Brexit: Harmonisation Post-Brexit (22 Dec 2020)

Simon Stuttaford

In this third briefing on the impact of Brexit on environmental protection and regulation, we consider the role of harmonisation. After 31st of December 2020, the UK will no longer be subject to the EU approach of harmonisation in relation to environmental policy and regulation.

As is well known, harmonisation is prevalent in many areas of EU regulation including environmental law. Harmonisation ensures that similar standards are maintained and applied throughout the EU. In accordance with the principle of subsidiarity which applies in certain areas (including environmental policy) where the EU does not have exclusive competence, member states are allowed to take action at the national level if justified. In practice this might mean the adoption of higher or different standards as long as they are within the minimum standards set by the EU.

Currently the Scottish, English, Welsh and Northern Irish legislatures all have the powers to pass both primary and secondary environmental legislation. What that means is that in many cases the devolved powers have chosen to implement EU environmental law differently. This is not surprising given the different problems and priorities of each of the home nations. By way of example, nature conservation sites cover a greater proportion of land in Scotland than they do in England and Wales. When the 2001 EU Directive on Strategic Assessment was implemented in Scotland a greater range of plans and programmes (compared to the other home nations) were made subject to assessment.

Another interesting aspect is how each of the UK legislatures will act on international agreements and negotiations. At present EU obligations have fallen on the UK as a whole and have been negotiated on behalf of the UK as a single member state. There has been an understanding between Westminster and the devolved administrations of a “UK line”. However, we are likely to move further from that position post-Brexit. In practice divergence is likely to be exacerbated and to illustrate this point it is worth looking at some of the key provisions of the draft Environment Bill.

Environmental targets will apply to England only, air quality management will mostly just apply to England or England and Wales, water management will mostly apply to England or England and Wales. In relation to Nature and Biodiversity, land conservation covenant agreements will apply to England and Wales only. The Office for Environmental Protection will not apply to Scotland, which is due to set up its own body, and it is quite likely that Wales will take the same approach in due course.

Indicators seem to point to an increased divergence on environmental regulation within the UK. What we will see is potentially each of the home nations coming to a different conclusion as to how to apply key elements of environmental law. We might see a “race to the top” or alternatively, and perhaps more likely, a “race to the bottom” as each of the home nations looks to secure a competitive advantage for its industries. We may well see movement of business locations and investment. There will inevitably have to be some sort of system of coordination and perhaps in the near future we will see the introduction of joint committees and guidance between Environmental Regulators in the different home nations.

It seems that the UK post-Brexit will resemble a patchwork of different environmental regulations and standards, with the risk of the adoption of a looser version of standards by those legislative authorities looking to attract economic sectors and investments in its territory. We might also see movement from certain home nations, such as Scotland, choosing deliberately to apply more rigid standards and to ensure closer alignment with the EU.

Next week we will look to consider some of the opportunities post Brexit and how the UK might manage environmental protection and regulation from the 1st January 2021.  

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