Ever since the UK voted to leave the European Union, the RSPB has worked hard with other environmental groups to ensure Brexit would help rather than hinder our efforts to tackle the climate and ecological emergency. 

We set six challenges which guided our engagement and, earlier this year, we reported the progress that had been made by the time the UK formally left the EU.  The punchline at the time was while huge progress has been made, there was still a lot to do to ensure the new environmental legal, governance and trading framework for the UK is fit for purpose. 

Arguably, the situation is broadly the same today as it was back in January.  We still do not have the right environmental legal and governance framework and the stakes, if anything, have risen not least because the transition period ends in three months’ time (at the end of December 2020) and there remains considerable uncertainty as to whether a new UK-EU trading deal will be struck in time. 

We continue, of course, to campaign to secure legally binding targets to drive nature’s recovery across the UK and to influence the new agriculture and fisheries legislation necessary to replace the Common Agriculture and Fisheries Policies, but today I want to put a spotlight on the Internal Market Bill.

This Bill hit the headlines primarily because of the debate about whether it breaches the terms of the UK-EU Withdrawal Agreement and how it affects the devolution settlement across the UK.  I have no wish to enter that debate but I do want to explore some of the environmental implications of the proposed legislation.

Through Greener UK, we have been working to influence the passage of legislation because as drafted, there is a risk that the legislation will have a chilling effect on environmental ambition in different parts of the UK.

Let me try and explain.

As mentioned in my blog last week, environmental issues have for many years been devolved to the Northern Ireland, Scottish and Welsh governments.  However, prior to Brexit, the rules laid down through our membership of the EU effectively provided a common UK environmental framework.  EU environmental laws were initially designed to prevent any Member State from gaining short-term competitive advantage but then subsequently to raise environmental standards partly in response to international obligations.  Indeed, under the terms of the Treaty of the Functioning of the EU, while provisions for the Single Market are primarily aimed at avoiding trade restrictions, exceptions are included for Member States to bring additional rules when justified (Articles 36 and 114). These can include reasons related to environmental protection and when measures are proportionate to the issue(s) faced.

Brexit meant that a new common framework was needed to allow the UK single market to operate.  In fact, a process for delivering this was established between the UK Government and Devolved Administrations. The Internal Market Bill currently being debated in the House of Commons appears to fast-track/side-step (*delete as appropriate) this thinking.  The Bill establishes the principles of “mutual recognition” and “non-discrimination” to ensure there are no new barriers for businesses trading across the UK. 

Mutual recognition means that meeting the regulatory requirements in one part of the UK would ensure that goods and services could then be legally supplied across the whole UK, whatever the local regulatory requirements. 

Non-discrimination is intended to avoid requirements that directly or indirectly favour producers or service providers from any one jurisdiction of the UK. In as much as any rules or regulations unfairly favour ‘home’ goods or services, the non-discrimination principle would make these unlawful.

From an environmental perspective, this creates a problem.  While it doesn’t actually prevent any of the four legislatures from establishing higher environmental standards (which is, of course, what we need), the principles and clauses in the Bill prevent any of the four nations from excluding goods which are operating to lower standards elsewhere in the UK or indeed if imported through a future trading agreement.  This effectively means that the Internal Market Bill as currently drafted could thwart any of the four administrations from meeting environmental ambitions they are entitled to set in their country.

Let me give you an example to bring this to life.

The RSPB and others have long campaigned to ban the use of peat in horticulture.  If one part of the UK, let’s say Scotland, wanted to introduce such a ban, it could regulate Scottish suppliers but it could not prevent the sale of peat compost in Scotland from other suppliers in the rest of the UK.

The same could apply to single-use plastics in packaging, to GMOs etc etc.  

Without including a derogation for environmental standards, we remain concerned that the Internal Market Bill will quash any political enthusiasm for higher environmental standards.  The good news is that the Bill has now been partially amended to make future pesticides approval exempt.  While the post Brexit pesticides approval process is very unclear, we understand that that if England decided to set up its own approvals system and started approving active chemicals banned in the EU, Scotland could refuse them. Or conversely Scotland could presumably go further than the EU and ban substances without England having to do it. Yet, we don't think this yet applies to residues in food. At the moment, the EU sets Maximum Residue Levels (MRLs) for each chemical on each food type. It’s not clear whether the amendment that sets up the exemptions would cover this issue. For example if Scotland brought in a more stringent MRL than England, would England be able to challenge it under mutual recognition? 

This is complex stuff and there are many questions unanswered but we need to get it right which is why the Bill needs proper scrutiny and debate.

There is still so much work to do to replace or hopefully bolster all the environmental powers and institutions that were lost as a result of Brexit.  We need politicians to keep an eye on the detail and ensure that nothing is done to undermine action necessary to tackle the climate and ecological emergency.

If you would like to hear more about the environmental implications of the Internal Market Bill, please do join today’s joint RSPB and Institute for Government event here or listen to the IfG podcast after the event.

*Image of Sphagnum moss courtesy of Paul Turner (rspb-images.com)

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