Brexit deal: ten words that spell environmental damage

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.


25 Replies to “Brexit deal: ten words that spell environmental damage”

  1. Interesting comments and I agree in many respects but what I see in Art7.1 is equally alarming and mirrors the NPPF (planning), is that somehow the definition of Sustainability has been redefined to its linkage to development and growth. Economic and social don’t have to just be about ‘more’, so the interdependency of the 3 pillars of social, environmental and economic leave a skewed position of balance. I think this is your point as well in Art7.2.

  2. If it was the British government that wanted those including, is there any chance it could be debated and removed during parliamentary scrutiny?

    1. I am not sure but I think that Parliament can ratify the agreement or not but can’t start amending it and sending it back for further negotiation. As far as I understand it this is now the deal and we either take it or leave it.

  3. I am seriously worried by this fantasy peddled by so many conservation professionals and NGOs about now we can forge some new environmental framework and legislation. Whilst hypothetically this is possible, when you understand we have at least four more years of this Tory government, and they will write most of this new environmental legislation and create this new framework, you know it is going to be dire. That what will happen, is that the focus will be on PR. There will be lots of fanfare to make it look wonderful, whereas in reality it will not be fit for purpose. It will be full of loopholes allowing the landowning and farming lobby to get their own way. It will be the very definition of specious i.e. superficially plausible, but on close examination, entirely spurious and contrary to what it appears to be.

    As someone who’s whole focus is on the climate and ecological crisis I despair at how the concept of Sustainable Development has been bastardized to mean something entirely different than the Brundtland Commission defined it in Our Common Future (1987). “Sustainable development is the organizing principle for meeting human development goals while simultaneously sustaining the ability of natural systems to provide the natural resources and ecosystem services on which the economy and society depend.”

    At heart, Sustainable Development was taken from the ecological concept of sustainability. It really is nothing whatsoever about “economic development” (a euphemism for economic growth) or competition. That is just a lie. Any economic growth etc, is only possible if it does not compromise the ability of natural ecosystems to sustain our societies and future generations. There was a lot of controversy about even including development in the concept and agenda 21 makes it clear this is about poorer countries catching up in terms of standards of living, not consumption increasing in already high consumption countries.

    In the debate at John Vidal’s Oswestry Nature Festival last year, the area NFU rep, bizarrely thought that sustainable development, meant that this land use must continue to make a profit. He was stunned and baffled when I stood up explained how the UN actually described Sustainable Development in Our Common Future, and they came up with the concept and defined it. Later on he said something to the effect, of notwithstanding different opinions on what sustainable development means. I was not expressing an opinion, just explaining chapter and verse on how the commission which came up with the concept, defined it, in their own words.

    Our Common future clearly says the level of consumption and industrialization achieved by the wealthiest countries are self-evidently unsustainable. And that was in 1987, when on all metrics, our consumption was far lower. Clearly the UK government and the EU are attempting to increase this. It is Orwellian to call this sustainable.

  4. Three documents published over two days before Christmas show how trade and environmental standards are inextricably linked in Wales (40% of Welsh lamb is exported and 92% of those exports go to EU countries).

    The Agriculture (Wales) White Paper published 16 December sets out Welsh Government’s proposals to replace the Basic Payment Scheme (BPS) and other EU agri-environment schemes with a Sustainable Farming Scheme, a new regulatory baseline and National Minimum Standards.

    The Climate Change Committee’s 17 December advice states emissions from livestock account for 54% of agricultural emissions (which in total account for 16% of Wales’ GHG emissions), with manure and waste management (13%), soil (24%) and machinery (10%) accounting for the remainder. CCC recommends 35-50% reduction in consumption of red meat, and hence livestock production with fewer cattle and sheep on less land, plus ambitious changes in land use:

    “A transformation is needed in Wales’ land while supporting Welsh farmers. By 2030, our Balanced Pathway involves planting a cumulative 43,000 hectares of mixed woodland in Wales to remove CO2 from the atmosphere as they grow, increasing to a total of 180,000 hectares by 2050. A further 56,000 hectares of agricultural land can shift to bioenergy production (including short rotation forestry) by 2050. Peatlands must be restored widely and managed sustainably. Low-carbon farming practices must be adopted widely, while raising farm productivity” (Pages 19-20 of Executive Summary).

    All of these land use and land management changes will have to be incentivised by the proposed Sustainable Farming Scheme, underpinned by the new regulatory baseline and National Minimum Standards, monitored and enforced (so NRW is going to have to be appropriately funded!).

    Finally, on 17 December NRW published which places Brecon Beacons National Park Authority and Powys County Council in the same position as Herefordshire Council – i.e. facing a likely moratorium on new housing in affected catchment areas unless phosphate neutrality can be demonstrated.

    Dwr Cymru Welsh Water’s current Asset Management Programme investment of £200m by 2025 to remove phosphate and improve sewage treatment works (STWs) will complete what’s required to achieve Water Framework Directive standards under a ‘fair share assessment’ agreed with its regulators. If there is no additional headroom at STWs, it seems likely no new housing can be built until headroom is created by reductions from other sources. In the Wye and Usk catchments, the biggest residual source of phosphate is agriculture.

    Environmental standards matter for people and planet!

  5. It was ever thus with this lot of ne’er do wells, incompetent and uncaring scoundrels in power.

  6. Hi all,

    [with thanks to this thread:

    My understanding is that existing EU environmental law (and I assume case-law, decisions etc) is protected by the non-regression clause.

    It is FUTURE EU environmental law (ie new Directives, new case-law) that is subject to material changes and effect on trade.

    So I think, and I emphasise (and emphasise again!) that I THINK that Habitats Directive, EIA Directive (save for new case law relating to these Directives) are protected or at least there are penalties for deviation.

    Obviously this would need to be confirmed by someone with substantial more knowledge of international treaty law and language, but my current understanding is that this seems a reasonable opinion to have at this juncture.

    1. Richard – not quite, as I understand it (and maybe I don’t).

      The whole point of Brexit is that the UK can do what it wants, in theory. The whole point of this cooperation agreement is that although we can do whatever we want, in practice we can only trade with the EU on favourable terms if there is a level playing field on environmental (and social) protection. This agreement describes that level playing field for existing and future environmental protection. The Directives, as they have been transcribed into UK law remain in place but the section highlighted in this blog says that only those provisions which affect international trade between EU asnd UK get that protection. Watch out for changes to come, perhaps gradually, but they will come.

      1. Evening Mark, and hoping you’ve had as good a Christmas break as can be expected in the current situation.

        My understanding is evolving, but there has been several more analyses on Twitter, posted by legal experts in EU law and international law. I heartily recommend following David Allen Green (DAG) on Twitter (if you don’t already): a brilliant writer in my opinion, conveying complex arguments and explanations in an easily understood way (with a healthy dose of wit).

        I mention DAG as I have obtained my understanding from him plus others he has signposted. I remain of the understanding that EU Environmental Law such as the Habitats Directive, is protected by the non-regression clause and that it is solely FUTURE new law which is influenced by whether or not it relates to trade. So, you could perhaps argue (well I am!) that there are two level playing fields; but one is ‘bumpier’; the one associated with future law. It is worth, perhaps, reading this long thread (signposted by DAG):

        Of course, and I agree with you Mark, that there may well be changes; but I doubt that the Government cannot just make those changes successfully & without comeback solely by a statutory instrument. At the very least, it would have to negotiate the Office of Environmental Protection (OEP) and may also require primary legislation.

        On the point that Brexit was to allow the UK to do what ever it wants; that may well have been (and still be) the desire of Brexiteers in Government; but the deal (and international law more generally) seeks to prevents this. If the UK decides to digress outside the flexibility that the deal allows, then there are penalties. With regards to the environmental law, this IS weaker (I think it falls outside the remit of the international arbitrator panel, but not the OEP) so there remains more uncertainty. But if the OEP becomes or is born as a toothless (or with feeble dentition) organisation, I suspect the EU will push back with tariffs.

        But I finish this response with something that the UK Government has not, to my knowledge, made overt. The deal is TEMPORARY. It comes up for renewal in 2026… So as DAG as stated, this is a Brexit truce (yippeeee!!) and it all commences again in five years time (lucky us!). And there is a General Election between then and now. At least one! So, assuming the UK domestic legislation enabling the deal to be ratified is passed on the 30th December 2020, I think there is every likelihood that this whole saga will rumble on, with the volume being turned up towards the middle part of this decade. This may also act as a stimulus to Government to tread carefully.

        Why? Well, as they have discovered with regards to their housing formula (e.g. see, voters are not keen on developments on their doorstep. They’ll likely be even less keen if UK attempts to dilute environmental law such as the Environmental Impact Assessment Directive.

        None of the above should be read as suggesting there is little to be concerned about. There is not. But my gut feeling is that the EU has secured a better level playing field than the UK had aspired to.

        1. Richard – thanks. We’re all trying to figure this out. I don’t find your points wholly reassuring though.

          Let’s start at the bottom of your helpful comment. Yes, this isn’t as bad as the UK would have wished (!) and it probably isn’t as good as the EU might have wished. Such is the nature of negotiation. And remember that the EU was negotiating on behalf of its own citizens (which doesn’t incluse us) and not through some philanthropic feeling toward the UK people or environment. It’s supposed to be the UK that has those things in mind (!).

          There is plenty of evidence that the UK government wants to reduce red tape (aka environmental and social protection) after Brexit. This cooperation agreement was our last chance that the EU would tie the UK governments’ hands tightly on that matter.

          Where we are is that the directives are still in place and the cooperation agreement says that there should be no regression but, the very point of my blog, is that the words in the agreement say that we can’t regress ‘in a manner affecting trade or investment between the Parties‘ – the ten words that my post is about. Those 10 words clearly limit the non-regression.

          If the 10 words weren’t there the section would have a broader meaning. The fact that they are there means that it has a narrower meaning – quite how narrow is unclear but ‘our’ government will, I predict, be looking to test that as time goes on.

          Words don’t get into agreeements by accident (although sometimes by mistake) and once they are in then they commit both parties – that’s what an agreement is.

          I don’t blame the EU for these words, I blame ‘our’ side. But they mean something and may form the battleground for many environmental cases over the next few years.

  7. In the agreement, one other key EU principle has been thrown under the proverbial UK bus – the precautionary principle that provided an opportunity in the UK to argue for better environmental and public health policies, practices, and standards. The EU, however, will continue to shape its policies drawing on some reference to the precautionary principle.

    See Title X: GOOD REGULATORY PRACTICES AND REGULATORY COOPERATION. Article GRP.1: General principles. Now we have an agreement that states “each Party (is) free to determine its approach to good regulatory practices under this Agreement in a manner consistent with its own legal framework, practice, procedures and fundamental principles underlying its regulatory system”.

    The UK Government has no principles never mind fundamental ones. So watch out for further recklessness and further declines across the board for example on public health, human, animal or plant life and health, and animal welfare, environment including climate change & consumer protection.

    With chemical policy divergence from the EU specifically in Boris’s sights today along with ‘red tape’, we can expect to see weaker actions or rather more inaction on climate change, toxics use reduction, air pollution, and pesticides generally including neonicotinoids etc. There will no longer be an opportunity to contest poor regulation by calling on a precautionary principle approach.

    1. Andra – see my comments below – the Environment Bill will provide the principles you are looking for. At the moment, it does look as if the Government is not throwing the precautionary principle “under the bus” but there’s still a way to go before the Bill gets enacted and associated policy statements are scrutinised and approved

  8. Very well said Mark. Looks to me as though all our fears about the weakening and abolition of environment and wildlife protection are coming to pass. Just what the right wing of the Tory Party wants. What a load of shysters they are. Johnson’s main ability is that he is a show man who can dress things up to appear meaningful but actually mean nothing at all. As far as I can see this rotten Government has a free hand to do more or less whatever it likes, for example driving roads throw SSSIs and our wildlife and environment has very little protection at all under this agreement.
    One can only hope that Governments in Scotland, Wales and Northern Ireland will be more sympathetic than these shysters in Westminster and that in four years time we get a more sympathetic Government in power in Westminster.
    Very depressing indeed

  9. When nice Mr Gove was at DEFRA there were warm comforting words coming out of one side of his face that distracted from the stuff about trading with the world that came out of the other. It was all there in plain sight.

  10. Sorry to be joining the discussion someway down the line. I’m doing so to in the light of Richard Wilson’s optimism about what the Agreement does for environmental protections.

    The starting point is that, as a matter of domestic (i.e. UK) law, all the existing protections arising from EU environmental law remain in place (now as purely domestic law) from 1 January 2021.

    However, unless constrained by the EU agreement (to which I will come in a moment), the UK could change those protections (including reducing them) from that point. Some of that would require primary legislation (Acts of Parliament), some might be done by statutory instrument (with very little Parliamentary scrutiny). My understanding is that, politically, the current Government says it has no intention of doing that. But we have already seen signs that might not remain the case, and another Government might take a different view and decide to cut protections where it can.

    Turning then to whether the EU agreement would put a brake on that: From the ‘news’ coming out about the negotiations over the past few weeks, we all indeed got the impression that the EU had ensured that existing environmental protections would be completely maintained; the debate, so we were told, was about what happened if the EU enhanced protections within EU law in the future. Would the UK have to track those enhancements? And if not, what would be the consequences?

    The speculations and rumors are over. We have the Agreement. Mark has set out the provisions which deal with the existing EU protections (which the Agreement explains as those in place on 31 December 2020). As he explains, they ensure that neither the EU nor the UK reduces those protections “in a manner affecting trade or investment between the Parties”. So the brake is limited by that carve out. Mark has described how that could open up a debate about which existing environmental protections affect trade or investment between the parties and which don’t (with the latter being candidates for weakening later). It may be that what is excluded by the carve out (i.e. not protected going forward) is vanishingly small (given that environment protections cannot readily be divorced from economic activities which have an international trade/investment dimension). But the drafters of the Agreement clearly envisaged there could be some things.

    Mark mentions the protection of Harriers as a candidate for exclusion by that carve out. But given the acceptance that the main threat to Hen Harriers is from humans associated with the grouse shooting industry, and given the valuable scope for investment in grouse moors and the international trade associated with hunting trips, Mark may have given away too much! After all, the owner of a hunting estate in an EU country might feel it unfair competition (for the lucrative trade in shooting trips) if UK estates could shoot Hen Harriers but they could not.

    Coming back though the Agreement itself: I imagine that Mark and others would be delighted if the Agreement indeed entirely prevented the UK from regressing from the existing protections (i.e. if he and I have got it wrong). If you (or others) identify how that might be so, then please do explain. But for now, the carve out (however narrow it may turn out to be) appears to be as Mark explains.

    Of course, that does not force either side to reduce protections in relation to things falling with inthe carve out. But (and this is Mark’s point I think) those words were presumably included because one side or the other (and he assumes it was the UK) wants that option.

    And that means that, whether by statutory instrument or primary legislation (depending on how the protection currently exists in UK law) those protections could be reduced down the line without the EU providing any brake.

    In other words, the impression we had all got during the negotiations that existing standards would be ensured by the Agreement was a wrong impression. Or, at least, it was an impression given by people whose only/main focus is on international trade/investment.

    As for the second part of the debate – what happens when one or other party increases environmental (among other) protections after 1 January 2020. The answer here seems to be in Article 9.4 on page 215:

    “(1) The Parties recognise the right of each Party to determine its future policies and priorities with respect to … environmental or climate protection …. At the same time, the Parties acknowledge that significant divergences in these areas can be capable of impacting trade or investment between the Parties in a manner that changes the circumstances that have formed the basis for the conclusion of this Agreement.

    (2) If material impacts on trade or investment between the Parties are arising as a result of significant divergences between the Parties in the areas referred to in paragraph 1, either Party may take appropriate rebalancing measures to address the situation. …” {and there is then lots of detail on those rebalancing measures}

    In other words, if the EU or the UK were to enhance protections after 1 January 2021, the other party might be able to take “appropriate rebalancing measures”.

    But only, and here is the same limitation as we saw above, if the new divergence is “capable of impacting trade or investment between the Parties in a manner that changes the circumstances that have formed the basis for the conclusion of this Agreement.”

    So, overall, the EU has ensured that (1) existing protections in UK environmental law are maintained and that (2) if the EU enhances protections in the future but the UK does not match it, then the EU might be able to take action to “rebalance”. BUT, in both cases, ONLY in relation to environmental protections (or changes to them) which affect trade or investment. As I say, that might be a very narrow carve out, but I don’t think it can be wished away.

    Again, if you or anyone else thinks that misses something or that Mark or I have completely got it wrong, then please do say.

    Meanwhile, of course, the Government could choose to make clear that it will not take advantage of the carve out (i.e. it will not reduce any environmental protections at all). And Parliament could take steps at least to ensure that all and any proposals to reduce would need full Parliamentary scrutiny and approval through primary legislation (and therefore full public debate).

    Best wishes all for 2021!

    1. David,

      Thanks for taking the time to clarify the status and correct my optimism which has now plummeted.

      This is dire news. And not one I can readily find words to commiserate.

      Best wishes for 2021.


    2. thanks very much for this David. You have set out very clearly what the Trade Agreement says and what it means for environmental protection.

      I was interested in your comment about this of future Governments using primary or secondary legislation to effect a weakening of the existing protections arising from EU Directives. But I also wonder how EU case law will now be dealt with – both existing case law, such as the recent ECJ judgements which are having so much influence on the UK housing sector, concerning the impact of excess Nitrates and Phosphates on UK European sites; and any future case law arising from ECJ judgements, on European sites. I understand European sites is no longer the legally correct term in the UK, but until we have a new name for them, we all know what it means.

      1. Hello Miles

        Section 6 of the EU Withdrawal Act 2018 provides that:

        “(1) A court or tribunal—

        (a) is not bound by any principles laid down, or any decisions made, on or after [31 December 2020] by the European Court, and

        (2) Subject to this and subsections (3) to (6), a court or tribunal may have regard to anything done on or after exit day [31 December 2020] by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal.”

        So the decided case law of the “European Court” up to 31 December 2020 remains binding on UK courts in interpreting domestic law which gives effect to EU law up to that point.

        BUT, if the European Court were to come up with fresh stuff on (for example) the EU Birds Directive after 1 January 2021, then a UK court could have regard to, but need not follow, that new case law in interpreting the Wildlife and Countryside Act 1981 (which gave effect to the EU Birds Directive in the UK).

        I hope that helps.


        1. thanks David – that’s very interesting.

          The second clause is especially muddy!

          But the tie to ECJ decisions up until now is pertinent, indicating that the UK Government(s) cannot just walk away from decisions such as those on Nitrates and Phosphates. Or at least cannot walk away with potentially triggering EU retaliation.

  11. In the context of future agricultural standards, it’s worth remembering there is a big debate going on in Europe over the CAP future.

  12. Mark,
    I too share your concerns over those ten words – but their insertion gives a twist to the “red tape” argument that deregulatory governments may come to regret. Successive Conservative govts have attacked environmental regulation as “red tape” which adds costs to businesses and disadvantages trade. It will be difficult to advance this as an argument for reducing regulation in any business area which trades with the EU, or has EU competitors, as it will, in effect, be admitting the that the ” manner affecting trade or investment” caveat applies. So I suspect new ways of calculating Regulatory Impact Assessments ( which are a formal parliamentary requirement for all new / amending regulation ) will emerge which downplay “impacts on trade and investment” with the EU. I recognise existing legislation and case law apply, but there are many areas of EU law that are open to interpretation and have had little testing to establish case law, so you are absolutely right to be concerned that, over time, this opens up scope for a weakening of environmental protection – even if the letter of the law is unchanged, Govt “guidance” ( which is still challengeable in court, as you have shown to great effect !) can still weaken things.

    Andra above makes an interesting point about environmental principles. We do, of course, have the Environment Bill ( slowly making its way through parliament. It sets out a requirement for Government (Defra Minster) to produce a policy statement on environmental principles. We have already seen a flavour of this ( ), where the principles are listed as 1) environmental protection should be integrated into policy-making principle; 2) the preventative action to avert environmental damage principle; 3) the precautionary principle; 4) environmental damage should as a priority be rectified at source principle and 5) the polluter pays principle.and its progress needs needs constant vigilance .
    So it looks as if, in theory at least, we will be able to call out poor practice if the precautionary principle is not applied.

    We now have before us two substantial pieces of legislation ( the EU Exit deal and the Environment Bill). The latter provides the key to how this Govt intends to fulfil its environmental obligations under the former ( and more widely). It is critical that the two are read together, (no small task ) and scrutinised for weakening and opening up of loopholes. While the Brexit deal is, as I understand, now a done deal and not open to further amendment by parliament ( at least for the moment !), the Environment Bill is still very much “in play” . As flagged up in this Blog on Dec 3rd (, we have already seen some ridiculous attempts to make critical aspects of the HRA process optional, rather than compulsory. It will need constant vigilance and scrutiny to ensure that when enacted, it truly does deliver government’s manifesto commitment to delivering the most ambitious environmental programme of any country on earth.
    Busy times ahead

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