Will it be dynamic or zombie-like?
Just weeks before article 50 is due to be invoked, the government’s white paper on Brexit confirmed that environmental protection is not a political priority. The environmental sector is right to ask how policy and governance outside the EU will avoid becoming lifeless and zombie-like.
The broad outlines of the government’s approach to negotiating Brexit are finally beginning to emerge. It took concerted pressure from MPs and an historic ruling by the Supreme to open up the flow of information, but in the first few weeks of 2017 the prime minister has divulged more of her thinking than in the entire second half of 2016.
During her long period of silence, the environmental sector united around a simple message - standards should be no weaker outside the EU than they were inside. Just before Christmas, the Parliamentary Environmental Audit Committee recommended that before triggering article 50, the government should commit to a new Environmental Protection Act to ensure the UK enjoys ‘an equivalent or better level of protection’ as in the EU.
The white paper made no such commitment. This was not entirely surprising. Unlike workers’ rights, free trade, science and crime, the environment did not feature in the list of 12 priorities that the prime minister set out in her speech on 17 January. It did not even warrant a separate sub section of the chapter on free trade. The most specific references are contained in a single paragraph, buried away in a section entitled ‘cross cutting regulations’.
The white paper also made it abundantly clear that the government’s strategy is to negotiate for a bespoke deal that takes the UK out of the single market, and hence the legislative ambit of the European Court of Justice. In its place, the government expects to negotiate a ‘new strategic partnership with the EU’ including an ‘ambitious and comprehensive’ free trade agreement and a new customs agreement. Most commentators have interpreted this to mean a series of bespoke deals for politically important sectors such as financial services and car manufacturing.
The prime minister has said that she wants a ‘red, white and blue’ Brexit, but from the environmental sector’s perspective what the government seems intent on delivering is actually a rather hard Brexit with not very much greenery at all. Following the Supreme Court hearing in January, MPs had an unexpected opportunity to challenge the government’s thinking during the passage of the European Union (Notification of Withdrawal) Bill through the Commons, but it sailed through the committee stages entirely unamended.
Meanwhile, the Exiting the EU Committee in the House of Commons had an opportunity to raise the profile of environmental matters in its first report. It listed nine ‘essential’ issues that it felt the government should provide clarity on before the UK exits the EU, including the fate of EU agencies in the UK, the status of UK citizens living in the EU and border arrangements between Northern Ireland and the Republic of Ireland. Again, the environment failed to receive a mention. It seems as though the big environmental hole in the referendum campaigns has persisted into the Brexit process.
These conditions – a hard Brexit allied to a lack of clarity about the future status of existing environmental protections – are precisely those that we predicted would increase the probability of zombie-like legislation after the UK exits the EU. Zombie-like legislation is empty, inert and ultimately ineffective. One obvious way to zombify existing EU environmental protections is to fail to transpose them fully into UK environmental law before Brexit day – that is the day that the UK officially exits the EU.
The technically complex task of preserving over 40 years of EU environmental law is to be performed (rather confusingly) by what has come to be known as the Great Repeal Bill. Brexiteers hope that this exercise will cleanse UK law of unwanted EU influences, but in the short term at least the bill is not expected to repeal anything. The Environmental Audit Committee pressed environment secretary Andrea Leadsom on this matter and was told that around two thirds of existing laws could easily be preserved but that there was ‘work to do’ to preserve the remaining third.
Environmentalists are understandably alarmed. The Brexit White Paper made a rather vague commitment to undertake a ‘programme of secondary legislation’ under the Bill ‘to address deficiencies in the preserved law’ (our emphasis). ‘We want’, the government said, ‘to take this opportunity to develop over time a comprehensive approach to improving our environment in a way that is fit for our specific needs’ (our emphasis).
EU legislation is usually framed around very definitive terms and is underpinned with clear targets and deadlines. By contrast, the white paper only commits to preserve current protections after Brexit day ‘wherever practical and appropriate’. The environmental sector fears that similar caveats will be slipped into EU laws as they transposed across into UK law. The Brexit secretary David Davis acknowledged as much when he told MPs that the ‘programme of secondary legislation’ would be ‘about reversing –well, not reversing, but amending and dealing with 40 years of accumulated policy and law’.
The word that the white paper conspicuously failed to mention is dynamic. In a perceptive piece on the role of regulation in facilitating free trade, Financial Times chief political commentator Philip Stephens argues that it is only effective when it is dynamic – when it adapts to changes in the regulatory system: to new technologies, to new scientific understanding and to information about how the policy is performing.
Therefore the second way that the government could, either accidently or through conscious design, zombify existing environmental protections is to fail to maintain the wider systems of governance that keep existing EU laws in a dynamic state. The white paper explained that in exiting the EU, the government wanted to avoid a ‘disruptive cliff edge’. When it comes to avoiding zombie-like legislation, the environmental sector should be wary of two cliff edges: one policy related, the other governance related.
A helpful way to comprehend this challenge is to consider what keeps EU environmental policy dynamic at the moment. A number of EU level organisations such as the Commission and the European Court of Justice are tasked with overseeing the implementation and enforcement of legislation to ensure that it does not become a dead letter. Will these functions be carried over and picked up by new organisations after Brexit day? Lawyers have proposed a new environmental ombudsman or even a dedicated environmental court. There could even be an Environmental Commission with powers equivalent to the Equality and Human Rights Commission or the Quality Care Commission.
But the issue of dynamism goes well beyond implementation and enforcement, to encompass the sources of new policy ideas. At present, this function is performed by the European Commission, supported by long term analytical work undertaken by the European Environment Agency in Copenhagen. Over the last 40 years, the environment department (Defra) has become reliant on these and other bodies to perform these functions. Grave doubts have been expressed about its capacity to deliver Brexit, let alone new environmental (and, let’s not forget, agriculture and fisheries) policies after Brexit Day. Crucially, since 2010 it has been one of the least productive Whitehall departments in terms of delivering new acts of Parliament.
Meanwhile, any new policy development work will impose even greater workloads on parliaments across the UK. The European Parliament established a dedicated committee to scrutinise and adopt new environmental legislation. The environmental sector should investigate how the UK parliament intends to discharge these important and time critical tasks. After all, the most significant barrier to new legislative action in the UK is the scarcity of parliamentary time. It’s hard to imagine that time will suddenly be in plentiful supply when the UK is busy signing trade deals and ‘addressing deficiencies’ in the preserved law.
Finally, there are a series of apparently quite mundane tasks such as reporting, monitoring and evaluating that are actually the very lifeblood of dynamic policy. Many of these are codified in specific EU Regulations and Directives. Who will discharge these tasks after Brexit day and, even more importantly, who will oversee them? The Environment Agency or perhaps even Parliament? The EU is currently working through every area of EU policy and undertaking ‘fitness checks’ of their performance. Again, who or what will be do this work after the UK leaves the EU?
Where are the political intervention points where some of these issues could be clarified? The passage of the European Union bill through parliament offered one such opportunity, but an insufficient number of MPs seized it. The publication of the Great Repeal Bill may be another, but by then article 50 will have been triggered and the negotiation with the rest of the EU will be underway.
This leaves two other options, the first being the 25 year plans covering food, agriculture and the environment. The other is the article 50 process itself. In the EU, governance is multi-levelled and cross national. The European Parliament has already signalled its willingness to fight for a green Brexit. Perhaps there are opportunities here for the UK environmental sector to build cross national alliances?
Governance and policy are interlocking and interdependent. Dynamic governance and dynamic policy are two sides of the same coin. In the short term there are many reasons to believe that the government will work hard enough to avoid serious policy ‘cliff edges’. The task is large but essentially technical: it can be completed within Whitehall. In any case, our new trading partners will want to know about UK policies as they negotiate the ‘regulatory equivalence’ provisions that are such an important feature of modern free trade agreements.
By contrast, thus far the government has shown little appetite for a thorough debate about governance. In many ways it goes to the very heart of the referendum debate. If Brexit was about ‘taking back control’, governance is directly concerned with how that control is exercised, overseen and legitimated: highly treacherous terrain for politicians. When questioned by members of the Environmental Audit Committee, the Brexit minister, Robin Walker, maintained that such issues would be dealt with ‘at the end’ of the Article 50 process. The environmental sector may prefer not to wait quite that long.
This article was written by professor Andy Jordan, University of East Anglia and Dr Viviane Gravey, Queen's University Belfast.
