Beyond the no deal panic, we need full scrutiny of Brexit legislation

SI smallThis post is by Libby Peake, senior policy adviser at Green Alliance, and Ruth Chambers, senior parliamentary associate for Greener UK

Now the EU has granted a Brexit ‘flextension’ until the end of October, the immediate threat of no deal has subsided. In fact, the government has stood down the ‘army’ of 6,000 civil servants preparing for that contingency. But this wasn’t the only preparation being undertaken: many of the 10,000 other civil servants working on Brexit had been creating the torrent of regulations required to bring European laws into the UK legal framework. This process, comprising 10,091 pages of technical legislation (a quarter of which came from Defra), is now largely complete. So, given the breathing space, it’s timely to take stock of where this process has got to.

Unknown environmental effects
Despite stalwart efforts by many NGOs, we have only been able to analyse a small amount of legislation, while swathes have passed by without us even opening the covers. The government has insisted this process is largely technical so that laws work properly after exit. And, for the most part, they are right. But, even with our limited consideration, we found mistakes, surprises and policy changes, some of which may have major environmental implications. There will undoubtedly be others. Neither government nor civil society want the clarity or certainty of our legal rules to be eroded.

The need for effective scrutiny and engagement
We highlighted a number of key issues for parliamentarians to consider. Despite the impenetrable nature of much of the legislation and the short notice and late hour at which it was often debated, we are indebted to parliamentarians from across both houses for raising concerns, putting questions to ministers and extracting many helpful statements and assurances.

The rush of legislation has meant that stakeholder engagement has suffered. Early discussions on content did not take place and the volume and speed of the programme caused huge capacity issues. At the same time, Defra’s staffing grew exponentially so new recruits could be forgiven for thinking that such wafer thin engagement was the norm. Defra belatedly put in place a sounding board to test ideas and provide advice and a reading room for advance viewing of legislation, but, while welcome, this happened too late in the process to improve deficiencies. While it clearly recognises that engagement needs to be increased, earlier and meaningful input must be made possible.

Legislation can still be amended
As we’ve previously argued, the process also fell short in replicating the protections UK citizens and the environment currently benefit from when it comes to chemicals. The EU’s Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regime is an incredibly complex regulatory regime, directly applicable to member states and centrally administered by the European Chemicals Agency (ECHA) in Helsinki. Transferring it into UK law was never going to be easy, but the legislation as it stands will weaken protections, notably by stripping away advisory committees and having inadequate budgetary and staff resources.

But this is not the end of the story. Depending on the final Brexit deal and the future relationship with the EU, the legislation will not necessarily come into effect as currently written. It remains government policy to try to secure associate membership of ECHA and remain part of REACH. This was confirmed by ministers introducing the legislation for a UK system in both houses of parliament. Resources Minister Therese Coffey told the Commons “we want a strong deal under which the UK will continue to participate fully in EU REACH”. While Lord Gardiner of Kimble told the Lords “our preference is obviously to maintain participation in the European Chemicals Agency”.

Debates preceding the passing of the UK REACH legislation in both the Commons and the Lords were incredibly well informed about a very technical and complex topic. The Lords passed a motion of regret explicitly recording their displeasure that the UK has not secured continued access to the REACH regime, and highlighting concerns about the duplication of efforts, costs and, potentially, animal testing. This motion doesn’t change the legislation or require the government to do anything, but it is a significant statement of discontent as such motions are not proposed – let alone passed – very often.

Since successfully steering the UK REACH legislation through parliament late in March, the government has already amended it. Its amendments are genuinely technical in nature, and address business concerns on the continuity of UK-EU supply chains. While it is unfortunate that these amendments have not addressed our main concerns, they show that deficient legislation can be adjusted.

As several parliamentarians noted during the REACH debates, the legislation was only brought before parliament very late in the Brexit process, and at a time when no deal seemed imminent. And this is true of other environmental legislation. It would have been irresponsible to allow the UK to leave with no arrangements in place. But the breathing space now provided by the ‘flextension’ is a chance for the government to pause and reflect about the significant shortcomings stakeholders, including Greener UK, have raised regarding environmental risks.

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