Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
After years of the drip-drip undermining and misreporting of the EU by sections of our print media, was it altogether surprising that so many people in the UK fell for the claims of Brexit advocates about aspects of EU-inspired law? There were stories about those Brussels bureaucrats who were imposing their will on the Brits and demanding that bananas and cucumbers not be overly curved, that firemen no longer be allowed to slide down poles, that pale ale no longer be called pale ale—and all that nonsense. So great in scale and variety was the nonsense that a website is dedicated to debunking the myths.
When it comes to shaping law on the environment, it is undeniable—to the extent that even the right-wing media struggle to make a case against this—that EU membership has been a force for good. Brexit raises obvious and significant concerns for an area that is covered by more than 650 pieces of legislation. The concerns are being highlighted not just by environmentalists but by academics. They are also being highlighted in our sister Parliament in Northern Ireland.
The Scottish Government has been clear in its commitment to maintaining high environmental standards, whatever the future holds. However, there are implications and possible threats in that regard.
The overarching principle is that right now the EU is there to keep Governments honest and hold them to account on environmental commitments. The mechanisms that we have in place enable action to be taken to ensure that obligations are met. The mere fact that they exist is, by and large, enough to ensure compliance.
Against the backdrop of our so-called taking back control, what will the future hold for a Scotland that is in the UK but outwith the EU? Stakeholders who gave evidence to the UK Environmental Audit Committee were of the view that the EU has provided a necessary enforcement mechanism, which has incentivised the UK Government to take action that it might not otherwise have taken. They gave the example of the air quality directive. The committee noted in its report, “EU and UK Environmental Policy”, that many witnesses expressed the fear that
“if the UK were free to set its own environmental standards, it would set them at a less stringent level than has been imposed by the EU.”
We can understand why such concerns exist. The deregulatory tone of the UK Government’s rhetoric and—even more so—that of the leave campaign might easily be regarded as a sign that the flexibility that Brexit offers is more likely to be used to reduce than to strengthen environmental protections when they conflict with other goals.
As Dave Stewart asked, when we are outside the EU, who will ensure compliance? Will the laws survive in their existing form to be complied with, if powerful voices in the UK marine and, in particular, land sectors demand a slashing of red tape and approaches that favour their short-term interests?
What of the risk of reverse devolution, at least in relation to cross-border areas, which academics have flagged up? Is it conceivable that a UK Government will appoint itself as overseer of environmental compliance and a consistent approach across these islands and their devolved Administrations? That is a concerning prospect. One can certainly imagine a situation in which, where Scotland’s environmental standards were higher than standards over the border, powerful lobbying forces would demand to compete on a level playing field.
We might already be seeing signs that such an approach is emerging. Scottish Land & Estates, in its paper on possible post-Brexit relationships between Scotland, Wales and the UK in the context of food, farming and the environment, gets only as far as the second paragraph before it asserts:
“Crucially, we suggest that there is a need for a level of consistency across the UK, so that farmers, landowners and rural businesses are not disadvantaged by geography”.
In the interests of fairness, I acknowledge that the paper makes a number of reasonable and considered points. However, one other comment jumped out at me as I worked my way through: the demand that policy development involve consultation with landowners and farmers at every stage. I noted the lack of reference to environmentalists. Of course, the organisation represents farmers and landowners, and I hope that the absence of an acknowledgement that environmentalists would rightly also need to be involved is no more than an oversight.
Many, not insignificant environmental questions arise from Brexit. One is the EU emissions trading scheme, which is administered at EU level and does not simply transfer into UK law. The UK could negotiate continued involvement of some kind in the scheme, but we must be realistic and ask how accommodating the EU will want to be, given that that might offer encouragement to other member states that are entertaining thoughts of splintering off. Even if the UK could remain involved in ETS as some sort of associate member, how would UK interests be fully protected in the rightful drive to tighten the cap, if the UK could not vote on legislative changes to the EU ETS? If that is a non-starter, will we have to set up a replacement national trading scheme? How might that work in practice?
The politics around environmental legislation could be huge, but even if we set politics to one side we find that the considered view is that Brexit’s impact has the potential to be significant for our environment, as Professor Colin Reid of the University of Dundee set out in his paper, “Brexit: Challenges for Environmental Law.” I will just refer to Professor Reid’s conclusions. He says:
“For environmental law overall, the most significant changes are likely to be not so much in the details of any legislation, but the new vulnerability of environmental rules to short term political pressures and the removal of the means by which the government can be called to account. Whatever its flaws, the EU has provided a stable framework of environmental law and the means to ensure that governments and others live up to their obligations. The post-Brexit world will be more volatile. We do not know what the coming years will bring in terms of the details and timing of the UK’s withdrawal, the nature of future relationships with the EU and others or the extent to which existing laws based on EU measures will survive unchanged. The one certainty is uncertainty.”
There are so many questions and so few obvious answers, highlighting the absolute need for Scotland to be able to safeguard and indeed build upon the environmental progress that we have made, however that might be achieved.