As you flick through the 1246 pages of ‘our’ Brexit deal you will hardly have got your eye in when you reach p179, and ‘Title XI, Article 1.1 LEVEL PLAYING FIELD FOR OPEN AND FAIR COMPETITION AND SUSTAINABLE DEVELOPMENT‘;
So, already, we see that environmental protection is subsumed within the apparently bigger matters of trade.
On p201 we get to ‘Chapter seven: Environment and climate. Article 7.1: Definitions‘ which seems fairly reassuring and seems to say that everything is covered by this agreement (Birds Directive, Habitat Directive, Water Framework Directive etc).
Moving on to p202 and ‘Article 7.2 Non-regression from levels of protection‘ we get to the nitty gritty of what has always concerned me about the future of environmental protection in the UK after the Brexit transition ie in five days’ time.
If only the relevant paragraph had read;
A Party shall not weaken or reduce its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection.
…then apart from the irritating split infinitive it would have been a neat little paragraph. But in fact it has ten little words inserted thus;
A Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection.
… and I fear that makes all the difference. If it doesn’t make a difference, then why are those 10 words, and a couple of commas, there?
This wording, which must have been discussed (I wonder for how long), limits the protection of environmental standards to those that affect trade or investment between the UK and the EU, and this opens up a big discussion of where that line should be drawn. Surely everything affects trade and investment you might say. Well, surely it does but on a gradient from ‘very much’ to ‘very little’ and all the action will be at the ‘very much’ end of things. Our government has negotiated a trade deal which enables dismemberment of environmental protection wholescale in the years ahead provided its disappearance is not a trade issue. Some weakening of current environmental protection will require legislation but some can be done through statutory instruments.
If there were a plan to build a highly polluting widget-making factory in Michael Gove’s constituency of Surrey Heath on those very Surrey heaths that are protected by the Birds Directive and Habitats Directive then that might fall foul of Article 7.2 as worded, but a nibbling away of those heaths by encroachment of ecologically friendly housing would arguably not, and in practice it would fall under the radar unless we all made a massive fuss about it. The wording of Article 7.2 might stop a whole limb of environmental protection being lopped off but it will, I fear, lead to death from a thousand cuts.
And removing legal protection for, say, the Hen Harrier, would have no major impact on trade whatsoever, so I guess would fall way under the ambit of this agreement. What this means is that we will have to fight our own battles within the UK, indeed within each nation of the UK and we can expect little help from the way the level playing field has been laid.
You might say that I worry too much and that none of this will ever happen. First, that’s what I was told when I said that this, where we are now, would happen! We were all told that there would be no down-grading of environmental protection. I think we were told that we would be able to forge ahead with our own higher standards once unshackled from those Europeans. So it might never happen but so far, it is all happening to the plan that I warned about consistently in this blog.
And yet those 10 words are there. I can’t believe that M. Barnier was arguing strongly for their inclusion – no, it will have been the negotiators purportedly arguing for my, your, and future generations of UK citizens’ future who have enabled, indeed sought, regression of environmental standards in the UK starting from this Friday.