Author: David Baldock
As the spotlight shines on the post referendum decade, we can reflect on the many consequences for environmental policy of leaving the European Union. The ramifications of departure have spanned from the strategic down to regulatory minutia, unsurprising given the central role of the EU in the UK’s environmental law and policy. Moreover, there have been multiple implications for Northern Ireland, for the way that devolution works, for agriculture, fisheries, climate policy and much else. Ahead of the referendum, IEEP was amongst the first to spell out what two departure pathways for the UK might lead to. How now might we sum up the actual outcome of the choices made? David Baldock, IEEP UK Honorary Fellow and former Executive Director, offers a personal view.
The prize of regulatory autonomy for the UK in a sphere dominated by EU law dazzled the Johnson administration, which fought for it fiercely in negotiations. However, once secured it did not unleash a flowering of inspired new indigenous environmental policies or a wave of distinctive approaches carefully tailored to local conditions, displacing the EU rule book. The Environment Act in England, one of the more notable domestic initiatives, owed much to the creative force of environmental NGOs (with IEEP in this mix) and gave rise to a new generation of targets, a mechanism often embodied in EU law. The reassuring language and often voluntaristic tone of the EIPs in England is a departure from the more utilitarian and directional prose of EU law but is this progress? The hard labour of devising and updating environmental laws, scarcely mentioned in 2016, is now evident. The UK has fallen behind the EU on many fronts including the circular economy, the control of chemicals and energy efficiency. The overdue deforestation regulation remains in limbo. 55 directives and regulations (as well as 569 technical, ‘implementing’ laws) have been introduced or amended by the EU. The allure of complete autonomy is fading: alignment with the EU in several areas is now looking attractive to the government and indeed makes good sense and should be taken further as IEEP UK has argued for some time.
Major players in UK governments since 2020 have, to varying degrees, yearned to reduce regulatory burdens and lighten loads on business, convinced this will be easier outside the maw of the EU. The habitats directive and protection of bats and newts have constantly been derided. This antagonism is a major and ongoing concern and significant threat to effective environmental protection. However, the highway to regulatory roll back has proved quite heavy going. There are good reasons for EU based environmental laws in the UK, they are firmly defended by NGOs, often supported by business as well and will not be dislodged easily despite ongoing pressure and some recent steps backwards. In the environment sphere, the anticipated REUL bonfire of EU based regulation turned instead into a lengthy bureaucratic exercise generating ash but little heat or flame.
Greater effective devolution of responsibilities for the environment to the four nations is, unquestionably, a big change, agreed earlier (for example in the 1998 Scotland Act) but in practice triggered on a greater scale by Brexit as the engine of EU law making ceased to drive UK legislation. Devolved authorities have greater freedom where they have the will and capacity to exercise it and where they are not constrained by the Internal Market Act. While relations have improved recently, the system for managing intra UK relationships has had a chequered history, working with less transparency and creative energy than one would wish for. Frustrations in Scotland are understandable but government commitments to alignment with EU law have not proved very realistic in the environmental sphere. In principle a race to the top in environmental standards is possible but so far it has been slow off the starting line. And with the UK leaving the European Environment Agency, presentation of comparable environmental data sets has fractured, with question marks over what data is being collected. This makes it hard to compare progress between the four nations, let alone the UK and other European nations.
The challenge of ensuring compliance with environmental law. Lack of compliance, missed deadlines, inadequate inspections are an endemic problem in the mission to raise standards. The removal of EU oversight over compliance with environmental law was rightly understood as one of the most consequential impacts of Brexit. It is a major loss, with the threat of substantial fines levied by the CJEU for serious cases of non-compliance removed. No replacement has been devised. Nonetheless, here there has been genuine innovation in all parts of the UK, not least because of an early initiative by Greener UK, (including IEEP) persuading Michael Gove, to support the creation of what has become a new family of watchdog bodies, starting with the Office for Environmental Protection, operating in England and Northern Ireland and most recently including the Office of Environmental Governance Wales. A whole new and dynamic layer of oversight and analysis is in place and asking the right questions. The extent to which they can remain fully independent and able to hold governments to account, as they intend to do, will be the central test of the new governance.
New indigenous, often quantitative, environmental targets have come into play for example in England in successive Environmental Improvement Plans and in the Northern Ireland equivalent. They create an important new focus and dynamic for measuring progress and adjusting policy according to requirements. Potentially there may be greater ownership of these locally devised objectives than for equivalent targets agreed in the EU but they are also more subject to change and scaling back as governments and immediate political priorities change. To be taken seriously they involve forward commitments by governments and secure expenditure which can be painful and unwelcome to the Treasury. How seriously are targets being taken? Monitoring by the watchdog agencies and pressure to improve delivery from NGOs and others will help to give targets the authority they need but the outcome is not guaranteed.
Being able to devise and implement agricultural policy within the four nations of the UK, has, as anticipated, facilitated a potentially important means of pursuing environmental as well as food supply objectives. The Common Agricultural Policy is less restrictive than sometimes assumed in UK but England in particular has been able to move much faster in a better direction, with the bulk of payments for land management being refocused on to environmental objectives. This policy has been a roller coaster, subject to unexpected and unhelpful jolts and still has further to go before it provides the frame needed for sustainable land management and the accompanying resources. Nonetheless, there has been a clear new objective and a willingness in principle to innovate, take some risks, draw on the knowledge and skills of farmers and the UK’s considerable scientific reservoirs in a way that is welcome.
Climate policy has been exposed to less change than many other areas, not least because of the foundations provided by the 2008 Climate Act and creation of the Climate Change Committee prior to Brexit. The EU and UK have continued to work well together on global climate issues even when relations elsewhere cooler. The UK avoided entanglement in the painful process of setting 2040 emission reduction targets for the EU. But it has also avoided measures to increase energy efficiency, where the UK is a laggard, and is outside strategic discussions on wind power in the North Sea. The growing linkages between trade and emissions reductions in the EU are spilling into the UK, which is now seeking to shelter the economy from the EU’s CBAM. If the trade barriers arising from Brexit are accelerating deindustrialisation in the UK, as seems likely, more emissions will be off shored. Meanwhile the UK seeks to rejoin the EU ETS. The ripples from Brexit continue.
Capacity issues were not considered nearly enough in the Brexit debate and remain a challenge. Running and progressing environmental policy is a serious endeavour involving the deployment of multiple skills and resources, keeping abreast of developments in a wide sphere. Much of this effort is collectivised in the EU.Shouldering this largely within the UK involves increased capacity and resources, both enriched and complicated by a four-country configuration. Leaning more on EU capacity where it makes sense is also attractive, with chemicals policy a case in point but there are limits to this. Defra headcount grew significantly for a time after Brexit but is now being pushed down with evident stresses arising, such as the non-appearance of legislation required under the Environment Act regarding deforestation. The need for more Environment Agency inspections on the ground has not reduced with Brexit and still looks too low. England is far from alone in this. A step change in commitment is required throughout the UK.