UK environmental policy and Brexit: simultaneously de-Europeanising, disengaging and (re)-engaging?

ABSTRACT

This article develops and tests a refined theoretical account of de-Europeanisation to assess how well it explains the increasing differentiation of UK environmental policy after 2016. Drawing on an original analysis of relevant policy documents, parliamentary processes and legal reforms, it reveals how policy, politics and polity have changed more significantly than was originally foreseen. It departs from the existing literature by revealing that the devolution settlements of the late 1990s opened up the possibility of not one, but multiple pathways of change ranging from de-Europeanization, through to dis- and active re-engagement. It describes how UK policy – once outside the framework of EU processes and institutions – is being re-shaped via a multi-level negotiation between actors in Brussels, London and the devolved administrations. It concludes that despite conflicting policy objectives across the UK, the predominant pattern of change is nevertheless one of gradual disengagement from the EU environmental rule-book.

KEYWORDS:

• EU
• Brexit
• Europeanisation
• de-Europeanisation
• environment
• policy

Introduction

The EU Referendum of 2016 was fought over the idea of control – control of borders and of laws. While some UK politicians called for wholesale deregulation, the initial academic literature on Brexit and public policy has been more circumspect about the likelihood of sudden and dramatic shifts in policy resulting in divergence. Thus, Bradford dismissed Brexit as offering only ‘the illusion of regulatory freedom’ (2020, p. 277), while Armstrong agreed that EU regulatory influence would continue to be strong in the UK and could ‘be diffused beyond its own territory through the market behaviour of UK economic actors’ (Armstrong, 2018, p. 12). However, he predicted ‘significant variation across, and even within, policy fields’ (2018, p. 13).

Crucially, these relatively broad-brush accounts of regulatory divergence – or lack thereof – were written before or immediately after 2016. We are now at a stage where the UK has left the EU, where new rules governing UK-EU relationships have been agreed (the Trade and Cooperation Agreement – TCA; the Windsor Framework) and when a succession of UK governments have forged new, post-Brexit, policies and trade agreements. Academics now have an opportunity to revisit early predictions on what could happen to EU policies after Brexit and compare them with what has actually happened.

This article investigates regulatory divergence within an area of shared competence – the environment – which has long been characterized by profound Europeanisation of policy, and, to a more limited and varied extent, of politics and polity (Jordan and Liefferink, 2004). The most well-known article length account of the impacts of Brexit was published by Burns et al. (2019). They summarized the UK’s pre-2016 experience of Europeanisation as being ‘top down, unidirectional and positive’ (Burns et al., 2019, p. 271). This article revisits their analysis, first refining and then re-testing their conceptual framework, which combined Copeland’s account of de-Europeanisation with Börzel and Risse’s (2003) distinction between the three domains of policy, politics and polity.

Copeland identified two factors informing the extent of de-Europeanisation: first, the centralisation of the polity, and second, the degree of policy support. The more an area of policy competence is centralized into the hands of one actor or level of government, and the less popular it is with the general public and civil society, the easier it is to de-Europeanize and intentionally reverse the impact of Europeanisation. Burns et al. (2019, p. 273) supplemented his framework by introducing two additional factors, first the degree of Europeanisation of a sector ‘where Europeanisation processes have led to limited changes, de-Europeanisation will be easier to achieve’ (ibid, p.284) and finally ‘administrative capacity and accountability’ to ‘review or retrench policy’ (Ibid., p. 285). Consequently (and citing the well-known implementation challenges confronting EU policy), they asserted that while Brexit should be understood as a de-Europeanisation process (Wolff & Piquet, 2022), it may not necessarily translate into de-Europeanisation outcomes. Having considered the potential mediating role of capacity and the profound Europeanisation of UK environmental policy, Burns et al. (2019) argued that out of Copeland’s two possible outcomes, disengagement, i.e no further active engagement with the EU but not necessarily active divergence, rather than de-Europeanisation was the likelier outcome.

However, their analysis was written as the Withdrawal Agreement was being negotiated; they openly conceded that they were only analysing the ‘likely implications’ of Brexit (Burns et al., 2019, p. 272). In fact, at the time of their writing, it was not certain that Brexit would even occur, hence their proviso about studying Brexit ‘if and when the UK leaves’ (Ibid., 285). The passage of time provides an opportunity to submit their claims to fuller analysis in the light of experience.

In this article, we specifically interrogate two research questions. First, what has been the UK’s experience of Brexit with regards to environmental protection? Is it continuing to disengage rather than de-Europeanise? And second, what light does the UK’s unfolding experience shed on pertinent theoretical debates, namely in relation to environmental policy post 2016, but also Brexit/de-Europeanisation more generally? Early on, Burns et al. (2019, p. 272) sensed that Brexit was likely to be a particularly ‘extreme’ case of De-Europeanisation. Has that actually been the case?

This article endeavours to make three original contributions to the existing literature. First, it provides the first political analysis of the actually existing impacts of Brexit in the area of environmental policy, covering the six-year period between June 2016 and Rishi Sunak’s presentation of the Windsor Framework in February 2023. Second, in so doing, it considers developments in and interactions between all four UK administrations, a facet which was not as prominent in the period 2016–19 and thus downplayed in Burns et al. (2019). To do so, it draws on a corpus of policy documents (from central and devolved governments, from Parliament, etc.), new legislation (both primary and secondary) as well as our own observations as participants in policy development processes. Third, it contributes to recent advances in theorizing Brexit, specifically that it can follow a variety of different pathways (Wolff & Piquet, 2022) in different contexts (policy areas, levels of governance etc.), leading to a variety of outcomes (i.e., not just de-Europeanisation).

We find that in general, the main predictions made by Burns et al. (2019), have stood the test of time. The vote to Leave was indeed ‘intentional’, but very quickly disagreements over the precise form (or pathway) of Brexit began to flare. Brexit has undoubtedly been a ‘challenging’ (Ibid., p. 283) process, in which ‘politics’ have been central (Ibid., pp.285-6), pushing the constituent parts of the UK down increasingly different pathways rather than a single, common ‘de-Europeanisation’ pathway.

But in other respects, reality has proven even more complicated than they predicted, for UK environmental policy is now being developed in four increasingly distinct administrative contexts, each with sharply divergent political priorities. This makes it even more vital to understand the dynamics between these centres in order to grasp the current state and future prospects for UK policy in toto. Building on Wolff and Piquet (2022) we find that the four administrations are pursuing specific pathways which may in the fullness of time result in them arriving at different outcomes. Yet we find that irrespective of the political preferences for particular outcomes, capacity remains a key limiting factor, regardless of whether the preferred outcome is de-Europeanisation or continued Europeanisation. Existing capacity constraints (greatly exacerbated by the Covid-19 pandemic and thrown into even starker relief by the ambitiousness of the EU 27’s Green Deal policy) make disengagement the most likely outcome for UK policy in the short to medium term.

The remainder of our analysis proceeds as follows. Section 2 briefly reviews the literature on de-Europeanization and introduces a refined framework to capture four potential outcomes of de-Europeanization, building on Copeland (2016), Burns et al. (2019) and Wolff and Piquet (2022). In the third section, we deploy the resulting framework to interrogate the changes to politics, policy and polity since 2016. The fourth section discusses our overall findings in the relation to the two research questions outlined above and sketches out potential avenues for new research.

Theorising the impacts of Brexit

As with Europeanisation before, the literature on de-Europeanisation has adopted a variety of definitions and measurements. Arguably, de-Europeanisation can be better grasped by what it is not: thus, Copeland helpfully put the onus on the degree of intent, setting de-Europeanisation apart from a simpler, more passive disengagement with the EU (Copeland, 2016, p. 1126). By contrast, Aydın-Düzgit adopted a more sociological approach, presenting, it as a ‘broader loss or weakening of the EU/Europe as a normative/political context and as a reference point in domestic settings and national public debates’ (Aydın-Düzgit & Kaliber, 2016, pp. 4–5).

Context does matter: the form, degree and indeed definition of de-Europeanization differs if one is referring to a candidate country like Turkey (on whom a lot of the de-Europeanization literature is focused) (see e.g., Aydın-Düzgit & Kaliber, 2016; Ertugal, 2021), a reluctant member of the EU (Copeland, 2016; Thomas, 2021) or a country – such as the UK – that has opted to leave the EU (Colfer & Diamond, 2022; Cygan et al., 2020; Murphy, 2019; Wolff & Piquet, 2022). Brexit was thus described as signalling ‘a reversal from EU rules, norms and values and a process of de-aligning from the EU’ (Murphy, 2019, p. 234). It is why Burns et al. (2019, p. 272) posited that Brexit would not only be an ‘extreme’ case of de-Europeanisation, but also an especially ‘complex’ one (Ibid., p. 284), given that prior to 2016, competence over environmental matters was not simply shared between the EU and the UK, but also (because of devolution) the constituent parts of the UK.

Academics are trying to grapple with this complexity by seeking answers to three central questions. What are the possible outcomes of de-Europeanisation? How should the process and its results be measured? And what drives or hinders it? Considering outcomes, Copeland distinguished between disengagement and de-Europeanisation. Burns et al. (2019) argued disengagement could be further understood as either being either passive or failed intentional de-Europeanisation. Wolff and Piquet (2022) went further and argued that de-Europeanisation could backfire, leading to a close(r) relationship with the EU (re-engagement), or something akin to the pre-Brexit status quo (continued engagement).

Regarding measurement, Copeland (2016) considered four dimensions (programmatic, agenda, procedural and cognitive). Burns et al. (2019) conversely adapted Börzel and Risse’s (2003) widely cited typology of Europeanisation to map the potential impacts of de-Europeanisation on polity, politics and policy. This is also the case in Wolff and Piquet’s special issue on post-Brexit Europeanization (Wolff & Piquet, 2022).

Finally, a large part of the academic literature on Brexit and the environment has focused on making sense of the emerging regulatory and institutional changes (such as the 2021 Environment Act), characterizing them as a new/renewed ‘British Way’ of doing things (Fisher, 2020; Lee, 2022; Pontin, 2020). Comparatively, little attention has been paid to what explains the process once the intention to de-Europeanise has been publicly expressed. Prior to Brexit, Copeland argued that centralisation and the degree of public support were the two critical factors. Burns et al. (2019) identified a third mediating factor – capacity – which they expected would be especially important for a de-Europeanisation process of the scale of Brexit and argued the different level of prior Europeanisation also mattered. Subsequently, Abbot and Lee (2021) expected capacity not simply to be about what government could or could not do; the legal capacity of non-governmental stakeholders to intervene in processes would also be a significant mediating factor. The capacity of government and environmental NGOs can be interconnected – as Daugbjerg argues ‘government can generate sectoral policy capacity by working closely with interest groups that represent target groups, drawing on their knowledge and expertise’ (Daugbjerg, 2022, p. 455). Such a collaborative approach can on the one hand help stakeholders hold government to account, and on the other hand through obtaining consent of major stakeholders for policy, increase the legitimacy of government action (ibid.). But for sectoral capacity to bolster governmental capacity, the policy priorities of stakeholders and government, or indeed of different parts of government, need to be aligned.

In summary, we assume first of all that given the Brexit process has advanced significantly since 2019, four – not two – potential outcomes of a de-Europeanisation process are possible. Burns et al. (2019) concluded by arguing disengagement was a much likelier outcome than outright de-Europeanisation, but they did not – indeed could not – explore sub-national dynamics in much detail. Given that, as noted above, context – and especially administrative context – is likely to matter, we explore how Brexit has unfolded across the entirety of the UK. In principle, therefore, in each of the UK’s four administrations, four potential outcomes of the de-Europeanisation process are possible: de-Europeanisation; disengagement; continued engagement; and/or re-engagement.

Second, as regards measurement, we opt to follow Burns et al. (2019) and much of the existing literature (e.g., Jordan and Liefferink, 2004) in mapping the potential impacts of de-Europeanisation on polity, politics and policy. In principle, policy, politics and polity may each move in different directions.

Finally, with respect to what explains varied patterns of change, we refine Burns et al’s. (2019) original expectations to expect de-Europeanisation to be more likely: (1) in areas where the Europeanisation of policy was limited or shallow; (2) where there is limited stakeholder support for EU rules and related ways of doing; (3) when decision-making is centralised with few veto players; (4) when governments (be they UK level or devolved) have sufficient capacity, either individually or together with stakeholders, to deliver de-Europeanisation in practice. Conversely, disengagement is more likely when one or more of these conditions are not present. In other words: (1) when the Europeanisation of national policy is profound; (2) there is extensive stakeholder support for EU rules and associated ways of doing; (3) decision-making is decentralized, with many more veto points and veto players; (4) and governments at all levels lack capacity to deliver de-Europeanisation in practice.

In the remainder of this paper, we test how well this refined theoretical account of de-Europeanisation explains the increasingly differentiated nature of UK environmental policy after 2016, drawing on an analysis of relevant policy documents, parliamentary processes, and institutional reforms.

The impacts of Brexit

Politics: from ‘Singapore-on-Thames’ to ‘Green Brexit’ and back again?

Three political visions for the environment after Brexit have been articulated since 2016 (Gravey, in UK in a Changing Europe, 2022). The first is a vision of nimble deregulation, best exemplified by the phrase ‘Singapore-on-Thames’, whereby the UK would compete by offering a lower tax, lower rules economy. Central to this vision is the frequent call to David Cameron’s attempts ‘cut EU red tape’ (Business Taskforce, 2013) either in general or with respect to particular laws such as the Birds and Habitats Directives. While this vision was highlighted as a possible threat by the Remain supporting environmental groups during the referendum campaign (Burns et al., 2016), it remained marginal in Westminster until the Covid-19 pandemic.

Before 2020, and especially during Michael Gove’s tenure as Environment Secretary (2017–2019), the Government pushed for a ‘Green Brexit’ underpinned by, in his words, ‘rivalrous emulation’ between the EU and the UK (Lee & Abbot, 2021). It was eventually supported by Prime Minister Theresa May who, during a speech on the environment in early 2018, announced the first major UK Environment Bill since 1995. It survived Johnson’s tenure in Downing Street. In fact, during his first Queen’s Speech in October 2019, that Bill was identified as the ‘lodestar’ of his entire post-Brexit legislative programme. In the Conservative Party manifesto for the December 2019 general election, numerous environmental commitments were made, but concerns about EU ‘red tape’ (the first vision) remained (see for example Taskforce on Innovation Growth and Regulatory Reform, 2021). During Liz Truss' very short premiership in 2022, the first vision moved centre stage. One bill aimed at removing all retained EU law from the UK statute book by December 2023 (the Retained EU Law (Revocation and Reform) (REUL) Bill); another (the Levelling Up Bill) sought to enable faster land use development by reforming nature protection and environmental assessment rules. Leading green groups rapidly mobilized their members, warning of a systematic ‘attack on nature’ (RSPB, 2022).

As the Brexit process advanced, a third vision began to emerge, given the nature of the environment as a devolved competence. It arose because the issue of divergence is not only a matter of UK v. EU; it also concerns potential intra-UK divergence (Armstrong, 2018). Thus, in the winter of 2016, both the Scottish and Welsh Governments came out in favour of a very soft Brexit, maintaining as close a relationship with Europe as possible. In Cardiff’s case, it meant ensuring ‘unfettered access’ to the EU Single Market (Welsh Government, 2017, p. 3) and in Edinburgh’s ‘to maintain Scotland’s … position in the … Single Market’ (Scottish Government, 2016, p. vi).¹

Crucially, both pronouncements contained a strong environmental dimension. For example, ‘[r]eturning to pre-1973 practice is simply not an option since devolution was not then part of the UK’s political structure’ (Welsh Government, 2017, p. 26). As for London, while some Westminster politicians have favoured significant divergence from the EU, this did not go hand in hand with a support for greater intra-UK divergence. Tensions in relation to divergence were significantly compounded, firstly in 2020 when implementation of the Northern Ireland Protocol floundered and the UK Internal Market Act was adopted, and then in 2022 when it became even more evident that Scotland and Wales aspired to a higher environmental ambition than England.

While instinctively more supportive of the Green Brexit vision, environmental stakeholders – environmental groups, businesses, farmers – struggled, at least initially, to exert influence on policy processes. Recall that there were at least two sets of UK-EU Brexit negotiations (the Withdrawal Agreement, 2017–2019; the Trade and Cooperation Agreement, 2020); much political uncertainty (two General Elections, four Prime Ministers since the Referendum, no NI Executive between January 2017 and January 2020, nor since since May 2022); and a general lack of agreement on how the powers repatriated from the EU would be shared between central and devolved governments.

The speed and uncertain nature of policy making in the post-2016 period thus created a significant conundrum for stakeholders: put simply, who should they lobby? However, the simple answer – as many levels of decision-makers as possible – was not possible given their limited capacity (Lee & Abbot, 2021). Since 1973, many had become more reliant on pan-European coalitions in Brussels (such as the European Environment Bureau) to shape policy. One way in which they responded was to pool their capacities by forming coalitions, some based on long-standing associations, some of a more ad-hoc nature. In London, two such coalitions were particularly noteworthy. First, Greener UK, set up in the Autumn of 2016, brought together 12 major environmental organisations representing over 8 million members. It quickly became the focal point of lobbying, especially with respect to the Withdrawal and Environment Bills. Second, the Broadway Initiative, set up in 2017, presented itself as ‘the place where the leading business organisations collaborate with environmental, professional and expert groups … to meet … environmental goals’ (Broadway Initiative, 2022). Crucially it sought to build new bridges between charities, academics and green businesses, the aim being to ensure that Green Brexit had a strong economic underpinning and societal buy-in.

Alongside these were more ad-hoc collaborations, such as the one targeting the new trade agreements that the Government was determined to sign after Brexit. Prior to Brexit, external trade policy had been an exclusive EU competence; suddenly, the stakeholders had to gear up to react as the locus of policy making shifted to London. A good example was the joint, but ultimately unsuccessful, efforts by the National Farmers Union (NFU, in England), and Greener UK to ensure that new deals were underpinned by high environment and animal welfare standards. Their 2020 campaign gathered over 1 million signatures (National Farmers Union, 2020). Beyond London, environmental stakeholders collaborated to ensure the devolved dimensions were considered. As what Brexit would mean for the island of Ireland became a focus point for EU and UK negotiators, the two main environmental stakeholder groups, NI Environment Link and the Irish Environmental Pillar, together representing 100 eNGOs, worked together for the first time. Visiting Brussels in 2017 and 2018, together they made the case that nature, especially species (protected or invasive) do not respect political boundaries (Environmental Pillar, 2017).

In summary, when considering the politics of Brexit, different preferred outcomes are being pursued. In England, the governing Conservative party has alternated between the Singapore-on-Thames and Green Brexit visions. Sunak in his first months of power tried to pursue both – building the option for Singapore-on-Thames with his continuation of his predecessor’s plans for Retained EU law; while at the same time striking closer relationships with the EU, the Windsor Framework, which such deregulation would undermine. But an even more complex picture emerges once we look beyond London. The Scottish and Welsh governments have appeared to favour re-engagement, with the Scottish nationalists in particular hoping eventually to rejoin the EU. Northern Ireland lost its political voice during most of the Brexit process and because of the NI Protocol ended up in a position of continued engagement. As the four governments gradually opted for different approaches, a critical question began to loom large: to what extent would the overall direction of travel be decided centrally in London or in the four administrations? This essentially political decision about the degree of centralisation in policy making – the second of Copeland’s explanatory factors – rapidly raised further issues relating to policy and polity, to which we now turn.

Policy: aligning with or diverging from the EU?

As noted above, cutting EU red tape has long been a rallying cry for Brexiteers, particularly in the Conservative Party. However, after the 2016 referendum this took a backseat as the May Government opted for ensuring legal certainty. Before UK-EU negotiations had even started, the UK government had commenced a vast copy-paste exercise that would, in the words of the then Environment Secretary ‘bring all of that body of EU legislation into UK law so far as we are able to’ (Andrea Leadsom MP, in House of Commons Environmental Audit Committee, 2016). Once retained, she reassured Brexiteers that ‘we will be able to change, amend, repeal, strengthen [EU law] at our leisure’ (ibid.).

However, this exercise came with some important caveats. First of all, it would remove the differentiated nature of EU law, namely directives that heretofore had permitted devolved implementation across the UK. In other words, if the four administrations each transposed the same EU directive they could diverge, but only within the bounds set by the directive (Reid, 2017). If the directive is not retained, no such limitations to intra-UK divergence remain. In other words, a rather technical feature of the policy retention process could have important – and to a large extent, rather unexpected – political ramifications.

Second, the retention process focused on EU secondary legislation (directives and regulations), not primary legislation (the Treaties) where important interpretive principles are to be found such as precaution, preventative action, rectification at source etc. Experts and eNGOs quickly mobilised to retain the principles, leading to Greener UK’s first policy victory: an amendment to the EU (Withdrawal) Bill binding the government to ensure they were retained via another, potentially more secure route – the Environment Bill.

Above all, these two caveats revealed some of underlying political purposes of the retention process: not just de-Europeanisation, but also centralisation in the sense of transferring power from the EU to UK Ministers rather than the parliaments in London, Edinburgh and Cardiff (Kouroutakis, 2021). Indeed, Minister’s use of delegated powers to rapidly amend the retained legislation in 2019 and 2020 also revealed how deregulation could occur almost by default via very small ‘technical’ fixes in the subordinate legislation (Jordan & Moore, 2020).

These caveats also revealed the importance of capacity as an intervening factor: sifting through the detail of forty years of accumulated legislation (the acquis) was too daunting in 2016–7, requiring vast amounts of civil service time. However, by mid-2022, UK Ministers felt they finally had the political opportunity (and administrative capacity – the TCA having, by then, been struck) to engage in a more systematic deregulation of EU law. During its brief existence, the Truss government thus published a Retained EU Law (Revocation and Reform) Bill, continued by the Sunak government, which, if adopted, would sunset all retained law by the end of 2023 unless restated or revised – rekindling concerns over centralisation of power in the hands of UK ministers.

Not surprisingly, these policy developments stoked fears in the devolved capitals that Westminster was engaged in a political ‘power grab’. Wales and Scotland started working on their own alternative legislation. The Law Derived from the European Union (Wales) Act of 2018 required UK ministers to obtain Welsh ministers’ consent before making subordinate legislation in matters of Welsh competence. It also gave Welsh Ministers ‘powers to make provision corresponding to EU law after exit day’ – i.e., pursuing a strategy of dynamic alignment (Law Derived from the European Union (Wales) Bill, 2018). Meanwhile, the Scottish Government continued work on what would become the European Union (Continuity) (Scotland) Act 2021, which aims to facilitate dynamic alignment with EU law.

As regards new environmental policy, the Environment Bill (now Environment Act 2021) was repeatedly delayed, first by the repeated changes of government (from May to Johnson), second by capacity constraints in DEFRA (National Audit Office, 2019) and finally by Covid. Environmental lawyers have been particularly critical of the Act: ‘deeply flawed (…) problematic and limited’ (Lee, 2022, p. 120). Not only does it contain weaker policy principles and monitoring mechanisms (ibid.), but, compared to EU law, renders policy contingent on fluctuating political ambition in the government (Fisher, 2020, p. 164). Critically, most of it applies only to England. Scotland and Wales decided to opt out of the target setting activities and the new governance arrangements (as discussed below). In the absence of an Executive, the NI Civil Service asked for Northern Ireland to be included (which was confirmed upon return of the Executive in 2020). That Wales and Scotland decided not to opt into the new Act is certainly not solely due to a lack of environmental ambition, but also to the political salience of environmental action in both nations. While environmental issues have fallen down the policy agenda in Westminster in recent decades, the devolved nature of environmental policy means that politicians in the devolved administrations have a reason to compete over it. Thus, while England has had no major environment act since 1995, Wales adopted a Wellbeing of Future Generations Act in 2015. This difference in approach bakes intra-UK divergence into the very heart of environmental policy.

Meanwhile, regulatory divergence at the more detailed level of specific environmental issues, both vis-à-vis the EU and within the UK, has started to emerge (Baldock & Nicholson, 2022). A good example is that of single-use plastics. The UK and EU agreed to amend Annex 2 of the Northern Ireland Protocol to include parts of the 2019/904 Single Use Plastics Directive in the list of directives NI has to comply with, with a deadline of January 2022 (extended from the EU’s internal deadline of July 2021). The NI Minister for Agriculture, Environment and Rural Affairs refused to transpose the directive and explained that as the Protocol is a UK-EU agreement, the onus should be on the UK government to implement it, not his administration (Smith, 2022). Conversely, both the Scottish and Welsh governments pledged to either comply with, or go beyond, the EU directives (Scottish Government, 2022; Welsh Government, 2022) . Both the Scottish and Welsh bans are more ambitious than the English approach (which does not cover plastic cutlery or plates). The Scottish ban is more constraining (it goes beyond the EU and Welsh ban on supplying plastics to banning their manufacture); the Welsh ban is also wider in scope (compared to both England and Scotland, but matching the EU, with inclusion of oxo-degredable plastics and fishing nets).

In summary, six years after the Referendum, policy remains in a state of severe flux. The UK government has consistently supported a more executive-led approach outside of the EU (i.e., a strategy of de-Europeanisation). The devolved administrations, especially Wales and Scotland, have favoured building on existing, EU-influenced policies and approaches, and wherever possible, keeping pace with EU developments (i.e., a strategy of re-engagement) (or in the case of NI, continued engagement, albeit limited and politically contested). Divergence vis-à-vis the EU has already become an established feature of UK environmental policy: as Whitten argues, ‘the “default setting” is one of passive divergence between “frozen” versions of retained EU law and their “live” counterparts that are developing in the EU context’ (Whitten, 2022, p. 17). The introduction of the Windsor Framework and its innovative Stormont Brake which could see, in rare circumstances, the UK Government, at the behest of the NI Assembly, reject revisions of EU law applicable to NI under the NI Protocol, opens the door to yet further complexity and divergence between different versions of former and current EU law (Murray & Robb, 2023). Such divergence would be massively expanded if the UK Government systematically removes swathes of retained EU law via powers in the REUL Bill. Were that to happen, the governance of the environment – the UK’s environmental polity – could find itself thrust into the heart of a much bigger constitutional battle between the four administrations of the UK (Dougan et al., 2022).

Polity: going it alone or staying close together?

Part of Gove’s vision of a ‘Green Brexit’ was to return to the ‘British way’ of managing the environment (Pontin, 2020) that had been gradually replaced via a long process of Europeanisation (Jordan, 2003). One of the central criticisms of the ‘British Way’, essentially a more flexible, context-dependent approach to regulation, is that it is predominantly an English way. As noted above, Scotland, Wales and even Northern Ireland have charted their own paths, which in turn have challenged the functioning of the UK environmental polity. To put it simply, if differences in approach are not to be tolerated, how and by whom will they be managed?

The first aspect is that of consent. The (Sewel) convention is that the UK Parliament will ‘not normally’ legislate in areas of devolved competence without consent. The Brexit process has marked a definite departure from this convention. Of the approximately 400 legislative consent motions that have been issued since the late 1990s, as of December 2021 consent had only been withheld on twenty occasions, half of which were linked to Brexit legislation.² It illustrated concerns in Wales and Scotland in particular, that not only was the UK government diverging from the EU to a greater extent that they wished to, but that the UK government was pushing them to diverge whether they liked it or not (Constitution, Europe, External Affairs and Culture Committee, 2022). Their concerns were compounded by the growing preference for secondary legislation (statutory instruments) in big, post Brexit bills, which fall outside the scope of the Sewel convention (Hansard Society, 2022). This matters because most retained EU law took the form of (often UK-wide) subordinate legislation; the UK government could therefore conceivably change large swathes of environmental policy without their consent. This is one of reasons that the Retained EU Law Bill has generated so much opposition. This threat of unilateral action is only partly ameliorated by the UK Government’s promise in its Benefits of Brexit report to discuss the development of policy proposals with the devolved administrations (Cabinet Office, 2022). This report was published by the Johnson Government. Two Prime Ministers later, it is uncertain whether its commitments still hold.

A second aspect concerns the operation of the UK internal market. At a Joint Ministerial Committee meeting in late 2017 ministers and civil servants from all four administrations agreed that common frameworks may be needed to manage divergence. Those frameworks could take very different shapes (legislation, political agreements) to serve different purposes (minimum standards, limits on action, mutual recognition or common goals) (Joint Ministerial Committee (EU Negotiations), 2017). Above all, they were supposed to be the product of cooperative, bottom-up negotiation.

In 2018, the four administrations duly commenced a series of framework analyses which divided environmental policy into three categories: those requiring a legislative framework; those for which a political framework (such as a memorandum of understanding) is sufficient; and those which require no framework. Each iteration of the analysis between 2018 and 2021 led to movements between the categories, with an increase in the number of policy areas requiring no frameworks (from 49 to 120) and a sharp decrease in those requiring a legislative framework (from 24 to 3) (HM Government, 2018, 2021). Most environmental issues (such as water quality or biodiversity) were deemed not to require any framework, due to the prior existence of liaison arrangements between the administrations.

The frameworks are supposed to offer a balance between internal divergence and the integrity of the UK internal market. Contrary to the UK government’s legislative efforts which, as discussed above, were often passed with no consent, common frameworks were supposed to be meticulously negotiated between the administrations over many years. They were informed by a vision for the UK internal market based on parity of esteem.

However, the negotiation process proved to be slow going. By March 2023, only eight environmental frameworks (non-legislative) had been provisionally agreed: on the UK Emissions Trading System, on integrated pollution prevention and control, chemicals, resources and waste, pesticides, radioactive substances, air quality and F-gases. Hopes that a polity would emerge based on a ‘parity of esteem’ were shattered in the summer of 2020 when the Johnson government published a White Paper on the Internal Market which represented ‘a far less dynamic view of devolution’ (Deb & Kilford, 2022). Where common frameworks were built on an internal market based on positive integration, with the adoption if not of common rules, then of common processes to limit and manage regulatory divergence, the Internal Market Act overtly favoured negative integration, with movement of goods in the UK market driven by two principles, non-discrimination and mutual recognition (Gravey, 2020). While these principles also underpin the EU Internal Market, their application and consequences differ in a UK context. Instead of marking clear limitations to devolved competences, the Act allowed devolved administrations to legislate, only undercut the effectiveness of any new rules by only applying them to home producers. The relatively greater size of the English market couple to the lower environmental ambition espoused by UK politicians made the devolved governments fearful that their rules and ambitions products will be brutally undercut (Dougan et al., 2022). This fear was reinforced by the proposed REUL Bill – as it could see devolved ambition undercut directly in London, with UK ministers repealing retained EU law in areas of devolved competence.

The third polity-related aspect relates to ensuring the continued delivery of regulatory functions formerly delivered by EU institutions (Commission and Court) and/or EU executive agencies (the European Environment Agency, the European Chemicals Agency etc.). The 2016 vote immediately raised concerns among environmentalists and academics that ‘governance’ (Burns et al., 2019) and accountability gaps would open up (Lee, 2022); a genuine possibility given the number of times that the UK had been subjected to EU infringement proceedings for violating environmental rules.³ Initially, the UK government denied the existence of any gaps, but was gradually pushed by Greener UK into re-designing the UK environmental polity through a new Environment Act. But while Wales, Scotland and Northern Ireland consented to the Act, only Northern Ireland opted to join the new environmental regulator it created, namely the Office for Environmental Protection (OEP). Instead, Scotland opted to establish its own body – Environment Standards Scotland (ESS) – while Wales promised to establish an Environmental Commission (but thus far has only created an Interim Environmental Protection Assessor (Welsh Government, 2021)).

The OEP and ESS fulfil the functions previously undertaken by EU level bodies, but do so rather differently. The OEP has a central advice function both ex-ante (advising government on environmental law as it is being drafted) and ex-post (scrutinizing whether targets are being met). The ESS’s advice role is mostly ex-post, with a focus on assessing and reviewing data on the quality of the Scottish environment, as well as how far the Scottish government is `keeping pace’ with the EU (Environment Standard Scotland, 2022). The ESS’s enforcement functions are broader, and so are its powers to act (Reid, 2020). Since being established in 2021 both bodies have initiated investigations. The ESS, while a smaller body with less capacity, is working on multiple targeted investigations and already concluded one in September 2022 (on air quality). In a clear effort to demonstrate willingness to continuously engage with the EU, the ESS presented its investigation as a response to the European Court of Justice finding that the UK had breached its obligation to comply with EU air quality rules (Case C-664/18) (ESS, 2022). While the four UK administrations have committed to building separate regulators, these new bodies have pledged to work together. In a memorandum of understanding published in October 2022, they pledged to share, where possible, data, best practices and discuss shared questions of legal interpretation or how to deal with cross-border environmental issues (OEP et al., 2022).

In summary, there have been profound changes in the environmental polity since 2016. New regulators have been formed in Scotland, England and Northern Ireland. Throughout, rapid policy change has generated political tensions between the four administrations, with rising concerns about the centralisation of power in Westminster. The decision not to retain the directives themselves has led to a profound rethink on how policy divergence is to be managed via changes in the polity. Across the breadth of the UK, all four administrations have moved away from the EU institutions, albeit to a lesser extent in Northern Ireland, which remains partially under their oversight. But these shifts in the polity do not necessarily connote de-Europeanization across the board. Wales and Scotland when legislating on plastics, or the ESS’s first investigation, both demonstrate a determination to dynamically align with the EU despite England’s preference to diverge.

Discussion and conclusions

Six years after the referendum, UK environmental policy, politics and policy have moved away from the EU status quo. Writing in 2018, when the UK’s departure was still being negotiated, Burns et al. (2019) predicted Brexit would result in disengagement across all three dimensions of policy, politics and polity. Now that the UK is fully outside the EU, what has actually changed? This article set out to address two research questions. First, what has been the UK’s experience of Brexit with regards to environmental protection? Is it continuing to disengage rather than de-Europeanise? And second, what light does the UK’s unfolding experience shed on pertinent theoretical debates, namely in relation to Brexit and environmental policy, but also Brexit/de-Europeanisation more generally? Early on, Burns et al. (2019, p. 272) sensed that Brexit was likely to be a particularly ‘extreme’ case of De-Europeanisation. Has that actually been the case?

In response to the first question (and drawing on Wolff and Piquet, 2022), we investigated the possibility of four potential outcomes (de-Europeanisation; disengagement; continued engagement; and re-engagement), across three dimensions (politics, polity and policy) in relation to the four UK administrations. What we found is that whereas divergence between the four parts of the UK has been profound in relation to politics with a variety of preferred outcomes evident – from de-Europeanisation in England, continued engagement in NI (even if conflictual), hopes for re-engagement in Scotland, and to a certain extent Wales – when it comes to polity and policy a picture of greater homogeneity emerges. Every part of the UK has had to profoundly change, indeed de-Europeanise, its environmental polity: doing nothing was simply not acceptable to the vast majority of stakeholders who warned of a major ‘governance (i.e., polity) gap’. However, the low degree of centralisation in the sector (thinking back to Copeland’s original framework) meant that the four administrations addressed the threat in different ways.

Unlike polity, where stakeholders demanded immediate change, when it came to policy, a collective agreement that maintaining, as much as possible in the short term, the policy status-quo was quickly arrived at. All parts of the UK agreed to collaborate in retaining the acquis as it existed the day before Brexit day. While the large copy-pasting exercise initiated by the EU Withdrawal Act 2018 was not without problems (and led to some weakening of the acquis) it set the UK on an overall path of disengagement – slowly moving away from the EU, with the UK version of the acquis losing relevance, indeed becoming zombified, while the EU's version continued to evolve. The UK’s policy disengagement was compounded when the EU opted to reinvigorate its environmental policy framework, the ‘fit for 55’ agenda seeking to make Europe the first ‘climate neutral continent by 2050’ (European Commission, 2019). Since Brexit day, England, Scotland and Wales have attempted to move beyond policy disengagement: England towards de-Europeanisation (notably via the REUL Bill), Scotland and Wales towards re-engagement via dynamic alignment with the EU. But for now, neither de-Europeanisation across the board nor dynamic alignment have materialized: the pull of disengagement, the default option for each of the UK administrations struggling for capacity, has remained difficult to resist.

In response to the second question, our detailed analysis of the environmental case allows us to better capture the unfolding process of Brexit. While Brexit may be a de-Europeanisation process, it does not necessarily follow that Brexit will lead de-Europeanisation outcomes. The complexity of extricating the UK from over forty years of European political and economic integration, all greatly compounded by the Covid-19 pandemic, has meant that the outcomes may not become clear for many years. But critically, uncertainty is not a side effect of the Brexit process, it is one of its central, defining features. Brexit is turbulent (Berny et al., 2021). Regulatory certainty is not a given anymore; hard won achievements such as the retention of EU law to ensure legal continuity or the creation of new regulators such as the OEP, are dependent on the political ambition of the government of the day; they can easily be unpicked and undone with remarkable rapidity, especially if the Retained EU Law Bill passes. Thus, despite the relative stasis of UK environmental policy up to 2022, Brexit can indeed be characterised as an extreme case of de-Europeanisation. The remnants of EU environmental action in the UK have been hollowed out. Without the oversight from European institutions and the legal ratchet effect on environmental ambition which made it difficult to dismantle policy, what remains of the EU acquis in the UK is a house of cards, which could easily crumble by the end of 2023.

Our study of change to the environmental sector has also involved testing a refined account of de-Europeanisation. Thus, Burns et al.’s (2019) de-Europeanisation framework has been applied to each of the four pathways laid out by Wolff and Piquet (2022). Attitudes to and relationships with the EU were the starting point. A government may wish to remain close to the EU (continued engagement) or move closer (re-engagement). Alternatively, a government may wish to move as far as possible from the EU (de-Europeanisation), or simply to regulate irrespective of the EU’s reform agenda (disengagement). But according to our refined framework, whether these attitudes in the realm of politics drive changes in policy or polity depends on four factors: the degree of prior Europeanisation; public support; centralisation; and capacity.

The prior degree of Europeanisation makes outright de-Europeanisation more cumbersome, but in the context of Brexit it does not necessarily makes disengagement more likely. While this is the case for policy, it is not the case for politics, nor, with the loss of EU regulators, for polity where change was necessary. Public support for parts of the acquis can hinder de-Europeanisation, yet we should not assume the public will always be in favour of maintaining EU rules. Thus, Scotland, which has yet to use its powers to keep pace with EU law, may hesitate to voluntary align with EU rules if those were likely to have a negative impact on key domestic industries or organised interests. Centralisation is both a matter of how competences are distributed in the UK and the state of intergovernmental relations: are those acrimonious or collegial, what are the legal and practical margins of manoeuvre for the UK devolved administrations to strive for a different degree of divergence with the EU? Contrary to what was posited by Copeland (2016) and Burns et al. (2019), decentralisation does not have to be a source of delay (a joint-decision trap): changes to UK environmental polity progressed swiftly, both independently (Scotland vis-à-vis England) and collaboratively (Northern Ireland and England). Changes to policy have become a site of increasingly fractious territorial politics. But even then, joint decision traps have been avoided: either the four UK administrations have slowly but surely acted together (on Common Frameworks), or England has swiftly acted, directly against the wishes of its devolved counterparts (the Internal Market Act, the REUL Bill).

Finally, we have shown that capacity goes beyond the ability to ‘review or retrench [retained EU] policy’ (Burns et al., 2019, p. 285) (although that has certainly been important since 2016). It also encompasses the capacity to do new things – e.g., to re-engage with the EU (Scotland, etc.); and even continually engage with the EU (see NI). Irrespective of the political starting point or preferred outcomes, in a situation of low capacity, governments can find themselves struggling to move beyond disengagement. This makes disengagement the default outcome of Brexit – until and unless individual governments devote sufficient energy to building public support, navigating constitutional barriers and dedicating large amount of (for now, often scarce) administrative capacity to changing retained EU law along their chosen pathway.

Furthermore, we have developed a more sectoral understanding of capacity (Daugbjerg, 2022) which extends to the capacity of non-state actors to engage in Brexit processes. In areas where profound change has occurred, such as the retention of EU law (2018–20), government capacity (both at UK and devolved levels) has been bolstered by eNGOs’ expertise and on-going support, which has, in turn, given the new regulators added legitimacy in holding their respective governments to account. However, eNGO capacity has not, in itself, unleashed what for them would be the bigger prize: a race to the top amongst the four administrations.

Our analysis allow us to make broader contributions to the analysis of British policy-making after Brexit. At the core of the Brexit process is the replacement of the slow-moving legal certainty of the EU’s hyper-consensual system (Gravey & Jordan, 2019), with the acrimonious political flexibility of the Westminster system. In an area of devolved competence such as the environment, this uncertainty can be both tempered (as decision-making in Cardiff, Edinburgh and Belfast present either higher levels of consensus or certainty) or heightened (when it comes to intergovernmental relations and the influence of one administration, especially Westminster, on the others). Building on Richardson (2022), our environmental case allows us to characterize British policy-making after Brexit as espousing a more top-down, politicised style that is both frenetic and impositional where consultation – be it with stakeholders, but also to a large extent with the devolved administrations – risks being more sham than real.

In summary, six years after the EU referendum, Brexit remains a complex process which academics are still struggling to comprehend. Our analysis suggested several promising areas for future research. First, we still do not know much about the two additional pathways identified by Wolff and Piquet (2022); as yet, neither continued engagement nor re-engagement has transferred from the realm of politics, to the realms of policy and polity. For example, the Windsor Framework has yet to be implemented, what policies will be added to its scope remain uncertain while Scotland has not kept pace with the EU despite having declared its wish to do so. Second, further refinement of our framework is needed, perhaps tested via a process-tracing approach to understand the causal mechanisms through which capacity, centralisation, prior level of Europeanisation and public support shape outcomes. Third, there is still no theory of Brexit as such, hence our continuing reliance on de-Europeanisation terms and concepts. Indeed, the rapidly emerging Brexit/Europeanisation literature is essentially EU centric; a promising avenue for further research is that of polycentric governance. After all, London, Belfast, Edinburgh and Cardiff are all centres of environmental policy-making, with complex bilateral and multilateral relations between them as well as external partners (e.g., Dublin and Belfast cooperating on all-island environmental action). From a polycentric perspective (Ostrom, 2010; van Zeben & Bobic, 2019), UK environmental politics are experiencing the three types of relationships that we can expect in a polycentric system: cooperation (on common frameworks, between regulators), competition (on who will be ‘the first’ or more ambitious on fighting single use plastics), and conflict (on the UK internal market, on the REUL Bill). Moreover, the four centres are reshaping their environmental actions at the same time as the rules governing their interactions and the scope of their respective powers are also being rewritten.

Regardless of what theoretical route is taken, new research should try to address some of the limitations inherent in our analysis. First of all, Brexit is a complex process; Sabatier’s ten-year rule suggests that it may not be until circa 2026 before the picture is sufficiently stable to make sense of. Second, our study focused on the UK moving away from the EU, and the resultant changes in the UK. Brexit has also impacted on how the EU 27 regulate their collective environment, an aspect that we elected to bracket off from our analysis. Finally, on both UK and EU sides, interviews with participants would help to ascertain how our four factors (prior level of Europeanisation, public support, centralisation and capacity) interacted to shape outcomes of this unique de-Europeanisation process.

Acknowledgements

AJ gratefully acknowledges the financial support of the UK Economic and Social Research Council (via the Centre for Climate Change and Social Transformations (CAST) grant ES/S012257/1) and the European Research Council (via the DeepDCarb Advanced Grant 882601). VG gratefully acknowledges the support from the UK Economic and Social Research Council (ES/V008935/1). Both authors thank three anonymous reviewers and Jeremy Richardson, one of the special issue editors, for their very helpful comments on an earlier draft.

Disclosure statement

No potential conflicts of interest were reported by the authors.

Additional information

Funding

The work was supported by UK ESRC and the ERC.

Notes

1 No such position was taken by the NI Executive. By mid-January 2017, it had fallen and would only come back in the early days of 2020.

2 Such as the EU Withdrawal Agreement Bill (2020), the first bill to see Northern Ireland, Wales and Scotland all refuse consent (Paun et al., 2022).

3 Forty-six per cent of all UK cases ending at the Court between 2003 and 2016 concerned environmental matters, with 21 concluding with a UK loss (Hogarth & Lloyd, 2017).