Okay, that's a clickbait headline - but there are some big questions about the backstop
The UK and EU have struck their Brexit deal. The agreement puts the UK into a transition agreement from March 2019 for two years, during which time most EU laws would still apply. After that, either we extend or things change dramatically as we adopt a backstop without time limit.
At first glance, that backstop still appears to offer important environmental protections alongside a shared customs area – including a demand the UK create a robust environmental regulator.
But at a close reading, there are major differences between the proposed deal and staying within a EU customs union, which may leave the door open to the UK loosening rules on highly controversial products, such as chlorinated chicken, and backsliding on environmental protections.
In fact, in some ways, this is a much looser agreement than that suggested in the PM’s Chequers plan. And it has implications both for environmental protection and cross-border trade.
Of course, this is just a draft. The agreement faces a rocky passage through parliament and then needs to be agreed by the other 27 nations – who may have views on any freedom granted to the UK to substantially weaken its agri-food standards.
So how does this work out?
Under the deal, Northern Ireland stays firmly within the EU customs union and adopts large parts of the EU’s single market rules – defined for pages and pages in Annex 5 of the agreement.
This includes rules on the use of genetically modified organisms and controversial “sanitary and phytosanitary” rules, which currently ban things like chlorine-washed chicken and hormone-fed beef – which are common in US food production – from being sold in EU shops.
Adopting the EU’s sanitary and phytosanitary rules means goods from Northern Ireland will not only avoid EU tariffs or quotas, they will also be automatically eligible for sale in the rest of the EU – so preserving an open border with the Republic of Ireland.
Two different systems
The rest of the UK, on the other hand, stays in a looser customs area (not a union). There would be no tariffs, quotas or checks on rules of origin for goods coming from England, Scotland and Wales to the EU or Northern Ireland, but there would be other “compliance” checks, because the UK would not be imposing EU product standards.
As the IPPR’s trade expert Marley Morris argues, this is still a hard Brexit.
Goods from Great Britain (which comprises England, Scotland and Wales but not Northern Ireland) would not automatically be eligible for sale to the EU either – they’d have to prove they comply with the EU customs code and be subject to so-called sanitary and phytosanitary checks, as well as checks on product safety requirements.
All of which means the UK doesn’t have to follow the letter of EU law. Instead, and in exchange for reducing tariffs, the UK has signed up to various broad-brush agreements, including a non-regression clause on the environment.
Under the non-regression clause, the UK commits to “ensure that the level of environmental protection provided by law, regulations and practices is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period.”
This echoes promises made by Theresa May and Michael Gove that there would be no weakening of environmental standards after Brexit.
It goes on to list the areas covered, including:
“With the aim of ensuring the proper functioning of the single customs territory, the Union and the United Kingdom shall ensure that the level of environmental protection provided by law, regulations and practices is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period in relation to: 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.”
It is an impressive-sounding list, but there are three problems. First, there seem to be some things missing.
The most glaring omission is any reference to food standards, sanitary or phytosanitary rules, beyond a general commitment to retain the precautionary principle. The problem with that is that the precautionary principle is pretty subjective. One minister’s precautionary banning of chlorine-washed chicken may be another’s nanny-state.
This is convenient for the UK, as it would allow international trade secretary Liam Fox room to negotiate a trade deal with the US, which has explicitly said it wants the UK to lower its standards on these areas.
I’ve asked Defra about this and I’m waiting to hear back – we’ll update here when we hear more. But many hard Brexiteers may be very pleased. This is – of course – a big departure from Chequers and its promises of environmental harmonisation and frictionless trade.
There are other gaps too. The list 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 and – of course – anything the EU does after the UK has left the transition agreement wouldn’t be covered by a non-regression clause, allowing the two economies to gradually diverge on environmental protection.
The second issue is that the UK does not have to follow EU environmental rules, it can define it’s own so long as it can argue that the objective is the same. As Morris argues on Twitter: “in the environment this is especially complex, as UK could argue the legislation is ‘equivalent’ because it has same targets but different means of getting there – see this analysis.”
Over time EU rules will diverge from the UK’s and the non-regression clause doesn’t insist on any form of dynamic alignment (even though it does on state aid).
The third – and most fundamental – problem concerns enforcement. The agreement explicitly excludes most of the environmental clauses from most parts of a complex international arbitrational system the two sides have agreed to use to resolve other areas such as state aid (see clause 7, p358).
Instead, it proposes that the UK establish a new independent regulator with the power to take the UK government to court over environmental failures. It’s a powerful and constitutionally quite radical proposal, creating an environmental check on the UK’s all-powerful executive. The document even suggests it may be monitored by Brussels in some as-yet unspecified way.
However, it is not entirely clear how all this would happen, and even less clear what would happen if the regulator doesn’t do its job. Who funds the regulator, for example, and how can that funding be independent?
Here’s what the EU’s Q&A says about what happens when things don’t go to plan:
“The Union will be able to adopt unilateral measures either under the Agreement or on the basis of Union law, and in line with international commitments. These measures may include the possibility to temporarily suspend obligations in the case of non-compliance with an arbitration ruling, safeguards or rebalancing measures (in the case of serious economic difficulties that are liable to persist), the listing of uncooperative jurisdiction for tax purposes, or action for health and environmental protection in line with international commitments (GATT)”
Without an arbitration ruling to base their action, upon this essentially means the EU will have extremely limited ways to enforce the environmental measures.
Hidden in the detail there is a mechanism through which the non-regression clause itself can be taken to arbitration – for example, if the UK has not implemented any regulator at all. But this relies on it being a political priority and on the EU winning an argument without being able to fall back on clear rules, case law, or any role for the commission or European Court.
This matters, because even right now – where the EU has the European Court of Justice (ECJ) to rule over the UK – it is still in non-compliance with EU rules on air pollution.
And of course, the protocol itself can be changed. It exists largely to avoid a border in the Irish Sea but should a future UK government decide to go for a simple trading arrangement with the EU (and after all, this isn’t actually that far off), non-regression clauses on the environment, which do not exist in the EU’s deal with Canada, may be even harder to enforce.
In short this deal is not a “soft Brexit”, it does not force the UK – beyond the transition period – to align indefinitely with EU environmental rules, and it provides little by way of enforcement for the clauses it does have. It is more rigorous than most international trade agreements, but leaves the government free to deregulate in a variety of areas as it goes hunting for new trading partners.
One of those areas could be chlorine-washed chicken.
Note: This story was updated, and the conclusion changed on 16 November 2018. It will continue to be updated as details of the agreement become clearer.