The new year heralds a more active phase in the Brexit process.
A series of important decisions will be taken in 2017 that could have wide-ranging and very long lasting consequences. But what decisions are they and when and by whom will they be taken?
With hindsight, the summer of 2016 was a long phoney war. After the highly divisive referendum, Theresa May wanted to close down political debate. ‘Brexit means Brexit’ was both a firm statement of political intent and a clever attempt to buy time to work out her new government’s position. There would, she said, be no running commentary.
But many environmental groups were keen to comment. Immediately after the referendum, some challenged her to deliver a green Brexit. She promised voters a red, white and blue Brexit. A politician not known for promoting green causes, she has remained almost entirely silent on environmental matters since the referendum.
But during the autumn, the Brexit process began to move into a new and more active phase. Battle lines were drawn, the Supreme Court became involved and MPs pushed the PM to outline a plan. Michel Barnier, the European Commission’s chief negotiator, warned the UK that it would end up in a worse position outside the EU than inside.
It is fair to assume that many heads of state share his thinking, keen as they are to dissuade other states from following the UK towards the exit. Shortly after, UK environmental groups weighed into the debate, demanding a Brexit that delivered the same or even stronger levels of protection.
Which view will prevail? Is the UK heading for a soft environmental Brexit in which most EU laws remain in place and the European Commission continues to work with the European Court to ensure they are fully implemented? Or is it heading towards a hard Brexit in which the scope and ambition level of most policies would be determined by UK authorities, free of the EU?
The first insight we shall get into the government’s thinking will come when it finally publishes its Brexit Plan. This plan was not originally in May’s thinking, but she eventually succumbed to parliamentary pressure and agreed to publish one before triggering Article 50. When will it be published? At the moment, no one knows.
The Scottish Government published its own Brexit plan in December. It forcefully underlined the environmental benefits of EU membership and promised to uphold current levels of protection. May’s Plan is widely expected to be much shorter. Nevertheless, it offers her an opportunity to lay down some clear red (and green) lines.
Step two will be the publication of the great repeal bill during the next parliamentary session, which opens with the Queen’s speech in May. The bill will end the authority of EU law and convert all its provisions into UK law on Brexit day – the day the UK officially leaves the EU. The bill must pass into UK law by Brexit day to prevent a policy vacuum from opening up. The fate of approximately 500 separate items of EU environmental law quite literally hangs in the balance.
Brexiters regard the bill as an opportunity to hack away at environmental ‘red tape’. Some have already encouraged businesses to draw up hit lists of EU laws for immediate repeal. We will know more about May’s intentions when the bill is published. It is already evident that simply preserving the status quo could be a big challenge. The secretary of state, Andrea Leadsom, has admitted that up to a third of EU laws cannot be simply ‘copy pasted’ into UK law. And then there is the very important question of what happens after Brexit day. Will the EU laws that are copy pasted be retained, or will they eventually be slashed? Again, no one knows.
Step three will occur on Brexit day which, if events go to according to May's plan, will be sometime in the spring of 2019. By then, environmental groups will have a much clearer idea about the new system of governance at the national level. They are keen to ensure that all preserved laws are regularly updated, monitored and implemented – vital tasks that are currently discharged by the European Commission and the European Court of Justice. To give one example, REACH, the EU’s main policy on chemicals, has been amended 38 times since it was enacted in 2006. Preserved laws that are not nurtured by these supporting institutions risk becoming dead and zombie-like.
The environmental sector is up for a fight. It will have to work extremely hard in 2017 to deliver a green Brexit. Let’s not forget: the environment was barely mentioned during the referendum; in effect, the sector aligned with the losing side. Most EU experts expect the Article 50 process to be dominated by very urgent priorities, such as resolving the UK’s financial liabilities, preserving the rights of citizens living abroad, and determining the location of EU agencies. Don’t expect a running commentary from the PM on the environment.
Meanwhile, back in Whitehall, the environment ministry – DEFRA – is short of staff. It also led by Andrea Leadsom, a prominent Brexiter. It must be tempted to put environmental policy on the back burner, until new national fisheries and agricultural policies have been formulated. The environmental movement knows that it does not have the financial muscle to threaten the government into backing a soft environmental Brexit, as the car sector has allegedly done. Expect it to rely on a much softer strategy of advocacy and political persuasion.
Over six months after the referendum vote, so much about Brexit still seems desperately uncertain. But in the first few months of 2017 some important steps will be taken that will clarify whether the UK is heading towards a soft or a hard environmental Brexit.
This article was co-written with Dr Charlotte Burns, University of York and Dr Viviane Gravey, Queens University Belfast.
