With the European Council granting a ‘flextension’ on the UK’s EU exit date, DEFRA has provided few details about its plans for an interim body to monitor breaches of environmental law by public bodies if the UK crashes out of the EU without a deal.
The date of the UK’s departure from the bloc may have been pushed back, but the prospect of a no-deal Brexit remains firmly on the table. The UK could still crash out of the EU without a deal on 1 June if the country fails to take part in European Parliament elections on 23 May, or on 31 October if the government fails to win MPs’ support for its withdrawal agreement.
The interim secretariat forms a key part of DEFRA’s no-deal preparations, operating from the day the UK crashes out of the EU until the Office for Environmental Protection (OEP) – the post-Brexit green watchdog – has been established.
Its role, as set out by environment secretary Michael Gove, would be “monitoring compliance with environmental law and remitting any instances to the OEP – and [it] will make it clear that EU law that we inherit on environmental matters remains in place”.
Comprising 16 civil servants with, according to ENDS sources, Professor Richard Macrory as its chair, the interim secretariat would not be housed within DEFRA’s offices, but would officially be a non-departmental public body.
However, DEFRA has made no official announcement about the body. A department spokesperson was only able to confirm that “under a no-deal scenario we will put in place a holding arrangement” until the launch of the OEP. “These interim arrangements would be up and running as soon as we left the EU,” the spokesperson added.
While details around the nature of the secretariat’s work remain sketchy, some civil society observers are concerned it will offer only a limited range of environmental protections in comparison to the European institutions the UK is leaving behind.
“It is frustrating that there’s not more in the public domain,” said Ruth Chambers, senior parliamentary affairs associate at Greener UK. “But on the other hand I can quite understand why as a department you may not want to release that information if it never comes to be needed.”
Nevertheless, the fresh Brexit delay gives DEFRA an opportunity to provide more transparency on its preparations, Chambers added. “There is a genuine and rather large anxiety about the environmental implications of no deal,” she said. “The more reassurance that government could give stakeholders that they have thought about this and are going to put some arrangements in place... the better.”
For Professor Charlotte Burns, co-chair of research network Brexit & Environment, the lack of transparency in establishing the interim secretariat could set a bad precedent for the UK’s longer-term governance arrangements.
She asked: “Having gone down this route in a relatively untransparent way, what does this mean when the OEP [members] are appointed?”
If the secretariat is established in a no-deal scenario, there is the risk of “path dependence”, she explained, “where people say: ‘well we’ve already set this [body] up in this way and it works, so let’s keep it’.”
Chambers also stressed that any interim bodies set up after no deal should not be conflated with the OEP itself. “The concern that we have about the arrangements is they shouldn’t be seen in any way as an adequate patch to plug the government’s gap,” she said, or as a “precursor for what the OEP will need to look like in the longer term”.
The lack of details around the interim body’s role risks creating the impression that it is nothing more than a reputational “sticking plaster”, Burns warned, to reassure nervous stakeholders that a green Brexit is still possible in a no-deal scenario.
But while the body would clearly not have the resources to carry out all the functions of the future OEP, “there are a number of ways in which this [arrangement] could potentially work”, said Martin Baxter, chief policy adviser at the Institute for Environmental Management and Assessment.
“Although there wouldn’t be the legal backing for action, in that it wouldn’t be setting statutes and wouldn’t have its statutory powers,” he said, the interim body “could act in terms of raising particular issues, issuing non-binding notices which would have a reputational effect and therefore some sort of clout.”