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5 November 2019

Border posts could be required at Gretna Green and the Severn Bridge in response to widening regional standards in food safety that could open up after Brexit, our new Briefing Paper warns.

Our analysis warns of the potential for very different regulatory approaches between the UK Government and devolved authorities towards controversial food practices including chlorinated chicken, GM crops and pesticides.

The existence of such discrepancies would likely have a significant and detrimental impact on the UK’s ability to strike trade deals, analysis by Dr Emily Lydgate, Chloe Anthony and Prof Erik Millstone has warned.

The new study warns that Brexit food safety legislation gives UK ministers powers to make policy changes to food safety laws without primary legislation – avoiding the scrutiny of Parliament through the use of Statutory Instruments (SIs).

The Brexit SIs confer powers to amend and make future food safety laws to UK Government ministers for England, Welsh ministers for Wales and Scottish ministers for Scotland allowing for greater scope for devolution beyond what is possible in the current EU framework.

Such changes have the potential to vastly increase devolution of food safety regulation with Scottish and Welsh authorities committing to retain EU regulations – creating the prospect of trade barriers between England and Scotland or Wales.

Dr Lydgate, Fellow of the UK Trade Policy Observatory, said: “Food safety SIs are a potential flash-point for Scotland, which wants to maintain alignment with the EU, and Westminster which promises to pursue a US trade deal that will alter UK food safety legislation.

“Negotiating a US trade deal that Scotland opposes is certainly not viable, and could even fuel a push for Scottish independence.

“If one or more devolved administrations refuses to re-align its food safety regulations from those of the EU to comply with US standards, after a US-UK Free Trade Agreement, it will complicate the flows of agricultural and food products within the UK.

“This raises the question of how the UK can avoid introducing internal UK regulatory controls and border checks to ensure that products comply with divergent jurisdictional requirements.”

Our analysis suggests the UK’s post-Brexit food safety rules will fall short of the level of protection currently provided by the EU.

UK ministers have been granted extensive powers to make secondary legislation to correct ‘deficiencies’ in ‘retained EU law’. Our analysis warns these powers are being used to change key policy areas and legal frameworks.

Examples include:

  • Replacing EU requirement for independent scientific assessments on the safety of pesticides with the discretion for ministers to decide whether or not to obtain independent scientific advice.
  • Omitting in UK Government SIs a EU provision for an “effective, proportionate and dissuasive”, penalty regime for infringements.
  • Allowing Ministers to raise the threshold for products containing technically unavoidable traces of GMOs that do not need to be labelled.
  • Revoking UK participation in RASFF, which provides a system for notifying EU member states of unsafe and rejected consignments of food products. Leaves the UK an easier target for dishonest traders to unload rejected consignments and potentially lessening the appetite for UK food products within EU member states who would no longer be made aware of UK rejections.

Prof Millstone, Emeritus Professor in the Science Policy Research Unit (SPRU) at the University of Sussex, said: “Our analysis suggests Brexit SIs will allow ministers to exercise considerable powers of discretion when authorising ingredients in pesticide products, amending GMO authorisations and thresholds for labelling, authorising food additives and approving substances for animal carcass washes.

“Ministers may issue guidance impacting substantive policy content or make new rules governing food safety by secondary legislation, without proper Parliamentary scrutiny, and using – powers that exceed those vested by the EU in the European Commission.
“Those considerable powers could be a way to overcoming Parliamentary resistance and public opposition to aspects of a UK-US trade deal.”

The authors recommend four steps to avoid the worst case scenarios of weakened and imbalanced food safety regulations in the UK after Brexit:

  • Primary legislation should be required for reforms of legislative frameworks and major policy changes for food safety.
  • Scrutiny procedures for Brexit SIs should be enhanced by providing Parliament with the ability to amend those instruments.
  • Give devolved nations strong oversight over UK external trade negotiations and encourage devolved nations to harmonise food standards where necessary for the internal UK market.
  • Parliament should adopt legislation stipulating that, if the ratification of a post-Brexit Trade Agreement requires changes to statutory protection in food safety, the environment and animal welfare, such changes must be made through primary legislation.

Read the full Briefing Paper: Brexit food safety legislation and potential implications for UK trade: The devil in the details.

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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  • Tessa Burrington says:

    Thank you for the informative blog which I have not finished digesting.

    Personally I feel there is much the consumer should be aware of when making their election choices and when asking candidates questions or communicating their demands to candidates. Here are some of the things I have been thinking about, some covered in the blog…… and would like to know more about. I would appreciate any feed back from the UKTPO.

    1. Georgina Downs has written about a recent NGO Report on pesticides as being too weak. Who exactly is going to fight the robust pesticide regulation corner? Discussion around robust regulation of existing and emerging agricultural technologies extends beyond round up ready crops.

    2. Regulation aside there are discussions to be had around different farming methods. The Oxford Real Farming Conference is in January 2020.

    3. Labelling regulations will not cover all the issues with regard to GM contamination. “Maize pollen travels kilometres [4] and is no more likely to respect a national border than to turn left at a roundabout so keeping GM out of your own back yard is never going to be enough.” GM Freeze press release January 2017

    4. An article on the Trade Justice Movement website discusses protections given by the precautionary principle and possible US Trade Deal consumer and environmental protection risks. However, the EU’s use of the precautionary principle so to speak has not stopped the import of GM animal feed. I fear the Trade Justice Movement possibly underestimates the risks and does not fully understand where they are all coming from (i.e. not just from the US but from within and please see Corporate Europe Observatory).

    5. Meanwhile in the Amazon:
    (i) I have read that herbicides have been used to make the forest easier to burn.
    (ii) Please see presentation Corruption of Agricultural Science:

    6. GM Freeze’s submission to the National Food Strategy calls for the requirement to label GM foods must be retained in UK law and extended to include the use of GM animal feed.

    7. The National Food Strategy shows a clear bias on the Advisory Panel. This needs to be addressed urgently.

    8. I would urge consumers to try and follow Baby Milk Action (Codex), Corporate Europe Observatory and the TACD. “Consumers have the right to know when new genetic engineering techniques are used, including in their food, but companies are lobbying to exempt such products from regulation.” Trans Atlantic Consumer Dialogue or TACD 2016 (things will have moved on).

    9. Friends of the Earth Australia are doing what they can regarding deregulation of several new genetic modification techniques in animals. The UKTPO will be aware but important decisions have been made since this blog was written. “Gutted. That’s what the Coalition Government – aided and abetted by the Labor ‘opposition’- have done to our Gene Technology Regulations. While the Centre Alliance and One Nation supported the Greens’ motion disallowing the regulatory amendments in the Senate yesterday, both the Coalition and Labor voted against it. The amendments allow most animals, plants and microbes modified using CRISPR and similar techniques to be released into the environment and food chain without any risk assessment. The changes effectively turn Australia – our ecosystems and our health – into a giant genetic engineering experiment.” FOE Australia 14 November 2019.

    10. I would like to know more about the Environment Bill and the new independent Office for Environmental Protection? Please also see point 7 and other points.

  • Joseph Egerton says:

    A field day for lobbyists.

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