10 March 2022
Emily Lydgate is Senior Lecturer in Law at the University of Sussex and Chloe Anthony is a Doctoral Researcher and Tutor at the University of Sussex Law School
From chlorinated chicken to sausage wars, food law has been highly contested in defining the UK’s post-Brexit direction. Not only is it seen as vulnerable to deregulation through trade agreements, the UK has faced new trade barriers with the EU and between Great Britain and Northern Ireland. These have concerned regulatory issues and have had an enormous impact on food trade. While much attention has rightly focused on Northern Ireland, departure from the EU’s regulatory union has provided a steep challenge in the rest of Great Britain, too. Food law is a devolved matter and Scotland has passed legislation setting out its intent to continue aligning with EU law, including for food law.
In a new article (Modern Law Review, open access), we trace post-Brexit UK food law, asking: what has changed already, and what does this tell us about the UK’s emerging identity as an independent regulating and trading nation. We find that, so far, food standards (what our laws are) remain more or less the same. We still ban chlorinated chicken and hormone-treated beef, our pesticides residue tolerances are the same, etc. However, regulatory processes (how we make these laws) has changed completely. These regulatory processes determine our future standards – and changing them has become much easier. In other words, the UK hasn’t lifted its ban on chlorinated chicken, it’s just ensured that ministers can do so relatively easily if they so desire.
Of course, ‘taking back control’ of UK regulation from Brussels was one of the main aims of Brexit. But it’s also important to assess how the UK Government has taken back control. On leaving the EU, the UK incorporated much of EU law on the domestic statute book and created a new category of law called ‘retained EU law’. However, in retaining EU law, we provided Ministers with powers to change these rules. For food law, a key trend – noted in other areas as well – is consolidation of power to ministers. This seriously impacts public engagement and scrutiny.
So for example, though we still ban chlorinated chicken (same standards), ministers can pass further so-called secondary legislation that changes the permitted substances for carcass washes without a formal requirement for advice from the UK Food Standards Agency. Another example is pesticides regulation. We’ve inherited the same permitted maximum residue levels, and the same lists of approved pesticides, as we had in the EU (same standards), but ministers can change processes for approving new pesticides, or maximum residue levels, without the full parliamentary scrutiny that goes with primary legislation and with weakened requirements to take account of independent scientific risk assessment. We set out these, and other examples, in more detail in our article.
These changes consolidate power, but they also devolve it beyond what was permitted under EU rules: England, Wales and Scotland could all have their own separate permitted carcass washes or residue levels. To help farmers and food producers cope with different requirements in different UK nations, and prevent border checks at Gretna Green or along the River Dee, the Internal Market Act (2020) requires the devolved nations to disapply their own requirements for residue levels for products coming in from other UK nations. This requirement also applies to products imported into a devolved nation. This gives devolved nations less control over regulation of food being sold in their markets. Devolved nations opposed the Internal Market Act, favouring instead a collaborative common frameworks approach. These are being developed alongside the Internal Market Act, but aren’t legally binding in the same way – many are identified, for example, as ‘non-legislative.’
Process changes are harder to grasp than standards changes. This probably explains why, despite the fact that the UK has totally reconfigured its regulation and internal market, there is a widespread perception that it hasn’t done much with its new regulatory freedoms. The UK Government itself has also positioned these changes as minimal and imperative, rather than structural and strategic – in retaining EU law, it committed to making only ‘minor or technical’ changes, and not policy or legislative change, and stated that the Internal Market Act was necessary to protect the continued functioning of the UK internal market. Of course, adapting the entire EU rulebook and ensuring the functioning of the internal market over a period of scant months is a huge challenge. However the concern is that this executive-led approach, which strips out many regulatory checks and balances, becomes the bedrock of post-EU law.
Now the UK Government has announced it will comprehensively review laws that it has adapted from the EU, with food law as a likely priority area. This includes not only reviewing the substance of the law but also revising its status and how it can be amended.
If we’re going to repeal massive amounts of EU law, we need to think seriously about what is going to replace it, both in terms of UK standards but also, crucially, UK legislative processes. We have argued that retained EU law is not a good basis for UK food law going forward. Instead, major areas of food law, including pesticides regulation, food hygiene and food labelling, merit primary legislation. Many have pointed out the limitations of so-called secondary (or delegated) legislation as a basis for UK law-making. There is limited debate, no prospect for amendments, and little public awareness. It simply provides too much discretion to central Government to change UK food standards. However, UK Government’s new policy paper, The Benefits of Brexit, does not seem designed to address this concern. Instead, it calls for ‘a tailored mechanism for accelerating [retained EU law’s] repeal or amendment.’
Clearly, UK food law should come with democratic legitimacy – it is the Parliament as a whole, representing the UK public, rather than simply UK ministers, who should be ‘taking back control.’ There is an opportunity for the Government to provide stronger democratic legitimacy for UK food law – otherwise the British people will have no more say than they did when UK regulation was led by Brussels.
 Interestingly, the Internal Market Act exempts pesticide approvals from this requirement, but not pesticide residue levels. The latter are what govern trade, so the exemption doesn’t seem to give devolved nations much additional authority.
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