27 Apr 2017

Government's reponse to House Lords Brexit & Environment report: still a governance gap?


The government has responded to the House of Lords EU Committee report on Brexit & the Environment. The HoL report, published in February was particularly critical of the government's handling of governance questions (read our summary of the report) stressing that "the Government’s confidence in its ability to ‘hold itself to account’ contrasts with the concern expressed by the vast majority of our witnesses".

The government's response raises a number of key points on governance, devolution, and agriculture.

On governance, the Government rejects the Committee's call for additional enforcement mechanisms, to address the gap left by the EU. Instead, the Government argues it can rely on existing Judicial Review & Parliamentary oversight.




On devolution, the government rejects the idea that powers would go straight from Brussels to the devolved administration. Instead, some powers would be "passed" by Westminster to the devolveds. The government will decide which are the "right" powers to be exercised at which level of governance.


Finally on agriculture the government explains replacing the CAP will take time and future policy should not felt bound by the current arrangements. Policy will be driven by a twin ambition for competitiveness and environmental protection.




Throughout the document, the government reiterates call for a 'smooth and orderly' transition mentions repeatedly its manifesto commitment to be the first generation to leave the environment (in England) in a better state and its pledge to publish a 25 year plan for the environment in the course of this Parliament (but this has been changed, of course, by the snap election). It further calls for "a partnership of friends and allies, of interests and values" with the EU. 

But beyond these commendable objectives the government does not budge on governance at all, both with regards to enforcement (existing UK arrangements will have to suffice) and with regards to devolution (Westminster will choose what remains centralised). Reading the government's response, the governance gap appears to be here to stay -- this contrasts with Labour's new Brexit policy pledging to address post-Brexit enforcement challenges


20 Mar 2017

Environmental implications for Scotland of the UK leaving the EU

The Scottish Parliament's Environment, Climate Change and Land Reform Committee held last week a hearing into the environmental implications for Scotland of the UK leaving the EU. 

The Committee asked questions of a panel of experts -- Professor Gavin Little (University of Stirling); Professor Elisa Morgera (Strathclyde University); Professor Colin Reid (University of Dundee, EUrefEnv); Dr Annalisa Savaresi (University of Stirling); Bob Ward (Grantham Research Institute on Climate Change and the Environment) --  about the scale of the task of disentangling the EU elements from Scottish law, the enforcement of environmental law after Brexit, the consequences of international agreements and the implications of Brexit for the devolution arrangements. 




The oral evidence can be viewed here. Written evidence submitted in preparation for the meeting (including by Prof Colin Reid) can be accessed here.  


14 Feb 2017

Government 'worryingly complacent' about Brexit governance challenges: latest House of Lords Report

The House of Lords European Union Committee just published its new report on Brexit: Environment & Climate Change. Building on evidence from leading academics, civil society organisation, industries, devolved and UK governments, it studies risks and opportunities of Brexit for the UK environment. 

It covers a wide range of topics, from providing a short history of the development of EU environmental policy to discussing trade implications and future UK influence. The report reiterates and expands on some well-known issues -- for example, the need to apply equivalent environmental standards to trade with the EU, the risk that all of DEFRA's time and energy will be spent on dealing with Brexit, and the particular need for continued cooperation in environmental matters alongside the Northern Irish-Irish border. Out of the many issues raised, the following were particularly striking:
  • Environmental policy standards are only as strong as the governance arrangements which underpin them.
The report as a 'patchwork quilt' of different types of legislation, adopted at different periods of time under varying legal basis. It argues that 'the EU’s environmental acquis is more than a corpus of law: it is also a complex but effective trans-national system of governance and enforcement.'

At the heart of this system you will find the European Commission (notably regarding monitoring implementation) and the European Court of Justice (concerning infraction proceedings for example). How will such a system be replaced in the future?
  • The UK government is 'worryingly complacent' about this potential governance gap
The need to consider governance arrangements is well known. As former LibDem MEP Andrew Duff explained last week 'the legal effect of EU regulations and directives if orphaned from the executive, legislative and judicial institutions which spawned them will be dubious at best and jeopardised at worst.' In the environmental field, Green MP Caroline Lucas has called earlier this week for 'an independent body to ensure UK compliance with environmental regulation'. 

But the House of Lords report show that these calls have not -- not yet? -- been heard by government. The report is particularly damning on this issue. It finds that 'the Government’s confidence in its ability to ‘hold itself to account’ contrasts with the concern expressed by the vast majority of our witnesses' and argues that:


The report furthermore identifies additional governance challenges, in the coordination with the devolved administrations:


  • Future UK influence on EU environmental policy will mostly occur through informal channels, via civil society and industry.
The report explores future UK influence and finds that, with the UK leaving the EU, the UK government will lose tremendous influence -- a seat at the table, voting rights etc. -- when it comes to decide new legislation. This matters as, for trade purposes, the UK may need to closely follow EU policy developments in key fields such as chemicals, pesticides etc. This dependence on back channels and non-state actor appears at odd with aims to 'take back control' of UK laws. 










10 Feb 2017

Bringing powers back from Brussels - but to where?

This blog post summarises Dr Jo Hunt’s (Cardiff University, Senior Fellow UK in a Changing Europe) contribution to a roundtable on Brexit & the Environment organised by the British Academy and EUrefEnv on 30 January 2017. Looking at devolution, she investigates scope for further policy divergence across the UK after Brexit and how to deal with it. 

The ongoing process of devolution of powers away from London to Cardiff, Edinburgh and Belfast has to date taken place in the context of the UK’s membership of the EU. EU membership has provided a framework for the expression of regional interests, both feeding into EU policy making upstream, and implementing EU obligations in devolved areas downstream. 

EU law has at the same time set important parameters for how devolved nations exercise their powers, limiting the degree to which laws across the UK can diverge in those areas which are both devolved and Europeanised. To date, rule-making in these areas has taken place in a framework of pooled state sovereignty, and in which responsibility for action is shared. Subsidiarity has been a defining principle for the exercise of competences. In an EU context, this principle provides:

 ‘Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level’. (Article 5(3) Treaty on European Union). 

9 Feb 2017

Brexit: the impacts of and the implications for devolution in the UK

This blog post summarises Lloyd Austin’s (RSPB Scotland) contributions to the Brexit & Environment roundtable organised by the British Academy & EUrefEnv on 30 January 2017. It sets out major devolution challenges for Brexit in terms of politics, repatriated powers and finances.


 “Leaving the EU will have a significant impact on the powers and budgets of the devolved bodies...Brexit is likely to reopen questions about the distribution of powers between central and devolved government, and the funding arrangements for devolution” – Institute for Government, 2016

The result of the UK’s referendum on membership of the EU has led to the formation of a new UK Government, committed to leaving the bloc. Yet, the UK has, in many areas of public policy, never been a unitary state – although, in other areas it is or is seen as such.

 When the UK, in its current form, was created in 1922, the (new) province of Northern Ireland was subject to devolved Government – until the introduction of ‘direct rule’ in the 1970s. Devolved government, of another (power-sharing) form was returned to Northern Ireland by the Good Friday Agreement of 1998 (becoming effective in Dec 1999). Meanwhile, the Labour Government also introduced (different) devolution schemes for Wales and Scotland in 1998. These became effective in July 1999 and have both been enhanced by subsequent, further changes (after various Commissions); all also supported by other UK parties. In addition, the Mayor of London and, increasingly, other city mayors in England are exercising administrative devolution in some policy areas.

This constitutional “jigsaw” that constitutes the UK means that, whatever arrangements are developed to implement “Brexit”, they will be both influenced by, and impact on, these devolution settlements. These may be best described under the following headings: 
  •  Politics;
  • 'Repatriated’ powers – including both intra-UK arrangements and new opportunities in devolved policy and legislation; and
  • Finances. 

7 Feb 2017

Silver linings: What to expect from environmental chapters in the EU’s Free Trade Agreements?

This blog post summarises Dr Laurens Ankersmit’s (ClientEarth) contributions to the Brexit & Environment roundtable organised by the British Academy & EUrefEnv on 30 January 2017. Laurens explains the EU’s approach to integrate environmental requirements in Free Trade negotiations and how solidify the UK and EU’s commitment to environmental standards.

 The UK government has announced that it will pursue a “bold and ambitious Free Trade Agreement” with the EU. The EU, no stranger to negotiating such agreements, typically includes in its FTAs a chapter dedicated to sustainable development. From the start, it should be clear that these chapters come nowhere near the protection offered by current EU environmental legislation. That said, these chapters may present some opportunities. This contribution seeks to explain the EU’s approach to environmental protection in its FTAs and identifies four key recommendations for a potential future environmental chapter in a UK-EU FTA.

The main features of the EU’s approach to environmental protection in FTAs 

The EU’s current approach to environmental protection in FTAs is to have dedicated separate chapters on trade and sustainable development, with CETA being the first agreement with a chapter that is entirely dedicated to ‘Trade and Environment’. The EU’s approach is often described as ‘cooperative’ rather than a more ‘punitive’ approach taken by the United States which subjects its environmental provisions in FTAs to dispute settlement and sanctions. 

6 Feb 2017

Trade & Brexit: the long arm of EU regulation

This blog post summarises Prof Joanne Scott’s (UCL, EUrefEnv author and fellow of the British Academy) presentation at a roundtable on Brexit & the Environment organised by the British Academy and EUrefEnv on 30 January 2017. Investigating how future trade arrangements would impact UK environmental policies, she stressed business’ support for EU ‘red tape’ and the territorial extension of European law beyond the Union’s borders.

“Business clamours for more EU regulation” (Financial Times, 25/01/2017). In a characteristically straight-to-the-point piece, Philip Stephens contemplates this unexpected headline as he explains that ‘regulation is the mother of liberalisation’. It is needed to guard against regulatory protectionism and to level the level the playing field of competition. He cites the example of a much derided EU directive on lawnmower noise which turns out to have been a UK initiative to prevent Germany from using its own domestic regulation to keep UK lawnmowers out of its domestic market. He contemplates the way forward after Brexit, considering the possibility of a ‘Great Consolidation Bill’ incorporating existing EU regulation into UK law.

But he wonders how to maintain the dynamic quality of UK law in the face of changes to EU regulation asking (tongue in cheek?) whether ‘the [UK] government can secure an agreement under which it automatically replicates such rules from outside the EU’. Fanciful though this may sound, it is exactly what the state of California did when it adopted its Restrictions on the use of Certain Hazardous Substances (RoHS) in Electronic Devices law. This prohibits the sale of electronic devices in California to the extent that it is prohibited for sale in the EU due to the presence of certain heavy metals. The California law therefore automatically tracks amendments to EU law.[1]