The government’s ‘great repeal bill’ will transpose all current EU law into domestic British law upon the UK’s exit from the EU. Theresa May has promised that the UK will “no longer [be] part of a political union with supranational institutions that can override national parliaments and courts.” The plan is to ‘cut and paste’ current EU rules into UK domestic law.
We should applaud that the UK will continue to abide by existing European environmental and social standards even after its exit (at least until the UK parliament has time to review what should be kept and what removed). But is it really as simple as that? Unfortunately not. Let’s take the washing machine as an example of how this transposition could be handled.
Various EU laws regulate the sale of washing machines to ensure they comply with environmental standards. In particular, ecodesign regulations specify the minimum energy efficiency performance of machines (taking the worst models off the market), whilst energy labels (the A-G stickers) allow consumers to rank the best against the worst performers. More efficient appliances are good for consumers and the environment: Green Alliance has estimated that the rules cut £158 off energy bills in the UK.
The problem is what happens next
Ecodesign for washing machines is covered by EU regulation 1015/2010. According to the government’s announcement, these rules would be cut and pasted into a new domestic law for the UK. This can be done, although David Davis’ announcement that transposition will happen ‘wherever practical’ means that there will be more than a few legal issues to sort out along the way. But transposing the regulations may not actually be the greatest problem. It is what would happen next.
The repeal bill will take a snapshot of EU law on a given date, say 31 March 2019. The UK could then choose to keep this snapshot as UK law. Without any further changes, the UK will become a museum for EU law. Future EU law students will be able to visit the UK, to see what EU law was like back in 2019. Alternatively the UK could choose to ‘unpick’ or ‘improve’ the law, as Theresa May has suggested.
In either case, whilst the UK decides this, the EU system will continue to progress. Differences could quickly emerge and these differences will matter, for the environment and for business.
Washing machines are one area where this could happen fast. The EU is already undertaking a review of how to strengthen the ecodesign rules for washing machines, which should be complete by the end of this year. The idea of ecodesign standards is that they should drive an innovation cycle: as products become more efficient, policy makers raise the bar higher, rewarding innovators and punishing laggards. In fact, all of the ecodesign regulations contain review clauses, so that new standards can be periodically introduced. And the EU also plans to expand the scope of ecodesign so that it encourages not only greater efficiency, but better resource efficiency. Doing this would ensure that washing machines would last longer, and be more easily repairable.
Will the UK keep up as standards improve?
It is likely, therefore, that the EU minimum standards for washing machines – and other products – will be strengthened over the coming years. The UK will have to decide whether to match those new EU standards, or lag behind. Without an automatic system for ensuring equivalence, this will be difficult and will create massive uncertainty for business, which would have to cross check domestic UK laws with EU regulation. Equivalence would be assured on 31 March 2019, but there would be no guarantees from 1 April 2019 onwards.
The same applies to energy labelling, where the EU plans to recalibrate the current rating scale, to take account of more efficient products, and to simplify the ratings for consumers. The UK would have to either adopt the new ratings, or continue with an entirely different system. Even if the UK updates the energy labelling law, the rules for individual products are laid down by EU delegated acts. Each time there is a new delegated act updating the ratings for any product, the UK would have to decide whether to comply, or force manufacturers to use different labelling systems for the UK and the EU markets.
All of these problems demonstrate why differing standards could be bad news for the environment, for consumers and UK business.
Of course, the UK could decide to simply abolish the energy label and ecodesign. But that would give less information to the consumer, and less incentive for manufacturers to produce energy efficient machines for the UK market. A ‘race to the bottom’ could lead to the UK being flooded with inefficient, resource intensive washing machines that could not be sold on to the EU. And that would undermine the UK’s ability to meet its energy efficiency goals and deliver on its international climate commitments.