134.While the UK was a Member State, it was subject to EU environment and climate change legislation, ranging from laws protecting habitats and regulating chemicals and waste, to standards for the energy efficiency of household products. The EU Emissions Trading System (EU ETS), covered in Chapter 5, is one of the EU’s key climate change policies.
135.Much of what is now regarded as EU environment legislation originated in the harmonisation of product and other standards with a view to removing substantial differences in national environment rules, thereby enabling the free movement of goods within the EU’s Single Market. There is also ‘purely’ environmental EU legislation, introduced in pursuit of objectives such as conservation and the improvement of water quality. The European Commission states that the environment acquis alone comprises over 200 “major legal acts”, though this figure excludes legislation with environmental effects in areas such as product standards, labelling, energy, agriculture and fisheries.
136.EU institutions, principally the European Commission and Court of Justice of the EU, monitor and enforce EU legislation in the Member States. As we noted in our report Brexit: environment and climate change, these institutions played a key role in driving improvements to the UK’s environment during the UK’s membership of the EU.
137.Environment and climate change policies can also affect production costs. This led the EU to argue in the UK-EU future relationship negotiations that enforceable treaty provisions would be needed to ensure that regulatory divergence in these, and other areas, did not lead to unfair competition between the Parties. The term ‘level playing field’ is often used to describe such measures. The Government, on the other hand, sought to ensure that any agreement on the level playing field would not constrain the UK’s ability to choose its own policies after leaving the EU.
138.There are sector-specific environment and climate change-related commitments throughout the EU-UK Trade and Cooperation Agreement (TCA), and also a number of overarching provisions designed to maintain high environment and climate change standards.
139.The very first paragraph of the TCA’s preamble—which sets out the motivations and objectives of the TCA’s main text—and Article COMPROV.12 identify the fight against climate change as an “essential element” of the UK-EU partnership alongside democratic principles, the rule of law, human rights, and countering proliferation of weapons of mass destruction. A Party can suspend all or part of the TCA if it considers there has been a serious and substantial failure by the other Party to fulfil related obligations (Article INST.35, Article COMPROV.5(1)). Elsewhere in the TCA the Parties also reaffirm their ambitions of achieving economy-wide climate neutrality by 2050 (Article 1.1(3) of the level playing field Title).
140.Title XI of Part Two of the TCA covers the level playing field, including in respect of environment and climate change. Article 7.2, ‘Non-regression from levels of protection’, is key, requiring the Parties not to weaken or reduce their levels of environment and climate change protection, including by failing to effectively enforce environmental law or climate change protections, in a manner that affects trade and investment between the Parties.
141.In Article 7.4 the Parties reaffirm their commitment to environment and climate change principles. There are also articles covering domestic enforcement in connection with the non-regression provisions, and cooperation on monitoring and enforcement.
142.The TCA introduces a range of dispute resolution procedures dealing with either distinct parts of the Agreement or specific areas of cooperation. In keeping with this tendency, bespoke dispute procedures apply to the various environment and climate change provisions.
143.Article 9.4 permits either Party to take what are described as “rebalancing measures” if significant divergences arise in areas covered by the level playing field, including environment or climate change protection, and which lead to material impacts on trade and investment between the Parties. The same Article allows either Party to request a review of the operation of the trade heading of the TCA to ensure an appropriate balance between the commitments made by the Parties. In certain circumstances a Party can choose to terminate the trade aspects of the TCA following this review.
144.Reactions to the environment and climate change provisions in the TCA were mixed. Annaïg Nicol, Legal Intern, and Susan Shaw, Managing Partner, both of Living Law, were pleased that the level playing field and non-regression were covered: “The inclusion of the notion of level playing field and non-regression is broadly welcome.”
145.But Greener UK raised an overarching concern regarding the enforceability of the environment provisions: “The majority of the environmental provisions are not enforceable and while sanctions are available in relation to disputes about non-regression, the value of this is limited by the narrow focus on trade and investment impact.”
146.The interaction between the TCA’s provisions and the UK’s system of devolution was identified as another key challenge by witnesses. Professor Colin T Reid, Professor of Environmental Law at the University of Dundee, told us: “There is a major challenge created by the UK Government agreeing such a far-reaching Agreement when responsibility for many of the matters covered lies in the hands of the devolved administrations.”
147.We are glad that the Government and the EU were able to find compromises on the environment and climate change Chapter of the TCA, though we share the concerns voiced by witnesses about the enforceability of some provisions.
148.The TCA negotiated by the Government will affect the policy choices available to devolved administrations and legislatures in areas of devolved competence including the environment. There are already diverging environment and climate change goals across the UK, which could indicate challenges ahead. We urge the Government to address any concerns raised by the devolved administrations regarding the TCA’s environment and climate change provisions—via the Common Frameworks programme or other routes—as fully and promptly as possible.
149.Several witnesses highlighted the prominent climate change provisions in the TCA. Which? told us: “[The TCA] includes strong commitments to tackling climate change and the Paris Agreements and reaffirms the ambition of both parties to reach net zero by 2050.” Annaïg Nicol and Susan Shaw added: “The TCA is the first trade agreement to raise climate change as an essential element alongside with democracy, human rights and the rule of law and non-proliferation of weapons of mass destruction.” Greener UK agreed and explained that this means “any serious breach can lead to the suspension or termination of all or parts of the agreement”.
150.Emma Pinchbeck, Chief Executive of Energy UK, welcomed the way climate change is addressed in the TCA: “What was really positive about the TCA, though, was to see net zero and climate change recognised as a priority both for EU Member States and the UK.”
151.Greener UK did, though, acknowledge that the bar for what constitutes a “serious breach” of certain climate change provisions was set high: “Article INST.35 specifies that ‘materially defeating the object and purpose of the Paris Agreement’ constitutes a serious and substantial failure to fulfil an essential element of this agreement. This is clearly a very high threshold to meet.” Annaïg Nicol and Susan Shaw and the Law Society of Scotland made a similar point.
152.We welcome the inclusion of climate change as an essential element in the TCA, which reflects the fact that addressing climate change is the most serious challenge of our time. We urge the Government to seek similar commitments in the trade agreements it negotiates with other international partners.
153.Dr Mary Dobbs, Senior Lecturer at Maynooth University, and Dr Ludivine Petetin, Lecturer in Law at Cardiff University, singled out the non-regression commitments as the main provisions in the environment and climate change Chapter. The Law Society of Scotland described the relevant provisions within Article 7.2(2): “Non-regression provisions in the agreement provide that a party shall not weaken environmental or climate levels of protection below those in place at the end of the transition period “in a manner affecting trade or investment”.” They added: “The provisions include non-regression as a result of inadequate enforcement. This recognises that legislating for protections will not produce the desired result unless effective enforcement makes them meaningful.”
154.Witnesses suggested that defining and proving an impact on trade or investment was likely to be challenging, potentially undermining the effectiveness of Article 7.2(2). Greener UK told us:
“The inclusion of a trade and investment test is disappointing—providing proof of damaging economic impacts on the other party will be difficult and potentially a protracted undertaking. It is therefore not clear to what extent this provision will act as an effective safeguard against lower standards in the future.”
155.Prof Colin T Reid similarly noted uncertainty over how the provisions will be applied: “Views will differ on when the various tests are passed and therefore on whether or not the Agreement is being fulfilled.” The Law Society of Scotland made a similar point.
156.The Government acknowledged that the trade and investment test sets a high bar. The Rt Hon George Eustice MP, Secretary of State for the Environment, Food and Rural Affairs, told us that in addition to needing to prove a regression in environmental protection, the EU would need to demonstrate “that it had some kind of impact on trade. It is quite a high barrier to clear, and it certainly does not amount to regulatory alignment. It really is just a statement that we will continue to abide by our other international commitments.”
157.On the other hand, Greener UK welcomed the fact that the non-regression measures are covered by a stronger enforcement mechanism relative to some other provisions in the same part of the TCA:
“It is welcome that the provision has a better enforcement mechanism attached, compared to the rest of the environment and sustainable development chapters. Either party can take action via temporary remedies if the other party does not conform to the assessment of a panel of experts in relation to a dispute.”
158.We asked the Secretary of State how the Government would monitor possible non-compliance with Article 7.2(2) in the EU. He told us:
“We will be monitoring what the EU does by way of regulatory change. We will be monitoring closely what is discussed there and what is published in the EU’s Official Journal … We will also be monitoring the extent to which Member States adequately enforce EU law as well, with a view to escalating that to the European Commission if we think that the Member States are falling short of their legal requirements.”
159.It is in the UK and EU’s mutual interest that levels of environment and climate change protection are maintained. We are glad that there is provision for temporary remedies should there be breaches of the non-regression provisions. We urge the Government to dedicate appropriate resource to monitoring non-compliance with Article 7.2(2) in the EU and engage with the European Commission constructively on cases of suspected non-compliance.
Recognising the environmental enforcement gap arising from the UK’s departure from the EU, the Government intends to establish the OEP. It will provide scrutiny and advice on the implementation of environment law and will receive and investigate complaints on alleged breaches of environment law by public authorities, with the ability to take legal action in serious cases.
The Government intends to establish the OEP by means of the Environment Bill; the Bill’s delayed passage through Parliament means that the OEP has not yet been set up. An Interim Environmental Governance Secretariat hosted by the Department for Environment, Food & Rural Affairs (Defra) is able to receive complaints about failures of public authorities to comply with environment law, but cannot investigate or act on those complaints. From July, an Interim OEP will be set up in non-statutory form to progress the establishment of the OEP and to perform some of its envisaged functions.
The OEP will have a statutory role in England and in Northern Ireland, subject to the approval of the Northern Ireland Assembly. The Welsh Government intends to set up an independent commissioner to fulfil a similar function in Wales, while the Scottish Government has established Environmental Standards Scotland to take on this role.
Source: Department for Environment, Food and Rural Affairs, ‘Dame Glenys Stacey appointed as chair of the Office for Environmental Protection’: [accessed 16 February 2021]; Department for Environment, Food and Rural Affairs, ‘Interim Environmental Governance Secretariat’: [accessed 16 February 2021] and Department for Environment, Food and Rural Affairs, ‘Interim Office for Environmental Protection to be launched’: [accessed 3 March 2021]
160.Witnesses raised concerns that there are not yet mechanisms in place across the UK to provide the domestic enforcement of environment law that is required by the TCA (see Box 1). Greener UK told us:
“The recently announced delay to the Environment Bill and the consequent delay to the [Office for Environmental Protection (OEP)] assuming its legal functions and powers does not appear compatible with the spirit of these provisions and the effective functioning of the TCA … With no prospect of legislation to establish a governance body in Wales until after the Senedd Cymru elections in spring, there is growing concern of a lengthening accountability gap across the UK.”
Annaïg Nicol and Susan Shaw made a similar point. The UK Environmental Law Association agreed, and added that consistency in environmental governance requires “genuine coordination and collaboration among the [UK’s] four nations in pursuing the TCA”.
161.Greener UK did, though, identify “useful clauses” in the TCA covering monitoring and enforcement, and referred to Article 7.6, which requires “cooperation between the European Commission and the supervisory bodies in the UK on the effective monitoring and enforcement of environmental and climate law”.
162.The Secretary of State told us:
“It is important to note that the chair of the OEP, Dame Glenys Stacey, has already been appointed and is in post … It is already able to receive complaints. Until it has its full legal powers, there is a limit to what it can do to act on those complaints. If the European Union wanted to have dialogue with the OEP for the purposes of that part of the agreement, which really is only about cooperating and sharing, there would be nothing to prevent that from happening in this early stage.”
163.Although the TCA requires arrangements to be in place for the domestic enforcement of environmental law, UK and Welsh Governments have not yet established new domestic enforcement mechanisms. We are deeply disappointed that the statutory basis for the Office for Environmental Protection is still not in place, and call on the Government to progress this as a top priority.
164.Environment law will be more effectively enforced if the UK’s supervisory authorities cooperate closely with one another and with the European Commission. We urge them to enter into this cooperation openly and with the goal of ensuring the maximum level of protection for the environment.
165.The TCA’s provisions on rebalancing measures are designed to ensure the Parties can strengthen their environment and climate change protections without fear of the other Party gaining a competitive advantage. The Law Society of Scotland told us:
“The TCA provides that if material impacts on trade or investment arise as a result of significant divergences between the parties, rebalancing measures may be taken to address this. In practice, that may mean that if one party imposes higher standards of environmental or climate protection that impact on trade and investment, while the other does not, ‘rebalancing measures’ may be adopted. The measures are limited in scope and duration to what is “strictly necessary and proportionate in order to remedy the situation”. These provisions may protect a party which seeks to take higher standards from the threat of the other party gaining a competitive market advantage as a result of lower standards.”
166.Dr Viviane Gravey, Professor Andrew Jordan and Professor Charlotte Burns, in a joint submission, described the rebalancing mechanism as “innovative”. Greener UK added: “This process should be a useful tool given much greater environmental ambition will be needed in the coming years, although the effectiveness of this novel mechanism remains to be seen.” CHEM Trust also noted the potential usefulness of the mechanism.
167.Looking forward, Greener UK told us: “It is not yet clear how provisions such as rebalancing will work in practice … Early cases will be important in determining how terms are interpreted—for example, it will be for the arbitration tribunal to decide what is a material impact, significant divergence and reliable evidence.”
168.In our inquiry Environment and the Level Playing Field witnesses told us that the UK could benefit from level playing field provisions because of the binding obligations in the Climate Change Act, and Member States being at different stages in “developing robust climate action”.
169.We welcome the fact that the rebalancing measures help mitigate the threat of competitive disadvantage that could otherwise have limited the Parties’ ambitions on environment and climate change protections. There are policies—especially in relation to climate change—where the UK’s progress exceeds the EU’s.
150 Box 2 of our report provides a non-exhaustive summary of EU environment and climate change policies.
151 ‘Acquis’ means the body of EU law.
152 European Commission, ‘European Neighbourhood Policy and Enlargement Negotiations’: [accessed 16 February 2021]
153 European Union Committee, (12th Report, Session 2016–17, HL Paper 109), Summary
155 A table setting out the different dispute mechanisms for the level playing field is included as an annex in the following article: UK Trade Policy Observatory, ‘Taking Stock of the UK-EU Trade and Cooperation Agreement: Governance, State Subsidies and the Level Playing Field’: [accessed 25 February 2021]
156 Written evidence from Annaïg Nicol and Susan Shaw ()
157 Written evidence from Greener UK ()
158 Written evidence from Prof Colin Reid ()
159 Written evidence from Which? ()
160 Written evidence from Annaïg Nicol and Susan Shaw ()
161 Written evidence from Greener UK ()
163 Written evidence from Greener UK ()
164 Written evidence from Annaïg Nicol and Susan Shaw () and the Law Society of Scotland ()
165 Written evidence from the British Food Importers and Distributors Association () and Dr Mary Dobbs and Dr Ludivine Petetin ()
166 Written evidence from the Law Society of Scotland ()
168 Written evidence from Greener UK ()
169 Written evidence from Prof Colin Reid ()
170 Written evidence from the Law Society of Scotland ()
172 Written evidence from Greener UK ()
174 Written evidence from Greener UK ()
175 Written evidence from Annaïg Nicol and Susan Shaw ()
176 Written evidence from UKELA ()
177 Written evidence from Greener UK ()
179 Written evidence from the Law Society of Scotland ()
180 Written evidence from Dr Viviane Gravey, Professor Andrew Jordan and Professor Charlotte Burns ()
181 Written evidence from Greener UK ()
182 Written evidence from CHEM Trust ()
183 Written evidence from Greener UK ()
184 Written evidence from Institute for European Environmental Policy to the inquiry on Environment and the Level Playing Field ()
185 Written evidence from IEMA to the inquiry on Environment and the Level Playing Field ()