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Border posts at Gretna Green? Loosening food safety legislation could put Union under serious strain

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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, University of Sussex academics are warning.

UK Trade Policy Observatory 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, Senior Lecturer in Environmental Law at the University of Sussex, 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.”

The UKTPO 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'. The UKTPO 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 lower 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 academics 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.

To read the full briefing, visit here.

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By: Neil Vowles
Last updated: Sunday, 3 November 2019

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