-level organisations such as the European environment and chemicals agencies? And to what extent - and precisely how - will environmental issues be incorporated into the new free trade agreements that the government hopes to strike? These are not minor details.
Given that this is supposed to be the Brexit general election, it is striking just how little detail the manifestos contain about the likely state of our natural environment post-Brexit.
This article was written by professor Andy Jordan, University of East Anglia and Dr Viviane Gravey, Queen's University Belfast.