12 September 2019
Chloe Anthony and Dr Emily Lydgate – lecturer in Law at the University of Sussex and a fellow of the UK Trade Policy Observatory.
The US remains top of the list of post-Brexit UK trade negotiations, with Boris Johnson recently putting a quick US deal as a first priority. The US’s strongly-worded negotiating objectives include loosening EU ‘non-science-based’ bans or restrictions on Genetically Modified Organisms (GMOs), pesticides, food additives, hormone-enhanced meat, in addition to the infamous chlorinated chicken. As former international trade secretary Liam Fox conceded, a US-UK Free Trade Agreement (FTA) that excludes food and agriculture is a non-starter from the US perspective.
This puts the UK Government, which has committed not to lower food safety standards, in a tough position. One poll found that 82% of the UK public favoured retaining high food standards over a US trade agreement. Further, around 70% of UK food exports go to the EU, and many farmers and food producers seek continued alignment with EU food regulation. This business and public opposition makes a trade deal that meets US demands controversial at best. Nor should the UK Government imagine the special relationship will protect it from Trump’s aggressive approach of correcting perceived unfairness against US interests (see, eg, his stance on NHS drug pricing). But in the event of no deal, or a basic EU-UK FTA, the UK Government will be under pressure to make a success of Brexit through new trade agreements and may wish to proceed despite these factors.
A UK prime minister determined to overcome opposition to loosening UK food safety legislation has a relatively clear path to ratifying a US-UK FTA, for two reasons. First, the UK Parliament has relatively little influence over UK treaties, as compared to the US or EU parliaments. Whilst Parliament must pass primary legislation, if required, to implement a new treaty, it does not have the power to approve, reject or amend treaties made by the Government; it can only postpone their ratification.
Though the House of Lords Constitution Committee recently described this as ‘limited, anachronistic and inadequate‘, the UK Government has argued that reform is not necessary, in part because of Parliament’s powers to pass the legislation required to bring treaties into effect. But this leads us to the second factor: there is currently little primary legislation on food safety which Parliament would have to consider. As authorised by the EU Withdrawal Act 2018, EU food safety legislation has been preserved in the UK as ‘retained EU law’ under section 3 of the EU Withdrawal Act 2018. The Government has used its powers under section 8 of the Act to create Statutory Instruments (SIs) to amend any perceived ‘deficiency’ in retained EU law to allow UK law to operate effectively after exit day.
But some of these SIs provide extensive scope for Ministers – without the Parliamentary oversight that primary legislation would provide – to make future changes to food safety legislation that would encompass the possibility of conceding to US demands. For example, the US has long complained of the lengthy EU process for approving new GMOs, which the US Trade Representative (USTR) estimates costs US agriculture $2 billion/year. The SIs addressing GMOs give Ministers the powers to amend the GMO application and authorisation rules through future SIs. The US Trade Representative also complains of the EU’s ‘hazard-based’ approach to banning some pesticides categorically, rather than permitting residues. Pesticide SIs give UK Ministers the ability to amend, revoke and make regulations on how active ingredients in pesticides are authorised, and amend the maximum residue levels permitted in food ‘as Ministers consider appropriate.’
Clearly, Parliament is overburdened, and cannot do everything at once. The explanatory memorandum to the Withdrawal Act states that secondary legislation will not be used to make “major changes to policy or establish new legal frameworks” and includes a commitment to introducing primary legislation to make such changes. However, as it stands, the EU Exit legislation significantly amends existing legal frameworks and, due to the powers given to Ministers, major changes to policy could be made through secondary legislation. A commitment or duty to introduce primary legislation for any food safety policy change required by new trade deals would ensure that the legislative intention of the Withdrawal Act is adhered to. This would in turn provide greater safeguards against a Prime Minister who wished to force through a US trade deal.
 ‘The framework set out reflects the fact that any implementing legislation to modify domestic law will be subject to separate parliamentary scrutiny … before any treaty can enter into force.’ ‘Process for making Free Trade Agreements after the United Kingdom has left the European Union’, Department for International Trade, February 2019, pp. 6-7.
 2019 National Trade Estimate Report on Foreign Trade Barriers, United States Trade Representative, 2019, p. 187.
 The Genetically Modified Food and Feed (Amendment etc) (EU Exit) Regulations 2019 2019/705.
 Above n. 1 at 190-191.
 The Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019 SI 2019/556; The Pesticides (Maximum Residue Levels) (Amendments etc) (EU Exit) Regulations 2019 SI 2019/557.
 European Union Withdrawal Act 2018, Explanatory Memorandum, para 14.
The opinions expressed in this blog are those of the author alone and do not necessarily represent the opinions of the University of Sussex or UK Trade Policy Observatory.
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