UK-EU trade negotiations: the level playing field is at risk of ‘regression by default’

intext-puffinsThis post is by Andy Jordan and Brendan Moore, who are respectively co-chair and research associate at Brexit&Environment.

The fate of the trade negotiations between the EU and the UK will hinge on the ability of both sides to strike a deal on the so-called ‘level playing field’ provisions that prevent either side from lowering (or ‘regressing’) their environmental standards to secure a competitive advantage.

A new report by Brexit&Environment reveals that the way in which Brexit has been pursued in the UK has increased the risk of a back door form of regression which arises ‘by default’, through the insufficient review and revision of policies retained from the EU.

A new category of environmental policy: retained EU law
There are around 500 separate items of EU environmental law and policy. If these are not fully retained after Brexit (ie transferred into UK law) it will produce a massive gap in UK environmental policy protections. The UK government claims that it has plugged this gap by ‘retaining’ all relevant EU laws and policies, using a form of delegated legislation (known as statutory instruments – SIs) to transfer them onto the UK statute book. Section 8 of the European Union (Withdrawal) Act 2018 allows the government to use SIs to amend EU law to “prevent, remedy or mitigate” any failure of retained law to “operate effectively” or to correct “any other deficiency in retained EU law” arising from Brexit.

Ensuring policy is relevant and effective
Review and revision clauses are a little known feature of EU policy. They ensure that individual policies are regularly evaluated (‘reviewed’) or updated (‘revised’) so they remain relevant and effective in light of changing circumstances. Within the EU, the European Commission ensures that these important clauses are implemented. During the retention process, under the 2018 EU Withdrawal Act, the government amended individual EU laws to reflect the fact that the UK left the EU on 31 January, and thus the ambit of the European Commission.

An important question therefore arose when the UK left the EU: how will all the retained laws be regularly updated outside the governance framework of the EU? To answer that question, we compared 24 key EU environmental laws with the 20 SIs that were adopted to retain them in UK law. We discovered that the vast majority of the SIs removed the review and revision clauses in the EU laws they modified. This change, made at relatively great speed with little democratic scrutiny, has escaped the attention of many observers, including many parliamentarians.

Regression by default?
The changes leave the retained laws at significantly greater risk of succumbing to what the parliamentary Environmental Audit Committee termed ‘zombification’, ie they will formally exist on the UK statute book, but without regular revision will gradually become outdated and less environmentally effective.

We think that the removal of so many clauses may have important, long term policy consequences. It is an open question as to whether the changes we uncovered are in keeping with the spirit of the 2018 Act, which was originally sold as a means to make ‘technical’ amendments in a speedy fashion to prevent policy gaps from appearing. The apparent disappearance of so many clauses is certainly a stark reminder that the UK lacks a public plan for what to do with all the retained EU law.

Why are the changes made by SIs relevant to the historic trade talks? One way in which UK standards could conceivably ‘regress’ after Brexit is via an explicit process of deregulation (‘cutting red tape’). Our analysis, however, points to another, less well known possibility: a ‘back door’ form of regression that happens slowly by default, through the absence of review and revision clauses. Now that it is outside the EU, the UK has an opportunity to demonstrate its firm commitment to non-regression by explaining how the retained laws will not simply be preserved in their current state, but will be progressively built upon and improved over time.

What could the UK government do?
There are several simple steps that the government could take to address the risk of regression by default. For example, it could use its executive powers to amend the original SIs to insert review and revision clauses that are stronger and more definitive than the originals. When it is up and running, the new Office for Environmental Protection could also regularly report on the status and effectiveness of all retained EU law.

Finally, it is worth remembering that policy review and revision are key components of the EU’s Better Regulation agenda. The EU will understandably expect the UK to be as firm an advocate of that agenda outside the Union as it was when it was a member state.

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