Many Brexit-related SIs weaken governance and enforcement, says Greener UK. Photograph: Bloomberg Creative/Getty Images Many Brexit-related SIs weaken governance and enforcement, says Greener UK. Photograph: Bloomberg Creative/Getty Images

DEFRA rules changes: 6 fears raised by coalition

DEFRA has made hundreds of new statutory instruments to allow for changes arising from Brexit, but Greener UK, a coalition of 12 major environmental organisations, has analysed a raft of the new rules and found "significant governance gaps in the application, interpretation and enforcement of environmental law".

Greener UK’s main concerns are:

1 ‘Ministers have been given too much power’

Greener UK says many of the statutory instruments (SIs) “have been used to introduce substantive policy changes to environmental standards and give greater discretionary powers to ministers”. This includes on pesticide authorisation, extending the maximum pesticide residue limit review periods from every 12 months to every 36 months, thus weakening the role of scientific advice, it says.

Several SIs remove lists of banned or restricted substances from UK food and agricultural standards meaning that government must create new lists, a process Greener UK says offers “very little opportunity for scrutiny compared with those offered through the European Commission and have weaker requirements on considering scientific advice”. 

2 ‘Oversight and enforcement is inadequate’

The coalition says a number of provisions in the SIs remove references to oversight procedures involving the commission without replacing them with an equivalent alternative. 

Examples include the removal of the need to provide assessments of fish stocks and enforcement of rules relating to fishing policy. DEFRA says the Office for Environmental Protection (OEP) will plug governance and enforcement gaps, but Greener UK says Environment Bill, which sets up the OEP, will need to be strengthened for this to be the case. 

3 ‘Replacement of EU advisory roles is inadequate’

Many SIs remove references to advisory roles and either do not replace them at all, or do so with a poor alternative, says Greener UK. References to the European Chemicals Agency in a persistent organic pollutants SI are replaced with references ‘relevant authorities, including the Environment Agency, but Greener UK casts doubt on whether the agency or alternative authorities have comparable levels of resources, funding and expertise.

 4 ‘Reporting obligations are weaker’

Requirements on member states to regularly report on technical matters and their implementation have been removed and not replaced, including those relating to air quality, “reducing transparency and accountability that is crucial to the effective implementation of air quality legislation”, says Greener UK.

5 ‘Penalty regime is softer’

Some SIs remove the requirement “for proportionate and dissuasive penalties and fines” says Greener UK, giving the example of timber regulations which could result in “unscrupulous operators acting with impunity, decreased traceability of timber products and increased illegal logging”. 

6 Targets after the end of the transition period have been removed 

EU derived law containing targets with a deadline after 31 December 2020 have either not been fully transposed or have been removed altogether, says Greener UK. Such goals include those relating to restrictions of veterinary substances, and those relating to recycling of municipal and packaging waste. On the latter, 2025 and 2030 goals are not included in domestic waste regulations, which only retain at 65% waste and reuse target for 2035, says the coalition.    

Responding to the analysis, a DEFRA spokesperson said: “Our exit from the EU enables the UK to set our own world-leading legislation, delivering better environmental outcomes in an effective and efficient way and in line with our own regulatory systems - ensuring we protect and improve our precious environment for future generations.

“We have invested significantly in building DEFRA’s legislative capability over the last few years, through extensive training and liaison with legislative expertise from across Whitehall. This has allowed us to successfully deliver one of the largest legislation programmes in government.”

DEFRA refers to the Environment Bill as an example of how the UK can uphold environmental standards but the law has been criticised for lacking strength and has been repeatedly delayed.

 

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