Risk Tracker

The European Union has, in a number of ways, been a force for good environmentally. Our beaches are cleaner, habitats are better protected and pesticides more effectively regulated as a consequence of agreements that we reached since we entered the EU. And I have no intention of weakening the environmental protections that we have put in place while in the European Union…

Leaving the EU gives us a once in a lifetime opportunity to reform how we manage agriculture and fisheries, and therefore how we care for our land, our rivers and our seas/ And we can recast our ambition for our country’s environment, and the planet. In short, it means a Green Brexit.

Michael Gove – The Unfrozen Moment: Delivering A Green Brexit – 21 July 2017

In the summer of 2017 then Defra Secretary Michael Gove declared an ‘unfrozen moment’. Brexit, he asserted, was a reset, the chance to transform the UK’s efforts in tackling the environmental crises at home and those facing the wider natural world.

A year after the referendum, and a year before the emergence of Greta Thunberg and Extinction Rebellion, Mr Gove’s speech at WWF’s Living Planet Centre felt like a profound political moment. For the first time in a long while, a major political speech had captured the depth of the crisis we faced: shattered biodiversity, the fragility of the oceans, degraded soils, the suffocating air pollution cramping our streets, and the poor health of our rivers. And while division still permeated political discourse, Mr Gove acknowledged that the EU had sometimes been good for the environment. Setting the UK as a green world leader with stronger protections could be a project of reform and review, as well as revolution.

Green Brexit

The exact origins of the term ‘green Brexit’ are difficult to trace, but it was this speech that saw it established as the governing party’s landmark promise to the environment. From then to now, successive administrations have pledged that environmental protections would not only be maintained through Brexit, but enhanced.

It is upon this principle that the Greener UK coalition conducted its ‘Risk Tracker’ analysis for four years, periodically measuring the relative state of standards, legislation, cooperation and regulation across eight environmental areas. Ten analyses spanned policy developments and key legislation across two general elections, undulating high politics and four different administrations.

However, with the Withdrawal Act passed and UK-EU deal now signed, and adequate time having been available for core environmental legislation to be established, it feels a fair and appropriate time to offer a clear judgement on what has been achieved and the risks that remain. In March 2021, are protections and standards better, the same, or worse than in 2016?

[Note: many environmental and farming policies are devolved. Most of the following analysis applies to the performance of the UK government, and its record in implementing protections that in most cases apply only to England.]

Ag & fish

In the boldest environmental move of the post-referendum era, successive governments have pursued an overhaul of UK farming policy – replacing a payment system based on the area of land farmed with one that will reward farmers for providing ‘public goods’ such as habitats and cleaner water. And the money – of huge importance – will remain at the same level until at least 2024. The transition from the Common Agricultural Policy to the Environmental Land Management scheme could be transformative for land use in England.

Land use, however, remains amber due to several uncertainties and concerns. There is a lot still to work out, including how payments will be determined and distributed, and how rules will be set and enforced. In a challenge to green rhetoric, ministers have launched further ‘red tape challenges’ and overseen woeful enforcement of river pollution from farms and sewage outflows. Ministers have also refused to commit in law to maintaining existing food import standards, despite huge public pressure, setting off alarm bells over future trade negotiations with Australia, Brazil and the United States.

Aside from laws, borders and money, the mantra of ‘taking back control’ has been applied most often to our waters. The final UK-EU deal left big discussions over fishing quotas for another day, with potential clashes over rights – which would potentially lead to more overfishing – momentarily avoided. The Fisheries Bill represented the government’s main opportunity to build a more sustainable approach to farming the seas, but its rather truncated passage saw mixed results. The bill neither enshrined sustainable fishing levels nor sustainable fishing practices in UK law. Overfishing is set to continue for many stocks, with the UK’s approach to sustainable quotas now lagging behind that of the Common Fisheries Policy.

Still, there are some promising signs for the marine environment, particularly in a consultation on Remote Electronic Monitoring and through wording in the final UK-EU deal. In fishing, as in agriculture, if ministers can prove their commitment to high standards, alongside long term substantial funding and enforcement, the chances of restoring wildlife and the natural environment are much improved – and protections could yet be in a healthier state than before.

Chemicals and cooperation

The final UK-EU deal was mixed for the environment. Climate was an ‘essential element’, with any gross undermining of the Paris Agreement from either side potentially seeing the entire deal rendered null. This shows how high climate is on the current political agenda, which is a great development, though it should also not overshadow the disappointing lack of immediate cooperation between the UK and EU on interconnectors and carbon pricing.

By contrast, there was preciously little ambition for nature in the final deal. This limited focus reflects nature’s status as a secondary or international issue, rather than an urgent domestic problem. The departure of the UK from the European Environment Agency is a considerable blow to tackling the nature crisis. This Tracker shows the missed opportunities, and urgent action required, to restore UK nature.

The lack of UK-EU cooperation is perhaps most keenly felt in chemical regulation. The UK has left the EU’s world leading chemical regime, REACH, and set up a cheaper and inferior domestic version with fewer resources (‘UK REACH’). As the chemical industry warns that it will cost UK businesses £1 billion to duplicate safety data, there are real concerns that the UK will deregulate and become a dumping ground for chemicals outlawed elsewhere. Diverging on chemicals appears to offer no clear advantages and a multitude of risks to public health and the environment. The final Brexit deal does include non-regression provisions that could apply to chemicals under a trade and investment test, but this is a dubious silver lining. Chemicals is an area of pressing concern.

Law enforcement

The UK government’s Environment Bill, variously described as a ‘lodestar’ and ‘flagship’, has not lived up to these descriptions. In January 2021 it was delayed for a third time, raising serious doubts over the government’s commitments to tackling the crises facing the natural environment.

The first such bill in a generation, it contains a number of exciting proposals, including local nature recovery networks and a framework for legally binding targets on nature, air, water and waste. Ministers are being lobbied hard to set binding interim targets that would ensure progress can be mapped and managed more rapidly.

Via the bill, the UK government has proceeded with plans to create a new green watchdog for England and Northern Ireland – the Office for Environmental Protection (OEP). Plans for the OEP have improved over the past three years, with its prospective powers and scope increased. It will be able to rule on decisions made by public authorities and initiate investigations. A widely respected chair designate, in Dame Glenys Stacey, has been appointed.

Nevertheless, the OEP will not enjoy the same independence and powers as its EU equivalent, the European Commission and Court of Justice, in enforcing environmental laws. The OEP will not be able to issue fines and the High Court’s discretion to grant remedies on failures to comply with environmental law is severely inhibited. The OEP’s budget and board members will be determined by government, meaning it is less independent than existing domestic oversight bodies such as the Office for Budget Responsibility. In November 2020 ministers gave themselves the power to issue guidance to the OEP on how it enforces the law – which is difficult to countenance considering the OEP is meant to be holding the government to account. Comparative enforcement bodies such as the Information Commissioner’s Office (ICO) and Equality and Human Rights Commission are not hamstrung in this way.

There are a number of other areas where the UK Environment Bill could still be strengthened further. While the UK government has recognised the need for stronger air quality targets, ministers have proved reluctant to set new legally binding limits in line with current World Health Organization (WHO) recommendations. The bill is also set to weaken the status of environmental principles such as the precautionary principle, which provide a general approach to key decisions affecting the environment – whether designing new energy policy or allowing a chemical to be used in farming or cosmetics. Instead of being enshrined in law, the principles have been listed in a non-binding ‘policy statement’, with fewer policymakers and decision makers expected to be required to abide by their direction.

The UK government has claimed that it has fully transposed EU protections into UK law via the Withdrawal Act. Analysis by Greener UK and others has revealed significant gaps in this transposition: binding interim waste targets have been missed out; rules governing chlorinated chicken have been subtly changed; the use of committees and experts has been watered down; and lists of banned antibiotics have been deleted. The government has given ministers the power to change the rules without rigorous parliamentary scrutiny via statutory instruments. It may of course be that these changes do not result in weakened protections in the longer term, but there are many questions over what happens next.

While this analysis largely focuses on the decisions and policies of the Westminster government, Greener UK has been closely monitoring governance arrangements across devolved governments. Some progress has been made in Northern Ireland and Scotland but the absence of firm environmental governance arrangements in Wales remains especially concerning. Progress in meeting existing legal obligations and going further to protect people’s health has been slow, including on the creation of enforcement bodies.

Environmental Standards Scotland came into existence on a non-statutory basis in January 2021, with longer term plans to ‘monitor and investigate public authorities’ compliance with environmental law, the ‘effectiveness’ of environmental law and how it is implemented and applied’ on a statutory footing. Plans in Wales have a much longer way to go, leaving a considerable governance gap and uncertainty. An interim assessor has been appointed to focus on the “functioning” of environmental law rather than receiving complaints from the public. In Northern Ireland, DAERA has published a discussion document which indicates a slower timetable for establishing the OEP and environmental improvement plans.

Conclusion

From the detailed analysis submitted by policy experts across the sector, we can only conclude that the ‘once in a lifetime opportunity’ to reverse environmental decline has not yet been seized. In some areas the moment remains frozen, and in others the task in front of us is sterner still.

Of the eight policy areas we consider, four are judged to have similar or the same levels of protection as in 2016, and four to have weaker protections now than in 2016. Those of most concern include chemicals, air, nature and waste. We cannot confirm there has been a ‘green Brexit’.

There are two main issues that have led to a situation with either static or weaker protections.

Firstly, there has been a noticeable reluctance to back up rhetoric on ‘world leadership’ with the required institutions, strength of regulation and legal certainty. It is difficult to claim a world leading governance system when the new mechanisms are manifestly weaker and less independent than those they are immediately replacing or that already exist domestically in other areas. Despite assuring green groups that it has no intention to weaken protections, the UK government has refused to commit in law not to roll back the UK’s own standards.

Continual delays to the UK Environment Bill leave the government’s promises in particular jeopardy. Coronavirus has undoubtedly had a considerable impact on the parliamentary schedule and the act of governing; but Westminster and devolved governments have had years to prepare for this moment and other legislation has nevertheless progressed despite these challenges. The lack of political prioritisation has left the UK without a functioning system to enforce air pollution limits, or water quality rules. On waste policy, the UK government is becoming a laggard, with supposedly transformative projects kicked into the long grass.

The second main factor contributing to static or weaker protections is the desire to retain a freedom to diverge from EU rules, which has undoubtedly undermined existing levels of protection. This can be seen in the proposed weaker status of the environmental principles; concerning gaps in transposed legislation; and the desire to create from scratch a new chemicals system independent of a gold standard regime the UK helped to build. The final Brexit deal could have heralded more progress on maintaining or enhancing measures around climate, chemicals and nature had the UK government been more willing to entertain closer cooperation.

This said, there is still time for the UK government to enhance protections. There are huge benefits to be won through agriculture reform, if supported with the right resources and regulation, and the UK could yet emerge as a world leader in sustainable fisheries. In time, it may be that close cooperation on issues that will benefit both industry and the public, such as climate and chemicals, will prevail.

And so, even though this analysis is coming to an end, the sector will continue to watch closely – cautioning against further backsliding and welcoming much needed progress. Many of the opportunities of which Michael Gove spoke in 2017 remain. We urge the government to seize them.

Read our PDF or click on the icons to explore each policy area.

Since the Risk Tracker update in September 2019, the Environment Bill has been improved, with strengthened plans for the Office for Environmental Protection (OEP), an extension of the OEP’s remit to climate policy, and a framework for legally binding targets. These are significant and welcome steps.

At the same time, concerns remain with both the OEP and the bill more widely. Despite repeated government assurances over maintaining high standards, the bill does not include a legal commitment to ‘non-regression’. New measures for ministers to review worldwide developments in environmental legislation and to report to parliament on the impact of new legislation do not cut the mustard. The OEP’s budget and board appointments will still be decided by ministers, which raises questions over its independence. The OEP is expected to cover Northern Ireland, but plans in Scotland are on pause and the Welsh government is yet to come forward with proposals for how it will enforce environmental laws after December 2020. This is no longer just a risk but something these governments must address as soon as possible.

While legislation has been delayed due to coronavirus, bills have now started to return. The Agriculture Bill remains a generally strong piece of legislation, plotting reforms that will see farmers rewarded for providing public goods rather than for owning or tending to a certain amount of land. There are, nevertheless, concerns over import standards and the level of funding for farmers. The government recently hinted that guarantees over standards would be better suited to the Trade Bill, but in that bill’s second reading debate ministers made no reference to standards at all.

Significant environmental risks continue to apply to the Fisheries Bill. There is still no legal duty on authorities to fish sustainably or to set fishing limits under or at scientifically recommended levels, and a number of legal loopholes remain. Ministers have recognised the importance of climate change in the bill’s objectives, but long-mooted plans to put cameras on boats to monitor catch and improve data collection remain an ambition rather than reality.

The UK has started trade discussions with the United States. UK Trade Secretary Liz Truss seeks a comprehensive trade deal with the US, arguing that enhanced trade – including in food and chemicals – will benefit UK consumers and farmers. UK farming unions, consumer groups and environmental organisations – as well as the general public – are opposed to allowing imports of lower standard food.

In the UK-EU negotiations, the UK government has made it very clear that it seeks the right to diverge from EU rules and regulations. While this does not necessarily mean that standards will be lowered, there are no commitments to non-regression in either domestic legislation or the UK’s draft comprehensive free trade agreement. This is a particular concern for chemical safety: the UK is leaving the best regulatory system in the world and ministers are talking of other approaches to regulation.

EU negotiators also appear keener to agree future co-operation on climate, with the UK apparently resisting attempts to include references to climate change in the main trade deal rather than supplementary agreements. In fishing, UK ministers are keen to ‘take back control’, but (unlike the EU) have thus far displayed little appetite to include legal commitments to sustainability in the agreement.

Overall it is difficult to see a particularly positive outcome for the environment should the current pattern of negotiations continue. According to reports, UK ministers have moved many civil servants back to no deal planning, and while tackling the pandemic has applied time pressure the UK government is steadfastly opposed to an extension of the transition period. As one minister put it recently, ‘we cannot keep negotiating forever’.

There are considerable environmental risks if an agreement is not reached at all, including overfishing and more ‘mackerel wars’, and high tariffs placed on UK food exports that provoke domestic deregulation. There are also significant risks with finalising a poor deal that does not include non-regression of standards and close co-operation on chemicals and climate change.

We have to conclude that the environmental risks remain high, and in many areas are intensifying.
 

Read our PDF or click on the icons to explore each policy area.

After three tumultuous months in Westminster, it is difficult not to conclude that the environment is under greater threat than at any other point in the past three years. Hopes for a greener UK have been replaced by deep concerns and fears for the future of environmental protections.

There is a new prime minister and a new advisory team. While the prime minister has outlined a number of environmental aspirations, he has also made it clear that he wishes his government – and the country – to have the right to diverge from existing rules and regulations after Brexit. This, he wrote to European Council President Donald Tusk, is ‘the point’ of leaving the EU.

A central element of the government’s Brexit strategy is to remove the backstop from the Withdrawal Agreement, but the backstop contains at least some environmental commitments and points towards a close future UK-EU relationship. The prime minister says the UK will remain committed to ‘world-class’ environment standards post-Brexit, but provides no details of how these would be provided, why achieving them necessitates the UK’s divergence from the already high standards of the EU, or how maintaining world class standards can be squared with an apparent desire to rush through a trade agreement with the United States.

Severe doubts remain as to the true purpose of regulatory divergence.

Many of the new prime minister’s ministers and advisers are strong advocates of deregulation and a distant relationship with the EU. Many moderate voices within the governing party, who have historically supported green initiatives, have lost the whip for dissenting on Brexit policy. Many green-minded Conservative MPs are standing down at the next election, a considerable blow to the representation of environmental issues in parliament.

The flagship agriculture bill, which set out an ambitious and potentially transformative future for UK farming and land use, has been delayed, partly by the government’s unlawful decision to prorogue parliament. The same fate has befallen the much less progressive fisheries bill. Moreover, UK fisheries and fishers will be in a perilous position should there be a no-deal Brexit.

The government is still to publish its full proposals for the new environment bill. Shortly before the reshuffle Michael Gove was able to announce improvements to the draft bill, including powers for the new Office for Environmental Protection (OEP) to initiate its own investigations and provide a free-to-use complaints system. It is, however, imperative that further improvements are made to the powers, independence and funding of the OEP, and that its remit is extended to cover climate change.

It is clear that if the UK leaves the EU without a deal on 31 October, the environment will be much less well protected in all four UK nations. The European Commission and European Court of Justice will cease to have a role in upholding environmental law, and the interim arrangements proposed so far are inadequate.

Prime Minister Boris Johnson has highlighted the importance of climate change for his administration in his speeches domestically and at the recent G7 meeting in Biarritz. However, his apparent determination to exit with or without a deal by 31 October undermines this position. While the threat of a no-deal Brexit remains, the environment is at severe risk from harmful stockpiles of waste and threats to sustainable fishing levels, to lower chemical safety and an influx of poor quality food imports that would undermine UK farmers.

The impact of a potential no-deal Brexit, together with wider concerns about the direction of the government, lead us to conclude that there are extremely high risks to the environment across the board.

Read our PDF or click on the icons to explore each policy area.

The scale of the environmental crisis hit the headlines multiple times during this quarter. Authoritative reports on biodiversity and the feasibility of tackling climate change illustrated the need for urgent action, as did Sir David Attenborough’s TV documentaries on climate change and nature. Thousands of people took to the streets calling for a rapid political response, whether as school strikers or Extinction Rebellion activists, and polls indicated the wider public are deeply concerned.

The prime minister’s announcement that the government would follow the Committee on Climate Change’s advice to set a legal target of net zero greenhouse gas emissions by 2050 was a huge moment. This is not only a positive legacy for Theresa May, but a major step forward in the UK’s attempts to tackle climate change and encourage other nations to follow suit. The next prime minister will be responsible for providing the policies that can get the country on track.

And yet, despite the net zero commitment, protections for the environment are set to be weaker than before Brexit. Rafts of statutory instruments (SIs) designed simply to “correct” EU law to make it operable in the UK have in fact resulted in significant legal changes that could unravel the effectiveness and oversight of existing environmental law. For example, SIs on fisheries drop the legal commitment to ensure that fishing limits are set at scientifically defined sustainable levels at or below maximum sustainable yield.

While the announcement of the first environment bill in a generation caused great excitement, analysis of the draft legislation by two select committees has found it to be seriously deficient, marking in some areas “a significant regression on current standards”. Flagship parliamentary bills on agriculture, fisheries and trade have now been on pause for months, with the National Audit Office raising particular concerns over the scope and timescale of the pilot for the proposed environmental land management scheme.

The Conservative party leadership contest, triggered by Theresa May’s resignation, is shrinking the time available for parliament to reach agreement on leaving the EU and pass the necessary legislation, and for the UK to undertake complex negotiations on the future EU-UK relationship.

A no-deal Brexit remains a strong possibility and therefore an immense concern, considering its potential impacts on efforts to tackle climate change, restore nature and create a healthier environment. Co-operative mechanisms with the EU would be lost immediately, while domestic replacements for vital EU functions would struggle to do the job. There would be the risk of hasty trade deals being agreed without due process, which could involve concessions harmful to the environment.

The new prime minister and cabinet must take forward and strengthen Theresa May’s green promises, and seek a relationship with the EU that enables close co-operation on the environment. Brexit must not delay the improvements to domestic law that are so desperately needed.

Read our PDF or click on the icons to explore each policy area.

With fewer than three weeks until Brexit, the latest edition of the tracker shows high risk ratings across the board.

The UK faces the increasingly ominous prospect of a cliff edge no deal exit. Greener UK has been unequivocal in its analysis: leaving without a deal poses potentially dire consequences for the environment, in the short and longer term. From chemicals, where a recent statutory instrument fell short of ensuring the same protections as the EU, to agriculture, where the US has been lobbying for lower UK food standards after Brexit, the absence of a strong legal and institutional framework is stark.

Meanwhile, the government’s plans for environmental governance and principles, as set out in the draft environment bill, would leave environmental protections weaker after Brexit. The bill’s proposed environment body lacks the powers and independence of the European Court of Justice and European Commission; the clauses on environmental principles are inadequate; and the bill would not be ready in time for a no-deal exit on 29 March. The government has stated it will provide a way for parliament to keep pace with the EU on environmental protections, yet its proposals do not guarantee continued improvement or prevent the weakening of standards.

Read our PDF or click on the icons to explore each policy area.

This update covers perhaps the most contentious stage yet of the Brexit process. As debate increased over what kind of future the UK should seek, Greener UK launched a set of ‘Brexit benchmarks’ to measure how far environmental standards will be protected and enhanced in the event of different Brexit outcomes.

These were particularly useful when the UK government published the Withdrawal Agreement and accompanying political statement on the future relationship in November. Our analysis found several welcome elements of the agreement, including its commitment not to backslide on standards and its requirement for an independent and robust green body or bodies that far exceed Defra’s current proposals.

Yet concerns and questions persist. The political statement says little about future co-operation and ambition, in areas such as nature protection. If the new governance body or bodies are weaker than current EU institutions, standards are likely to slip.

Risks remain, particularly that of a ‘no deal’ Brexit. Leaving without a deal would have a hugely detrimental impact on the environment and must be challenged on that basis.

Read our PDF or click on the icons to explore each policy area.

The period between May and July 2018 was eventful, with consultations published on future environmental governance and fisheries. While gains were made on the government’s initial proposals for enforcing environmental laws after Brexit, Defra’s plans still fell short of existing protections. We believe that an unprecedented number of public responses were submitted to the department outlining concerns on scope and application, and we wait to see whether the government will act to address them.
The government also published its Brexit white paper in this period, laying out its approach to negotiations with the European Union. This contains a number of positive steps, including a common rulebook for all goods including agri-food and the intention to include a non-regression clause in the future relationship.

Yet the uncertainty surrounding the government’s Brexit policy, negotiation strategy and parliamentary support adds a further, anxious dimension to this analysis. There are significant concerns with the increasing possibility of a no deal Brexit, and the potentially disastrous consequences this would have on the environment. Greener UK’s paper on ‘no deal’, published in July, explored these fears in detail.

The prospect of a no deal Brexit should alarm anyone who cares for the UK’s environment and countryside. It will have deeply damaging consequences that will be felt for years to come. The Risk Tracker needs to be read in this context: almost all the concerns we raise are considerably amplified by the prospect of crashing out of the EU without a deal.

Read our PDF or click on the icons to explore each policy area.

This update period included the following events: agreement between UK and EU negotiators on a time bound transition period after 19 March 2019, with discussions on the nature of future agreement now about to get underway; the EU’s publication of guidelines for negotiations on the future relationship; committee stage of the European Union (Withdrawal) Bill in the House of Lords; the publication of Defra’s farming policy consultation paper; several speeches by ministers including the chancellor and foreign secretary, and a speech by the prime minister at Mansion House, where she laid out her five tests for a final agreement with the EU.

Read our PDF or click on the icons to explore each policy area.

This update period included the following events: committee stage and third reading of the European Union (Withdrawal) Bill; agreement between UK and EU negotiators that “sufficient progress” has been made to move to phase two of the Brexit negotiations; a major speech by Environment Secretary Michael Gove on farming; and a major speech by Prime Minister Theresa May to launch the 25 year environment plan.

Read our PDF or click on the icons to explore each policy area.

This update period included the following events: publication and second reading of the European Union (Withdrawal) Bill; a major speech by environment secretary Michael Gove at the WWF headquarters; publication of several UK government position papers, including one on foreign policy and one on Northern Ireland and Ireland; and the prime minister’s third major speech on Brexit in Florence.

Read our PDF or click on the icons to explore each policy area.

This risk tracker, which covers the 12 months beginning with the EU referendum in June 2016, included the following events: the publication of a white paper on Brexit, outlining the UK government’s negotiating priorities in February 2017; the triggering of Article 50 in March 2017; the Great Repeal Bill White Paper published in March 2017; and the 2017 general election.

Read our PDF or click on the icons to explore each policy area.