How post-Brexit law making is jeopardising the environment

Since Brexit, environmental policy is increasingly being implemented via statutory instruments (SIs), which have been used to transpose EU law into UK law. They cover almost every aspect of the environment, from chemicals to wildlife to fisheries.

The Greener UK coalition has reviewed over a hundred SIs over the past three years and found some worrying trends: ministers giving themselves greater powers, progress being inadequately monitored and a risk that scientific advice could be squeezed out of policy making.

1. The environmental impacts of statutory instruments
Brexit has changed the way environmental law is made in the UK. Previously, 80 per cent of our environmental laws came from the EU. Defra has rewritten these laws to bring them into the UK statute book, many via SIs.

SIs have a well-earned reputation for being technical and complex, but they are often used to bring in regulations with large environmental impacts.

An SI might set out which pesticides and chemicals are allowed in the UK; how farmers are subsidised; how biodiversity levels are monitored; whether landowners can burn carbon absorbing peat; the maximum levels of antibiotics allowed in meat; or whether your pet needs a passport to enter Northern Ireland.

Even the UK’s hugely important and legally binding carbon budgets are brought in via SIs. These budgets, which set a limit on the carbon the UK is allowed to emit over five year periods, form the basis of the governments’ climate strategies. The same applies to the legally binding targets that will be set through the Environment Bill, which will be brought to life via SIs.

This central role of SIs to the environment is why Greener UK has had such a strong interest in them. This reviewer lists them and includes analysis provided by lawyers and policy experts. Greener UK has also produced a briefing highlighting the main trends and recurring issues.

2. Weaknesses in Defra’s post-Brexit SIs
One persistent trend is the greater powers given to ministers to change environmental law. For example, new SIs give them new powers over whether and when to ban pesticides, whereas these decisions previously relied explicitly on the latest scientific evidence. In another SI, EU lists of banned substances in food have not been replicated and ministers have been given power over how and when to replace them. Changes like these have made the government less accountable and environmental law making less transparent.

There are other issues. Previously, the European Commission played a role in enforcing environmental law and monitoring member states’ progress. These functions have been lost in translation in many cases. For example, new SIs do not require the government to publish information on fish stock management or levels of air pollution, meaning it is now harder to assess progress.

In many instances, EU specialist bodies like the European Chemicals Agency, the European Food Safety Authority or the European Medicines Agency have been replaced with domestic equivalents, like the Environment Agency and the Health and Safety Executive. To carry out their new level of duties effectively, these authorities need greater funding and expertise.

3. The need for greater transparency
There were concerns around many of the SIs Greener UK reviewed but the process of bringing them into law offers hardly any opportunity for scrutiny.

SIs are rarely changed after they have been introduced to parliament (“laid”). Greener UK has made a number of evidence submissions to the Secondary Legislation Scrutiny Committee, a parliamentary committee that scrutinises SIs. We have also provided briefings to MPs and peers around SIs debated in parliament. However, only around a third are debated in both Houses, and they are almost never amended or rejected.

This is why SIs must only be used to bring about genuinely uncontroversial changes. Many recent bills give ministers extensive powers to introduce substantive changes through SIs, such as the Fisheries and Agriculture Acts. The chairs of three parliamentary committees wrote to the government about this worrying trend in 2020, saying that “Parliament is being asked to pass legislation without knowing how the powers conferred may be exercised by ministers and so without knowing what impact the legislation may have on members of the public affected by it”.

Where SIs are necessary, early engagement by government departments with stakeholders is fundamental. During this parliamentary session Defra has had the third largest SIs programme, laying 200 SIs in the past 18 months. This pace is challenging for anyone with an interest to keep up with, not least because SIs can be difficult to understand and analyse.

There needs to be much greater transparency around the UK’s environmental law making to ensure the rules introduced are as robust as possible, are properly understood and have public buy-in.

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