Post-Brexit rules threaten environmental standards

With political chaos brewing in Northern Ireland because of trade rules, a related threat means that post-Brexit UK market rules could stop Scotland setting higher environmental standards than other parts of the UK.

The Internal Markets Act, passed in 2020, is meant to make global trade deals easier by making sure products can be sold everywhere in the UK. This means Scotland cannot set a different environmental standard to England or Wales if this would prevent a product or service being sold here.

Effectively some environmental standards are likely to be synchronised across the UK at the lowest standard in force in any of the four nations, even if this means having no standard at all. And someone who provides a service in England or Wales cannot be prevented from providing that service in Scotland, even if there are different standards or qualification requirements here.

The are some limited exemptions specified but nothing to help on environmental standards. The full scope of these exemptions will probably not be clear until they are tested in court.

The Scottish Government is committed to keeping pace with EU environmental standards but the Act could make this impossible. We can probably still have, for instance, higher air quality standards and targets, but standards relating to goods and services could all be overturned.

An early example of where this would be problem is in the Scottish Government’s attempts to ban single use plastic items. The government is already acting to get fast food polystyrene boxes and plastic straws out of circulation and action is likely to follow on wet wipes that contain plastic.

But action to ban these items in Scotland when they are still allowed on England would fall foul of the Internal Markets Act. The Act would be used to overrule any Scottish legislation. In effect we might be able to ban these items it they are made in Scotland but not if they are made in another part of the UK or imported from overseas via another part of the UK.

The much-delayed Deposit Return Scheme could be another major problem. In theory the Act means a can of juice made anywhere in the UK or imported into the UK should be able to be sold anywhere in the UK, with no additional barriers.

The Deposit Return Scheme will mean that can of juice costs more in Scotland and almost certainly has to have different labelling, immediately conflicting with internal markets principles.

For future legislation this means the Scottish Government will have to consider whether any new targets, restrictions or standards could be rendered invalid by the Internal Markets Act. The forthcoming Circular Economy Bill could kick off a major transformation of how we manage materials in our economy and avoid waste, including by banning certain materials and products. But not if these UK rules aimed at smoothing trade deals make action impossible.

Since devolution in 1999 Scotland has been able to set higher standards and targets for the environment and nature, move more quickly on environmental law and ban harmful products and chemicals. Much of this is threatened by the UK Government’s desperation to do global trade deals.

Dr Richard Dixon is Director of Friends of the Earth Scotland. A version of this article appeared in The Scotsman on Thursday 10 February 2022.