Complications and caveats as Brexit Transition Period comes to an end
The UK’s departure from the European Union (EU) was finally completed on 31 December 2020 with the end of the Brexit Transition Period. This means that we are no longer bound by EU laws and regulations, including those relating to the use of genetic modification in food and farming. However, as with almost every aspect of Brexit, there are lots of complications and caveats.
The Agriculture Act became law in November without the outrageous amendment that sought to give ministers the right to decide what does and does not count as a GMO (Thin Ice 56). This is a very significant piece of new legislation, but it does not actually have anything to say about the use of GM. Instead, the new UK laws that deal with growing, importing, using or selling GMOs have been created through Statutory Instruments (SIs) that simply ‘translate’ EU rules into UK law. At least, that is the theory. SIs do not receive much in the way of scrutiny at the best of times and, at last count, there were 983 Brexit-related SIs in progress so it is very difficult to be sure that those relating to any particular issue will actually do the job for which they are intended.
Then there’s Northern Ireland. To avoid a ‘hard border’ on the island of Ireland, the Northern Ireland Protocol effectively treats Northern Ireland as part of the European Union when it comes to buying or selling goods. This means that any food or agricultural products entering Northern Ireland will have to follow existing EU rules on GMOs, regardless of any changes the UK may make in this area.
The trade deal agreed on Christmas Eve, more properly titled the EU-UK Trade and Cooperation Agreement, does not require the UK to follow EU rules on food production or labelling, other than when UK businesses sell products into the EU (or Northern Ireland). If the UK relaxes GM standards the EU could take action but only if the change has a ‘material impact’ on trade – a requirement that is notoriously difficult to prove.
The deal offers some positives on environmental protection and includes a recognition of each side’s organic standards. It might be possible to use these points to argue against relaxing GM standards in the UK but that won’t be a simple process and success is far from guaranteed as the agreement is very light on enforcement.
Another key issue with the new trade deal is that it is based in international law and does not recognise the European Court of Justice (ECJ). This is normal for such deals but nonetheless worth noting as the ECJ ruling that genome editing produces GMOs (Thin Ice 49) was heavily criticised by the Westminster Government. Add in the UK’s ambivalence towards the precautionary principle (noted in the deal as a Fundamental Principle for the EU but not for the UK) and it is clear that this deal offers no comfort to those of us who want to safeguard our food and our farms.
The trade deal was negotiated by the UK Government based in Westminster, but food and agriculture are devolved areas of competency. This means that Scotland, Wales and Northern Ireland have long had some control over the laws that most directly affect GM in food and farming. Their influence has always been limited by EU rules but, when given the chance, all three of the UK’s devolved nations chose to ban specific GM crops from cultivation in their territory (Thin Ice 38). The impact of their more GM-sceptical policies may yet be limited by one of the last pieces of Brexit-related UK legislation to fall into place – the Internal Market Act.
The Internal Market Act became law on 17 December 2020. It is designed to make it easier for people to do business across different parts of the UK and does that through the principles of ‘non-discrimination’ and ‘mutual recognition’. In simple terms this means that those providing goods or services in one part of the UK must be able to do the same in other parts of the UK without having to jump through any extra hoops. So, if the Westminster Government ruled that new genome editing techniques should not count as GMOs it would be very difficult for Scotland or Wales to stop them being included in food sold in their countries.
The devil is very much in the detail with this kind of law and some big changes to that detail were agreed in the last couple of days of debate in Parliament. As a result, we are still working to identify exactly what the finished Act means for the devolved nations’ ability to have their say on GM in food and farming. What we do know, though, is that neither Scotland nor Wales granted ‘legislative consent’ which means that both countries have put on the record that they disagree with all or part of this new UK law.
This post originally appeared in Issue 57 of our newsletter Thin Ice, published in January 2021.