My final post for the year has traditionally been a round-up of the previous 12 months and a look ahead to the year to come. This year, however, with the publication of the UK-EU trade agreement on Christmas Eve, there are serious matters that need to be considered. The UK leaves the EU at 11pm on 31 December 2020 with, if the press releases are to be believed, reassurance that high environmental standards will be maintained, thanks to key clauses in the agreement (“Title X: Good Regulatory Practice and Regulatory Co-operation”). Let’s put this to the test, using the “thoughtful reform” set out by Environment Agency Chief Executive James Bevan earlier this year (see “But …”).
Bevan’s call for “thoughtful reform” seemed to dilute the “one out, all out(1OAO) rule” that is at the heart of the Water Framework Directive, so let’s see how this might be handled under the terms of the trade deal. This is not about the pros and cons of the 1OAO rule, only about whether a system that deviated from the 1OAO rule could be construed as violating the terms of the trade deal.
The first clause of the General Principles under this Title is: “Each Party shall be free to determine its approach to good regulatory practices under this Agreement in a manner consistent with its own legal framework, practice, procedures and fundamental principles49 underlying its regulatory system.”. So long as the UK has appropriate primary and secondary legislation in place, in other words, the 1OAO rule is fair game. Let’s read on.
Chapter 7 of this Title deals with Environment and Climate and Article 7.2 deals specifically with non-regresssion (“A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection”). Most ecology professionals would regard weakening the 1OAO rule as “regression” but does it affect trade or investment?
The next clause read: “The Parties recognise that each Party retains the right to exercise reasonable discretion and to make bona fide decisions regarding the allocation of environmental enforcement resources with respect to other environmental law and climate policies determined to have higher priorities, provided that the exercise of that discretion, and those decisions, are not inconsistent with its obligations under this Chapter”. So maybe the UK government could argue that, regrettable though it may be to ditch the 1OAO rule, they are only doing this to strengthen other aspects of environmental protection.
So let’s hypothesis that the 1OAO rule is scheduled to be ditched as part of a post-Brexit overhaul of environmental protection policy for the reasons outlined above but that the EU cries “foul”. What next? We skip several paragraphs until we reach Article 7.7 Dispute Settlement. The text goes on to say: “The Parties shall make all efforts through dialogue, consultation, exchange of information and cooperation to address any disagreement on the application of this Chapter”. If that doesn’t sort it out, then there are three remedies available: Articles 9.1 [Consultations], 9.2 [Panel of experts] and 9.3 [Panel of experts for non-regression areas]. Article 9.1 seems to be a continuation of the reference to “all efforts” in 7.7 whilst the other two Articles refer to a Panel of Experts. These will consist of three people with “specialised knowledge or expertise in … environmental law”, which seems to point to lawyers rather than ecologists in our case study, and they should be independent of both UK, EU and Member State governments. They can receive written submissions from persons with relevant specialised knowledge and they produce a report which will determine whether or not the UK proposal to weaken 1OAO are contrary to the terms of the deal.
Let’s say the panel of experts decides that the UK’s actions contravene the non-regression clause but the UK government disagrees. At this point, an arbitration procedure starts up with, at the end, a tribunal (legal experts wholly independent of UK and EU courts) delivering a verdict. If that finds against the UK, then there is the option of “suspension of obligations” (meaning, I presume, that the EU introduces some quid pro quo sanctions against the UK). However, there seem to be plenty of ways for a competent government lawyer to game the system well before it reaches these latter stages so the 1OAO rule is, I suspect, doomed.
This is all, I hasten to add, hypothetical: the 1OAO rule is a convenient pawn with which to test the new system largely because the Environment Agency have already signalled their intent. The 1OAO rule is, let’s be honest, far from perfect. The more general lesson would seem to be that whilst ecology and biodiversity standards that we inherit from the EU appear to be protected by the trade deal, in fact there are enough loopholes to make them extremely vulnerable. Maybe we are naïve to expect more: this is a trade deal after all and the focus is on aspects of environmental protection that will affect competitiveness. For every other aspect of safeguarding our environment and biodiversity, we are on our own …
Some other highlights from this week:
Wrote this whilst listening to: Adrianne Lenker (of Big Thief)’s songs and instrumentals and Sing Me Home by Yo-Yo Ma and the Silk Road Ensemble
Cultural highlights: Revisiting old films on the BBC iPlayer, including The Godfather and Tamara Drew.
Currently reading: Rodham, by Curtis Sittenfeld: a novel describing an alternative future in which Hilary never married Bill Clinton. Ennerdale Water makes a brief entrance.
Culinary highlight: Christmas Dinner, of course: roast turkey, potatoes roasted in goose fat, brussels, parsnips, gravy, cranberry sauce, bread sauce, Christmas pudding, brandy butter …