Leaving the European Union: Implications for the Environment

Leaving the European Union: Implications for the environment

October 2019 www.ciwem.org/brexit

Purpose

In June 2016, the UK voted to leave the European Union in a referendum by 51.9% to 48.1%. The UK must now negotiate a new relationship with Europe and formally withdraw from the EU. This will result in the most significant changes to the UK’s constitution in a generation. The subject has been the focus of considerable analysis and commentary over recent months and rather than repeat much of this work, this briefing provides the context, a brief discussion on the key concerns for the environment and provides signposts to further analysis and commentary.

Contents

Purpose ...... 2

Recent Progress – October 2019...... 3

How will Brexit work? ...... 4

Brexit and Devolution ...... 5

What will Brexit mean for the UK? ...... 5 Implications of leaving the EU and EEA ...... 6 The Repeal Bill ...... 6 Other Brexit Bills ...... 7

Key concerns for the environment ...... 8 Environmental Governance post-Brexit ...... 9 Replacement of EU Funding ...... 9 Opportunities ...... 10 Loss of policy certainty and continuity ...... 11

Further reading ...... 12 White Papers ...... 12 Reports and commentary ...... 12

Recent Progress – October 2019 anything could still happen. The options still remaining are: There has been a huge amount of turmoil - Renegotiation of the Withdrawal in government in recent months. After Agreement, although time is running out Parliament voted overwhelming to extend to achieve meaningful progress. Article 50 in March, the EU agreed to an extension and exit day was delayed until - Another extension to Article 50 in order 31st October. Theresa May resigned as to hold either: Prime Minister in June, paving the way for - A second referendum. Boris Johnson to be elected as - A general election. Conservative Party leader by its membership, and therefore become Prime - The UK leaves the EU on 31st October Minister, in July. with no deal, subject to Parliamentary approval. Parliament was controversially prorogued in September for a period of five weeks, Again, we are only matter of weeks away ending the previous parliamentary session, from exit day and there is still a great deal curtailing a series of important Bills of uncertainty about what format Brexit progress through the Houses, and will take. Preparations for no-deal are meaning no parliamentary business could underway across Whitehall, and calls for take place in the weeks leading up to exit Article 50 to be extended again are even day. louder, with the Liberal Democrat party now advocating a straight revoke stance. However, prorogation didn’t take place before legislation to frustrate leaving The biggest risk with regards to the without a deal could be hurried through environment is under a no-deal scenario. Parliament. The so-called Benn Act The Withdrawal Agreement, as negotiated requires MPs to approve leaving the by Theresa May’s government, contained a European Union on 31st October without a hard-won commitment to require the UK deal if a deal is not reached with the EU, to observe ‘level playing field’ and to request another extension to Article commitments and non-regression clauses 50 if it was not approved. 21 Conservative in relation to the environmental issues MPs were stripped of the whip and ejected such as air emissions, biodiversity and from the Party for voting against the climate change, through a clause in the government on this, and coupled with a controversial Northern Ireland backstop series of resignations and defections from protocol. This protocol, however, is the the Party, Boris Johnson was soon leading biggest reason for opposition to the a government with no majority. Withdrawal Agreement. A no-deal scenario does not have such protections. The government failed twice to win a vote in the House of Commons to call an early No deal would be likely to result in the UK election to break the deadlock in pursuing a low tax and low regulation Parliament, and are back at the economy, leading to strong pressure on negotiating table in Europe, and trying to environmental standards and protections. find alternatives to the Northern Ireland Soon after moving into Downing Street, backstop. Boris Johnson confirmed that the UK would seek to diverge from EU rules and Although a lot has happened, there has been little material change in position, and

3 set its own regulatory standards, including and removing penalties for non- on the environment. compliance. The inadequacy of the SIs to replace EU systems could lead to There is to be a Queen’s Speech on 14th ineffectiveness of UK law to ensure October in which the Government will set environmental protection. out its legislative programme for the next Parliament. This is likely to contain How will Brexit work? provision for the development of new versions of previous so-called Brexit bills The European Union (Notification of which never completed their passage Withdrawal) Bill 2017 (the Brexit Bill) through Parliament before it was passed through Parliament without prorogued, such as the Agriculture and amendment and received Royal Assent on Fisheries Bills. 16 March 2017. It is also likely to feature an Environment On 29 March 2017 the UK triggered Article Bill very early on in the session – likely 50 of the Lisbon Treaty, the legal within days of the Queen’s Speech. Whilst mechanism for the withdrawal of a not a Brexit bill as such, the draft Member State from the EU. The use of Environment Bill developed under Article 50 started the timer on a two-year previous Environment Secretary Michael process of exit talks. Gove contained much provision within its Talks commenced on 19 June 2017. Michel governance and scrutiny components to Barnier, the EU's chief Brexit negotiator replace the functions of the European made clear that Britain would have to Court of Justice. Now that Government is negotiate leaving the EU before indicating that regulatory equivalence with negotiating a future trade deal. The terms the EU is not something it favours, it of reference for the negotiations have now remains to be seen whether such been published1. provisions will remain intact. During the negotiation period, EU laws still

apply to the UK, the UK will continue to The other big risk lies in the laying of participate in other EU business (although Statutory Instruments (SIs) for the this has occurred at a much-reduced level) European Union (Withdrawal) Act, the and it has not participated in internal EU most common form of secondary discussions or decisions on its own legislation used to fill in the detail of the withdrawal. primary Act. They are particularly On the EU side, the negotiations have important under a no-deal scenario where been undertaken by the European the UK has no requirement to observe the Commission following a mandate from EU level playing field commitments and non- ministers and concluded by EU regression clauses. In some environmental governments “acting by a qualified areas, SIs are altering current EU majority, after obtaining the consent of the legislation and obligations, for example European Parliament.” requirements for reporting emissions to air

1 Terms of reference for the Article 50 negotiations between the United Kingdom and the European Union

Select Committees have played a What will Brexit mean for the UK? significant role in scrutiny, such as the House of Commons Environmental Audit The Withdrawal Agreement was agreed Committee and the House of Lords EU with the EU and published in November. It Energy and Environment Sub-Committee. was rejected three times MPs and These and many other committees have continues to be renegotiated by the undertaken a range of inquiries holding government. Government to account and influencing Key points include: the development of resulting draft legislation. - The transition period will apply from 29 March 2019 to 31 An Amendment to the EU Withdrawal Act December 2020. requires Parliament to vote on the final deal once the government has effectively - It can be extended by a maximum agreed it with European counterparts. The of 2 years, and any extension must Agreement negotiated by Theresa May’s be jointly agreed with the EU government was rejected by MPs three before 1 July 2020. times. If there is no agreement and the UK - UK citizens in the EU and EU leaves with no deal, then it would be citizens in the UK will retain their subject to World Trade Organisations residency right after Brexit. rules. - The provision for a backstop arrangement in the event of failure Brexit and Devolution to agree a long-term trade deal, concerning avoiding a hard border The UK negotiated the proposed between Norther Ireland and the Withdrawal Agreement on behalf of the Republic of Ireland, putting devolved administrations as it is a reserved Northern Ireland in a closer matter. However, both the Scottish and customs relationship with the EU Welsh Governments (supported by Plaid than the rest of the UK. Cymru) published White Papers that set - The UK cannot leave without the out their preference to remain in the joint agreement of the EU. Single Market. - The UK will remain under the The Northern Ireland Executive has not jurisdiction of the European Court published a White Paper on EU exit. The of Justice during the transition Northern Ireland border issue has become period. one of the most contentious and complicated of the Brexit process. The - The EU and UK will use ‘best details of the UK/EU border will be endeavours to conclude and ratify finalised during the trade agreement talks. an agreement on access to waters and fishing opportunities’.

EU and related membership groupings – UK Government White Paper

Implications of leaving the EU and EEA  The Common Fisheries Policy will

 The free movement of goods, not apply although there will need services, people and capital within to be a mutually beneficial deal the European Single Market will no between UK and EU fishing longer apply industries to retain access to waters

 The European Court of Justice (ECJ)  The Habitats and Bathing Waters will not have jurisdiction in the UK Directives no longer apply

 Future access to the Single Market  Access to the European Investment will have to be negotiated. This Bank could be lost would still rely on products meeting  Access to joint research programmes European standards and meeting and funding could be lost internationally agreed standards, e.g. REACH regulations on chemicals and The Repeal Bill eco-labelling It is estimated that one sixth of our  The UK will not contribute to the EU statute is from Europe and we abide by budget, although it will have to 12,000 regulations. Most of this settle a ‘divorce bill’ European law is transposed into national  The UK will not have a say in the law so it will remain after the UK exits the formulation and amendment of EU EU. The Repeal Bill, officially known as policy on the environment the European Union (Withdrawal) Act, was given Royal Assent on 26 June 2018,  The cornerstone policy that affects and removes the European Communities land management, the Common Act 1972 and converts the body of Agricultural Policy (CAP) will no existing EU law into domestic law. longer apply to the UK The Act has three elements:

 It repeals the European and Social Security Co-ordination Communities Act 1972 (EU Withdrawal) Bill The Bill failed to complete its passage through  The Act preserves EU law where it Parliament before the end of the stands at the moment before we session, and will have to be re-laid in leave the EU. Parliament (and, the next session and start from where appropriate, the devolved scratch. legislatures) will then be able to decide which elements of that law  A fisheries bill - This will enable the to keep, amend or repeal once we UK to take control of its fishing have left the EU - the UK courts will waters after Brexit and to set fishing then apply those decisions of quotas. The Bill failed to complete its Parliament and the devolved passage through Parliament before legislatures. the end of the session, and will have to be re-laid in the next session and  Finally, the Act enables changes to start from scratch. be made by secondary legislation to the laws that would otherwise  An agriculture bill - This will set up a not function sensibly once we have system to support farmers after left the EU, so that our legal system Brexit takes them out of the continues to function correctly common agriculture policy. outside the EU. Following a consultation on the Future of Farming in Spring 2018,

the Bill was published in September Other Brexit Bills 2018. The Bill failed to complete its The Queen’s Speech 2017 listed a number passage through Parliament before of other ‘Brexit Bills’: the end of the session, and will have to be re-laid in the next session and  A customs bill - This will replace EU start from scratch. customs rules and allow the UK to impose its own tariffs after Brexit.  A nuclear safeguards bill - This will The Taxation (Cross-border Trade) set up a nuclear safeguards regime Act received Royal Assent in to compensate for the fact that September 2018. Brexit will take the UK out of Euratom, a separate treaty governing  A trade bill - This will allow the UK to safety in the civil nuclear power operate its own trade policy after industry. The Nuclear Safeguards Act Brexit. This may face opposition was give Royal Assent in June 2018. from those MPs determined to keep the UK in the EU customs union. The  An international sanctions bill - This Bill failed to complete its passage will allow the UK to continue through Parliament before the end applying international sanctions, of the session, and will have to be because after Brexit it will no longer re-laid in the next session and start be bound by EU sanctions policy. from scratch. The Sanctions and Anti-Money Laundering Act received Royal  An immigration bill - This will allow Assent in May 2018. the UK to set its own immigration policy after EU exit. The Immigration

 An EU (approvals) bill - This is a and non-EU countries. The European technical bill, implementing changes Union (Approvals) Act received Royal to treaties involving the EU, the UK Assent in December 2017.

Key concerns for the environment

Increasingly environmental challenges regression provisions in area from air pollution to water quality have including the environment”. been understood as transboundary in Risks relate to what happens once this nature and have required a multi-national legislation is firmly under control of the UK approach to resolve. There is a risk that Parliament; in these circumstances the environment is neglected post-Brexit legislation is easier to repeal, particularly if as a result of not having EU drivers and we it is transposed as secondary and not could undo some of the environmental primary legislation. gains of the last few decades. The Birds and Habitats Directives and the The impact will be felt strongly within the Bathing Waters Directive are not environment department: applicable once we leave the EU. The  Of around 12,000 EU laws, a quarter farming Minister George Eustice, made his of the total relate to Defra feelings on the Habitats and Birds

 Defra distributes £3 billion a year of Directives clear when he denounced them EU money to farmers and land as “spirit crushing green directives”. EU managers; around 2000 people in nature legislation is considerably stronger the Rural Payments Agency ensure than the UK legislation which preceded it. this money is paid, and similar These hugely valuable protections for our numbers in Natural England help national wildlife would undoubtedly be them improve the environment; under pressure if they were perceived sufficiently widely as a brake on the pace  Some 60% of the UK’s food and of development, particularly housing and drink exports–the largest UK economic growth. manufacturing sector–went to the EU in 2015. Over 70% of our annual There has been little discussion of the fate agri-food imports come from the EU. of the Water Framework Directive post- Brexit by government and commentators. There is a concern over the capacity within Many of the 10,000 people in the government departments to deliver on Environment Agency check the quality of these aspirations with Defra having water bodies against standards set by the already faced a 25% cut in resources. It has EU which have vastly improved their though hired additional staff to work on quality over the years. its EU Exit strategy. It is not clear what the long-term fate of these Directives will be, but they will The Future Relationship Between the UK continue to apply until changed by and the EU White Paper stated that the UK Parliament. CIWEM considers there will would: undoubtedly be serious public opposition “Commit to…agreeing to maintain against any proposals to remove or high standards through non- significantly weaken such major

8 environmental protections as the Habitats, account, and that the environmental Birds, Bathing Water or Air Quality principles that have underpinned EU Directives which safeguard the quality of environmental law would not be our environment. transferred to UK law. An Amendment to the EU Withdrawal Bill initiated by the A crucial factor which has played a key Lords, and altered by the government, part in the achievement of significant now means that the environmental environmental improvements in the UK at principles will be enshrined into a new times, has been the ability of the European Environment Bill, and the watchdog will Court of Justice to hold national have the power to hold the government to governments’ feet to the fire in the form account through the legal system. of infraction proceedings (valuable in forcing implementation of the The Government published the draft requirements of the Bathing Water Environment (Principles and Governance) Directive and Ambient Air Quality Bill in December 2018, which includes Directive). Without this enforcement provisions for the creation of the new mechanism, an alternative approach will environmental watchdog, to be known as be needed, such as enhancing the powers the Office for Environmental Protection of the UK Supreme Court. (OEP), and provisions for enshrining the environmental principles into UK law.

The OEP has been criticised for not being Environmental Governance post-Brexit meaningfully independent of government In its flagship environmental policy in order to effectively advise, scrutinise launched in January 2018, the 25 Year and enforce government implementation Environment Plan, the Government of environmental law and policy. pledged to be the “first generation to leave the environment in a better state The Environment Bill was not laid before than we found it” and committed to Parliament before it was prorogued. consult on creating a world-leading Theoretically, the Bill could be laid in the environmental watchdog to replicate the next session, but a new government might functions of the EU. Currently, the be tempted to make amendments leading European Commission provides a scrutiny to concerns that necessary ambitions function and the Court of Justice of the could be watered down. It’s also possible European Union provides the enforcement that a no-deal government could can the function of the UK government’s Bill and the proposed OEP completely. implementation of environmental law. During the passage of the EU Withdrawal Replacement of EU Funding Bill through the Houses of Parliament, The UK receives around £6bn of funding concern was raised that environmental each year. Whilst this is a small sum in protections would be weakened post- overall spending terms, it has significant Brexit. Following the publication of the benefits to agriculture, rural affairs, consultation on Environmental Principles regional economies and science. Two and Governance after EU Exit in May 2018, thirds of agri-environment expenditure there was still concerns about the lack of originates from the CAP and it is adequate powers proposed for the new estimated that UK farmers received €3.1bn watchdog to hold the government to in 2015.

Another concern is that research may Opportunities suffer. The UK is one of the largest In the upcoming negotiations and the recipients of research funding in the EU. wider programme of government the There are many joint research focus of the Government will be programmes with partners in Europe and important. It is already seeking to find the access to European funds such as Horizon opportunities that Brexit might present 2020, Life funding and European Research across all departments. Council funding could be at risk. UK universities currently benefit from around The UK has more often than not been a £1 billion a year in EU research funding. leader rather than a detractor in terms of its handling of EU environmental policy The loss of free movement of people may since the 1970s, across governments of all also have implications for access to skills. political colour. A great deal of European legislation was led by or supported by the UK. This affords some reassurance that the leave result will be unlikely to result in a bonfire of environmental legislation. Parliamentary time will need to be dedicated to reviewing regulations after the exit which could take a number of years.

CIWEM calls for Environment at the heart of EU exit Environmental protection and standards must be maintained as we leave the EU and negotiate future trade deals. The new Government must commit to providing equivalent, or better, protection for the environment when we leave the EU. The ‘precautionary principle’ and the House of Commons Library. 2017. The economy ‘polluter pays principle’ – the and public finances fundamental foundations of environmental protection – must be transposed into UK law and any trade The loss of access to the European deal must treat environmental standards Investment Bank will mean that the UK will as non-negotiable. need to develop our own investment funds. In 2015 the EIB provided €7.77 The civil service must be given enough billion to UK infrastructure projects such as capacity to deliver EU exit alongside a the Thames Tideway Tunnel. Norway and meaningful domestic programme of Switzerland have found that the EIB will government. Skilled and experienced only fund their projects when they are for staff will be needed to backfill positions interconnector projects with EU countries lost to the departments coordinating EU and they have struggled to access low cost exit. finance for other projects.

The CAP is an area where we could Although we have an opportunity to significantly improve environmental design better polices and subsidies to protection and create a more progressive benefit the environment, the difficulty will policy. By focusing funding on delivering be in persuading the general public that public goods including food production, public money should be spent here when ecosystem services access, public health, NHS funding was a key topic in the water quality improvements and referendum campaign (and to a lesser preventing flooding will make the benefits extent in the subsequent General Election more tangible. campaign). As the map above illustrates devolution will also come into play when readdressing farm payments. CIWEM calls for progressive agriculture and land management An ambitious strategy to replace the Loss of policy certainty and continuity European Common Agricultural Policy Most businesses, certainly the most (CAP) is needed. A replacement for CAP forward thinking and successful, do not should ensure that public money is used regard environmental regulation as a great efficiently to deliver sustainable food burden. They plan for it and adapt to it, production whilst improving the investing accordingly and will typically be provision of public goods including more resilient as a result. The common ecosystem services, public health, high business request in this context is long- water quality and catchment level flood term regulatory certainty to enable resilience. planning and the ability to raise capital and a level playing field to guarantee fair

trade. The longevity of EU policy and regulation has helped deliver against these needs and businesses will be looking for a clear steer from UK government going forwards. CIWEM will be monitoring events closely and pressing for the maintenance and improvement of levels of environmental protection and performance within the UK. We are keen to extend an invitation to our members to assist us in this work.

House of Commons Library. 2017. The economy and public finances