From 11pm tonight, the UK is no longer a Member of the European Union. The Withdrawal Agreement Treaty has been ratified by both the UK and EU Parliaments and we enter an implementation/transition* (delete as appropriate) period while a new trading relationship is negotiated.
While people will have very different emotions about the denouement of a saga that has run for many years, from an environmental perspective, we remain in a period of jeopardy and opportunity.
Early on the Brexit process, the RSPB established some challenges to ensure that the UK departure from the EU would help rather than hinder our efforts to tackle the climate and ecological emergency. Today feels the right time to consider how well the governments across the UK have responded to the challenge. Below, my colleagues have compiled our assessment of progress, informed of course by the publication of the trinity of Westminster Brexit Bills that emerged this month: for agriculture (with our analysis here), fisheries (for which our analysis will follow next week) and environment (for which our critique from last year broadly remains but I shall also report more next week). The punchline is that while huge progress has been made, there is still a lot to do to ensure the new environmental legal, governance and trading framework for the UK is fit for purpose.
Today also feels the right day to thank those UK Members of the European Parliament that have used their political voices for nature over the past forty years. Many played significant leadership roles within the Parliament and were effective at shaping legislation that underpins UK conversation today. It was a pleasure to be able to thank some of them in Brussels last week. My visit was also the last time I will see the UK and EU flags flying together outside the European Parliament and Council buildings. The Union Jacks will be taken down, folded and stored somewhere safe for posterity or who knows, future use.
The European Council Building January 2020
Yet, our changing relationship with the EU does nothing to alter the fact that our nature is shared as are many of the threats facing nature which is why we shall continue to work with our BirdLife partners in Europe. We have a shared interest to ensure the UN climate and nature agreements to be agreed at the end of this year drive the action necessary to decarbonise our economies and kick start nature’s recovery. While the UK will, in 2020, remain part of the EU bloc for these talks, this does stop healthy competition for global environmental leadership. Watch out for the draft EU Biodiversity Strategy due to be published on 26 February and also the new nature recovery targets to be published in England later this year. We’re particularly interested in seeing the ambition for habitat restoration. Within BirdLife we are calling for 15% of Europe to be restored by 2030 – that’s 67m hectares, while the English target expressed in the 25 Year Environment Plan is 500,000 hectares which is c4%. We await statements from the other UK governments and hope they plan to trump the English.
As we enter a new era in our relationship with the EU, this must be defined by one of collaboration and of competition to come up with the best ideas and action to address the planetary crisis.
Two turtle doves - Europe's fastest declining migratory bird
RSPB ASSESSMENT OF PROGRESS AGAINST 7 BREXIT TESTS
Existing EU environmental law has been transferred into a new category of “retained EU law”. This means that in the short-term at least, standards remain the same. The UK and devolved governments have the power to amend retained EU laws using statutory instruments in order to ensure their effective operation after Brexit. Neither the UK parliament nor the devolved parliaments have yet passed legislation aimed at enhancing environmental standards or providing for lasting “non-regression” from existing standards. Yesterday’s publication of the Westminster Environment Bill promises progress in a number of areas but its new clauses do not amount to a legal commitment to non-regression. The provisions of the Withdrawal Agreement mean that Northern Ireland will remain aligned to EU single market rules regarding, among others, agricultural and environmental production and regulation, and will have to adopt changes made by the EU in future. However, there is no explicit reference to the Water Framework or the Nature Directives. The Scottish government has committed to—but not yet introduced—a Continuity Bill to “keep pace with the EU”.
The Cabinet Office and the Scottish and Welsh governments are continuing to explore common frameworks for cooperation across Great Britain and Ireland on key policy areas but have provided little recent public updates on progress. Under the “New Decade, New Approach” deal, signed on 11 January, the UK Government, the Stormont Executive and the Irish Government reaffirmed their commitment to the Good Friday/Belfast Agreement (contained in which are commitments to north-south cooperation and environmental protection). The Political Declaration between the EU and UK outlines broad areas of bilateral cooperation, notably on “fishing opportunities”, “global cooperation” (including climate change, sustainable development and cross-border pollution), and a “level playing field for open and fair competition”. There have been no public commitments from the UK government to continue involvement in relevant European-level environmental organisations, such as the European Environment Agency. The UK Government’s hosting of the COP26 in Glasgow, commitments in the 25 Year Environment Plan to continue its support of multilateral agreements, including the CBD, and the rhetoric from various parts of government indicate a political desire to continue to cooperate and lead on environmental issues on the international stage.
Much of the body of existing EU environmental law has been brought into domestic legislation but overall there has been only partial progress to bolster the legislative base for nature protection across the four countries. While no legislation has yet passed into law, the new Westminster Environment Bill reflects some of the UK government’s stated ambition to protect and improve the state of nature in the UK and beyond. While this is an important step, there remain areas of concern in the bill. These centre on the obligation for the government to set meaningful biodiversity targets and to take the necessary actions to meet them, that environmental principles generate a binding duty on ministers and future policy and legislation, and that the OEP has sufficient independence, powers of enforcement and resourcing. Relevant legislation is likely to appear in the rest of the UK in the coming weeks and months. In Wales, proposals are being developed for new legislation that would include governance arrangements and environmental principles and this may be an opportunity to bolster protection. In Scotland, the Continuity Bill will likely have provisions on environmental governance and principles and the Scottish government are bringing forward an environment strategy laying out how it will tackle the climate and biodiversity crises. The new deal in Northern Ireland contains commitments to bringing a climate act and Stormont is currently consulting on an environment strategy, although with no guarantee of legislation.
None of the four nations has yet passed legislation or established enforcement mechanisms for holding public authorities to account, with adequate independence, powers or funding. In England, the OEP—a key feature of the Environment Bill published yesterday and intended to be up and running by January 2021—shows some promise but will require amendment in order to pass this test. In Northern Ireland, provisions in the Westminster Environment Bill will apply unless Stormont opts out and in the “New Decade, New Approach” deal, there are commitments to establish an independent Environmental Protection Agency. In Wales, proposals developed in collaboration with stakeholders will be considered by ministers shortly. The Scottish government has consulted on these issues and is considering proposals, with provision expected in its forthcoming Continuity Bill. Despite UK government assurances, the possibility of gaps in environmental governance after the end of the transition period remains.
The Agriculture Bill will provide a legislative basis on which to reform the Common Agriculture Policy and reallocate funding to land management practices that fulfil environmental sustainability objectives in England. Long-term funding plans and adequate regulatory enforcement is still required to ensure the bill is effectively implemented. As this is only applicable to England, provisions are still needed elsewhere. In Wales, policy developments have been positive in this area, while the Scottish Government have committed to a separate Scotland Agriculture Bill. The situation in Northern Ireland is complicated by its exceptional status under the Withdrawal Agreement.
A new Fisheries Bill was laid before parliament this week, which represents an improvement on previously proposed legislation. It brings a welcome ecosystem-based approach (including a precautionary approach and sound definitions), provisions to address by-catch that reflect current standards, and the important inclusion of a clear climate impact and adaptation objective for fisheries. The Bill falls short in terms of mechanisms for enforcement as the proposed Joint Fisheries Statement (JFS) has no binding effect. It also introduces loopholes that could undermine its effectiveness, including where social and economic considerations might justify divergence from any JFS. Similar to agriculture, as a devolved issue, we must wait and see how the devolved administrations act in this area.
Discussion is ongoing in government as to the best way to bridge the funding gap posed by the UK’s exit from the EU and schemes, such as EU LIFE, and the issue remains unresolved. Other sources of funding will likely be opened through provisions within the Agriculture Bill (ELMs) and proposed net gain provisions in the Environment Bill (both in England only). Positively, the Welsh Government’s most recent budget has made specific allocation for nature delivery this year, although this cannot replace necessary long-term funding commitments. Even with money matched to current levels, chronic underfunding is holding back the enforcement of existing nature laws and the achievement of current environmental targets and policy objectives across the UK.
Neither the specific objectives of any UK trade policy with regards the environment, nor the mechanisms for future engagement by civil society have been established or articulated publicly. The UK Government has frequently stated its desire to craft new trade agreements outside of the EU and to diverge from existing rules where deemed appropriate. However, verbal assurances, as well as manifesto commitments, have been made suggesting new and future UK trade agreements will not compromise existing environmental standards—and will actively push for higher standards. However, this has not yet materialised in concrete policy, legislation or routes for civil society engagement. A degree of stakeholder engagement was afforded in the processes to translate some existing EU-third party trade agreements to cover the UK and those countries. Completion of a comprehensive EU-UK trade deal and future relationship will be likely rest on commitments to some form of non-regression and, potentially, having adequate enforcement mechanisms in place. Such a scenario would provide some assurance on maintaining high standards and protections but will be insufficient without other appropriate legal and governance arrangements. Indeed, the risk of lowering environmental standards to secure trade deals and the (more remote) possibility of leaving the EU without an agreement remain concerning potential outcomes. As trade is a reserved issue for Westminster, there is the risk that UK trade policy and future agreements conflict with the environmental standards and protections for which devolved administrations are responsible. There is a particular degree of uncertainty for Northern Ireland, which will be bound by European single market rules and the customs arrangements of both the UK and the EU in different respects.
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