15 May 2019

Chloe Anthony, Ffion Thomas and Emily Lydgate

In this blog, we take a closer look at the legislation that is being used to bring existing EU pesticide regulations into UK law in preparation for leaving the EU. We find that departures from EU pesticides legislation are significant. The new legislation consolidates powers to UK ministers to amend, revoke and make pesticide legislation and weakens both enforcement arrangements and the requirement to obtain scientific advice.

The statutory instruments (SIs) on pesticides are part of a much larger project. By exit day, the UK Government faces the unenviable task of converting vast tracts of EU legislation into UK domestic law, resulting in over 10,000 pages of new legislation.[1] The UK government has repeated that this is only a technical exercise. More specifically, the EU Withdrawal Act 2018 was designed to create a “functioning statute book”[2] in the UK on EU exit day by retaining EU law as it stands. The Act creates powers to make secondary legislation or SIs to amend the elements that no longer make sense (ie references to EU bodies). This use of delegated power was deemed the “only appropriate solution” in the circumstances.[3] The stated aim of the Act is not to make “major changes to policy or establish new legal frameworks.”[4] Yet some public law experts have raised concerns about the ‘deleting’ of administrative functions in these SIs, and noted a general trend toward weakening of enforcement requirements, which appears to be the case here.

EU pesticide regulation

To understand the UK’s proposed changes, it is useful to review EU governance of pesticides. EU law regulates the use of pesticides, approval of active substances (the active ingredient in a pesticide product), authorisation of pesticide products, known as plant protection products (PPPs), and maximum residue levels (MRLs) of pesticides in food or feed products. The procedures are set out in detail in EU legislation, including roles for Member States, the Commission, the European Food Safety Authority and the Standing Committee for Food Chain and Animal Health.[5]

The Commission conducts audits of Member State implementation of pesticide regulations and has an enforcement role in cases of non-compliance with EU law by Member States, including initiating an infringement procedure which can eventually lead to fines imposed by the Court of Justice of the European Union.

EU regulations start by setting out overarching objectives and principles. In the case of pesticides, these are the protection of human and animal health, and the environment. The legislation also relies upon the precautionary principle, whereby the industry has to demonstrate, with a high level of certainty, that pesticides don’t have a harmful effect on humans, animals or the environment before they are placed on the market. These key guiding principles and objectives are not carried forward into the UK legislation, and as such, it is currently unclear what the framework for future UK decision making will be.

The current UK approach

Three statutory instruments have been laid before Parliament concerning pesticide regulation and are foreseen to come into force on exit day.[6] The EU’s approach relies upon a series of checks and balances performed by different bodies listed above. UK SIs replace these checks and balances with powers for ‘competent authorities from the national territories’ to undertake all the functions outlined above. Competent authorities consist of the Secretary of State (England), Ministers in Scotland and Wales, and a relevant body in Northern Ireland. These UK Ministers, or the Secretary of State alone with their consent, can amend, revoke, make regulations and issue guidance on implementation processes for UK regulations.[7]

EU law requires independent scientific advice on new pesticides from the European Food Safety Authority and the integration of scientific assessments into approval processes. As part of the consolidation of authority with UK Ministers, this requirement is watered down significantly: Ministers assess the risks and only have to consider scientific evidence at their discretion.[8]

With respect to enforcement, provision for a penalty regime applicable to infringements of pesticide regulations, and a requirement that such a regime shall be “effective, proportionate and dissuasive”, are removed.[9] The requirement to respond immediately to emergencies is also weakened: no time limit is given.[10]

While existing lists of PPPs and MRLs in effect immediately before exit day are to be retained, careful review of the Annexes to the EU Regulations reveals a substantive change to EU rules prohibiting pesticides containing Endocrine Disrupting Chemicals (EDCs), which the World Health Organisation has linked to altered reproductive function and neurodevelopmental delays in children, among other effects. Whilst NGOs have criticised the EU’s approach, the UK SI deletes the EDC prohibition in its entirety, meaning substances with endocrine disrupting properties whose use is forbidden in the EU, would potentially be permitted in the UK.[11]

Implications for UK trade and regulation

These changes to pesticide regulation in the UK can hardly be characterised as ‘technical’; they will weaken the rigour of the process by which pesticides are approved and monitored in the UK. UK SIs introduce the ability for Ministers to produce ‘guidance documents’ in a wide range of areas. This provides an easy path to future reform, and in a best-case scenario could lead to future strengthening of pesticide regulation. In a worst-case scenario, they concentrate authority to UK Ministers for future weakening of pesticide legislation.

The draft Withdrawal Agreement with the EU requires, as part of its Northern Irish ‘backstop’, that the UK not regress in its level of domestic monitoring and enforcement, includes a requirement for ‘effective, proportionate and dissuasive’ remedies in the event of a breach of environmental regulation. Interestingly, this is the precise language that has been removed from pesticides SIs. EU implementation of its own pesticide requirements has been far from perfect; the EU Parliament recently called upon Member States to improve their efforts to limit the use of pesticides. However, the EU framework certainly seems to offer more checks and balances and stronger deterrents than would appear to be the case under the new UK legislation.

Finally, the removal of restrictions on Endocrine Disrupting Chemicals (EDCs) is worth underscoring. The regulation of EDCs has been a controversial issue within the EU, with the UK pushing for weakened requirements. The US and Canada have argued that EU restrictions on EDCs are an undue trade barrier. The removal of EDC requirements paves the way for the UK to concede to their demands in this area in future trade negotiations.

Footnotes

[1] Environmental protection is a particularly active area of EU legislation, and the Department for Environment, Food and Rural Affairs (DEFRA) has been the busiest, with 116 EU Exit-related SIs – and some of these group together multiple bits of EU legislation (see, eg, https://www.hansardsociety.org.uk/blog/westminster-lens-brexit-statutory-instruments-dashboard)

[2] European Union Withdrawal Act 2013 Explanatory Memorandum para 10.

[3] Ibid para 13.

[4] Ibid para 14.

[5] See: http://ec.europa.eu/assets/sante/food/plants/pesticides/lop/index.html>

[6] The Pesticides and Fertilisers (Miscellaneous Amendments) (EU Exit) Regulations 2019, SI 2019/306; The Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019 (draft) (PPP SI); The Pesticides (Maximum Residue Levels) etc. (Amendment) (EU Exit) Regulations 2019 (MRLs SI). Note only the latter two were subject to Parliamentary scrutiny under the ‘affirmative procedure’.

[7] PPP SI para 12(6); MRLs SI 6(c)(2), 4(3) and 7(10).

[8] PPP SI para 4(29)(e); MRLs SI (4(9), 7(6), 7(8) and 9(2).

[9] PPP SI para 12(2); MRLs SI para 7(13).

[10] PPP SI Article 69; MRLs SI para (8).

[11] EU 2018/605 Amending Annex II, deletion of paras 3.6.5 and 3.8.1.

Disclaimer:
The opinions expressed in this blog are those of the author alone and do not necessarily represent the opinions of the University of Sussex or UK Trade Policy Observatory.

Republishing guidelines:
The UK Trade Policy Observatory believes in the free flow of information and encourages readers to cite our materials, providing due acknowledgement. For online use, this should be a link to the original resource on our website. We do not publish under a Creative Commons license. This means you CANNOT republish our articles online or in print for free.