This post is by Nigel Haigh, honorary fellow at the Institute for European Environmental Policy.
Despite Brexit, the UK is geographically and environmentally linked to the continent of Europe, and the EU remains our single biggest market for goods.
The UK’s legislation, therefore, has to respect both its environmental obligations to its neighbours, and also its own self interest in its need to minimise barriers to trade.
Divergence could be much increased if the Retained EU Law (REUL) Bill, currently before parliament, is adopted in anything like its present form, as its purpose is, as Liz Truss put it, to get rid of all ‘EU red tape’.
But UK environmental law is already diverging from EU law, and there are many examples. These are being tracked by IEEP and a recent paper identifies and explores the motives of the 13 groups who want it to happen or who want to stay aligned.
Here’s a summary of those groups and their motivations:
The UK government
The last general election was won by the political party promising to ‘get Brexit done’ and ‘take back control’ of our laws (which could mean higher or lower standards). The government, therefore, has an obvious interest in divergence, but attitudes within the party and the government have varied from not wanting to diverge ‘for the sake of it’ to wanting to get rid of all ‘EU red tape’. The attitude of the government under Prime Minister Rishi Sunak could become clearer when the Retained EU Law (REUL) Bill reaches its final stages.
These are the drivers of the REUL Bill, seeing it a symbol that the UK is taking back control.
These favour continuing alignment in anticipation of the day when EU law applies in the UK again.
EU member states and the EU institutions
The Trade and Cooperation Agreement (TCA) between the UK and EU requires a level playing field so the EU member states and EU institutions (in particular the European Commission) have an interest in the UK not lowering standards that affect competition.
Neighbouring countries and their publics
These will object to lower standards if they affect environmental quality in their territory or waters in which they have an interest (ie the North Sea, Irish Sea and English Channel).
Scotland and Wales
The present Scottish Government aspires to join the EU if it achieves independence and so will be inclined to stay aligned with EU legislation. Wales sees itself as environmentally progressive and will be inclined to favour high standards. There is considerable trade between both Scotland and Wales and the rest of the UK, so Scottish and Welsh industrialists will object if any lowering of operating or procedural standards in the rest of the UK leads to the distortion of competition.
Under the Northern Ireland Protocol, Northern Ireland remains in the EU single market and all relevant EU legislation has to be followed. Any divergence from EU law by Great Britain could provide obstacles to its trade with Northern Ireland.
International organisations and parties to international conventions
Increasingly environmental policies, both global and regional, are formulated by international organisations and embodied in conventions. The parties to these will need to be satisfied that UK legislation adequately fulfils commitments made.
UK exporters to the EU
These will not welcome UK product standards diverging from EU standards. They are resisting the replacement of the CE mark with the UKCA
UK operators of installations subject to operating standards
These may welcome lower standards to reduce costs and gain competitive advantage.
These don’t want UK competitors to gain competitive advantage by reducing standards to reduce costs, eg the EU chemical industry wanted the UK to remain associated with EU REACH.
Governments and industries of countries exporting to both EU and UK
These will be inconvenienced if standards differ between the EU and UK.
Environmental NGOs, environmentalists and the public
Environmental NGOs, environmentalists and the majority of the general public wish to maintain high environmental standards and do not want to see them reduced, if that were to be the result of divergence from EU standards.
Some of these groups don’t want to diverge because of trade, while others want to maintain environmental standards and quality. The link between environmental protection and trade is obvious in some cases but less so in others. To help clarify, IEEP’s analysis divides EU environmental legislation according to different standards as follows:
- Standards for traded products
- Operational standards, such as emission standards for industrial plant, or the management of waste sites or sewage works
- Procedural standards, such as environmental impact assessment and access to environmental information
- Quality standards, such as water or air quality
- Standards remote from the EU single market, such as drinking water, birds and habitat protection
When considering whether to diverge or not from these EU standards, the government needs to consider the possible effects on both trade and the environment. Product standards differ in that they alone can create ‘non-tariff’ barriers to trade, whereas the others are only able to distort competition less directly. UK manufacturers exporting to the EU have to follow EU product standards anyway and generally do not want standards to deviate. So there are strong arguments that it is in the UK’s own interest for product standards to stay aligned with the EU’s. The government is now free to choose which course of action will benefit the UK most and, if alignment with EU product standards meets this criterion, that wouldn’t undermine the UK’s commitment to having the freedom to decide its own laws.