In what seems a lifetime ago, on 23 June 2016 the UK voted to leave the European Union. Our environmental laws and agriculture/fisheries policies had been shaped by our membership of the EU for over 43 years, so at the time the vote to leave the EU presented a disorientating mix of jeopardy and opportunity for nature.
Given what was at stake, we set out seven tests to assess ensure that the UK departure from the EU would help rather than hinder our efforts to tackle the climate and ecological emergency.
Since then, a huge amount of effort has been invested across the four countries of the UK to prepare for our departure and the final piece of the Brexit jigsaw - the UK-UK Trade and Cooperation Agreement (TCA) - arrived on Christmas Eve. This marked the end of the formal transition period and it means we are now able to offer a clearer comprehensive assessment about what Brexit means for nature.
In this blog, I first offer our understanding of what the TCA says, what it means for nature before then providing our latest assessment against the seven tests we set. A more detailed analysis of progress in each of the four countries is shown in the file attached at the bottom of this blog.
If you want to jump to the punchline, here it is…
…thankfully, we have a trade deal – no deal would have been disastrous for nature
…despite some quirks, it is, compared with other trade deals, quite progressive from an environmental perspective
…however, if it is expected to provide the final piece to the Brexit puzzle and bridge the environmental gaps arising from the UK’s departure (and with it the return of numerous legislative, regulatory and governance responsibilities), then it falls short
…there is still a lot of work to do to replace the environmental protections that were afforded through our membership of the EU
…we have even more work to do (either side of the Channel) to ensure we have the right legal, policy and financial framework to adequately address the nature and climate emergency.
This now provides the new context for our work over the months and years ahead and it is what will drive the RSPB’s advocacy with our domestic partners and with our BirdLife International partners in Europe.
What does the deal say?
Through Greener UK, we provided a quick initial assessment of the deal and its implications for the environment. Since then, my colleague Marcus Nyman has been working with our team to interpret the text in more detail and what follows is our collective understanding of what is clearly a very technical agreement.
If taken purely as a trade agreement, it can be considered progressive, given that it goes further than virtually any other such agreement on a host of environmental areas. In this sense, if it is the template for future trade agreements the UK intends to pursue, it is a positive sign. However, as stated above, it does not fix all the outstanding Brexit challenges.
As part of the “level playing field” provisions, in the agreement each side commits explicitly not to “weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection” and this applies to protections as they stood at the end of 2020.
As with the rest of the environment chapter, this is not subject to enforcement through the main dispute mechanism of the deal but a process of consultation between the parties, an arbitration panel and ultimately the application of temporary remedies by an offended party (subject to various constraints).
This clause, as drafted, would not serve to prevent environmental “regression” in the UK per se, only when affecting trade or investment. Yet, it is unclear what the threshold would be for demonstrating this negative impact. If this section had been framed in the positive—to maintain at least the levels of protection, rather than not to reduce them—then the modifying clause on trade and investment would have been unnecessary and a broader degree of “non-regression” would have been assured.
One of the more contentious areas of the negotiations was the extent to which the agreement would bind the UK (and its constituent parts) to future changes in EU rules. To address this, while underlining the sovereignty of each party, they have agreed to “continue to strive to increase their respective environmental levels of protection or their respective climate level of protection”.
With this in mind, the chapter introduces provisions for “rebalancing” meaning. Here, our interpretation is that if either the UK or the EU increases its level of environmental standards, and sees a negative impact on trade and investment as a result of the other party standing still, the former is able to propose and implement - subject to arbitration - measures to “rebalance” the deficit caused by the competitive advantage accrued by failing to increase protections. In practice this is likely to mean tariff measures. This would not automatically change the rules applicable in one jurisdiction but creates a disincentive to act as a laggard. Applying these measures is subject to the more stringent condition that differences in environmental rules are causing “material impacts on trade and investment” to arise.
With regards enforcing “non-regression”, the chapter also makes helpful reference to the need for both parties to have competent domestic authorities funded and able to enforce relevant environmental law. This will hopefully add further incentive to ensuring UK environmental watchdogs (including the Office for Environmental Protection, Environment Standards Scotland and other statutory bodies) are fit for purpose and doing what they are supposed to. The chapter also makes helpful reference to the key environmental legal principles that underpin many international and domestic environmental laws (such as the precautionary principle), although these are unlikely to be enforceable through the agreement itself. Chapter 8 of title XI on the level playing field also serves to underline various areas of continued cooperation with regards trade and sustainable development, including sections dedicated to multilateral environmental agreements, forests, biodiversity, responsible supply chains and, of course, fisheries (which I may return to at a future date as is worthy of a separate blog). While helpful, these are unlikely to be enforced or enforceable via the agreement either.
What does this mean for nature?
In assessing the deal and the overall outcomes of Brexit for nature conservation, we can safely say there is a lot more to do. In short, the deal is unlikely to actively undermine our efforts to protect nature, offers some modest advantages, but will not serve as an alternative to ambitious domestic standards and robust enforcement.
Arguably it is at the domestic level where legal provision for non-regression should be made but, despite assurances, these have not (yet) been established in law. With the repatriation of powers and responsibilities for the environment, the right response is to now refocus and redouble our efforts to ensure that the UK lives up to its ambitions and commitments and delivers the protections, targets, investment and actions that the crises affecting nature warrant.
While we can laud aspects of the deal itself, its significance for nature conservation can only really be understood within the wider package of provisions with which the UK is emerging from the EU.
It is also important to recognise that while the UK government has negotiated the TCA with EU partners, it has done so on behalf of the several different governments that legislate and regulate the environment across the UK.
The overall “environmental readiness” of the UK as the transition period ends can only really be properly judged in a full “four-country” context. Indeed, the nature of the settlement leaves Northern Ireland in an ambiguous position and subject to some UK rules, some EU rules and some rules it will set for itself.
In reality, grading the progress of the UK against the RSPB’s 7 Brexit Tests is probably an exercise in futility as it is inevitably a “work in progress” across the board. However, we’ve decided to do one anyway because understanding where we stand on each and where added effort is most needed is helpful. What follows below is our summary and (probably final) assessment which is based on a full four-country analysis under each test shown in the attachment below.
Status: PARTLY MET
The existing body of environmental law formerly administered by the EU has been transposed into domestic law, meaning that as of day one, the UK will see no drop-off in standards. Nevertheless, the refusal to simply and clearly embed environmental “non-regression” in law means that these standards are not assured and potentially open to dilution or lowering in the future. Various governments across the UK have expressed their ambition to raise environmental standards and be a global leader for the environment. In practice, realising this ambition has been patchy thus far. Through the protocol, Northern Ireland will continue to align with EU standards in a subset of environmental policy areas.
Status: MET
While the pandemic has delayed major international environmental conferences (in which the UK will have a key role to play), the UK has continued to show leadership on the global stage, including through the Leaders’ Pledge for Nature. Much will depend on the outcomes of the two global summits on biodiversity and climate later this year but the UK has already made some bold commits (including committing to 30% protection on land and sea by 2030 and 68% reduction in greenhouse gas emissions from 1990 levels by 2030). Positive steps have also been made for cooperation on the island of Ireland (New Decade, New Approach). Further efforts are needed to ensure intra-UK cooperation and engagement, while participation in organisations such as the European Environment Agency remains possible.
Some progressive legislative steps for nature protection have been made in the different countries but it is largely too earlier to offer a clear assessment. The Westminster Environment Bill (largely for England but to some extent in Northern Ireland) will strengthen some areas of nature protection and the promise of targets to drive nature’s recovery is extremely welcome. Elsewhere, special protection for mountain hares, plans to license grouse moor shooting and bans on peatland burning are positive developments in Scotland. However, proposed changes to the planning system in England could have impacts on mechanisms such as strategic environmental assessment.
Status: NOT YET MET
As the Court of Justice of the EU no longer has remit to enforce environmental laws in the UK (except areas of the Protocol in Northern Ireland), the establishment of fully-functioning and funded bodies for the enforcement of environmental law across the countries of the UK is incomplete. Legislative delays mean that temporary arrangements have been established to bridge the gaps but uncertainty remains about how independent and effective new bodies will be. The provisions for the Office for Environmental Protection (England and Northern Ireland) in the Environment Bill fall short in key areas, while Environmental Standards Scotland but needs greater enforcement powers. Plans for a watchdog in Wales have been published but it now faces an extended governance gap. More work is needed in all jurisdictions to ensure environmental law is properly enforced and the public can enjoy access to justice.
One of the promises for nature of leaving the EU was to replace the Common Agricultural Policy to enable UK farmers to better manage land with nature (and the wider environment) in mind. The Westminster Agriculture Act (2020) provides a landmark piece of legislation to help make this happen in England but much work is still to be done to ensure the subsequent Environmental Land Management scheme achieves what it is intended to and meets the needs of farmers, nature, climate and the public alike. Farming support in Wales is like to be based on the idea of “public money for public goods” but plans are at the consultation phase. In Scotland, existing farm payment schemes have will continue for the time being, but little clarity has been provided on future plans. Similarly, in Northern Ireland the existing arrangements will continue but there is no clear timeframe for reform of domestic agricultural policy. While future catch quotas will be determined by the new fisheries arrangements in the TCA (to which I shall return to a later date) , the Westminster Fisheries Act (2020) offers framework legislation that will largely provide continuity with existing approaches, along with the welcome inclusion of climate change ecosystem objectives. Joint Fisheries Statements and management plans will provide the necessary detail of how the legislation will be implemented in each country and what this means for marine management in the future. As with agriculture, while legislation signals potentially positive direction, it is in the detail and implementation where improvements in environmental sustainability will be realised.
Status: NOT MET
While there have been some recent promising funding announcements (for example the Peatand Action Fund in Scotland and the Nature and Climate Fund in England), as I have written previously, funding to deliver nature conservation ambitions in the UK still falls short of what is needed. Specifically, it is unclear whether the estimated £428m annual funding for environmental action previously available through EU mechanisms (such as EU LIFE and EU BEST funding) will be replaced.
To date, the UK Government has largely failed to articulate a clear trade policy or objectives and, while commitments not to undermine domestic environmental standards have been made by, so far this has failed to materialise in legally binding provisions. The government approach has been concerningly light on opportunities for civil society to meaningful engage in and scrutinise trade negotiations, while there is insufficient parliamentary oversight on trade policy. The TCA provides a potentially progressive template on the environment for future UK trade agreements. The one very positive and welcome step was the move towards establishing mandatory due diligence requirements for UK companies with high-risk commodities in their supply chains to reduce impact especially on tropical forests.
2626.RSPB Brexit Tests - Table 080121 .pdf
*Ben Andrew's image of turtle dove is a reminder that we shall need to cooperate across borders to recover Europe's most rapidly declining bird (rspb-images.com)
Thank you for this very thorough summary of the post-Brexit prospects. The real grind of top-line policy but as important as it is complicated - a vital part of RSPB's work which tends to be hidden behind the glitzier headlines. For me, the big message and concern coming out is how these argreements square with the oft-repeated claims that Brexit will allow a bonfire of the regulations, and the myth that conservation hampers economic progress. As you imply, only the finest, continuing scrutiny will reveal what is really happening and it is so important that RSPB and its partners are on the case. It is also hugely encouraging that RSPB & Birdlife will be keeping the international dimension open against isolationists pressures.