Zombie-like or servile
Why the environment sector needs to consider the worst-case scenarios for Brexit.
The environmental sector is talking positively about new national laws that will counteract the effects of Brexit. But given the huge uncertainties surrounding the process and likely outcomes of Brexit, surely it is just as important to identify and plan for some worst case Brexit scenarios for the environment.
The environmental sector did not vote for Brexit; most environmental groups campaigned for Remain. But it must now actively prepare for Brexit. At a very broad level, the direction of travel is much clearer than it was in those tumultuous weeks after the vote to Leave. Theresa May has established two new departments – on international trade and exiting the EU – to ensure that Brexit means Brexit. Over the summer these departments are working with the Foreign Office and the Brexit unit in the Cabinet Office to scope out options and initiate negotiations with new trading partners.
But when it comes to the detailed mechanics of leaving, many things seem more not less uncertain certain than they did on 24 June. There is no route map to Brexit and no sign of one appearing any time soon. Article 50 has attracted a lot of attention, because it is the legal procedure that will deliver the UK’s divorce settlement with the EU. When will it be triggered? No one really knows, but expect Brexiteers to use the autumn conference season to push for the fuse to be lit as soon as possible.
Important as it is, Article 50 will only be a step on a long road. Many other tasks will have to be accomplished. New trading relationships will have to be forged with the EU and non-EU countries. Of late, there has been much talk about different models of Brexit – Norway, Switzerland, Albania, and Canada – as though the government will simply select one from a fixed menu of alternatives. On the contrary, each model will have to be painstakingly negotiated with partners and then configured to reflect the UK’s unique circumstances. They are not so much destinations as points of departure.
And then there is the tricky task of sorting through and ‘nationalising’ EU law and policy, which in a highly Europeanised policy area such as the environment extends to many hundreds of items. It is not even clear what sequence these tasks will be accomplished in. Does the government bow to Donald Tusk and the commission and approach them sequentially, or push for some – or even all – to be worked on in parallel? The more one digs into the messy detail of Brexit the more complicated and hence uncertain things appear.
In the environmental sector, there is a sense in which sleeves have been rolled up by people eager to get on and make the best of a bad situation. Understandably, thoughts have turned to new legislation to reinvigorate UK policies and politics. Matthew Spencer of the Green Alliance has led the way calling for a 'bold green plan' to protect Britain’s environment, with a new Environment Act as its centrepiece. Client Earth would like a new Clean Air Act and several wildlife organisations have bandied together to call for a Natural Wealth Act. North of the border, the Scottish environment secretary has pledged to safeguard existing levels of protection. So far, so positive.
The problem is that these are all examples of best case scenario thinking. But in situations of very high uncertainty, Cass Sunstein – he of Nudge fame – recommends the use of worst case scenarios. These are a standard tool of strategic planning and involve actively thinking through and preparing for the most unpleasant outcomes arising from a potential course of action. For many environmentalists, the most urgent scenario-related question is will existing standards go up, go down or remain the same? Recently, the Environment Audit Committee wrote to Defra and the department for Brexit to explain that it wanted the government 'as a minimum' to commit to maintaining in law 'the existing level of protection currently guaranteed by EU law'.
Can this be achieved? Some important analytical work was done on it during the referendum, but it urgently needs to be extended. The underlying problem of course is that ministers cannot possibly provide the reassurance that the EAC is seeking until the government as a whole has decided which model(s) of Brexit to pursue. One model that has received a lot of attention is often termed the EEA or the Norway model. Under this model, the UK would maintain preferential access to the single market, would pay into the EU’s budget and accept the free movement of people.
The existing level of environmental protection would be largely maintained under this model, but in the worst case scenario two very significant risks would appear. First of all, important aspects of nature, water, energy efficiency and climate change legislation may not apply. Second (and regardless of precisely what variant of the Norway model the UK manages to negotiate), it would still find itself in a considerably more servile relationship with the EU 27 – ‘taking’ rather than directly ‘making’ joint policies.
For those that voted to ‘take back control’, the Norway model may be far too close to the EU. A more attractive alternative might be to pull out of the Single Market entirely and rely on free trade agreements with the EU. Some of the risks associated with the very worst case scenario under this model could be addressed by adopting a grandfathering act of parliament to replace the European Communities Act. But this would still leave two very significant risks unaddressed.
First of all, much product legislation would have to be swallowed to secure access to the single market. Second, the grandfathered legislation would lack the enabling institutions of the EU – principally the European Commission and the European Court of Justice – that currently keep policy strategically aligned, updated and, above all, rigorously enforced. Absent any mitigating steps, UK policy risks becoming inert and zombie-like.
Actively identifying and thinking through worst case scenarios brings focus two aspects inot much sharper focus. First of all, governance and institutions matter at least as much as law and policy. In the last forty years, policy formulation, enforcement and evaluation capacities have been steadily pooled in EU institutions, leaving Whitehall departments like Defra to function mainly as delivery vehicles for EU policy. It is questionable whether line departments such as Defra, which have been ravaged by massive cuts since 2005, have the capacity to make (let alone deliver) the ambitious new laws that environmentalists are now dreaming up. Some may even struggle to stand still as the Brexit facing departments poach their EU expertise.
Second, it highlights steps that should be taken now to mitigate key risks that would arise if policy does become more servile and/or Zombie-like. These include:
- Identifying the items of legislation that are at risk under all Brexit models;
- Developing contingency plans for if the Article 50 process culminates in a bitter stand-off, followed by a very messy and disorderly Brexit;
- Maintaining an active presence in Brussels - building alliances with those still inside the EU to shape what the EU does;
- Establishing new institutional capacities at home to make and oversee new national policies – the like of which used to reside in the now defunct Royal Commission on Environmental Pollution and Sustainable Development Commission.
UK environment policy is arguably in a more uncertain state today than it has been at any time in the last forty years. Be in no doubt: over the next decade, Brexit will absorb vast quantities of political energy and administrative resource. Domestic political priorities – such as the UK environment – that barely featured in the referendum will take a back seat unless interest groups work very hard to raise their profile. When so much is so uncertain, the sensible option is to explore and plan for the best and the worst case scenarios.
This article was co-written with Dr Charlotte Burns, University of York and Dr Viviane Gravey, University of East Anglia.