Withdrawal Agreement fails to deliver vital environmental safeguards.
MPs are due to vote tomorrow on whether to ratify the UK-EU Draft Withdrawal Agreement. If they choose to ratify, the environmental implications will be huge. Yet the topic has been almost entirely absent from public political and media discussion.
This matters because it is the UK's membership of the Common Market - and its successor organisations - since 1972 that has driven an ever-reluctant Britain out of its former role as the 'dirty man of Europe' into the its current state - not as good as we should be, but with some claim at least to environmental respectability.
Performance on nature conservation, air pollution, water quality, toxic chemicals, renewable energy and climate change has changed immeasurably for the better, and it's vital to make sure that Brexit does not reverse that trend.
Okay, Michael Gove, the environment secretary, has made some very promising speeches on his commitment to a "green Brexit". But who knows how long he will stay in his job?
We also face the threat of a future trade deal with the USA which would force UK farmers into competition with US producers subject to a regulatory regime much weaker on environmental and animal welfare issues than applies in the EU. This would lead to overwhelming pressure to lower standards in the UK.
One of the few ways in which the UK's environmental performance can be assured long into the future is by incorporating binding links to EU laws and standards into a binding international treaty, complete with strong and effective enforcement mechanisms. While the Draft Agreement that will come before MPs tomorrow would be a lot better than a 'no-deal Brexit', it fails to provide the long term reassurance on the environment that we desperately need.
As you read the Agreement text, it appears reassuring. It says at Annex IV, Article 2 that UK environmental law must continue to comply with most EU environmental law after Brexit, based on a snapshot of the law at the end of the transition period. OK, that's better than nothing, but it's not as good as it looks. For a start UK and EU environmental law can diverge after that, and experience suggests that any such divergence will be detrimental.
And while the list of matters covered by Article 2 looks exhaustive, it isn't.
Here's what it does include: "access to environmental information, public participation and access to justice in environmental matters; environmental impact assessment and strategic environmental assessment; industrial emissions; air emissions and air quality targets and ceilings; nature and biodiversity conservation; waste management; the protection and preservation of the aquatic environment; the protection and preservation of the marine environment; the prevention, reduction and elimination of risks to human health or the environment arising from the production, use, release and disposal of chemical substances; and climate change."
So what's missing? While climate change is in there, there is nothing explicitly about energy. So goodbye renewable energy targets! The Government must be loving this, as it leaves them free to continue their disastrous 'nuclear and fracking at all costs' policies while rejecting the cleanest, lowest cost technologies like onshore wind and solar, and failing to deliver on energy efficiency in homes, business and industry, much of which can be achieved at negative cost.
As pointed out by Greenpeace's Unearthed, another glaring omission is "any reference to food standards, sanitary or phytosanitary rules, beyond a general commitment to retain the precautionary principle". And as far as Gove is concerned, he clearly thinks he has a green light to push forward with the widespread use of GMOs produced by gene-editing techniques like CRISPR.
Gove, according to The Times, told the Country Land and Business Association: "Even if there are individual lobby groups that express their legitimate concerns we will ensure those scientific tools are there for those who can improve productivity in a genuinely sustainable way. Gene editing allows us to give mother nature a helping hand, to accelerate the process of evolution in a way which can significantly increase yield and also reduce our reliance on chemicals and other input."
The report in The Times continues: "Over the summer the European Court of Justice ruled that food resulting from genome editing would be regarded as genetically modified, which is outlawed in Europe. Mr Gove said that the agreement for leaving the European Union would allow the UK to make its own decision on the risks of gene editing."
For the majority of the UK public who do not want to eat GMO foods, or the rising levels of herbicide residues that most of them contain, and who fear the further narrowing of the gene pool of the crops that sustain human existence, Gove's vision of UK agriculture offers a truly terrifying prospect.
The Unearthed article adds further omissions from Article 2, which "mentions air quality targets but not limit values on the amount of pollution in a given period, which are more legally enforceable. It talks about pesticides, but not soil ... "
Under the Draft Agreement the UK will no longer be subject to the European Court of Justice (ECJ) as the ultimate court of appeal. And the ECJ has been a vital protector of the UK environment over the years, most recently over the UK's continuing failure to comply with the EU Air Quality Directive.
The ECJ's rulings in favour of the environmental law charity ClientEarth over UK non-compliance have been essential in holding the government to account on this issue. Without the ECJ we would all be breathing much dirtier air in years to come.
Most disputes arising under the agreement are to be ruled on not by the ECJ - other than in interpreting EU law - but an independent arbitration panel (AP). In fact the AP appears to be an adequate substitute for the ECJ. But there's a problem: most environmental disputes are specifically excluded from the AP's jurisdiction!
As Article 2 states: "Articles 170 to 181 of the Withdrawal Agreement shall not apply in respect of disputes regarding the interpretation and application of this Article."
Instead disputes over UK non-compliance on Article 2 matters are to be decided in UK courts, as set out in Article 3.1, which requires the UK to "ensure that administrative and judicial proceedings are available in order to permit effective and timely action by public authorities and members of the public against violations of its laws, regulations and practices, and provide for effective remedies, including interim measures, ensuring that any sanctions are effective, proportionate and dissuasive and have a real and deterrent effect."
Superficially, this looks fine. But the obligations set out fall short of existing UK obligations under the Aarhus Convention, for example that environmental justice must be accessible at reasonable cost. After all, if the government raises the costs bar to an unaffordable level, that is very effective block to public access to the courts. How many of us are prepared to risk our homes to stand up for a point of environmental principle, however just?
We also know from bitter experience that UK judges cannot be relied up to uphold the law against government due to a bias in favour of the executive in some - thankfully not all - portions of the judiciary. For a recent example, see this article on Sir Ross Cranston's counterfactual rejection of a recent High Court challenge to the legality of England's badger cull.
And while the EU can take serious punitive actions - like fines and trade sanctions, as set out in Article 178 - following an AP judgment which has not been complied with, no such provision applies following a UK court judgment. Enforcement of Article 2 matters is therefore weak, and any reassurance the Article appears to offer is ill-founded.
The UK's environment will also no longer enjoy the protection of the European Commission as 'policeman' and prosecutor for breaches of EU law. Instead Article 3.2 says the UK has to create its own environmental watchdog, which must be independent and adequately resourced, and to which the public can make complaints. But again, the language is weaker than it appears.
For example, the watchdog may only have the power to "request" information, not to demand it. Other requirements are vague, weak and hard to enforce: the body should have "all powers necessary to carry out its functions" and "shall have the right to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure, with a view to seeking an adequate remedy". Which adds up, as Boris Johnson might put it, to "two thirds of diddly-squat".
But most worrying is the brevity of the text and its lack of detail. Compare this to the July 2018 report by the House of Commons Environmental Audit Committee (EAC) critiquing the Government's '25 Year Plan for the Environment', with its exhaustive list of the qualities that would make the new environmental watchdog powerful, independent and effective, importantly including the requirement that if should be accountable to Parliament, not government.
Among the absences are the clear EAC requirements that the UK should:
- replace the one third of EU environmental legislation (air, waste, water, chemicals) that cannot be copied and pasted into UK law through the EU (Withdrawal) Act;
- Put into UK law the environmental principles that the UK has signed up to in international law and which are embodied in the European Treaties and include provisions for all public bodies to act in accordance with the principles;
- Put into UK law the commitments the UK signed up to at the 2015 Paris Climate Change Conference;
This leaves the government free, at least as far as the Draft Agreement is concerned, to create an environmental regulator which is much less powerful, independent and well-resourced than we need for the vital job of holding government to account.
The fact that the government's promised Environment Bill, which is intended to create the regulator, is already running seriously late, does little to engender confidence. In May we were promised that the Bill "will be published in the autumn". Well it's already mid-December, and there's no sign of it yet.
It looks like the biggest block to Parliament's ratification of the Draft Agreement tomorrow is the 'Northern Ireland backstop' which would see a long list of EU environmental and other laws (listed in Annex 5 of the Protocol on Ireland) remain in force in the Province, that would no longer apply elsewhere in the UK.
To the Brexiteers this is unfair on Northern Ireland. But from an environmental perspective, it's unfair on the rest of us to be stripped of key protections that Northern Ireland will continue to enjoy.
One thing is for sure - the Draft Withdrawal Agreement is disappointingly weak on the environment and if it goes through we, future generations and the precious environment we inhabit will suffer as a result.
Oliver Tickell is an environmental journalist and campaigner, and a former editor of The Ecologist.