16 July 2019
Chloe Anthony, Ffion Thomas, and Dr Emily Lydgate – lecturer in Law at the University of Sussex and a fellow of the UK Trade Policy Observatory.
In May we published a blog analysing the EU Exit statutory instruments (SIs) on pesticides prepared under the EU Withdrawal Act 2018. One of the key concerns that we raised was that EU restrictions on pesticides with endocrine disrupting properties had been deleted. After this omission was identified, DEFRA responded very swiftly, clarifying that the deletion had been accidental and releasing a new Statutory Instrument (SI).
The new SI reverses the omission of the text on approvals of EDCs. This means that, in the event of a no-deal Brexit, UK law will retain, from day one, the EU prohibition on substances that have harmful effects on the hormonal system in humans. It also shows DEFRA’s willingness and responsiveness in improving SIs, which has also been praised by other environmental NGOs. However, the new SI does not address other issues, some of which are significant. For example, as we outlined in our blog:
Another example of an amendment that is potentially meaningful is that the word ‘dangerous’, used in reference to concentration levels of ‘substances of concern’ in pesticide products in EU law, is to be replaced by ‘hazardous’. EU regulation has different definitions of dangerous and hazardous and different definitions have substantive implications for the labelling and transporting of these substances.
Among these issues, the most fundamental is the very wide discretionary powers given to UK Ministers to change pesticides regulation through further secondary legislation. Clearly, the UK Government is in a difficult position. Having to ready the UK for the possibility of an impending no-deal, Government time and attention are in short supply. But having as important a policy area as pesticides governed via Statutory Instruments seems acceptable only as a temporary holding mechanism. Indeed, it goes against the Withdrawal Act, which explicitly states that transposed EU legislation will not make “major changes to policy or establish new legal frameworks”, and the Government’s commitment to introducing primary legislation to make such changes. Primary legislation for pesticides regulation is clearly required to honour these commitments.
 The Pesticides (Amendment) (EU Exit) Regulations 2019 (draft), Explanatory Memorandum, para 7.10.
 European Union Withdrawal Act 2018, Explanatory Memorandum, para 14.
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