The Government’s policy approach to Brexit was set out in a White Paper in February 2017 and the post below is a technical summary submitted to the Landscape Institute Biosecurity Group. The general approach in the White Paper is to ensure that all EU regulations which are directly applicable in the UK, and all laws which have been made in the UK implementing EU directives remain part of domestic law on the day we leave the EU.
The exit from and new partnership with the European Union will be set out in primary legislation, including the Great Repeal Bill (GRP) and legislation regarding customs and immigration (1.8). After the primary legislation has been enacted, Parliament will then be able to decide which elements of that law to keep, amend of repeal “in a way that is fit for our specific needs.”
The effect of the GRP will be to place all EU-derived legislation under review pending re-negotiation, and whilst the White Paper provides some clarity regarding strategic aims and the short-term impacts, it does not set out detailed medium- to long-term policies or objectives. Instead, these will be developed following the withdrawal from the EU in 2019, likely by the government that is formed after the General Election in 2020.
The uncertain climate
The uncertainty caused by the phased development of strategic goals for a new partnership is compounded by the Government’s desire to keep their positions closely held (1.11), whilst at the same time delivering an austerity programme that was set out in the 2015 manifesto. Although the White Paper states that existing funding arrangements will remain in place (1.13), this uncertainty is especially acute in government agencies relating to agriculture and the environment (including biosecurity) which are at the front line of the austerity programme. Indeed, many of the Agencies and Departments most acutely affected by the austerity programme will be responsible for replacing EU capabilities.
Regular meetings of the Joint Ministerial Committee on EU Negotiations (JMC(EN)) are being held to ensure that the interests of all areas of the UK are met, bringing together the leaders of the devolved administrations and the Prime Minister on a monthly basis. Although proposals have been published by Welsh and Scottish Governments, Northern Ireland has yet to do so (3.8).
The role of devolved governments is especially important in matters of the environment and biosecurity. As the policy areas that the devolved governments have legislative competence in are dominated by agriculture, environment and transport issues (3.3), the level at which future decisions are taken will be reviewed as laws are ‘repatriated’, with the expectation that decision making will be increasingly devolved (3.5) and (3.8).
Standards and regulations
In the short-term, common standards and frameworks will be maintained within the domestic market (3.6) with the aim that no new barriers to trade within the UK are created. However, the post-EU regulatory framework will be reviewed by after the UK has withdrawn from the EU. It should be noted that European Standards Organizations are not EU bodies (8.11) and the British Standards Institution (BSI) is deeply integrated with European directives and regulations, and as such, it is unlikely that these will be changed significantly unless they prejudice opportunities for international trade.
As Court of Justice of the European Union (CJEU) will no longer have jurisdiction in UK (2.3), dispute resolution mechanisms will need to be established. Given that the UK negotiating position will not be constrained by precedent (2.10), it is not clear what the terms of these mechanisms will be.
Environment and agriculture
The White Paper sets out ambitious environmental targets, re-affirming the government’s commitment to ensuring we become the first generation “to leave the environment in a better state than we found it.” The Great Repeal Bill will be used to bring the current framework of environmental regulation into UK and devolved law and the UK’s climate action will continue to be underpinned by our climate targets as set out in the Climate Change Act 2008.
However, whilst the commitment to the environment is laudable, the caveat that the approach will improve the environment “in a way that is fit for our specific needs” (8.41) leaves room for interpretation. Indeed, as the Chair of the Environmental Audit Committee stated in a letter to the Secretary of State for Exiting the EU last July: “There are few areas…where the decision to leave the EU will have a more widespread impact than the environment” and most issues affecting landscape or the environment are addressed in no more than a sentence in the White Paper.
In particular, two areas raise concerns for landscape architects: Defra has recognised that a third of the EU environmental laws will be difficult to transfer directly into UK law, whilst the Environmental Audit Committee noted that simply transposing legislation without replacing the governance arrangements “will lead to significant weakening of environmental protections in many areas, such as the lack of reference to a higher court and the absence of a body updating and enforcing legislation.”
Movement of goods and people
After the UK has withdrawn from the EU, the Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law (5.4), set out under a phased implementation plan (5.10).
In terms of trade, the new trading relationship will aim for the freest possible trade in goods and services between the UK and the EU short of being a member of the Customs Union (8.1), noting that the UK “[does] not seek to adopt a model already enjoyed by other countries” (8.2). After the UK leaves the EU, it will look to increase significantly UK trade with the fastest growing and most dynamic export markets in the world (9.2). However, landscape architects should note that some of the countries with which UK is most rapidly expanding its exports (such as China, Mexico and Brazil) have environmental records that are not as stringent as those in the UK which may pose biosecurity and regulatory issues.
The White Paper states explicitly that the Government does not want to see a return to borders of the past with Ireland (4.2) but does not commit to the preservation of the current, borderless, situation. More widely, the same issues relate to the Common Travel Area (CTA) (4.8). Given that Ireland is the only country in the EU with which the UK has a significant, positive trade balance (Table 8.1), the issue of border control with Ireland will be particularly important. As with most items within the White Paper, the Irish question is seen in economic terms rather than plant, animal or environmental (4.5).
UK biosecurity could be at odds with the desire for frictionless trade
The UK’s withdrawal from the EU represents a significant opportunity to impose greater biosecurity measures as a result of the repatriation of decision making. However, four key issues need to be addressed in order for biosecurity to be enhanced.
Firstly, effective biosecurity relies upon co-ordinating action and resources between HMRC, Defra and the private sector to assess goods and people that enter or leave the UK, which would present a barrier to trade if deployed effectively. Although 8.44 states that the UK is a “large trading nation… possessing a world-class customs system which handles imports and exports from all over the world” the current system is only able to react to biosecurity issues as a result of the UK’s membership of EU agencies which pool expertise and data (8.42) and its membership of the EU Customs Union. If the UK is to follow through with its withdrawal from the Customs Union, measures will need to be taken that robustly enforce biosecurity without compromising frictionless trade. This issue is typified by the desire to minimise administrative burdens with Ireland (8.49), sitting at odds to the issues raised by biosecurity.
Secondly, implementing these opportunities will require a level of central government funding and resources that does not seem likely in the current economic climate: for example, Animal and Plant Health Agency funding is being reduced and regional administrative centres being closed whilst research functions are being increasingly undertaken by the private sector.
Thirdly, understanding the direction of trade is key to enhancing our biosecurity: the UK is a key export market for EU food and agriculture products whereas UK exports to the EU tend to focus on financial services, motor vehicles and chemical products (8.7), leading to a £17bn trade deficit in agricultural and food products with the EU. As such, it is possible that the increased cost of imports from the EU will be off-set by loosening of barriers to trade, such as biosecurity enforcement. Whilst this might be seen as cynicism, it should be noted that the paper states that UK will be “actively taking opportunities to reduce the cost of unnecessary regulation” (8.37).
Finally, the need to ensure food security and the production of goods that can be exported competitively will likely lead to pressure for higher yields and intensification of agricultural processes enabled by a review of the standards and regulations relating to Plant Protection Products. In particular, the pesticide approval and renewal processes could lead to a move towards risk based assessments (in the US style) rather than the hazard based assessments supported by the EU. At the same time, reviews of the Sustainable Use Directive, the Water Framework Directive and Plant Health Regulation will need to be undertaken to identify how they complement commitments to frictionless trade.
The UK government’s White Paper does not commit to what future energy policy will look like, stating that “all options for the UK’s future relationship with the EU on energy” are being considered. Nevertheless, the UK will try to remain “on the forefront of collective endeavours” to develop clean energy technologies through research and development funding.
How will LI ensure that the voice and expertise of landscape architects is heard?
Although the paper sets out basic aspirations about the responsibilities of UK legislatures and courts after the UK has withdrawn from the EU, the limits of the delegated powers granted to Ministers in the GRP are not clarified. As it stands, standards and regulations established in primary legislation could be changed through secondary legislation with minimal scrutiny and consultation will be required to ensure that amendments are both subject to appropriate limitations regarding their scope and to appropriate parliamentary scrutiny.
The final deal that is agreed between the UK and the EU will be put to a vote in both Houses of Parliament (1.12) and to ensure that the voice and expertise of landscape architects is heard, it may be prudent for the Landscape Institute to join existing alliances such as Greener UK or develop a joint position with other professional bodies such as RIBA or ICE.