The pandemic seems to have warped our sense of time. It was early spring and now, suddenly, it’s autumn. But Brexit has provided a strange bit of consistency throughout the period. After a month’s pause, the EU and UK have continued to negotiate their future relationship which is hardly surprising given the looming deadline. While the UK government could have requested an extension, it chose not to do so and the transition period will end on 31 December.
We are, therefore, entering the real crunch point of the negotiations and the tensions are ramping up. Last week, after what was supposed to be a key European summit, the European Council simply called on the UK “to make the necessary moves to make an agreement possible”. The prime minister responded by explaining we should get ready for no deal. A Downing Street spokesperson later went further saying that the talks were “over” unless there was a fundamental change in direction from the EU.
Promise of high environmental standards, but not in the deal
But how far apart are the two sides really? Is this all just political theatre before a deal is finally agreed? Getting genuine insights into the negotiations is tough but both sides continue to refer to the significant differences remaining between them on both the level playing field and fisheries.
Thankfully, the environmental aspects of the level playing field should not be that difficult to agree. The UK government has stated on innumerable occasions that it will maintain environmental standards, although it does not want this commitment to form part of the final deal. However, the UK’s intentions to breach the Withdrawal Agreement will have only reinforced the EU’s desire to secure legally binding and enforceable commitments and not just rely on political promises. Indeed, for any environment-related provisions to have a meaningful impact, they must be supported by robust and well-designed governance mechanisms.
The harm no deal would cause
Given the recent war of words, I think we can safely say that a no deal exit is more likely than it was at the start of last week. Michael Gove explained on Sunday that this “is not going to be a picnic”, in a classic example of British understatement. Seventy two trade associations and professional bodies have called on both sides to find a route through, emphasising that businesses cannot afford further disruption given they are already suffering the impact of coronavirus.
The environmental consequences of no deal would be dire. Significant local spikes in air pollution will be caused by traffic queuing at ports and the border delays will also pose serious animal welfare risks. High export tariffs placed on UK food exports will harm farmers and are likely to destabilise planned agricultural reforms and provoke domestic deregulation. No agreement could lead to damaging overfishing and would see the sudden end to longstanding co-operation between the UK and EU in a number of different forums (both political and technical) threatening crucial diplomatic efforts in the run up to the UN COP26 climate conference next year.
It has been a long and difficult slog, everyone is exhausted, not least because we are also living through a global pandemic, but the manner in which we exit the EU really matters. Even if we do get a deal, there is still a huge amount of work to do as much of the underpinning legal architecture for the UK outside the EU is not finished, including to address the environmental governance gap.
Law-making at speed is bad for the environment
Which leads me to the UK Internal Market Bill. This started its second reading in the House of Lords yesterday. The parts of the bill that violate international law have understandably received most attention but its significance in relation to environmental standards should not be overlooked. The bill’s main function is to regulate the internal market for goods and services in the UK according to the principles of non-discrimination and mutual recognition. Ministers have stated that the measures in the bill will maintain high standards but, while governments are not prohibited from introducing new regulations, under these principles incoming goods will not have to meet them if standards are lower elsewhere. This could lead to a deregulatory race to the bottom and a chilling effect on attempts by individual administrations to improve environmental standards, particularly given the lack of common frameworks agreed between them.
There have been a number of examples of innovative devolved environmental policies and, given the scale of the nature and climate crises we face, all governments of the UK must be able to keep upping the ambition and improving environmental standards. Although still quite limited, EU law provides scope for member states to go beyond its commonly agreed standards to protect the environment (for example, banning particular types of packaging or only allowing sustainably managed timber to be traded in a member state). Unfortunately, there is no similar exception for environmental purposes in the UK Internal Market Bill. This has to be corrected quickly.
The bill passed through the House of Commons in just under three weeks which is indecently hasty given its constitutional importance, and unnecessary as we do not expect trade barriers to pop up straight away on 1 January. As Professor Maria Lee explained at a Greener UK event earlier this year “urgency is not good for law-making”. The impact this bill could have on the ability of all administrations within the UK to achieve their environmental ambitions means that we need to see more time and effort from government in getting it right.
