How is environmental protection across the UK safeguarded in post-Brexit legal contexts?
Written by: Nick Phipps
17 March 2023
Chloe Anthony is a Doctoral Researcher and Tutor at the University of Sussex Law School and Legal Researcher for the UK Environmental Law Association, Governance and Devolution Group.
The UK Government and devolved administrations have committed to improving environmental protection post-Brexit. But how do the UK’s new trade agreements impact domestic environmental ambition? And are there legal safeguards against lowering levels of environmental protection?
The UK Environmental Law Association’s recent briefing paper, Post-Brexit legal frameworks for environment and trade, gives an overview of the interaction between trade and environment in international law, in the UK-EU relationship, in domestic competences for trade and environment and in the UK’s trade agreements with Japan, Australia and New Zealand. This blog highlights the legal safeguards against lowering levels of environmental protection in post-Brexit frameworks relating to international trade.
It should be noted at the outset that this is a complicated legal landscape. The interaction between trade and environment differs decisively in individual policy areas and this is a dynamic legal picture. A UK trade policy with strategic objectives for environment and climate would be a useful anchor point, but this currently does not exist.
Nevertheless, there are some, albeit limited, legal safeguards for ‘maintaining UK levels of environmental protection’ in post-Brexit legal frameworks – even though there is uncertainty as to what exactly constitutes UK environmental law.
The UK-EU Trade and Cooperation Agreement commits both parties to non-regression on levels of environmental and climate protection, including associated targets, that existed when the UK left the EU. This commitment is connected to the dispute mechanism, allowing parties to take measures where divergence in environmental protection impacts trade. The Trade and Cooperation Agreement, therefore, acts as a check on the UK lowering levels of environmental protection – see the blog by Emily Lydgate and myself, ‘Will EU sanctions slow down UK environmental deregulation?’
The UK-Japan Agreement also has a non-regression commitment – ‘Parties shall not lower or derogate from their own environmental or labour standards in a manner affecting trade or investment between the Parties’ – although this is not subject to the dispute mechanism. Similar provision for non-regression in the agreements with Australia and New Zealand are subject to the dispute mechanism, but these agreements differ markedly in their commitments on environment and climate – see the paper by Emily Lydgate, ‘Beyond non-regression: mainstreaming climate action into FTAs’.
While trade agreements should be tailored to each specific trading relationship, the difference in environmental commitments in these free trade agreements is stark. Commitments to non-regression that are linked to dispute mechanisms and sanctions can be understood to create clear legal obligations, although commitments to cooperation can also be impactful. Both binding and non-binding commitments will be best evaluated in terms of how they are implemented.
Domestically, safeguards for maintaining UK environmental protections in relation to international trade are found in the Trade Act 2021 and the Agriculture Act 2020. In implementing ‘continuity agreements’ (those UK trade agreements that rolled over pre-existing EU trade agreements), the Trade Act requires that regulations ‘must be consistent with maintaining UK levels of statutory protection in respect of human, animal and plant life or health, animal welfare and environmental protection’ (and employment and labour, data protection and the protection of children and vulnerable adults online).
The Agriculture Act contains a similar, but not the same, requirement for new trade agreements. Where a new trade agreement includes measures applicable to trade in agricultural products, the Secretary of State must report on ‘whether, or to what extent, such measures are consistent with the maintenance of UK levels of statutory protection in relation to human, animal and plant life or health, animal welfare and environment.’ While this requirement seems limited, statutory reporting on the UK-Australia and UK-New Zealand agreements by the Secretary of State, and the Trade and Agriculture Commission, have in practice considered such measures broadly to include sanitary and phytosanitary measures, technical barriers to trade, animal welfare, dispute settlement, general provisions and exceptions, and environment.
Environment and agriculture are devolved matters in the UK and the UK-EU Withdrawal Agreement provides for the ongoing effect of certain related EU laws in Northern Ireland post-Brexit. Broadly, devolution settlements require that the devolved administrations legislate compatibly with the UK’s international obligations. Where implementation is within devolved competence, the devolved nations may incorporate international agreements directly and in a differentiated way. Devolution of environment allows for policymaking to be tailored to devolved contexts, but may give rise to divergence in environmental protection measures between the UK countries that affect trade. The UK has introduced new mechanisms to manage intra-UK divergence in the non-legislative or cooperative Common Frameworks Programme and the UK Internal Market Act. How far these arrangements are supportive of domestic environmental ambition has been the subject of considerable contention since the UK left the EU.
Another example of a commitment to maintaining environmental protections is found in the Environment Act 2021. Ministers are required to make statements that ‘any new environmental law will not effect a reduction in the level of environmental protection’, but this safeguard relates only to new environmental law introduced in the UK Parliament, is not directly connected to trade, and is accompanied by provision for the Government to proceed even when the Minister is unable to make such a statement.
In summary, although environmental ambition may be high, legal safeguards against weakening environmental protection in relation to trading relationships are limited in post-Brexit frameworks. For new trade agreements, the domestic framework does not insist on non-regression, rather a statement as to whether UK levels of environmental protection are consistent with measures relating to trade in agricultural products. The non-regression commitments of the UK-EU relationship can be interpreted as a check on the UK – and the EU – in lowering levels of environmental protection but are reliant on the will of the Parties to take action, whether that be to cooperate on improving environmental protection or to introduce sanctions for weakening levels of environmental protection.
Attention could usefully be given to setting out environmental objectives in a UK trade strategy, to considering minimum levels of environmental and climate protection in trade agreements, and to ensuring intergovernmental cooperation, parliamentary scrutiny and public consultation on environmental ambition in trading relationships.
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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.
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