Launching the post-Brexit divergence project of the Institute for European Environmental Policy UK (IEEP UK), Senior Fellow David Baldock and Head of UK Environmental Policy Michael Nicholson have published some initial reflections. Amongst other things, the paper refers to the motivations of those interested in diverging from EU legislation, and those who wish to stay aligned. In this blog, Honorary IEEP Fellow Nigel Haigh expands specifically on this aspect.

Respecting EU environmental legislation is the main way EU Member States fulfil their obligations to ensure that activities within their territory does not harm the environment of other states.

Despite Brexit, the UK is geographically and environmentally linked to the continent of Europe, and the EU remains its single biggest market for goods. UK legislation, therefore, has to respect both its environmental obligations to its neighbours, and also its own self-interest in its need to minimise barriers to trade.

UK environmental law is already diverging from EU law, and there are many examples. These are being tracked by IEEP and this blog is based on a paper that identifies and explores the motives of the 13 groups who want it to happen or who want to stay aligned.

Divergence could be much increased if the Retained EU Law (REUL) Bill, currently before Parliament, is adopted in anything like its present form, as its purpose is, as Liz Truss put it, to get rid of all ‘EU red tape’.

In recent days, it seems possible that REUL has had its progress through the House of Lords quietly paused. Will it be dropped, shelved or downgraded? It isn't currently clear if it will be left in limbo until it disappears after the election, or if Rishi Sunak intends to use the bill to carry out something useful.

When reviewing each item of retained EU environmental law under REUL, it is necessary to consider both its environmental importance and its effects on trade. What may appear a minor item from an environmental point of view (standards for lawnmower noise for example) may make it easier to sell lawnmowers into the EU market.

So who wants to diverge from EU environmental law - and why? Here is a summary of those groups and their motivations:

The UK government: the last general election was won by the political party promising to ‘get Brexit done’ and ‘take back control’ of our laws (which could mean higher or lower standards). The government, therefore, has an obvious interest in divergence, but attitudes within the party and the government have varied from not wanting to diverge ‘for the sake of it’ to wanting to get rid of all ‘EU red tape’. The attitude of the government under Prime Minister Rishi Sunak could become clearer when the Retained EU Law (REUL) Bill reaches its final stages.

Ideological Brexiters: these are the drivers of the REUL Bill, seeing it a symbol that the UK is taking back control.

UK operators of installations subject to operating standards: these may welcome lower standards to reduce costs and gain competitive advantage.

In the opposite corner:

Ideological Rejoiners: these favour continuing alignment in anticipation of the day when EU law applies in the UK again.

EU member states and the EU institutions: the Trade and Cooperation Agreement (TCA) between the UK and EU requires a level playing field so the EU member states and EU institutions (in particular the European Commission) have an interest in the UK not lowering standards that affect competition.

Neighbouring countries and their populations: these will object to lower standards if they affect environmental quality in their territory or waters in which they have an interest (ie the North Sea, Irish Sea and English Channel).

Scotland and Wales: the present Scottish Government aspires to join the EU if it achieves independence and so will be inclined to stay aligned with EU legislation. Wales sees itself as environmentally progressive and will be inclined to favour high standards.

Northern Ireland: under the Northern Ireland Protocol, Northern Ireland remains in the EU single market and all relevant EU legislation has to be followed. Any divergence from EU law by Great Britain could provide obstacles to its trade with Northern Ireland.

International organisations and parties to international conventions: increasingly, environmental policies are formulated by international organisations and embodied in conventions. The parties to these will need to be satisfied that UK legislation adequately fulfils commitments made.

UK exporters to the EU: these will not welcome UK product standards diverging from EU standards. They are resisting the replacement of the CE mark by the UKCA.

EU industries: these don’t want UK competitors to gain competitive advantage by reducing standards to reduce costs - for example, the EU chemical industry wants the UK to remain associated with EU REACH.

Governments and industries of countries exporting to both EU and UK: these will be inconvenienced if standards differ between the EU and UK.

Environmental NGOs, environmentalists and the public: the majority wish to maintain high environmental standards and do not want to see them reduced, if that were to be the result of divergence from EU standards.

The IEEP analysis divides EU environmental legislation according to different standards as follows:

• Standards for traded products
• Operational standards, such as emission standards for industrial plant, or the management of waste sites or sewage works
• Procedural standards, such as environmental impact assessment and access to environmental information
• Quality standards, such as water or air quality
• Standards remote from the EU single market, such as drinking water, birds and habitat protection.

When considering whether to diverge or not from these EU standards, the government needs to consider the possible effects on both trade and the environment.

Product standards differ in that they alone can create ‘non-tariff’ barriers to trade, whereas the others are only able to distort competition less directly. UK manufacturers exporting to the EU have to follow EU product standards anyway and generally do not want standards to deviate. So there are strong arguments that it is in the UK’s own interest for product standards to stay aligned with those of the EU. The government is now free to choose which course of action will benefit the UK most and, if alignment with EU product standards meets this criterion, that would not undermine the UK’s commitment to having the freedom to decide its own laws.

The prominence given to the phrase ‘taking back control’ has focused the Government’s attention on legislation and policy affecting only the UK, but at the risk of neglecting its responsibility to uphold its other international commitments, both as a party to many international conventions, and as a member of numerous international organisations.

Environmental policy is devolved to Scotland, Wales and Northern Ireland with the exceptions of ‘reserved’ matters such as product standards. Some environmental standards may well therefore diverge between the four nations, but the Government must still ensure that collectively the UK fulfils its international obligations. The principle of subsidiarity, long accepted in the UK (though the word is not often used in a UK context despite the UK having promoted its adoption in the EU), continues to have a role.

Nigel Haigh
Honorary Fellow, the Institute for European Environmental Policy (IEEP UK)

London4Europe blogs are edited by Nick Hopkinson, Vice-Chair. Articles on this page reflect the views of the author and not necessarily of London4Europe.

* David Baldock and Michael Nicholson, IEEP. Divergence of environmental policy post-Brexit - initial reflections

* Nigel Haigh. Motives for and against divergence by the UK from EU environmental laws