This post is by Andy Jordan, Charlie Burns and Viviane Gravey, co-chairs of the ESRC funded Brexit & Environment network.
The EU has mostly exerted its influence through the medium of law and policy. For many non-experts, 29 March 2017 (when Article 50 was triggered) was the day when the risk that large parts of the UK’s environment could lose their legislative protections suddenly became very real indeed.
The fate of these protections will become clearer as the Withdrawal Bill wends its way through parliament and Defra publishes drafts of the 100 or so statutory instruments that will do the heavy lifting, copying existing EU laws into UK law.
It is important to remember that EU laws and policies do not exist in a vacuum. They are embedded in a system of governance, comprising EU institutions, agencies and technical networks. This system was designed to ensure that important governance functions are adequately discharged. These include policy evaluation, policy formulation, policy revision and, of course, policy implementation.
Focus is on implementation
Implementation has attracted the lion’s share of political attention. Environmentalists are understandably alarmed that, after Brexit day, the European Commission will be unable to work alongside the European Court of Justice to hold the UK government to account. Arguably in the last 40 years, it has done more than any other body (domestic or international) to improve environmental quality in the UK.
During the summer, Greener UK began to highlight the risks that could arise if this implementation governance gap was allowed to open up. It showed that implementation is intimately connected to a number of secondary functions such as monitoring and reporting. In his first major speech, Michael Gove unexpectedly expressed his desire to debate that gap in more detail. And, true to his word, he later announced that Defra would consult on the creation of a new ‘Commission-like’ body to hold the government to account after Brexit day.
What about the other gaps?
As civil servants begin to scope out this body’s structure and functions, it is important to remember that the governance gap risks going well beyond the implementation of existing EU policies. The European Commission helps the UK, as a full member state of the EU, to discharge three other equally vital functions. Crucially, the more inadequately these functions are discharged the more likely the UK is to experience what MPs have termed zombie legislation, ie laws that have been copied onto the statute book, but are effectively dead because they are not regularly evaluated, updated or implemented.
1. New policy making
First of all, the European Commission plays a central role in formulating new policy proposals. It draws on the skills of 33,000 civil servants, around the same number as work in a large city council like Birmingham. Around 500 of them work in the Commission’s environmental ‘department’, DG Environment.
In principle, there is no reason why Defra cannot eventually discharge this formulation function, but for years it has been subjected to deep staffing cuts and it lacks hands on experience of preparing major parliamentary bills. In the next few years, it will have its work cut out, designing fresh agriculture and fisheries policy frameworks, as well as greening new free trade agreements. Updating EU laws is very unlikely to be an immediate priority.
2. Long term direction
The Commission helps to set the long term direction of EU policy, through road maps, action programmes and sustainable development strategies. Freed from the vagaries of the electoral cycle, it uses these to plan for the long term. Business and industry appreciate its stabilising influence; it allows them to invest with greater confidence. In the past, august bodies such as the Royal Commission and the Sustainable Development Commission helped UK governments to plan beyond the next election. But these no longer exist, leaving another significant governance gap.
The Commission discharges another important but greatly overlooked function: it evaluates the effectiveness of EU law and policy. A legal requirement to evaluate is often hardwired into the text of new EU laws, alongside an equally important obligation to formulate a new proposal if shortfalls in performance are detected. The combination of these two functions is what keeps EU law fresh, relevant and effective. Of course, Defra performs a lot of policy evaluation work, but it is doubtful that it will have the resources or the political will, to evaluate laws that were originally designed by the EU.
Avoiding zombie legislation is a priority. It means double checking that all these critical governance functions will be adequately discharged after Brexit day. A ‘Commission-like’ body could, in theory, shoulder some of the Commission’s current workload, but not necessarily all of it. For example, its enforcement work receives political support from MEPs and technical assistance from the IMPEL network. Many of its reporting and evaluation activities are outsourced to the European Environment Agency (EEA). And in turn, the EEA’s periodic state of the environment reports shape the Commission’s longer term thinking.
In short, both governance and policy are important. They are two sides of the same coin. This important observation carries two significant implications for how green (or otherwise) Brexit will be. First of all, a watertight Withdrawal Bill is needed to ensure policy continuity after exit day, and the government has pledged to consult on how to close the implementation governance gap. But retained EU environmental law and any new watchdog bodies must be embedded in a wider system of governance capable of discharging the full suite of governance functions.
Second, the idea of governance functions provides a very useful starting point for a wider public debate about what it really means to ‘take back control’ of environmental protection; creating something better, arguably, than starting with the existing landscape of EU and national bodies and assuming that their design and functions cannot be improved upon.
[Image: Brexit by Bankenverband – Bundesverband deutscher Banken from Flickr Creative Commons]