This post is by Donal McCarthy, senior policy officer at the RSPB.
On Monday night, MPs approved a motion providing parliament with the chance to hold a series of indicative votes on alternatives to the current Brexit deal. One of the alternative options that is being promoted by a cross-party grouping of MPs is a ‘Norway-style’ agreement (also known as ‘Norway Plus’ or ‘Common Market 2.0’).
This option would see the UK negotiate a future relationship with the EU similar to that enjoyed by Norway, Iceland and Liechtenstein, the three members of the European Free Trade Association (EFTA) that participate in the EU single market under the terms of the European Economic Area (EEA) Agreement. But what might this mean for the laws governing species and habitat protection across the UK?
Dynamic alignment with most EU environmental standards
The preamble to the EEA Agreement sets out a commitment “to preserve, protect and improve the quality of the environment” and to uphold the EU’s core environmental principles. The three EEA-EFTA states are required to comply with the majority of EU environmental rules, as listed in Annex XX. The EEA Agreement is also dynamic, meaning that new or revised EU legislation that is ‘EEA-relevant’ must be incorporated into the related annexes and protocols.
As is the case for EU member states, the EEA-EFTA states are free to develop more ambitious environmental policies than the EU if they so choose. In other words, the agreement acts as a floor rather than a ceiling for the parties’ domestic environmental ambitions.
Compared to the current Brexit deal, a ‘Norway-style’ agreement would potentially provide stronger guarantees that environmental standards will not be weakened after Brexit. As well as locking the UK into most existing EU environmental legislation, a ‘Norway-style’ agreement would also require the UK to update its domestic statute book so as to mirror future changes in relevant EU laws and standards. The UK would still be able to contribute to the EU legislative process but would no longer be formally represented in the EU institutions and so would have a diminished role in the development of new EU laws relative to the EU member states.
More robust oversight and enforcement
EEA-EFTA state compliance is monitored by the EFTA Surveillance Authority and enforced by the EFTA Court. These bodies perform similar functions to those carried out by the European Commission and European Court of Justice (ECJ) in relation to EU member state compliance. In fact, except for the important lack of a power to impose fines, the EFTA Court has similar enforcement powers to the ECJ.
Overall, the EEA Agreement has stronger mechanisms for enforcement than any standard free trade deal. It is therefore expected that enforcement of environmental standards would be more rigorous under a ‘Norway-style’ arrangement than under the current Brexit deal, which relies heavily on the robustness of the UK’s new domestic arrangements for securing compliance with environmental standards. As things stand, the UK government’s proposals for environmental governance reform fall considerably short of the effectiveness of current EU derived systems.
Potential gaps in coverage
Although most EU environmental legislation is incorporated into the EEA Agreement, there are some notable gaps, including the EU’s nature conservation rules (although there are strong arguments for adding them). This means that the EEA-EFTA states do not currently have to comply with the Birds Directive or the Habitats Directive, two key pieces of EU legislation that are considered to be the driving force for conservation across Europe. More than 100 species and 75 habitat types listed under these directives currently occur in the UK.
There is a risk that we could see a roll-back of the protections these directives currently provide if they are not covered by the EU-UK future relationship. At the very least, there is a risk that future governments across the UK might opt for greater flexibility on certain elements of this legislation, such as relaxing the protection afforded to Natura 2000 sites or removing certain species from the lists requiring strict protection. In such a scenario, we could very quickly see damaging divergence across the four UK nations and between Ireland and Northern Ireland as well.
Of course, international biodiversity commitments, notably the Bern Convention, would continue to apply to the UK, but these do not offer anywhere near the same level of protection. In fact, there is evidence to suggest that numbers of certain key species are significantly higher and trends significantly more positive in countries covered by the EU’s nature legislation compared to those such as Norway that are merely bound by the Bern Convention.
Similarly for habitats, it has been argued that Norway’s protected area network does not sufficiently cover all relevant habitat types, with the proportion of Norway’s forests that are fully protected comparing unfavourably with its closest EU neighbours (Sweden and Finland).
EU is likely to insist on safeguards for nature
Right from the start of the Brexit process, the EU has expressed a degree of concern that the UK might seek to undercut its social and environmental standards post-Brexit in an attempt to gain a competitive economic advantage. Given that the UK economy is over five times bigger than the combined size of the three EEA-EFTA economies, such concerns are unlikely to diminish in a scenario in which the UK seeks to negotiate continued access to the EU single market via a ‘Norway-style’ deal. The EU will also be keen to avoid a situation in which the UK is perceived to gain additional flexibility over the implementation of key environmental rules whilst also retaining the benefits associated with EU single market access.
In January 2018, the European Commission set out its initial thinking on this issue, signalling that nature conservation should be considered for inclusion in the list of key areas of environmental policy where it would be necessary to secure a ‘level playing field’ in the EU-UK future relationship. Then, in November 2018, the draft Withdrawal Agreement was endorsed by the European Council, committing the EU and the UK to maintaining existing levels of environmental protection in areas including nature and biodiversity conservation post-Brexit.
Although these commitments are contained within the Ireland/Northern Ireland ‘backstop’ and relate to non-regression, as opposed to regulatory alignment, their real significance is that they probably represent the baseline model for the treatment of environment and ‘level playing field’ issues that the EU is likely to accept under any form of future trade agreement with the UK. Indeed, the accompanying Political Declaration calls for a set of commitments in the future trade relationship that “build on” those in the Withdrawal Agreement.
As MPs debate these issues in the coming days, they should feel reasonably confident that a ‘Norway-style’ future relationship has the potential to deliver some significant environmental improvements over the current Brexit deal, including for nature.