In the first article of this series we reported on the three joined neonicotinoid pesticide judgements issued by the EU General Court on 17 May 2018. In this article we consider in more detail why these judgements come at a particularly significant point for agriculture in the UK and EU, the immediate implications for Brexit, how they represent a divergence between the UK government and some farming organisations, and why that matters for the current consultations on an Environmental Principles and Governance Bill.

The final article in this series will consider some of the impacts of farm chemicals on birds, water and human health, and how these judgements may be important for a wider re-appraisal of pesticide use in the UK.

Agriculture at the crossroads

Agriculture is at a critical point, both at EU and UK levels. On 2 May 2018 the European Commission embarked on two years of what will be difficult negotiations of a new Multiannual Financial Framework, or budget, for the EU, which will need to take account of the withdrawal of the UK’s net contribution and pressures for increased spending on other issues such as border management, migration, asylum and security. Some commentators expect the long term decline of spending on the Common Agricultural Policy as a proportion of the EU budget to continue, and it seems equally likely that where support is given to agriculture, conditions attaching a requirement for the protection of the environment will be strengthened.

At UK level, the government has promised to maintain agricultural subsidies for the next few years as the UK leaves the EU, but there are no promises to do so over the long term, and again it seems likely that environmental protection requirements as part of the ‘conditionality’ for farm subsidies will only increase.

Farmers are awaiting publication of a promised UK Agriculture Bill as part of the legislation required to deliver Brexit. Agriculture is also a devolved matter, and further legislation is likely in the short term. For example, the Climate Change, Environment and Rural Affairs Committee of the National Assembly for Wales has been carrying out its own inquiry into agriculture and the environment, and the ‘common frameworks’ needed to ensure some form of coordination between UK and devolved agricultural policy.

Immediate significance of the judgments with Brexit

The immediate significance of the Court’s neonicotinoid judgements is that they become part of the acquis communautaire, or body of EU law. They are now part of EU law, they apply to the UK as it is currently a member of the EU, and the UK government has undertaken to ensure the conversion of the whole acquis communautaire into UK law by means of the European Union (Withdrawal) Bill.

Again, where agriculture is a devolved matter, for example in Wales and Scotland, the Parliaments of Wales and Scotland can be expected to deliver legislation with similar effects: in the case of Scotland, it may require the Supreme Court to rule on whether this should be done by means of the European Union (Withdrawal) Bill or its own ‘continuity’ legislation (see our earlier briefing on Wales, Devolution, Brexit and the Environment).

Divergence between UK government and farmers’ organisations

In November 2017, Michael Gove, UK Secretary of State for the Environment, Food and Rural Affairs, announced the reversal of the UK government’s policy on neonicotinoids, and its support for the EU’s total ban on outside uses, writing that –

“The weight of evidence now shows the risks that neonicotinoids pose to our environment, particularly to the bees and other pollinators which play such a key part in our £100bn food industry, is greater than previously understood.”

However, as noted, the UK’s National Farmers Union was in court supporting the manufacturers’ legal challenge to the EU ban.

This is not an isolated example of a significant divergence between the UK government and the NFU in their approach to farm chemicals, which can also be noted in their respective statements on organophosphates in sheep dip, glyphosate, and the use of chemicals on the ‘landscape scale’ (see the third article in this series on the views of Defra’s Chief Scientist). At a time when public and political opinion really matters, this sort of divergence is potentially very significant.

Environmental Principles and Governance

The Court’s neonicotinoids judgements also come at a time when both the UK government, and those of each of the home nations, are examining very fundamental questions about the environmental governance that should apply after Brexit, how to replace the enforcement of environmental laws when the European Commission and the Court of Justice of the European Union are no longer enforcing EU law in the UK, and which environmental principles should inform UK laws and in what way. House of Lords amendments to the European Union (Withdrawal) Bill will ensure that this is further debated in the UK Parliament before that Bill can be enacted.

The UK government and Defra issued a consultation on a proposed Environmental Principles and Governance Bill on 10 May 2018, and Parliaments in Wales and Scotland will also be considering these issues. The Court’s strong re-statement of the precautionary principle is therefore timely and significant.

This is one of the core environmental principles of EU environmental law. How it fares after Brexit, and how it comes to be reflected in UK law and the law of the devolved Parliaments will be closely watched.

About the Author:

William Wilson is a specialist environmental, regulatory and nuclear lawyer with over 25 years experience in government, private practice and consultancy. He worked as a senior lawyer at the UK Department of the Environment/DETR/Defra, and helped to build up the environmental and nuclear practices at another major law firm, as well as running his own environmental policy consultancies. William has experience of all aspects of environmental law, including water, waste, air quality and industrial emissions, REACH and chemicals regulation, environmental protection, environmental permitting, litigation, legislative drafting, managing primary legislation, negotiating EU Directives and drafting secondary legislation.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

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