This post is by Stephen Hinchley, principal policy officer, external affairs, RSPB.
On Wednesday 14 November, after almost two years of negotiations and a marathon five hour cabinet meeting, the government published the much awaited draft Withdrawal Agreement. Today the accompanying Political Declaration on the UK’s future relationship with the EU was circulated.
Taken together, they contain some promising commitments which, if approved and properly enforced, would help to avoid some – but by no means all – of the many risks posed by Brexit to the environment.
These commitments include:
- No reduction in EU-derived environmental protection across a broad range of important policy areas including climate change, nature and biodiversity conservation and air quality
- Effective enforcement of “laws, regulations and practices” by “an independent and adequately resourced body or bodies” across the four countries of the UK
- Environmental principles, including ‘polluter pays’ and the precautionary principle, to be respected in domestic legislation
- A carbon pricing system of the same effectiveness and scope of the EU ETS (Emissions Trading Scheme) to be implemented
These commitments are welcome, and a major advance on any previous trade agreements. The imagined scope for the green watchdog or watchdogs is particularly ambitious and, by including climate policies and public authorities within its remit, goes beyond what has thus far been proposed publicly by the UK government. The Withdrawal Agreement provides an impetus to get this right, particularly as there is no mechanism for civil society to participate in the enforcement of the agreement at the UK-EU level.
Caveats and important questions about the commitments
However, the Withdrawal Agreement’s promising commitments also come with some caveats and questions.
First, these commitments are currently only detailed in the Withdrawal Agreement ‘backstop’, which would come into force for a period only if a future relationship agreement could not be concluded before the end of the post-Brexit transition period. While they are clearly referred to in the Political Declaration as the starting point for the future relationship negotiations, there is not yet any watertight guarantee that these provisions would be included in a future deal.
The final agreement on the future relationship will need similar or preferably stronger commitments to environmental standards, principles and enforcement. Questions of future co-operation and developing new standards over the longer term will also need to be addressed.
Second, the aspirations of both parties to maintain high environmental standards will only be realised if the four countries of the UK, either collectively or individually, develop truly world-leading enforcement of environmental law to replace the supervisory roles of the European Commission and European Court of Justice (ECJ).
At present, it is possible that an initial complaint of a breach of environmental law, by a member of the public or a charity like the RSPB, can progress at no cost as far as the ECJ (if it is on strong foundations). The ECJ then has the power to levy significant fines on governments and public bodies if its judgment is not complied with and until that breach is remedied.
Since 2003, nearly half of ECJ judgements relating to the UK have concerned the environment (eg air quality, nature protection and waste water treatment) and the Institute for Government has warned that a governance gap could appear in environmental regulation after Brexit.
We are disappointed that no government in the UK has yet come forward with proposals that would provide an adequate replacement. The UK government’s draft Westminster Environment Bill, expected shortly, will be a critical first test of the credibility of the commitment the cabinet has signed up to in the draft Withdrawal Agreement (and any subsequent negotiated agreement). Equally important will be public consultations expected shortly in Scotland and Wales, and there is a question mark over how this will be addressed in Northern Ireland.
Third, many uncertainties will only become clearer or be resolved once the negotiations on the future relationship are complete. Seemingly straightforward matters such as continued participation in the European Environment Agency still need to be agreed.
It means heavy reliance on new domestic enforcement
With a political maelstrom sweeping Westminster, we can’t be sure that the current agreement will be put to a ‘meaningful vote’. However, with the EU’s negotiating position unlikely to shift, we can conclude that any agreement on the future relationship will need to maintain environmental standards. We can also be fairly certain that it will rely heavily on new domestic enforcement body or bodies.
What we don’t yet know is whether the UK government and devolved administrations’ proposals for enforcement of environmental law post-Brexit will be adequate replacements for the role of the European Commission and ECJ.
[Image by Jason Jones, Flickr]