Trade deal chase could lead to internal UK border checks and falling standards

Border posts could be required at Gretna Green and the Severn Bridge as the UK, Welsh and Scottish governments develop different regulatory approaches to controversial food practices like chlorinated chicken, GM crops and pesticides.

The UK Trade Policy Observatory analysis 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. This allows for greater scope for devolution beyond what is possible in the current EU framework and has the potential to “vastly increase devolution of food safety regulation”, the authors of the briefing said.

“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,” explained Erik Millstone, Emeritus Professor in the Science Policy Research Unit at the University of Sussex and one of the paper’s authors. “Those considerable powers could be a way to overcoming parliamentary resistance and public opposition to aspects of a UK-US trade deal.”

Westminster, for example, is keen to pursue a trade deal with the US, whilst Scotland is determined to maintain alignment with the EU. This could present a “flashpoint” for food safety policy in the UK and could even fuel a push for Scottish independence, said Emily Lydgate, senior lecturer in Environmental Law at the University of Sussex.

She explained: “If [after a US-UK Free Trade Agreement] one or more devolved administrations refuses to re-align its food safety regulations from those of the EU to comply with US standards, 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.”

Under existing EU rules, the UK’s devolved administrations can already diverge in some cases. However, EU rules provide a common baseline. So, member states and the devolved UK administrations can adopt a more restrictive approach – for example through banning a particular pesticide formulation. However, they can’t adopt a less restrictive one – for example by authorising an active substance that is banned at the EU level. The devolved powers provided in the SIs do not ensure this common baseline, the food policy experts warned.

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

The experts said scrutiny procedures for Brexit SIs must be enhanced, whilst devolved nations should have strong oversight over UK external trade negotiations.

“Parliament should, at the very least, adopt legislation stipulating that, if the ratification of a post-Brexit Trade Agreement requires changes to the levels of statutory protection in the areas of food safety, the environment and animal welfare, such changes must be made through primary legislation,” they wrote.

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