The Governance of Agriculture in Post-Brexit UK 1032207043, 9781032207049

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The Governance of Agriculture in Post-Brexit UK

This book provides a multidisciplinary analysis of the impact of Brexit on British agriculture and associated areas, discussing the Common Agricultural Policy and the Agriculture Act 2020. The Brexit referendum provoked new debates and questions over the future of agriculture in Britain and the potential positive and negative impacts of Brexit on both farmers and consumers. These debates, as well as the ensuing proposals relevant to the Agriculture Act 2020, have exposed the multidimensional effects of Brexit when it comes to agriculture. With a focus on profitability, the rights of farmers, environmental protection, as well as animal welfare, this book brings together an interdisciplinary analysis of the future of British agriculture in post-Brexit Britain. More specifically, it addresses the criticisms over the Common Agriculture Policy, presents an analysis of the Agriculture Act 2020, and considers suggestions for future developments. Through this analysis, the book suggests a way towards the future, with a positive outlook towards a competitive and sustainable agriculture that will satisfy the needs of farmers and consumers while ensuring environmental protection, animal welfare, and rural development. This book will be of great interest to students and scholars of food and agricultural policy and politics, agroecology and rural development, as well as policymakers involved in Britain’s post-Brexit environmental policy. Irene Antonopoulos is Lecturer in Law at Royal Holloway, University of London, UK. Matt Bell is Professor and Director of Agriculture at Hartpury University, UK. Aleksandra Čavoški is Professor of Environmental Law at the University of Birmingham, UK. Ludivine Petetin is Senior Lecturer in Law at Cardiff University, UK.

Earthscan Food and Agriculture Series

The Good Farmer Culture and Identity in Food and Agriculture Rob J.F. Burton, Jérémie Forney, Paul Stock and Lee-Ann Sutherland Deep Agroecology and the Homeric Epics Global Cultural Reforms for a Natural-Systems Agriculture John W. Head Fighting for Farming Justice Diversity, Food Access and the USDA Terri R. Jett Political Ecology of Industrial Crops Edited by Abubakari Ahmed and Alexandros Gasparatos The Sociology of Food and Agriculture 3rd Edition Michael Carolan The Politics of Food Provisioning in Colombia Agrarian Movements and Negotiations with the State Felipe Roa-Clavijo The Governance of Agriculture in Post-Brexit UK Edited by Irene Antonopoulos, Matt Bell, Aleksandra Čavoški and Ludivine Petetin The United Nations’ Declaration on Peasants’ Rights Edited by Mariagrazia Alabrese, Adriana Bessa, Margherita Brunori, Pier Filippo Giuggioli For more information about this series, please visit: www.routledge.com/books/ series/ECEFA/

The Governance of Agriculture in Post-Brexit UK Edited by Irene Antonopoulos, Matt Bell, Aleksandra Čavoški, and Ludivine Petetin

First published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2022 selection and editorial matter, Irene Antonopoulos, Matt Bell, Aleksandra Čavoški and Ludivine Petetin; individual chapters, the contributors The right of Irene Antonopoulos, Matt Bell, Aleksandra Čavoški and Ludivine Petetin to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-367-44460-0 (hbk) ISBN: 978-1-032-20704-9 (pbk) ISBN: 978-1-003-01085-2 (ebk) DOI: 10.4324/9781003010852 Typeset in Times New Roman by Apex CoVantage, LLC

Contents

List of contributorsvii Forewordx Acknowledgementsxvi   1 Studies of the impact of Brexit on UK agriculture

1

BERKELEY HILL

  2 Maintaining high animal welfare standards in the UK

28

CHRISTIE SIETTOU

  3 Setting the path for UK and devolved agriculture

40

LUDIVINE PETETIN

  4 “Public money for public goods” and property rights

63

IRENE ANTONOPOULOS

  5 Agroecology, GM crops, and the post-Brexit regulatory framework 77 MIRANDA GEELHOED

  6 Brexit and the Common Agricultural Policy: there and back again

97

VIVIANE GRAVEY

  7 Balancing productivity and the environment for more sustainable farming systems

117

MATT BELL

  8 The impact of Brexit on epistemic communities in agricultural and environmental sectors ALEKSANDRA ČAVOŠKI

134

vi  Contents   9 Legal models for implementing agri-environment policy after Brexit

154

CHRISTOPHER RODGERS

10 Northern Ireland’s agricultural quagmire: how to develop a sustainable agricultural policy?

177

MARY DOBBS



Conclusion

201

ALEKSANDRA ČAVOŠKI, MATT BELL, LUDIVINE PETETIN, AND IRENE ANTONOPOULOS

Index205

Contributors

Irene Antonopoulos is Lecturer at the Department of Law and Criminology, Royal Holloway, University of London. Her research explores the legal connections between environmental protection/degradation and human rights, taking into consideration changes to international organisation memberships. She has published on the relationship between the European Convention on Human Rights and the European Union in the context of environmental protection and the links between climate change and human rights. Matt Bell is Professor and Director of Agriculture at Hartpury University and College. His agricultural research and teaching have explored sustainable agricultural systems in different parts of the world from animal, plant, soil, environment interactions to more recently smarter farming and improved farm level decision-making. The need to balance productivity and resilience of food production to environmental change and more resource efficient systems has become a global priority, which urgently requires solutions. Aleksandra Čavoški is Professor at the University of Birmingham where she teaches and researches in the areas of Environmental Law and EU Law. Her research agenda is interdisciplinary and explores the intersection of environmental law and other disciplines, in particular politics, science, public policy, and language. Aleksandra is one of the policy and legislation editors for Environmental Law Review (Sage Publishing). She has published extensively on EU environmental law and policy, including a co-authored textbook on European Environmental Law (Cambridge University Press, 2017). Mary Dobbs is Lecturer in the Department of Law in Maynooth University, Ireland. She is also a visiting fellow in the School of Law, Queen’s University Belfast (where she was previously a senior lecturer); a member of the Brexit and Environment network; and a member of the Future Earth Ireland committee based in the Royal Irish Academy. Mary’s current research encompasses issues raised by Brexit for agriculture and environmental governance, including via a forthcoming book on Brexit and Agriculture co-authored with Ludivine Petetin.

viii  Contributors Miranda Geelhoed is a PhD researcher at the Strathclyde Centre for Environmental Law and Governance, University of Strathclyde. Her PhD research explores synergies between international, EU, and national environmental laws, particularly in the field of agriculture, food, land, and biodiversity. Building upon previous research and her practical experiences from her day-to-day life on an arable farm on the Scottish east coast, Miranda investigates how an “ecosystem approach” to EU legislation could help support agroecological transitions. Working alongside her PhD, Miranda has been involved in various SCELG consultancy projects for the Secretariat to the Convention on Biological Diversity, the European Commission, and the Scottish Government. Miranda has also provided continuous support to SCELG’s work on Brexit. She currently works as the Policy and Campaigns Coordinator for the Landworkers’ Alliance in Scotland. Viviane Gravey is Lecturer in European Politics at the School of History, Anthropology, Philosophy and Politics at Queen’s University Belfast, where she cochairs the Brexit & Environment network, investigating the impact of Brexit on the UK and EU environment. She holds a PhD degree from the University of East Anglia. Her research focuses on the ambition and governance of environmental and agricultural policies in the UK and at EU level. Berkeley Hill taught agricultural economics and policy analysis from 1970 to 2005 at Wye College, University of London, and, following its merger, at Imperial College London. On leaving he was made Emeritus Professor of Policy Analysis, attached to the Department of Environmental Policy and continues to be active as a consultant. His research interests have focused on the nexus between statistics and policy, particularly on the measurement of the incomes of the agricultural community. He has worked for many international organisations, including the Eurostat, the European Commission, OECD, FAO, and World Bank and for the UK government. Later, he has broadened into policy evaluation, including the impact of Brexit on farming in the UK and its contribution to the rural economy and society. Ludivine Petetin is Senior Lecturer in Law at the School of Law and Politics of Cardiff University. Her expertise lies in the areas of agri-environmental issues and international trade from multilevel and multidisciplinary perspectives. More specifically, her research focuses on the impact of Brexit and COVID-19 on these areas and in particular the challenges for agriculture, food and environmental law, policy and governance across the UK, especially for Wales. She is one of the co-authors of the forthcoming monograph entitled Brexit and Agriculture (Routledge). She regularly engages with governments, legislatures, and stakeholders (including civil society organisations) across the UK on these matters. Chris Rodgers is Professor of Law at Newcastle University. His research interests encompass environmental law and the law of property. He has written widely on the law as it relates to property and environmental law and has a

Contributors ix particular interest in the environmental governance of agriculture and legal models for payment for ecosystem services. He is the author of several monographs, most recently Contested Common Land: Environmental Governance Past and Present (with A. Winchester, E. Straughton, M. Pieraccini) (Earthscan Publishing, 2011), and The Law of Nature Conservation: property, environment and the limits of law (Oxford University Press, 2013). He is currently PI of a major UKRI research project examining urban commons (Wastes and Strays: the past present and future of English urban commons), and has a particular interest in legal arrangements for securing the provision of ecosystem services from common land. He is Editor-in-Chief of the Environmental Law Review (Sage Publishing). Christie Siettou is an animal welfare policy economist with research interests within the broad areas of animal welfare and agricultural economics. She has been involved in projects relating to costings of biosecurity, animal disease responses, farmer compensations, and companion animal health and welfare. Christie also teaches economics and business modules and is the Course Director of the Agricultural Degrees at the University of Nottingham.

Foreword

Amongst the uncertainty that followed the 2016 referendum, one thing at least was crystal clear. Whatever the nature of the UK’s trading relationship with the European Union, the future of British agriculture laid outside the Common Agricultural Policy (hereinafter “the CAP”). For almost 50 years the CAP’s legal framework has shaped farming policy in the UK. In 2019 it contributed just under £3.3 billion to the rural economy, through direct payments and rural development spending (Department of the Environment, Food and Rural Affairs et al., 2019). In future years such support will have to come from within the UK. In practice, a long succession of UK governments has been dissatisfied with the CAP. This view has been shared by both Conservative and Labour party governments alike. Both the Conservative party manifesto at the 2015 general election and Labour’s manifesto in the 1997 election highlighted strong desire to secure CAP reform (Conservative Party, 2015; Labour Party, 1996). However, this is not simply a recent aspiration. When Margaret Thatcher came to power, in 1979, the Conservative manifesto was no less fulsome in advocating radical reform (Conservative Party, 1979). Just as joining the then European Economic Community in 1973 had profound implications for UK agriculture, so too does leaving the European Union in 2020. In joining, the UK left behind a well-established free trade system in which low agricultural commodity prices were topped up by deficiency payments paid by the government to individual farmers (Butterwick and Neville-Rolfe, 1971). In its place, the UK adopted a CAP system built largely around market protection and higher commodity prices (Snyder, 1985; Usher, 2001). Initially, comprehensive price and marketing guarantees provided security for farmers producing major commodities like cereals, beef, and dairy produce. Import tariffs shielded them from competition from cheaper third country products, whilst a system of intervention purchasing funded the purchase of surplus produce, and export refunds compensated exporters for the lower prices they received on international markets. Arguably, these measures were highly successful in boosting production – so much so that they virtually bankrupted the EU. In 1986, the UK flatly refused to provide additional funding until this issue had been firmly grasped (Swann, 1995). However, the ultimate catalyst for reform was the 1994 World Trade Organisation Agreement on Agriculture. This saw the EU agree to reduce levels of domestic support for agricultural producers and to limit trade barriers for third country

Foreword xi imports (Josling et al., 1996). Collectively, the 1992 MacSharry and 1999 Agenda 2000 CAP reform packages re-orientated the CAP, reducing community prices and levels of domestic support whilst also opening European markets to imported produce. In return, a range of payments was introduced to compensate farmers. These were later consolidated and continue today in the form of the basic payment scheme (European Parliament and Council, 2013). In turn the payments ignited more recent criticisms of the CAP, posing questions such as why they are based on the amount of land farmed rather than the financial need of the farmer and why farmers today continue to be compensated for market reforms made over 20 years ago (Harvey, 2015; Cardwell, 2015). Yet, now that the UK has left the EU, the challenge remains for the UK to disentangle itself from the CAP and to develop a modern agricultural policy suited to the needs of these islands. As agriculture is a devolved matter, this challenge is shared between the UK government and the governments of Scotland, Wales, and Northern Ireland. At the time of writing, England and Wales have indicated their intention to transition to new agricultural policies framed largely around the payment of public money for providing public goods (Defra, 2020; Welsh Government, 2020). These will centre around an Environmental Land Management Scheme in England and a Sustainable Farming Scheme in Wales. Their counterparts in Scotland and Northern Ireland have yet to set out detailed proposals. However, policies based on the provision of public goods are also likely to place a strong focus on protecting and enhancing environmental resources. The environmental impact of the CAP has been heavily criticised. Yet, in practice, the UK’s own post-war policies had already started this process. Marion Shoard drew attention to the devastating ecological impact agricultural intensification had had across England and Wales (Shoard, 1980). Her views were echoed by the Nature Conservancy Council, which reported on the 140,000 miles of hedgerows that had been uprooted, together with the hectares of meadows, heaths, and peatbogs that had been drained and replaced by more productive monocultures and on the drastic declines in farmland birds and butterfly populations that accompanied these landscape changes (Nature Conservancy Council, 1984). Elsewhere, larger livestock herds and the increased use of chemical fertilisers led to the persistent problem of diffuse water pollution in waterways across the UK and Europe (Crouzet et al., 2000). The European Commission first acknowledged these issues in 1985 (European Commission, 1985). Subsequent years have witnessed a greening of the CAP. This has included the introduction of cross compliance and of the greening component within CAP direct payments and of the agri-environment scheme within rural development policy. Yet this reformed CAP has been no less a target for criticism. The governance of cross compliance has been shown to be weak across many member states (European Court of Auditors, 2008; Alliance Environnement, 2007). The greening component of direct payments has been widely derided for producing ineffectual environmental results (European Court of Auditors, 2017). Equally, member states have been chastised for failing to utilise the agri-environmental scheme in a targeted manner that would support and manage their most valuable environmental resources (Cooper

xii  Foreword et al., 2009). The UK’s devolved governments must learn from and improve upon these experiences. The UK has played a prominent role in developing environmental policy measures within the CAP. It was instrumental in the introduction of Council Directive 75/268, which provided for payments to be made to farmers in agriculturally less favoured areas (Council Directive 75/268/EEC). The payments aimed to prevent land abandonment and consequent environmental harm in upland areas. More recently, it was also the UK that lobbied the EU to introduce the agri-environment scheme (Jack, 2009). In developing future policies on environmental management we are now in a different paradigm. Where once we sought to protect the environment for its own sake, the concept of ecosystem services now recognises humanity’s reliance upon the services freely provided by natural ecosystems. The concept of ecosystem services gained prominence following the publication of the United Nations Millennium Ecosystem Assessment (hereinafter “MEA”) in 2005 (Millennium Ecosystem Assessment, 2005). The MEA identified 24 ecosystem services, ranging from climate regulation to providing food sources, clean water, and natural spaces. It also revealed the sheer extent of the damage human development has caused, putting the very sustainability of these ecosystem services at risk. This, in turn, speaks to the importance of ensuring the effectiveness of future UK policies supporting the production of public goods. In doing so, policymakers must draw upon the experience gained with the agri-environment scheme. Across the European Union as a whole, the measures adopted fell into two separate groups – broad and narrow schemes. As the European Commission has noted, the broad schemes aimed to attract large numbers of farmers and enrol wide areas of farmland but made limited environmental demands and in turn provided relatively small payments (European Commission, 2005; Buller, 2000). In contrast, narrow schemes were more targeted towards specific issues or locations and combined lower farmer enrolment with more significant environmental demands and higher payments for the services farmers provided. As a PhD student, interviewing farmers as to their motivation in taking part in agri-environmental schemes, the author was once advised that “the Department told me it was money for old rope”. What of the future UK schemes to pay farmers to produce public goods? Will the UK choose the sound bite – schemes that enable agriculture departments to boast about the large numbers of farmers enrolled, but provide limited environmental benefits? Or will it choose substance – schemes that focus on providing payments to farmers who can make a substantial contribution? Ultimately, there must be no more money for old rope. Several contributors examine the environmental opportunities and threats presented by agricultural policy post-Brexit. Gravey (Chapter 6) highlights the level of uncertainty that still exists, some five years after the 2016 referendum. As she points out, each of the four UK Ministers to have held the agriculture portfolio since then has had a different vision for agriculture and for the level of environmental ambition future policies should aspire towards. Rodgers (Chapter 9) draws upon the experience the UK has gained in delivering agri-environmental management agreements under the CAP. He then examines the options available to

Foreword xiii create more innovative legal structures within which to provide payments to farmers delivering ecosystem services. Geelhoed (Chapter 5) points to the somewhat grudging recognition given to the concept of agroecology in the Agriculture Act 2020. Using the EU’s current regulatory measures for GMOs as her framework, she argues that future UK agricultural policies should embrace agroecology to protect and support ecosystem functions. In turn, Bell (Chapter 7) illustrates the role the technical solutions can play in enabling farmers to monitor their environmental impact, such as greenhouse gas emissions and their carbon footprint, and to evidence their own contribution in providing public goods. This highlights the importance of ensuring that the future agricultural policies developed by each of the UK’s devolved nations provide sufficient support for technical innovation. Additionally, Dobbs (Chapter 10) warns of the danger that in focusing on payments for producing public goods we may lose sight of the need to ensure that adequate measures are in place to secure environmental protection. The loss of European Commission oversight and of the threat of fines from the Court of Justice of the European Union raises the spectre of weaker environmental governance across the UK. Given Northern Ireland’s history as an environmental laggard, this also poses questions about the stability of the UK’s own internal market. Leaving the CAP and developing a UK agricultural policy also raises a host of other issues beyond environmental management and protection. Antonopoulos (Chapter 4) investigates the human rights implications of seeking to control land management and ownership. Hill (Chapter 1) examines the studies that have been conducted on the potential impact of Brexit on the UK’s agriculture. As he suggests, this impact is already being felt, but it will be the ending of direct income support payments in 2027 that will have the most significant impact on the agricultural sector. The studies provide policy-makers with advance warning of the farm types that are likely to be most seriously affected and of the structural changes that may ensue. Čavoški (Chapter 8) analyses the detrimental impact that Brexit will have for policy-making in the UK, for both agriculture and the environment and across the wider economy. She highlights the many networks of policy expertise that the UK had access to as a member of the European Union. Čavoški draws urgent attention to the adverse impact that Brexit will have on the ability of policy experts both to engage in research and to support decision-making processes. The outcome is likely to be a reduced capacity to contribute to the risk assessment processes central to regulatory processes and to policy innovation. One such opportunity for policy innovation concerns animal welfare. Siettou (Chapter 2) outlines the UK’s influence as a strong advocate for high animal welfare standards during its membership of the EU. Given the recognition it has been given, in the Agriculture Act 2020, as a public good, she argues for animal welfare to be an integral part of agricultural support policies. But Siettou also highlights that this is only the start, and animal welfare must also be a key consideration in third country trade deals and in the measures that replace the European Union’s TRACES monitoring system, to protect animal welfare during live animal movements. The contributors also focus attention on the implications of devolution for the development of UK agricultural policy. Gravey (Chapter 6) outlines the diverging

xiv  Foreword approaches that the devolved governments had adopted within the CAP. She highlights that the picture emerging from policy proposals is not of a UK agriculture policy, but of four separate policies. Petetin (Chapter 3) also compares the policy measures emerging across the UK. She identifies a conflict between divergence on agricultural policy and the more unitary, centralised approach that the UK government has adopted towards Brexit. Petetin suggests that this will result in a failure to grasp the opportunity to develop agricultural policies that truly meet the requirements of the agriculture sector within each devolved nation. Dobbs (Chapter 10) also examines this tension, focusing on agricultural policy in Northern Ireland. She views the frameworks established in the Agriculture Act and in Northern Ireland’s draft Agricultural Strategy as being a positive first step. However, Dobbs warns that they are presently insufficient to deliver sustainable agriculture in Northern Ireland. She also highlights that the future viability of agriculture in Northern Ireland will ultimately be dependent upon the UK government, in its commitment to the Northern Ireland Protocol and to providing adequate financial support to agriculture. Both the policy-makers and the politicians alike are now facing major challenges in developing future agricultural policies for the UK. Through their chapters, the contributors have highlighted the extent of these challenges. They show that it is not simply a question of designing an effective environmental scheme to deliver payments to those producing public goods. In addition, the financial impact on the farm sector of removing CAP support and differing viewpoints amongst devolved administrations all add to the complexity. In addition, the lens focuses upon the policy-makers themselves. How will they ensure access to the policy expertise they will require to succeed in addressing the challenges they have been set? Both individually and collectively, the contributors have made a valuable contribution to the debate on the development of the UK’s own agricultural policies. They also provide an invaluable yardstick by which those policies will ultimately be measured.

References Alliance Environnement (2007) Evaluation of the Application of Cross Compliance as Foreseen Under Regulation 1782/2003. Brussels: Alliance Environnement. Buller, H. (2000) ‘Regulation 2078: Patterns of implementation’, in H. Buller, G. Wilson and A. Höll (eds.) Agri-Environmental Policy in the European Union. Aldershot: Ashgate Publishing Ltd. Butterwick, M. and Neville-Rolfe, E. (1971) Agricultural Marketing and the EEC. London: Hutchinson & Co Ltd, p. 3. Cardwell, M. (2015) ‘The direct payments regime, delivering “a fair standard of living for the agricultural community”?’, in J. McMahon and M. Cardwell (eds.) Research Handbook on EU Agricultural Law. Cheltenham: Edward Elgar Publishing Ltd., p. 57. Conservative Party (1979) The Conservative Manifesto (1979) 8. Conservative Party (2015) Strong Leadership: A Clear Economic Plan. London: Conservative Party, p. 21. Cooper, T., Hart, K. and Baldock, D. (2009) The Provision of Public Goods Through Agriculture in the European Union. London: Institute for European Environmental Policy.

Foreword xv Council Directive 75/268/EEC of 28 April 1975 on mountain and hill farming in certain less-favoured areas OJ L 128. Crouzet, P. et al. (2000) Nutrients in European Ecosystems. Copenhagen: European Environment Agency. Department of the Environment, Food and Rural Affairs (2020) Farming for the Future, Policy and Progress Update. London: DEFRA. Department of the Environment, Food and Rural Affairs, Department of Agriculture, Environment and Rural Affairs, Welsh Government, Scottish Government (2019) Agriculture in the United Kingdom. London: DEFRA, p. 101. European Commission (1985) Perspectives for the Common Agricultural Policy. Brussels: European Commission, COM(1985) 333/2 final. European Commission (2005) Agri-Environment Measures: Overview on General Principles, Types of Measures and Application. Brussels: European Commission, p. 10. European Court of Auditors (2008) Special Report 8/2008 Is Cross Compliance an Effective Policy? Luxembourg: Publications Office of the European Union. European Court of Auditors (2017) Special Report 21/2107 Greening: A More Complex Income Support Scheme, Not Yet Environmentally Effective. Luxembourg: Publications Office of the European Union. European Parliament and Council of the European Union (2013) Regulation 1307/2013 of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the Common Agricultural Policy [2013] OJ L347/20. Harvey, D. (2015) ‘What does the history of the Common Agricultural Policy tell us?’, in J. McMahon and M. Cardwell (eds.) Research Handbook on EU Agricultural Law. Cheltenham: Edward Elgar Publishing Ltd., p. 33. Jack, B. (2009) Agriculture and EU Environmental Law. Aldershot: Ashgate Publishing Ltd., p. 99. Josling, T., Tangerman, S. and Warley, T. (1996) Agriculture in the GATT. London: MacMillan. Labour Party (1996) New Labour, A New Life for Britain. London: Labour Party. Millennium Ecosystem Assessment (2005) Ecosystems and Human Well Being: Synthesis. Washington, DC: Island Press. Nature Conservancy Council (1984) Nature Conservation in Great Britain. Shrewsbury: Nature Conservation Council. Shoard, M. (1980) The Theft of the Countryside. London: Temple Smith Ltd. Snyder, F. (1985) Law of the Common Agricultural Policy. London: Sweet and Maxwell Ltd., p. 71. Swann, D. (1995) The Economics of the Common Market. 8th ed. London: Penguin Books Ltd., p. 260. Usher, J. (2001) EC Agricultural Law. 2nd ed. Oxford: Oxford University Press, p. 80. Welsh Government (2020) Consultation document: Agriculture (Wales) White Paper, Cardiff: Welsh Government, WG41711.

Acknowledgements

The four editors met at a Researcher Links workshop funded by the British Council on “Agritechnology and Agricultural Multifunctionality” in Brazil in November 2016 and ever since their relationships have strengthened. The idea for this edited collection emerged from a conference that we organised on “Sustainable Agriculture in Post-Brexit Britain” in May 2019. We are indebted to numerous people, in particular to Dr Brian Jack for his support since organising the workshop in 2016, for reading the whole text in draft and writing the foreword to this edited collection. We would like to thank all the participants and attendees at the workshop and the conference. Further, our gratitude goes beyond words to the colleagues who contributed to this edited collection. This project would not have been possible without the support of our colleagues and respective institutions: Department of Law and Criminology at Royal Holloway, Hartpury University, Birmingham Law School of the University of Birmingham, the School of Law and Politics and the Wales Governance Centre of Cardiff University, De Montfort Law School and the School of Biosciences at Nottingham University. Finally, we would like to thank our friends and families for their support throughout the process.

1 Studies of the impact of Brexit on UK agriculture1 Berkeley Hill

Introduction Following the June 2016 referendum that produced a majority (though a small one) in favour of the UK leaving the EU (“Brexit”), the formal withdrawal on 31 January 2020 ended several years of uncertainty over this decisive and critical step. It became clear that, by the end of the agreed transition period (31 December 2020), the UK would need to develop its own set of national policies to replace the Common Agricultural Policy (hereinafter “CAP”) and other shared EU policies, and that the two would have to establish a new UK-EU long-term trading relationship. The forms that these were to take were settled only just in time; legislation for domestic agricultural policy (for England) received parliamentary approval in November 2020 (House of Commons Library, 2020), with important details of the trade relationship agreed only on Christmas Eve (24 December 2020) and approved by the UK Parliament only hours before the deadline (HM Government, 2020). Though some details remained to be worked out, the level of uncertainty was far less than had been experienced previously; between the 2016 referendum and the December 2019 General Election, in which the Conservative Party led by Boris Johnson won a substantial majority in the House of Commons, a distinct possibility remained that the whole exit process might be aborted and the UK would stay part of the EU, with its Single Market and trading arrangements, and subject to the CAP. Once the UK had formally left the EU, that status quo could not be restored. In the five years leading up to Brexit, the prospect of leaving the EU and its CAP raised many concerns. Consumers and their representatives were keen to understand what could happen to food prices and food security. Farmers and horticulturalists and their unions felt that changes could occur that might impact negatively on their livelihoods and viability, at least in some sectors. Firms further along the food chain and those in sectors that provide inputs to farming were anxious to prepare for how they might be affected. Government and politicians were concerned not only with all of these but also with a wide range of other impacts, such as on the UK’s trade balance, its broader economy and the provision of public goods; agriculture is the major user of rural land, so changes in production patterns would be likely to have environmental consequences, with shifts in biodiversity and in landscape appearance. Rural communities could expect to see DOI: 10.4324/9781003010852-1

2  Berkeley Hill changes, not only in the level of economic activity and numbers and types of jobs available but also in the human networks found there and related social capital. If farmers and their families were as important to their local society as some proponents believe, especially in the more remote and sparsely populated regions, then Brexit might carry significant social implications necessitating policy responses that extend far beyond agriculture. At one stage, it appeared that some of the envisaged changes associated with Brexit could be rapid and more in the nature of shocks, testing the resilience of those affected. This applied particularly to what might happen were the UK to “crash out” of the EU without a trading agreement. Following the UK’s formal withdrawal on 31 January 2020, any sudden imposition of new trading rules seemed to have been avoided by UK-EU Trade and Cooperation Agreement. Similarly, fears of an abrupt termination of domestic support to farming were eliminated by the publication by the Conservative Government of their intentions for agricultural policy (in England) and Agriculture Bills that facilitated them (House of Commons Library, 2020). These intentions (discussed later) contained not only a phasing out of direct payments by 2027, as well as other changes and rebalancing of policy, but also assurances in the short term of the level of total support (to the end of this Parliament, assumed to be 2024). Though abrupt changes were avoided, UK agriculture could still be expected to face more cushioned challenges and pressures on incomes that require responses and adaptations, some over a protracted period. Furthermore, the impact of Brexit has to be seen against the background of other long-term structural changes of which many were happening long before the notion of the UK leaving the EU was articulated with any degree of seriousness.

Studies before Brexit Concerns in the years immediately before the UK’s formal withdrawal from the EU led to many substantial ex-ante studies on the potential impact of Brexit on UK agriculture, produced by and for various organisations, with diverse but often overlapping sets of interests. Over 30 studies were published, mostly between 2015 and 2019, some before and some after the referendum of June 2016. They displayed a diversity of approaches and generated a range of results. Some covered leaving the EU at an economic level or from specific angles, such as the implications for food prices, the availability of seasonal labour, or the stocks of wildlife on farmland. However, many more looked at the implications for the incomes of farms, reflecting the interests of the organisations that generated or commissioned them (farmers unions, the Agriculture and Horticulture Development Board (hereinafter “AHDB”) funded by levies on producers, farm consultant firms, and academics with a track record in this area). Not all contained original quantitative work and, in particular, reports by Parliamentary Select Committees dealing with Brexit often duplicated existing material, though the Committee system allowed for a degree of public scrutiny and follow-up of points of interest.

Studies of the impact of Brexit on UK agriculture 3 Alongside these studies and reports were comments and analyses on websites by academics, often based on published results. The role of the UK government was rather curious and perhaps explained by agriculture being a devolved responsibility. The agriculture departments responsible for England, Wales, Scotland, and Northern Ireland had been clearly unprepared for the result of the 2016 Brexit referendum, with a lot of catching up to do. No official UK-level detailed ex-ante evaluation was issued but, instead, the four agriculture departments contributed to funding a UK modelling exercise by the Food and Agricultural Policy Research Institute (FAPRI-UK) on the impact on markets for farm commodities, with the assessment of the consequential impacts on farm incomes funded by the Economics and Sociology Research Council (ESRC). The studies published before Brexit differed in a number of ways (a tabular presentation can be found in the annex to this chapter). Coverage and specification of impact factors In the studies, four main factors were seen to be at work. Not many studies dealt with them all, and some focused on only one. These four main areas were: 1

The shape of post-Brexit domestic agricultural policy, in particular anticipations of what would happen to CAP direct income payments made to farm businesses; 2 The outcome of trade negotiations in the Brexit process that could be expected to impact on market prices received by UK farmers, and which carried implications for trade with the rest of the world; 3 The availability and cost of migrant labour which, because of market linkages, could be expected to also affect the cost of UK labour; 4 Any change in the regulatory burden on farmers as a result of leaving the EU. Use of scenarios In the absence of hard evidence at the time on how the four main impact factors would play out in reality, many studies used scenarios to explore the post-Brexit situation. How these scenarios were specified, such as which impact factors were covered, the details of each factor, and the future date to which they were linked, were critical to the outcomes. Rather than second-guess the actual situation that would result when the UK left the EU and its CAP, for which they had no reliable guide, many of the studies used scenarios aimed at illustrating extreme positions (boundary situations), which could then be used to prepare the agricultural industry for best- or worse-case outcomes. Because of the way in which things have turned out (as some of the “unknowns” have changed into “knowns”, particularly in relation to the pattern of domestic agricultural support and the UK-EU trade relationship) some of these scenarios have proved more useful than others.

4  Berkeley Hill Sophistication of approach Differences between studies were found in each of the impact factors: 1

2

Trade models: When assessing the impact of changes of trading arrangements associated with Brexit on the market prices of farm commodities, several studies used sophisticated aggregate (economy-level) econometric models, some used simpler gravity trade models, and others took a more qualitative approach using basic economic theory (see Box 1.1). It is not difficult to predict the direction of change to be experienced in the UK market for pigmeat (for example) by increasing a tariff on imports from Denmark (prices in the UK would rise, benefitting UK producers), or of making UK exports of sheep less competitive in France (prices in the UK would fall as meat previously sent abroad would find its way onto the domestic market, expanding supply and depressing prices). However, estimating the extent of these shifts requires a huge amount of detailed information on parameters such as elasticities of demand (responses of the amounts purchased in relation to shifts of price, incomes of consumers, and prices of other foods) and likely responses by domestic suppliers, which will differ in the short and longer terms. Farm models: When assessing the impact of changes of commodity prices or levels of direct income support on the incomes of farm businesses, almost all used static models based on the cost structure of a sample of farms for single years or a run of years taken from the UK’s Farm Business Survey (hereinafter “FBS”). Static models take the existing farm accounts and vary individual elements to see the effect on income; for example, a fall in revenue of £100 from sheep sales will produce a fall in farm business income of £100 as everything else is assumed to remain the same. In reality, of course farm operators will adjust over time in ways that blunt negative income shifts and enhance positive ones, though incorporating this adjustment capability into impact assessments faces technical problems. Nevertheless, an attempt to do this in a qualitative way was found in Bradley and Hill (2017 and 2019), and dynamic linear programming (using a ScotFarm Model) formed part of the Newcastle University approach (Chapter 5 of Hubbard et al., 2019).

Sector coverage While some took an industry-wide view, others disaggregated this into major sectors, at least when considering the impact of Brexit on commodity prices. However, some also examined the implications of Brexit for specific sub-sectors; of note here were the various papers produced by the AHDB (e.g. AHDB, 2017). Geographical coverage While most studies provided a UK-level analysis, some focused on England, the country accounting for most agricultural activity (75% of the UK’s total income

Studies of the impact of Brexit on UK agriculture 5 from farming in 2019) and the widest spread of farming types. Several dealt specifically with Wales or Scotland or Northern Ireland, either exclusively (e.g. Wales in Bradley, 2017 and Dwyer, 2018) or as part of disaggregation of the UK into its constituent countries (e.g. Hubbard et al., 2019).

Box 1.1 The basic economics of importing and exporting markets S represents the supply curve of production in the UK, showing the amount farmers are willing to supply at a given range of prices. In reality, it would be steeper in the short term (lower price elasticity of supply) and less steep in the longer term (greater elasticity) as producers would be able to make more adjustments. Two situations of demand are given. D1 corresponds to a commodity in which the UK is not self-sufficient and imports are required from the world market to meet domestic demand; many agricultural commodities are of this type in the UK. D2 is the situation in which there is a domestic surplus of production, and exports to the world market would be expected; only a few are of this type in the UK. Supply from the world market is shown as infinitely elastic, that is any required quantity of product is available to be imported into the UK without affecting the world price (the so-called small country assumption where the quantities are insignificant compared with the total). As a general principle, higher prices of commodities imported from outside the UK (whether caused by tariffs or higher costs of trading such as the need for more inspection) will cause UK market prices to drift upwards. £ D1

S

D2

World price plus tariff

World supply

Export

Imports

Quantity

6  Berkeley Hill The effect will be a reduction in imports as (a) domestic producers expand up their supply curves in response to the higher prices and (b) domestic consumption falls as users retreat up their demand curve. There is a limit to which prices on the domestic market will be raised by imposing tariffs or the imposition of trade facilitation costs. This is the point at which the D1 and S curves intersect, and no imports take place. For commodities illustrated by D2, there is a domestic surplus available to export to the world market. Without this possibility, prices on the domestic market would fall to a low level (the point of intersection between D2 and S) as supply to the domestic market increases. Access to the world market enables farmers to avoid this low price in favour of the world price. Anything that prevents this access (such as trading regulations or the imposition of tariffs by importing countries) will, in effect, lower the prices obtained on the export market (not shown on the diagram).

The four main areas of impact looked at more closely Support under UK domestic agricultural policy Farmers in the UK in recent years have received around £3.5 billion support annually under the CAP. More than 80% of this took the form of “direct income payments” (also called “Basic Payments” or CAP “Pillar 1” payments) calculated according to how much land they farmed. The remainder came mainly as payments under environmental management schemes and benefits from farm-related economic development projects (organised under the CAP’s Pillar 2 as Rural Development Programmes, one for each of the UK’s constituent countries). In the studies reviewed, it was widely assumed within their post-Brexit scenarios that area-based direct payments would be reduced or terminated, whereas agri-environment and other payments would be at least continued. Many analysts of the CAP have called for the ending of its system of direct income support payments (see Hill, 2012 for a summary). Of late, the Department for Environment, Food and Rural Affairs (hereinafter “Defra”), which is responsible for agriculture in England and performs a coordinating role for the UK as a whole (agriculture is a devolved responsibility in the UK), has been unequivocal in its criticism of subsidies because of their perceived negative effects on economic efficiency (including their discouragement of structural adjustment) while at the same time they have failed to address the problem of low incomes among farm families in an equitable manner, which is essentially a welfare issue (Defra, 2018). The assumption that direct payments would cease in the UK after Brexit was confirmed (for England) in the Government’s Agriculture Bills published in September 2018 and January 2020 that passed into law as the Agriculture Act 2020

Studies of the impact of Brexit on UK agriculture 7 on 12 November 2020 (see Box 1.2). The Act provides the legal basis for practical support arrangements for England that were fleshed out by Defra in “The Path to Sustainable Farming: An Agricultural Transition Plan 2021 to 2024” of November 2020, which gave details of the phasing out of area-related direct income payments (the last being made in 2027). The plan also contained the replacement of agri-environment payments and other forms of support formerly given via CAP rural development measures by new schemes. Similar changes are expected for Wales, Scotland, and Northern Ireland.

Box 1.2  Contents of legislation and official statements The Agriculture Act 2020 The Agriculture Act received Royal Assent on 11 November 2020. First: It provides enabling powers for ministers to develop new farm support approaches in England. Direct payments to farmers are currently based on how much land is farmed. These will be phased out starting in 2021 over a seven-year period. New schemes to pay farmers for producing “public goods” such as environmental or animal welfare improvements will be introduced. New items have been added to the list of purposes that can be given financial support, notably soil protection and improvement. Second: It gives ministers powers to intervene in agricultural markets in exceptional conditions, such as to provide farmers with financial support or operate public intervention and private storage aid schemes. Third: It sets out measures to increase transparency and fairness in the supply chain for farmers and food producers. Fourth: It includes measures on marketing standards and carcass classification, including certification of organic products. Fifth: It sets out provisions to enable the UK to meet its obligations under the World Trade Organisation Agreement on Agriculture. In addition, there are requirements for ministers: • • •

to consider the need to encourage the production of food in England, in an environmentally sustainable way; to set out multi-annual plans about how they will use their financial assistance powers. The first plan will start in 2021 for seven years. Beyond that plans must be of at least five years’ duration; to report on food security at least once every five years.

The act also contains several varied measures on matters relating to farming and the countryside, including on agricultural tenancies, fertiliser regulation, identification and traceability of animals, and the Red Meat Levy.

8  Berkeley Hill The provisions on new farm support schemes mainly apply to England; separate but similar legislation is expected for the other nations for which agriculture is a devolved responsibility. Aside from farm support, some measures such as those on food security, fair dealing in the supply chain, and meeting WTO obligations apply to the four nations. Source: Based on House of Commons Library (2020) Briefing Paper Number CPB 8702.

Defra’s implied operational objectives Between 2021 and 2028, we plan to: •

phase out direct payments and existing agri-environment schemes in a gradual, smooth, and orderly way, starting in 2021, with the last direct payments being made in 2027; • introduce our Environmental Land Management approach to agri-environment schemes, through pilots and tests from 2021 to 2024; early roll-out of some core elements of all components, particularly the Sustainable Farming Incentive, from 2022; with all three components fully available from 2024; • establish an Animal Health and Welfare Pathway; • provide grant support to help farmers maintain and improve productivity, invest in research, development, and sustainability through the transition; • replace EU scheme-based regulation and enforcement with a new, more effective and trusted approach; • provide advice and guidance to farmers to help them make the right decisions for their circumstances; • help people through the transition, including with business planning, training, and advice; • help farmers who wish to leave the sector with an exit scheme. From: Defra (2020) The Path to Sustainable Farming: An Agricultural Transition Plan 2021 to 2024 (Defra, November 2020).

Though Pillar 1 payments were nominally decoupled from production decisions, and thus a one-to-one relationship between changes in direct payments and changes in residual income to the farmer was often assumed, in reality there were links that mean that removal of such payments could be expected to impact on farm output. More likely to affect sectors that have been relatively large recipients of these payments, such as grazing livestock and cereals, the extent of this output link is not well established but includes elements of voluntary cross-subsidisation

Studies of the impact of Brexit on UK agriculture 9 at the farm level (where farmers treat direct payments as if they were sales revenue), insulating farmers against market risk (and thus encouraging activities that would otherwise not have been undertaken) and retaining resources in farming that would have been shed under more competitive circumstances. To circumvent this problem, AFBI (2020), when assessing the impact on UK agriculture of removing direct payment, assumes three alternative levels of linkage (the lowest being 30%), but this does not fill the fundamental underlying information gap on the strength of the actual relationship. The way in which agri-environment payments increase incomes, or are merely compensation for income foregone or additional costs, is barely mentioned in the Brexit studies. What is clear is that these payments, while undisputedly adding to the farm’s revenue, should not simply be treated as additions to income (as was often done), as this ignores the increased costs of delivering the environmental services. Labour availability and costs Several studies considered qualitatively the implications of Brexit for the supply of labour to the UK agricultural industry and, in particular, how migrant labour would be affected. The UK requires around 80,000 seasonal farm workers every year, and the Office for National Statistics has stated that 99% of these come from countries within the EU. At the time the studies were made, the details of how seasonal EU migrant labour would be treated once their right as EU citizens to work in the UK had lapsed following Brexit was not known. But restricting access to EU-27 migrant labour was commonly expected to cause difficulties, especially for the horticulture sector, and to lead to agricultural businesses facing higher labour costs (especially wage payments). In the absence of direct evidence, estimates based on the incentives needed to attract labour from other UK sectors (an approach adopted by Bradley and Hill 2017 suggested a cost increase in the order of 50%). A lack of available UK labour and the perception by them of difficult working conditions on farms was likely to exacerbate the difficulties, something borne out by experiences in 2020 reported in the farming press. To mitigate the problem, at least partially, and in response to pressure from the industry, in 2018 Defra announced a Seasonal Workers Pilot Scheme, along the lines of a previous Seasonal Agricultural Workers Scheme (SAWS), to grant short-term (six-month) visas to migrants wishing to work on farms. In February 2020, numbers were increased from 2,500 to 10,000 in response to sector comments, and a further increase to 30,000 was promised for 2021. Trade arrangements The studies considered a range of trading arrangements whereby the UK moved away from its membership of the EU single market in which trade in agricultural commodities between member states was not subject to tariffs (border taxes) and quantitative restrictions (quotas). These varied from a possible deep and comprehensive Free Trade Agreement (hereinafter “FTA”), which was close to the status

10  Berkeley Hill quo, to one in which the EU treated the UK as a “third country” and applied the same Most Favoured Nation (hereinafter “MFN”) tariffs as to trade from other countries (“World Trade Organisation” (hereinafter “terms”). Outside the single market, the UK could apply its own schedule of tariffs on goods imported from the EU, but it could not discriminate and would have to apply the same published schedule of tariffs to imports from all WTO member countries. The UK is a net importer of most agricultural commodities. In the trade models used in the main studies, the expectation was that a post-Brexit EU/UK trading relationship without an FTA that involved placing import taxes on trade coming into the UK from the EU (dairy products for example) would result in higher prices and higher incomes for UK farmers, further expansion in domestic production and reduced imports.2 Conversely, a liberal trading policy that opened the UK commodity markets to low-cost foreign suppliers on WTO-MFN terms (e.g. beef from the USA) would lower the market price received by British farmers, cause them to supply less, and put downward pressure on their incomes. Where the UK exports farm output to the EU (e.g. sheepmeat), tariffs applied by the EU on goods from the UK would likely depress the prices received by UK farmers. Real markets are often far more complex than can be assumed in trade models, and additional factors (such as consumer preferences for credence attributes like place of origin) need to be considered. Similarly, many commodities are not homogeneous, including lamb, which can be differentiated by age and specification and seasonality. Carcase balance issues (which recognise that some cuts of meat are in high demand and sell at an attractive price, whereas other parts of the animal are not) are also likely to be significant, but generally little attempt was made in the Brexit studies to address this quantitatively (although Bradley, 2018b is an exception). Non-tariff barriers can impede trade to a significant extent; these are often mentioned in the literature and some of the main studies made attempts to address them. The conclusion of the UK-EU Trade and Cooperation Agreement on Christmas Eve 2020 has meant that most of the hypothetical trade arrangements in the studies can be ignored. Under this agreement, trade in agricultural commodities between the two remains free of tariffs and quotas (with a few exceptions, such as seed potatoes, which are a traditional export from Scotland). However, the studies held in common that leaving the EU Single Market (even though remaining in an FTA with the EU) will incur additional costs to trading, in the form of more border controls, checks on regulatory compliance, and so on. These costs are not large; on the basis of rather limited evidence, the studies make assumptions in the order of 2% to 5%. For commodities that the UK imports, this will lead to effects similar to those from import tariffs (a rise in market prices for UK farmers, greater domestic production replacing imports, and an increase in farm incomes, while the quantity demanded in the UK will also be reduced as consumers face higher prices). For commodities the UK exports, their market prices can be expected to fall as the additional costs of trading make them less attractive in the EU and sales are diverted to the domestic market, pushing down prices at home.

Studies of the impact of Brexit on UK agriculture 11 Regulatory burden Regulations impacting domestic production are relevant to both trade and farm incomes. In the pre-Referendum rhetoric, there was a claim that, by easing the regulatory burden by leaving the EU and its legislative framework, production costs in the UK would be lowered though the extent of this has rarely been quantified (an approximation was attempted in Bradley and Hill (2017)). Post-Brexit, it is acknowledged that widening disparities in regulations (sanitary, phytosanitary, animal welfare, environmental standards, etc.) would impede the movement of traded goods. In practice, for commodities the UK wishes to export (or re-export) to the EU, the regulations in the UK and EU are likely to remain closely aligned for access to be granted, with negligible opportunity for UK agriculture to save costs in this way. Consequently, some of the later studies (e.g. Bradley and Hill, 2019) dropped this variable.

The three main quantitative studies Three studies of the anticipated impact of Brexit on UK agriculture dominate the scene, in that they have been frequently cited and the quantitative results coming from them have formed the starting point for work by other economists: 1

Research undertaken by LEI (Netherlands) for the National Farmers’ Union (NFU) (Berkum et al., 2016); 2 The combination of FAPRI-UK (Davis et al., 2017) and Newcastle University (Hubbard et al., 2018, 2019), funded by the UK government agricultural departments and the ESRC; and 3 The project funded by the AHDB undertaken by Agra CEAS Consulting (Bradley and Hill, 2017; Bradley, 2017; Bradley and Hill, 2019). Their technical reports formed the basis of AHDB Horizon publications. These three had in common a two-step process: (1) assessing the impact of Brexit on the UK markets for farm commodities using economy-level trade models of various degrees of sophistication and (2) estimating the implications for incomes of individual farm businesses of these price changes together with other factors (such as anticipated falls in direct payments from government and rising labour costs, both associated with Brexit). This was done using farm models based on official annual surveys of farm accounts (the FBSs in England, Wales, and Scotland or, in their EU form, the Farm Accountancy Data Network – FADN – to which the FBSs contribute data). The indicator chosen from the FBS was farm business incomes, which is farm revenues (mostly from selling crops, animals, animal products, and from subsidies) less paid costs; it does not cover income earned from outside the farm and does not charge for the unpaid labour of the farmer or spouse or for an imputed rent on the land they own. There are reasons to be cautious. The complex sector-level models employed by Berkum et al. (2016) and FAPRI-UK (Davis et al., 2017) to generate price levels on UK commodity markets for Brexit

12  Berkeley Hill scenarios were dependent on the assumptions built into them. Policy scenarios that represent large shifts and contain the potential to trigger structural changes are less suitable for modelling, so results should be interpreted with care. Davis et al. (2017) pointed out that some of the projected price changes went beyond the range of variation experienced in the past on which the FAPRI-UK model was based, and noted that this adds uncertainty to their projections, a point reiterated by AFBI (2020) when using the same model. Bradley and Hill, for AHDB, used a simpler gravity model in which coefficients were estimated from the literature, though the sources were not exact parallels. That said, there was general conformity with the basic principle that additional costs on importing commodities in which the UK is less than self-sufficient (trade friction costs or tariffs) raised prices on the domestic market (refer back to Box 1). Similar impediments to trade on commodities that the UK exports lowered prices on the domestic market. Analysis at the farm level of the way farm incomes would be impacted by changes in market prices and in support policy subsidies also has limitations. The three studies discussed earlier each took a static approach (at least in their main calculations), which ignored the behavioural responses by farmers, who have a proven ability to adapt their production and businesses, including by both short-term adjustments and longer term structural change (including increase in farm size and innovation). First, round impacts should not be interpreted as the final adjusted position, though this commonly happens. When the focus is on the impact on farm incomes, there is the danger that other impacts, such as on the environment and on the social contributions that agriculture currently makes, could be neglected or ignored. Their significance may only emerge in the longer term. The three main studies were initiated when many of the post-Brexit conditions in which UK agriculture now has to function were unknown. They had to allow for a range of possibilities and compared incomes under them with the status quo. All three used scenarios that included combinations of various trade alternatives (including a UK-EU FTA, and no such agreement), the continuation or termination of direct payments to farm businesses, and restrictions or no restrictions on EU migrant labour entering the UK. The details differed between the studies and thus their results, though broadly similar, are not directly comparable. Important patterns can be illustrated from the results from the AHDB project that focused on farming in England (Bradley and Hill, 2017). These were: 1 2 3

impacts of Brexit were expected to differ widely between types of farm; for most farm types, the impact on farm income of the loss of direct payments (policy reform) was estimated to be greater than that coming from changes in trade; for most farm types (but not all), an FTA with the EU would have a relatively small impact on average farm income compared with the status quo, but without an FTA there would be a fall in farm income. This fall was expected to be particularly severe in the Less Favoured Area (hereinafter “LFA”) livestock farming sector (largely explained by depressed prices and incomes for sheep farmers);

Studies of the impact of Brexit on UK agriculture 13 4 The impact of restricting migrant labour was expected to be substantial in some sectors, such as general cropping and horticulture; 5 Within each farming type low performers (in terms of the ratio of output value to input value), who on average were already making losses, were expected to see their situation get worse in the scenarios studied. In contrast, high performers would remain making positive incomes even in the most adverse scenarios. Thus, a strategy of mitigating any negative impact of Brexit should be to encourage farms to take steps to improve their performance. No simple and consistent pattern across farm sizes was observed.

Updated estimates of the expected impact of Brexit on agriculture for 2022 The relevance of the earlier studies for the impact of Brexit on UK agriculture has been diminished by the passing of time and lessening of uncertainty of the conditions that apply now the UK has formally left the EU and the CAP (31 December 2020). Even by early 2019 circumstances had changed sufficiently to require an update of previous studies (Bradley and Hill, 2019). 1 First, it had become clear by 2019 that the regulatory environment was unlikely to change significantly, as the demands of markets in the UK and in export markets (particularly in the EU) will remain closely aligned, at least for the time being. Consequently, costs faced by UK producers in meeting regulations are unlikely to be lowered and, for practical purposes, can be ignored when assessing the impact of Brexit on UK producers; 2 Second, ministerial and departmental statements in England had made a commitment to phasing out direct income payments by 2027 (the last year when these payments are to be made). However, in the first year of national policy (in 2022), which sees the first stage of payment reductions, what is lost from this type of support will be added to land management schemes, therefore keeping the total amount of public support unchanged. Beyond 2022, and especially beyond the life of the present Parliament (due to end in 2024), things may be different, although it is possible to get an impression of what happens to incomes if direct payments were to be completely withdrawn (see later). As agriculture is a devolved matter, patterns of domestic agricultural support in the other countries of the UK may differ from that seen in England (see House of Commons Library (2020) for what was the then-known intentions of Wales, Scotland, and Northern Ireland); 3 Third, concerning access to labour from EU-27 countries, the UK government’s commitment to create short-term visas for migrant labour from the EU, coupled with their encouragement of UK workers to take on this sort of work, held out the possibility that the cost of casual labour to UK farmers might not rise as a direct consequence of Brexit. However, such schemes would not apply to non-UK regular labour as access would be restricted, with an anticipated rise in the cost (by 50%) of this category of labour;

14  Berkeley Hill 4 Fourth, only at the very last moment in 2020 did it become evident that an FTA between the UK and EU would be achievable. In 2019 any update had to allow for both a trade agreement and no such agreement. As a fallback in the event of no agreement materialising, Defra announced in mid-March 2019 the tariffs that the UK intended to apply if it was forced to trade on WTO terms. Under such terms, many crop commodities would have a zero rate tariff. A  degree of protection was afforded to sensitive sectors, such as sheepmeat, where the existing EU-MFN tariff rates were retained, and other meats and dairy products, where a fraction of the existing EU-MFN rates was imposed. This represented a balance between the interests of consumers, where lower food prices are desired, and the severe implications for some vulnerable farming types if trade liberalisation was put in place with no protection against international competition (later, in June 2020, a revised schedule was published with tariffs much nearer the existing EU levels, which was interpreted as a rebalancing of interests in favour of farmers who had become concerned that support for them would disappear or be cut drastically from 1 January 2021). Of course, these tariff schedules became irrelevant under the UK-EU Trade and Cooperation Agreement of Christmas Eve, 2020; the UK can trade tariff and quota free with the EU. When devising scenarios, the only factor that Bradley and Hill (2019) allowed to vary was the trade relationship; domestic policy and labour costs, though different from the status quo, remained the same across the scenarios studied. In 2019, there were only two scenarios required to set boundaries of the likely possibilities resulting from the UK’s exit from the EU. The first (UK-EU FTA) represented essentially a “Business as Usual” option where, under the FTA, trading relations remained as close to the status quo as possible given that the UK would no longer be part of the EU’s Single Market. The second scenario (WTO: UK import tariffs) implied that the UK unilaterally applied its reduced tariffs on imports of agricultural commodities (and fertilisers), including those from the EU. The EU, however, would treat the UK as a third country in trading terms, applying its published WTO-MFN tariffs. Though this second scenario became redundant under the UK-EU Trade and Cooperation Agreement, the first can be useful in assessing how Brexit will impact on UK agriculture within its new FTA. The basic methodology used by Bradley and Hill (2019) followed the two-stage approach described earlier (see section on “the three main quantitative studies”), with more sophistication than previously used (such as greater disaggregation of poultry meat, pork, and dairy products to achieve a more robust estimate of resultant changes in farm-level prices of the commodities as they leave the farm). First, changes in commodity prices resulting from trade conditions were estimated for 2022 using a gravity model (for commodities in which the UK is a net importer, which is the majority) and economic analysis (the few for which the UK is a net exporter, such as barley and sheepmeat). These were sense-checked against alternative estimates produced by other researchers and the expectations of sector experts within AHDB. These were then fed into the second stage, a

Studies of the impact of Brexit on UK agriculture 15 static micro-economic farm-level model using data from the FBS in England to estimate the short-term implications for average revenues, costs, and farm business incomes in 2022 (an alternative methodology based on enterprise costs was applied to a few other sectors, such as potato and poultry meat producers: see Bradley and Hill (2019)). Changes in the cost of regular labour were introduced by increasing its current costs at the group-average level by 50%. Changes in revenues from subsidies were estimated by lowering Pillar 1-type direct income payments in aggregate by £150 million (the first announced reduction within England’s national agricultural policy) and reallocating this to Pillar 2-type payments (agri-environment and rural development payments) according to group-average baseline levels; these extra payments were assumed to represent additions to income (which may be an overestimation of their net effect as the costs of taking environmental and similar actions should be deducted). To observe the significance of the remaining direct payments, further calculations were made for both scenarios with payments lowered to zero, without reintroducing them in the form of Pillar 2-type schemes (beyond the £150 million in aggregate of the first step in this direction in 2022). The impacts on farm incomes were expressed in comparison with the baseline position provided by the pre-Brexit CAP and trade relationships and reflected in the finding of the FBS for the average of the accounting years 2015–2016, 2016–2017, and 2017–2018. The resulting average values are best regarded not so much as estimates of incomes expected to be received in 2022 but, if low, more as indicating where the greatest pressures on farm incomes are likely to be felt. Viewed in that light, the general picture for England (see Figure 1.1) is that under Scenario A: UK-EU FTA, compared with the baseline, farm incomes can be expected to fall markedly in 2022 for the all-farms average and for each individual type of farming, with the exception of the sheep and beef sectors where they remain at close to the baseline level. There are variations between types in the size of this gap and its underlying causes; though a common factor is the higher costs of regular labour, which varies between types and reflects different labour usages. In most farming types at sector level, the reduction in direct payments is offset to some extent by greater amounts of support under Pillar 2-type schemes; there will be differences by farm size within this, in line with the difference in the relative importance of direct and Pillar 2-type payments. LFA beef and sheep is the only sector where revenue from production declines under Scenario A. As noted earlier, Scenario B: WTO: UK tariffs is redundant as a UK-EU FTA has been reached, but it is retained here as a “what might have been” exercise. Farm incomes fall further than under Scenario A, driven by the same increases in labour costs, but under this scenario, all sectors see falls in production revenue to varying extents as well. There are some common features within each farming type. Larger farms generally have larger farm business incomes than smaller ones. But analysis by performance level (ratio of the value of output to the value of inputs) sees a consistent pattern in which low-performing farms in each type have lower farm business incomes (often negative ones) in both the baseline and trade scenarios. In contrast,

16  Berkeley Hill £90,000 £80,000 £70,000 £60,000

FBI

£50,000 £40,000 £30,000 £20,000 £10,000 £0 (£10,000) (£20,000)

Cereals

General cropping UK-EU FTA

LFA sheep and beef

Lowland sheep and beef

WTO: UK tariffs

Dairy

Pigs

All farms

Baseline FBI

Figure 1.1 Farm business income (hereinafter “FBI”) for each sector in England estimated for 2022 and compared with the baseline (average of years 2015–2016 to 2017–2018) (Bradley and Hill, 2019).

high-performing farms have higher farm business incomes that are always positive even under the WTO scenario where incomes are generally lower than in the baseline or UK-EU FTA scenario. Figure 1.1 illustrates the general situation for all farms in England, though a similar picture emerges within each farming type. The message for businesses is therefore clear and reflects earlier findings; to be most resilient to adverse economic conditions, they should adapt in ways that enable the business to achieve a relatively good ratio between output and input values. In 2022, direct income payments (the UK replacement for the CAP’s Pillar 1 Basic Payments Scheme), though reduced, are still important to the farm’s income position. These are due to be phased out in England by 2027. Purely for illustrative purposes, in Figure 1.2, farm business income for 2022 is also shown minus the remaining direct income payments; for the all-farm average, the hypothetical removal of these payments would have a major impact on the remaining income of businesses. For Scenario A: UK-EU FTA, average income is substantially reduced, while under Scenario B: WTO: UK tariffs, it falls further and becomes negative. Calculations made by Bradley and Hill (2019) of eliminating the contribution of direct payments (i.e. no Pillar 1) show that, as might be expected, the implications are more significant for some farm types that currently receive higher levels of these payments (such as LFA cattle and sheep farms) than those which receive relatively little (such as pig farms). The impact on hill cattle and sheep farms (Figure 1.3) may be especially significant, as any collapse in incomes there is likely to carry broader social implications. For this type of farming, securing a UK-EU FTA would, according to the study’s calculation for 2022, lead to an average farm income close to the pre-Brexit level, while the absence of one would reduce its average farm income from its already modest level per farm (Figure 1.3). These

Studies of the impact of Brexit on UK agriculture 17 £120,000 £100,000 £80,000

FBI

£60,000 £40,000 £20,000 £0 (£20,000) (£40,000)

Baseline

UK-EU FTA

WTO: UK tariffs

Figure 1.2 Farm business income (FBI) by farm size and performance level in England estimated for 2022 and compared with the baseline (average of years 2015– 2016 to 2017–2018) (Bradley and Hill, 2019).

£45,000 £40,000 £35,000 £30,000 FBI

£25,000 £20,000 £15,000 £10,000 £5,000

£0 (£5,000)

UK-EU FTA FBI (2022)

FBI (2022) - no Pillar 1

WTO: UK tariffs Baseline FBI

Figure 1.3 Farm business income (FBI) in England estimated for trade scenarios (UK-EU FTA and WTO) in 2022, with and without direct payments, and compared with the baseline (average of years 2015–2016 to 2017–2018) (Bradley and Hill, 2019).

calculations assume that direct payments are available at the reduced rate for that year. However, if they were completely eliminated, then the average income would be driven down to a small loss even in the presence of an FTA, and without one would present a picture of substantial average losses.

18  Berkeley Hill £30,000

£25,000 £20,000

FBI

£15,000 £10,000 £5,000 £0 (£5,000) (£10,000) (£15,000)

UK-EU FTA FBI (2022)

FBI (2022) - no Pillar 1

WTO: UK tariffs Baseline FBI

Figure 1.4 LFA cattle and sheep farm business income (FBI) in England estimated for trade scenarios (UK-EU FTA and WTO) in 2022, with and without direct payments, and compared with the baseline (average of years 2015–2016 to 2017– 2018) (Bradley and Hill, 2019).

Though there is considerable uncertainty about what actual incomes may be in 2027, the message for anyone concerned with Brexit and the future incomes from farming is clear; while trade arrangements often dominate the rhetoric, what happens to direct payments beyond 2022 is likely to be critical.

Dynamic responses The emphasis of the main studies has been on the first-order indications of impacts on farm incomes. They have not generally taken into account the responses that farm operators will almost certainly make in the face of such signals as they adjust their use of inputs in pursuit of marginal efficiencies, rebalance their mix of enterprises, diversify more both on and off the farm, and refine cost structures, each of which would have the effect of blunting income falls. Nor have longer term structural changes been embraced, such as scale/farm size adjustment, investment, and labour-saving innovation. Ultimately, farmers will consider exit and succession issues, and may even relocate production to another country. It should be remembered that farm business income, the measure of income often used in Brexit studies, does not include any off-farm income earned by farmers and/or other family members, or pensions, or interest on (non-farm) investments, etc. Incomes from such non-agricultural sources may enable farms to be sustainable even in the face of negative farm business incomes, as often applies currently for low performing farms (often seen as “hobby” or “lifestyle” and where residence rather than income generation is a main purpose of occupation) and will be the case for more when farm business income becomes negative under some scenarios. The Newcastle University Brexit study (Chapter 7 of

Studies of the impact of Brexit on UK agriculture 19 Hubbard et al., 2019) provided some empirical results on business viability and sustainability using a subsample of FBS farms, though this was hampered by incomplete data on the level of off-farm incomes, especially for England. Judged on objective but contestable criteria, under CAP (baseline) conditions about 80% of FBS farms were classed as viable because of profits from agriculture or sustainable because of off-farm earnings; these groups were numerically approximately in the ratio of 1:2. When direct income payments were eliminated, the proportion of viable farms fell in each scenario, and was only about 15% under a UK/ EU FTA with no direct payments. The project notes that the future viability and sustainability of a large number of farm households are dependent on farmers and their spouse’s ability to secure employment off the farm. Similarly, capital gains (and losses) were not covered in the main Brexit studies; asset holdings (which affect the ability to borrow), capital gains, and tax considerations often impinge on decisions to stay or leave farming. While the direction of change is usually discernible from the literature, turning this into quantified estimates is a complex affair.

Conclusions The fact that Brexit happened on 31 January 2020 in the sense that the UK formally left the EU, considerably narrowed the range of circumstances in which UK agriculture might have found itself and which studies of the impact of Brexit have had to consider. However, it will not be until the start of 2021, and into 2022, that the changes that will impact on UK agriculture will begin to manifest. From then, the UK will start to apply its domestic agricultural policies, already announced in broad terms (for England) as a gradual reduction in the level of direct income payments to farmers (the first cuts being seen in 2022) and an increase in the support of agri-environment payments and other schemes previously part of EU rural development programmes. Under the UK-EU Trade and Cooperation Agreement concluded at Christmas Eve 2020, there will be a comprehensive FTA between the UK and EU in which there are no tariffs on farm commodities moving between the two, though there will be some additional costs of trading caused by the UK no longer participating in the EU’s single market. The results in terms of the implications at the farm level for the changes in domestic policy, restrictions in labour from outside the UK, and the trade scenario carry lessons both for UK farmers and for organisations that support them. As expected, there are substantial impacts on projected levels of farm income by 2022. These should not be interpreted as precise predictions but rather as reasoned indications of where the greatest levels of financial pressure will be felt, and to which farm types can be expected to respond by longer term adjustments, such as structural change (including exiting the sector). Looking beyond 2022, the postulated removal of direct income payments by 2027 would have a substantial impact on incomes for most farming types, and thus the industry as a whole. Economic sustainability requires these income pressures to be addressed. A critical issue will be the extent to which agri-environment and other rural development schemes (including afforestation) that are commonly

20  Berkeley Hill seen as being easily justified (on public goods arguments) can be pragmatically useful in partially compensating for the withdrawal of direct income payments. Another issue is the adequacy of the concessions already won in the restrictions on migrant labour to meet the need of the seasonal demand for non-regular workers and avoid higher labour costs. Further relaxation of restrictions might be needed, though there could be an administrative problem of preventing transfer of workers to other sectors suffering from reduced labour availability. Another significant longer term issue relates to farm performance. According to the evidence, high performing farms (in terms of their output/input ratios) are shown to be in a far stronger position to cope with income pressures. This should focus attention on farmers knowing their relative performance (such as by using benchmarking) and on them and their advisors (including those financed in part through public funds directed to increasing national productivity) pursuing practical ways of improving output and containing costs. High performance is not necessarily associated with larger farms, and there is the possibility of improving performance across the size spectrum. UK farmers as a group have a proven ability to absorb and adjust to shocks and pressures. Support organisations and governments could promote this ability by identifying and tackling constraints. Investment grants, business advice, and skills training could help broaden the income-generating activities of farm households, thus providing a more sustainable economic base; diversification and pluriactivity (multiple job-holding) are already well-established characteristics of farm households and can be expanded and deepened. Being paid for providing environmental services forms part of this pattern. National agricultural policies in the UK that are replacing the CAP already point in this direction with a rising emphasis of farmers being paid public money to supply public goods. Changes associated with Brexit may mean that some farm businesses become non-viable, but this does not imply that the resources they represent will be wasted. Land gets transferred between farmers when exiters leave and, in the UK, it is rarely abandoned. Biodiversity and landscape are more to do with farming systems than with who owns and operates the farm businesses. Over time capital gets reinvested (though in the short term there may be some wastage if previous business decisions were ill-judged). And the ability of farmers, their families, and others in the agricultural labour force to earn their livings is not rigidly confined to the activity of farming. Given their stock of human capital, experience, and abilities (not least in their entrepreneurship and capacity to assess risk), and the sort of supportive communities in which they live, Brexit, while representing for some a threat to short-term income, may for many impact in a positive way and lead to a more sustainable farming community.

Notes 1 The work of Dr Dylan Bradley, Senior Consultant, Agra CEAS Consulting Ltd in research for the Agriculture and Horticulture Development Board (AHDB), in which the author collaborated, is gratefully acknowledged. 2 This effect on prices ceases once imports have been reduced to zero.

Studies of the impact of Brexit on UK agriculture 21

References (including studies mentioned in the annex) AFBI (2020) ‘Impact on UK agriculture of changes to direct payments following Brexit’, in M. Patton, S. Feng, J. Davis, P. Caskie, E. Sherry, and J. Binfield (eds.) Agri-Food and Biosciences Institute, UK. Available at: https://www.afbini.gov.uk/sites/afbini.gov.uk/ files/publications/Final%20Full%20FAPRI%20Report%20with%20cover%2028.09.20. pdf (Accessed 30 September 2020). AHDB (2017) Brexit Scenarios: An Impact Assessment. Horizon Market Intelligence, Stoneleigh. Available at: https://ahdb.org.uk/knowledge-library/brexit-scenarios-animpact-assessment (Accessed 18 January 2021). Baldock, D., Buckwell, A., Hart, K. and Maréchal, A. (2017) EU Referendum and Implications for UK Agriculture and the Environment. Report produced for the UK Land Use Policy Group. London: IEEP. Berkum, S. van., Jongeneel, R.A., Vrolijk, H.C.J., van Leeuwen, M.G.A. and Jager, J.H. (2016) Implications of a UK Exit from the EU for British Agriculture. Study for the National Farmers’ Union (NFU), Warwickshire, UK. Wageningen, LEI Wageningen UR (University & Research centre), LEI Report 2016–046. Bootle, R. (2015) Making a Success of Brexit and Reforming the EU. Hachette (pb version 2017). Bradley, D. (2017) Quantitative Modelling for Post-Brexit Scenarios – Scotland and Wales. Technical Report for AHDB. Agra CEAS Consulting, UK. November 2017. Published as AHDB (2017) Exploring the implications of Brexit for agriculture and horticulture in Scotland. Horizon Market Intelligence, November 2017. https://ahdb.org.uk/knowledgelibrary/exploring-the-implications-of-brexit-for-agriculture-and-horticulture-inscotland-15-november-2017 (Accessed 18 January 2021). Bradley, D. (2018a) The Impact of Brexit Scenarios on Grazing Farms in the Lake District National Park. Final report for AHDB. Agra CEAS Consulting. January 2018. Available at: https://ahdb.org.uk/knowledge-library/the-impact-of-brexit-scenarios-on-grazingfarms-in-the-lake-district-national-park (accessed 18 January 2021). Bradley, D. (2018b) Brexit Scenarios: An Impact Assessment for the Broiler and Egg Sectors. Final report for National Farmers Union (NFU). Agra CEAS Consulting. March 2018. Published as NFU (2018) Potential implications of Brexit for poultry enterprise incomes. May 2018. Bradley, D. and Hill, B. (2017) Quantitative Modelling for Post-Brexit Scenarios. Technical Report for AHDB. Agra CEAS Consulting. September 2017. Available at: https://media. ahdb.org.uk/media/Default/Programmes/Fit%20For%20The%20Future/Quantitative_ Modelling_For_Post_Brexit_Scenarios-12oct17.pdf (Accessed 18 January 2021). Bradley, D. and Hill, B. (2019) UK Farm-Level Impacts of Alternative Future Trading Scenarios. Technical Report for AHDB. Agra CEAS Consulting. April 2019. Available at: https://projectblue.blob.core.windows.net/media/Default/Imported%20Publication%20 Docs/Horizon/Brexit%20Scenarios_Final%20Report_11April2019.pdf (Accessed 18 January 2021). British Retail Consortium (2017) A Fair Brexit for Consumers: The Tariff Roadmap for the Next Government. British Retail Consortium: London. Available at: https://brc.org.uk/ media/174063/brc-the-tariff-roadmap.pdf (Accessed 18 January 2021). Buckwell, A. (2016) Agricultural Implications of Brexit. Worshipful Company of Farmers, February 2016. Choi, H.S., Jansson, T., Matthews, A. and Mittenzwei, K. (2020) ‘European Agriculture after Brexit: Does anyone benefit from the divorce?’, Journal of Agricultural Economics, 72(1), pp. 3–24.

22  Berkeley Hill Coe, S. and Finlay, J. (2020) The Agriculture Act 2020 (House of Commons Library Briefing Paper CBP 8702). Available at: https://commonslibrary.parliament.uk/researchbriefings/cbp-8702/ (Accessed 18 January 2021). Cumulus Consultants (2017) The Potential Impacts of Brexit for Farmers and Farmland Wildlife in the UK. Report for the RSPB. Available at: http://fedehesa.org/wpcontent/uploads/2018/03/The-potential-impacts-of-Brexit-for-farmers-and-farmlandwildlife-in-UK-23.10.17.pdf (Accessed 18 January 2021). Davis, J., Feng, S., Patton, M. and Binfield, J. (2017) Impacts of Alternative Post-Brexit Trade Agreements on UK Agriculture: Sector Analyses Using the FAPRI-UK Model. FAPRI-UK Project, Agri-Food and Biosciences Institute and University of Missouri. August 2017. Available at: https://content17.green17creative.com/media/99/files/ FAPRI_UK_Brexit_Report.pdf (Accessed 18 January 2021). Defra (2016) The Role of CAP Payments in Farm Income. Methodology Note, Department for Environment, Food and Rural Affairs: London. May 2016. Available at: https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data /file/525372/defra-farm-income-methodology-paper.pdf (Accessed 18 January 2021). Defra (2018) Evidence and Analysis Paper No. 7 Agriculture Bill: Analysis and Economic Rationales for Government Intervention. Department for Environment, Food and Rural Affairs: London. September 2018. Available at: https://assets.publishing.service.gov.uk /government/uploads/system/uploads/attachment_data/file/740670/agri-bill-evidencepaper.pdf (Accessed 18 January 2021). Defra (2020) The Path to Sustainable Farming: An Agricultural Transition Plan 2021 to 2024. Department for Environment, Food and Rural Affairs: London. November  2020. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/954283/agricultural-transition-plan.pdf (Accessed 18 January 2021). Dwyer, J. (2018) The Implications of Brexit for Agriculture, Rural Areas and Land Use in Wales. Wales Centre for Public Policy: UK. January 2018. Available at: https://www .wcpp.org.uk/wp-content/uploads/2018/04/The-Implications-of-Brexit-for-AgricultureRural-Areas-and-Land-Use-in-Wales-1.pdf (Accessed 18 January 2021). Gardner, B. with analysis by Bradley, D. (2015) Preparing for Brexit, Informa. Haverty, M. (2017) Impact of WTO Trading on the Northern Ireland Beef and Sheep Meat Industry. Report for the Livestock and Meat Commission (LMC), in collaboration with the Northern Ireland Meat Exporters Association (NIMEA). The Andersons Centre: Melton Mowbray. Available at: https://www.lmcni.com/site/wp-content/uploads/2017/09 /LMC-Final-Report_31_Aug_17.pdf (Accessed 18 January 2021). Hill, B. (2012) Farm Incomes, Wealth and Agricultural Policy: Filling the CAP’s Core Information Gap. 4th ed. Wallingford: CAB International. HM Government (2020) UK-EU Trade and Coordination Agreement. December 2020. Available at: https://ec.europa.eu/info/strategy/relations-non-eu-countries/relationsunited-kingdom/eu-uk-trade-and-cooperation-agreement_en (Accessed 18 January 2021). House of Commons Library (2016) Brexit: Impact across Policy Areas. (House of Commons Library Briefing Paper 07213). Available at: https://commonslibrary.parliament .uk/research-briefings/cbp-7213/ (Accessed 18 January 2021). House of Lords (2016) Brexit: The Options for Trade. European Union Committee 5th Report of Session 2016–17 HL Paper 72. Available at: http://borderpeople.info/site/wpcontent/uploads/72.pdf (Accessed 18 January 2021). House of Lords (2017a) Brexit: Trade in Goods. European Union Committee 16th Report of Session 2016–17 HL Paper 129. Available at: https://publications.parliament.uk/pa/ ld201617/ldselect/ldeucom/129/129.pdf (Accessed 18 January 2021).

Studies of the impact of Brexit on UK agriculture 23 House of Lords (2017b) Brexit: Agriculture. European Union Committee 20th Report of Session 2016–17 HL Paper 169. Available at: https://publications.parliament.uk/pa/ ld201617/ldselect/ldeucom/169/16902.htm (Accessed 18 January 2021). Hubbard, C., Davis, J., Feng, S., Harvey, D., Liddon, A., Moxey, A., Ojo, M., Patton, M., Philippidis, G., Scott, C., Shrestha, S. and Wallace, M. (2018) ‘Brexit: How will UK agriculture fare?’, EuroChoices, 17(2), pp. 19–26. [see full Final Report as Hubbard et al. (2019)]. Hubbard, C. (ed.) and Davis, J., Feng, S., Harvey, D., Liddon, A., Moxey, A., Ojo, M., Patton, M., Philippidis, G., Scott, C., Shrestha, S. and Wallace, M. (2019) Brexit: How Will UK Agriculture Thrive or Survive? Newcastle University, March 2019. Available at: https://research.ncl.ac.uk/esrcbrexitproject/outputs/Final%20Report%20Brexit %20and%20Agriculture%20March2019.pdf (Accessed 18 January 2021). Informa (2016) Preparing for Brexit: What UK Withdrawal from the EU Would Mean for the Agri-food Industry. Revised and updated ed. Agribusiness Intelligence. Lang, T. and Schoen, V. (2016) Food, the UK and EU: Brexit or Bremain? Food Research Collaboration Policy Brief, London, UK. Available at: https://foodresearch.org.uk/ publications/food-and-brexit/ (Accessed 18 January 2021). Moss, J., Patton, M., Zhang, L., Kim, I.S., Binfield, J. and Westhoff, P. (eds.) (2009) Impact of HM Treasury/Defra’s Vision for the Common Agricultural Policy on Agriculture in the UK: FAPRI-UK Project. Agri-Food and Biosciences Institute and University of Missouri. July  2009. Available at: https://www.afbini.gov.uk/publications/impact-hm-treasurydefras-visioncommon-agricultural-policy-agriculture-uk (Accessed 18 January 2021). Packer, R. (2017) Brexit, Agriculture and Agricultural Policy. London: Centre for Policy Studies. Patterson, O. (2017) UK Agricultural Policy Post-Brexit. London: UK2020 Foundation. Rabobank (2017) Implications of a UK Exit from the EU for British Agriculture. Amsterdam: Rabobank. Sharpe, A. and Bradley, D. (2017) Article 50: What Now for Food and Agriculture? A special supplement by Agribusiness Intelligence, Informa Swinbank, A. (2017) World Trade Rules and the Policy Options for British Agriculture Post-Brexit. Briefing Paper 7, UK Trade Policy Observatory: University of Sussex, Brighton. Welsh Government (2018) Summary of EU Exit Scenario Planning Workshops. Paper from the Energy, Planning and Rural Affairs’ Evidence and Scenarios Roundtable Sub-Working Group. Yorkshire Agricultural Society (2016) The Implications of ‘Brexit’ for UK Agriculture. Farmer-Scientist Network of the Yorkshire Agricultural Society (Chair, Professor Wyn Grant): Harrogate.

3 trade, 2 levels of changes to direct payments, and 3 levels of coupling

Not as understood in other studies

9 (3 trade & 3 direct payment levels) 2 (of 7) 3

3

3

AFBI (2020)

Baldock et al. (2017) (LUPG)

Berkum et al. (2016)

Bradley (2018a) (for the AHDB)

Bradley (2018b) (for the NFU)

Bootle (2015) Bradley (2017) (for the AHDB)

Scenarios

Reference

Direct payments micromodels

Yes, and quantified (simple gravity trade model) Yes, and quantified (simple gravity trade model)

Yes and quantified (AGMEMOD model) Yes Yes, and quantified (simple gravity trade model)

Yes

Yes

No Yes

Yes

Yes and quantified No (FAPRI-UK model)

Trade effects on agriculture discussed/ quantified

General message

Yes

Yes

No Yes

Agriculture not treated specifically. Results for Scotland and Wales. For most farming types impact of changes in direct payments more important than trade impacts. Labour cost changes important to some types and trade relationship particularly important for the sheep sector. Results for the Lake District National Park. Impact of changes in direct payments more important than trade impacts, although trade impacts important in relation to the sheep sector. Results for the poultry (broiler) and egg sectors. Labour cost changes very important in these sectors which are less impacted by changes in direct payments.

Makes assumptions about three levels of decoupling of direct payments from production. Separate estimates for England, Wales, Scotland, and Northern Ireland. Emphasis on markets for major agricultural commodities (production, prices, and traded volumes). Adopted from Outlines plausible policy developments. Emphasis on Berkum land-use issues, and no attempt to independently et al. (2016) model farm incomes. Yes Scenarios produce a range of outcomes.

Yes

Sectoral

Annex: Features of relevant Brexit studies

24  Berkeley Hill

Yes

2 implied

2 implied

2 (but with variations of output and input prices) 4

British Retail Consortium (2017) Buckwell (2016) (for Worshipful Company of Farmers) Cumulus Consultants (2017) (for the RSPB)

Dwyer (2018) (Wales Centre for Public Policy)

Davis et al. (2017) (funded by the UK’s agriculture departments) Defra (2016) Yes, not quantified No

Yes

No

None

No

Yes and quantified No (FAPRI model)

4

No

Yes

Yes

Yes, but not quantified

Yes

By commodity but not by farm type Yes

Yes (adopts No Informa (2015) analysis) Yes Four farm types

No

Yes

Yes

3

Yes, and quantified using CAPRI model

Yes

2

Bradley and Hill (2019)

Choi et al. (2020)

Yes, and quantified (simple gravity trade model) Yes, and quantified (simple gravity trade model) Yes

3

Bradley and Hill (2017) (for the AHDB)

(Continued)

Only considers cuts in direct payments and their impacts on income distribution. Relates to Wales only. Discussion of impacts largely qualitative and not modelled.

Very similar impacts on prices to Bradley and Hill (2017).

Also covers impacts on EU-27 and welfare impact on consumers and producers.

Focus on environmental impacts.

Trade effects can be expected to affect prices, as will levels of Direct Payments affect income.

Results for England. For most farming types impact of changes in direct payments more important than trade impacts. Labour cost changes important to some types. Results for England initially. Focus on 2022, when only the first year of projected reduction of direct payments has taken place, being switched to Pillar 2-type support. Covers food consumers, but no mention of agriculture

Studies of the impact of Brexit on UK agriculture 25

Yes No Yes Yes

2

None

None

None

None

Haverty, M. (2017) (NIMEA/Anderson Centre)

House of Commons (2016) House of Lords (2016) House of Lords (2017a) House of Lords (2017b) Hubbard et al. (2018) and (2019) (sponsored by ESRC and UK government agriculture departments)

Direct payments micromodels

Yes, 6 (3 trade Incorporates each with and FAPRI without domestic (2017 – see subsidies) later) Yes

No

No

No

No

Yes and quantified No (FAPRI model) Yes and quantified Yes (GTAP)

2

FAPRI (2009)

Trade effects on agriculture discussed/ quantified

Scenarios

Reference

(Continued)

Yes, and by country

No

No

No

No

Relates only to beef and sheep meat in Northern Ireland

Yes

Sectoral

The project assesses the impacts of various UK agricultural policy scenarios following Brexit by integrating economic modelling approaches at aggregate, sector and farm levels.

Considers possible UK-EU trading relationship in general terms. Considers impacts of tariffs, touches on immigrant labour. Attention given to migrant labour and regulation.

Relates to changes outside Brexit, but similar scenarios. A WTO trading scenario would be manageable for the Northern Ireland beef sector, but difficult for the sheep sector. Both sectors would be badly affected by an open-door trading policy. Cuts to domestic support in combination with either trade scenario would have significant negative consequences for the Northern Ireland livestock sector. Identifies areas of uncertainty and of opportunity.

General message

26  Berkeley Hill

Swinbank (2017) (UK Trade Observatory) Welsh Government (2018) Yorkshire Agricultural Society (2016)

Informa (2015) (analysis by Bradley, D.) Informa (2016) (analysis by Bradley, D.) Informa (2017) (analysis by Bradley, D.) Lang and Schoen (2016) (for the Food Research Collaboration) Packer, R. (2017) (for the Centre for Policy Studies) Patterson (2017) (UK2020 Foundation) Rabobank (2017)

Yes Yes

5

Yes

3

5

Yes

None

Yes

Yes

None

None

No

5

No

No

No

No

No

No

No

Yes

Yes

Yes Yes

Yes

Yes

3

3

Yes

Yes

No

No

No

No

No

Yes

Yes

Yes

Highlights difficulties for some sectors and advantages/opportunities for others. Focus on other factors – labour and devolved administrations.

Changes in prices received by UK farmers and shifts in production suggested. Commodity prices could rise or fall dependent on trade arrangements.

Focus on opportunities. Migrant labour and regulations mentioned.

UK prices could rise or fall, depending on outcome of trade negotiations.

Some focus on commodity details.

Updated differential farm-level impacts from Informa (2016).

Differential impacts across farming types.

Differential impacts across farming types.

Studies of the impact of Brexit on UK agriculture 27

2 Maintaining high animal welfare standards in the UK Christie Siettou

Introduction We should be proud that in the UK we have some of the highest animal welfare standards in the world – indeed, one of the highest scores for animal protection in the world. Leaving the EU will not change that

stated Theresa May, the UK’s Prime Minister, while addressing the Parliament in February 2017. Indeed, the UK has a long history in being a strong proponent of animal welfare. It was among the first countries to legislate animal protection, with the first legislation enacted in 1822 – an Act to prevent the cruel and improper treatment of cattle (Radford, 2001; Krawczyk and Hamilton-Bruce, 2015). This subsequently led to further legislation to consolidate and amend the Several Laws Relating to the Cruel and Improper Treatment of Animals, and the Mischiefs Arising from the Driving of Cattle, and to Make Other Provisions in Regard Thereto 1835 (Great Britain, 1835); the latter two were repealed by new legislation for the more Effectual Prevention of Cruelty to Animals 1849, which also addressed the welfare of animals used in scientific research (Franco, 2013). In 1911, the Protection of Animals Act was the first to explicitly address animal abuse, by prohibiting and prosecuting any needless suffering of animals (Garner, 1993). A further 160 animal welfare bills were introduced in the UK parliament between 1950 and 1993 when the Maastricht Treaty took effect and the European Economic Community became the EU; however, most were unsuccessful (Garner, 1998). Lobbying for animal welfare legislation continued both within the country and at the EU level. Until 1992, the most important reference to animal welfare within EU law was Article 36 of the EC Treaty of Rome (1957) where prohibitions and restrictions of live animal transport were allowed on the grounds of animal health (Camm and Bowles, 2000); however, this clause did not lay the groundwork for any further animal welfare improvements. It was the UK’s lobbying (HM Government, 2013) for the recognition of animal protection, welfare, and sentience that led to the Declaration on the Welfare of Animals being appended to the Maastricht Treaty (Katsarova, 2013). Although not legally binding (Camm and Bowles, 2000), it led to the inclusion of the Protocol (No. 33) on protection and welfare of animals to the Treaty of Amsterdam DOI: 10.4324/9781003010852-2

Maintaining high animal welfare standards in the UK 29 (1997) (Ares, 2018) and the legally binding Article 13 of the Treaty of the Functioning of the EU 2007 (Katsarova, 2013; Ares, 2018). Within this, animal sentience is explicitly recognised and member states are required to “pay full regard to the welfare requirements of animals” when “formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies”. In addition to Article 13 of the Treaty of the Functioning of the EU, both Article 43 and Article 114 cover animal health and welfare on which key EU legislation is based (HM Government, 2013). As a full member of the EU, approximately 80% of the UK’s animal welfare laws were EU-derived (Williams, 2017). The House of Commons library has compiled a list of all EU-derived animal welfare laws, which are presented in Table 2.1. The remainder of this chapter will focus on documenting some of the recent events relating to Brexit’s impact on animal welfare policy, and what might be required to ensure that high welfare standards are maintained with effective legislation in the future.

Brexit preparations and animal welfare In 2018, the UK government drafted the European Union (Withdrawal) Bill 2018, which received Royal Assent on 26 June 2018, to repeal the European Communities Act 1972. Within this Act, it is clearly stated that “EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day” and allows the creation of a new category of laws, that of “retained EU law”. Therefore, all EU-derived animal welfare laws that have already been converted into domestic law will continue to be law the day after departing from the EU. According to the House of Lords (2017), Brexit can be an opportunity to review and improve animal welfare. In 2017, Michael Gove, the UK Secretary of State delivered a Green Brexit plan whereby the UK was entering an “unfrozen moment” with a historic opportunity to review policies, including those associated with animal welfare. He proposed the UK pioneering “global gold standard policies” for animal welfare (Gove, 2017). He reiterated this view at the Oxford Farming Conference in 2018, where he called for action to safeguard animal welfare and stated that “it would be foolish for us [UK] to lower animal welfare standards in any trade deal” (NFU, 2018). During a speech at the National Farmers’ Union Conference, the UK Secretary of State also stated that “investing in animal welfare is a clear public good”; however, that was not mentioned in his Oxford Farming Conference speech in 2018 (Gard, 2018). The President of the British Veterinary Association, John Fishwick, highlighted the importance of recognising animal health and welfare as public goods (Gard, 2018). The highly anticipated Agriculture Bill was published in September 2018 and was well received by animal welfare advocates such as the RSPCA (RSPCA, 2020). The Agriculture Bill’s central principle was set as “payment of public money for public goods” and included animal welfare as one of these public goods

98/58

1999/74

2007/43

2008/199

1/2005

2008/120; 2016/336 1099/2009

98/58

1999/879

General protection

Laying hens

Meat chickens

Veal calves

Live transport

Pigs

Slaughter

Dairy

Bans on BST and hormones Farm subsidies

1305/2013, 1307/2013 1169/2011

EU Legislation

Farmed Animals

Wild bird import ban Invasive alien species

Traps management

Zoos

Seal import ban

Driftnet bans

Wild birds protection

Habitat protection, hunting

Whaling

Trade in endangered species

Wildlife

Table 2.1  EU-derived animal welfare laws (Shavelar, 2018)

1143/2014

139/2013

3254/91

1999/22

2015/1850

1239/98

2009/147

92/43, 82/72

812/2004

338/97

EU Legislation

Novel foods

Cosmetics

Plant Protection Products Biocidal Products

The use of animals in research, testing and education – general Making the EC party to Council of Europe Convention ETS 123 Allows for updating of the appendices to Convention ETS 123 REACH

Animals used in Research

258/1997

1223/2009

528/2012

1107/2009

1907/2006

2003/584

1999/575

2010/63

EU Legislation

Imports on dog and cat fur

Commercial trade in animals

Noncommercial trade dogs, cats Pet Imports

Companion Animals

Veal calves

Meat chickens

Laying hens

General protection

EU Legislation

30  Christie Siettou

Organic Production Horse identification Feed and food law

Egg labelling

Country of origin Labelling Poultry meat marketing standards Beef labelling

178/2002

90/426, 504/2008 1804/1999

1097/90, 5/2001 834/2007

566/2008

543/2008

Fur labelling

1007/2011

Maintaining high animal welfare standards in the UK 31

32  Christie Siettou (RSPCA, 2020). An amendment to limit imported agricultural goods produced with lower animal welfare standards was proposed by the Labour Party leader, Jeremy Corbyn, but was voted against by 320 to 206 in Parliament (Morgan and Walker, 2020). Furthermore, the Conservative MPs Simon Hoare and Neil Parish proposed further amendments to safeguard UK animal welfare standards against the importation of goods produced with lower welfare standards. In particular, MP Simon Hoare proposed that all imports in future trade deals should be produced at least at the same animal welfare level as those allowed in the UK (Conservative Animal Welfare Foundation, 2020a), and not allow “lower welfare, cheaper to produce products”.

Some post-Brexit animal welfare threats Animal sentience The first animal welfare threat that arises in a post-Brexit era, and one that has received wide media coverage, is the lack of animal sentience recognition. With the UK no longer part of the EU, Article 13 of the Treaty of the Functioning of the EU also ceases to be in effect. This is due to the Withdrawal Act not including a provision for animal sentience recognition (Ares, 2018). Three amendments, one of which was referred to as New Clause 30 (NC30), to the Withdrawal Bill were put forward for voting; however, all were defeated inclusive of NC30, which was defeated by 313 to 295 votes and therefore not incorporated into the law (A-Law, 2017; McCulloch, 2018). This resulted in 36 animal protection organisations calling for the government to explicitly recognise animal sentience in law (RSPCA, 2018). At present, animal sentience is implicitly recognised by UK law through the Animal Welfare Act 2006, in which the explanatory notes of the Act specify that only vertebrate animals are “currently the only demonstrably sentient animals”, but Section 1(3) allows for future extension to cover invertebrates based on scientific evidence (Defra, 2006). Hence, one point of concern was that Article 13 addresses animal sentience for all animals, while the Animal Welfare Act implicitly recognises sentience only for “protected animals” excluding wildlife (Section 2) and animals used in scientific research (Section 58). Apart from animal sentience recognition, Article 13 also designated the duty to EU member states to “pay full regard to the welfare requirements of animals” when “formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies”. Currently, there is no equivalent in UK Law (A-Law, 2017). To ensure this happens, the British Veterinary Association (BVA) and the British Veterinary Nursing Association called on the government to enshrine Article 13 into UK Law (Clark, 2017). The government’s position on NC30 was that the amendment was “faulty” and that the Withdrawal Bill was not the appropriate avenue for the recognition of animal sentience (Clark, 2017; Beale, 2018). In December 2017, an Animal Welfare (Sentencing and Recognition) of Sentience Bill draft (Defra, 2018a) was published by the government and put forward for consultation until January 2018 (Beale, 2018; McCulloch, 2018). The wording of this draft is similar to Article 13 but with a

Maintaining high animal welfare standards in the UK 33 clause worded “Ministers of the Crown must have regard to the welfare needs of animals as sentient beings in formulating and implementing government policy”. The Environment, Food and Rural Affairs (EFRA) committee, a selected committee of the House of Commons created to scrutinise the operation and policy-making of Defra, and the BVA, highly scrutinised the draft and offered suggestions and recommendations (Beale, 2018). In February 2018, a consultation was held, and results were published in August of the same year. The consultation received 9,084 responses from individuals (98%) and organisations (2%), and 64,169 responses through the campaign organisation called 38 degrees (Defra, 2018b). These responses overwhelmingly indicated that definitions of the terms “sentience”, “all animals”, and “welfare needs of animals” should be included to provide a precise interpretation of the law. In addition, respondents indicated that the Bill should apply to all policy aspects and explicitly consider animals used in scientific experiments. Finally, a large proportion of respondents, including the organisation People for the Ethical Treatment of Animals (hereinafter “PETA”), indicated their disagreement with the term “should have regard” supporting the use of the Article 13 wording “must have full regard”. Defra’s response to the consultation was to continue consultations with stakeholders for further refinements. With the outcomes of the earlier consultation, the ongoing draft bill appears to be aligned with Article 13; however, along with the explicit recognition of animal sentience and the designation of the duty of regard it also seems to follow common faults with Article 13; Michael Gove characterised the incorporation of Article 13 with the Withdrawal Bill as “poorly designed” (BBC, 2017). Under Article 13, even though animal welfare should be fully regarded in formulating and implementing policies, it does allow other factors, such as economic factors, to be deemed more important (Compassion in World Farming, 2014). In addition, “full regard” is not a legal standard (A-Law, 2017), nor is it measurable. When creating a new policy, the government’s Green Book (HM Treasury, 2018) stresses that the objectives need to be SMART (i.e. specific, measurable, achievable, realistic, and time bound). By incorporating this principle in the refining of the new Animal Welfare (Sentencing and Recognition) of Sentience Bill, the duty to pay full regard would make welfare standards quantifiable and measurable, and therefore suitable for monitoring and evaluating. There were no further updates from the government by February 2019 (Lucas, 2019); however, in April 2019, Labour MP Kerry McCarthy presented a bill in Parliament that recognised animals as sentient beings and their welfare needs. The bill explicitly named animals to include all vertebrates, cephalopods, and decapods, including crustaceans, octopuses, and squid, and stated that government policies should “to the greatest possible extent, and taking into account other policy needs, result in a good life for the animals concerned” (McCarthy, 2019). In addition, this bill proposed the creation of an independent animal welfare advisory committee that would provide guidance to the government through evidence-based impact assessments, taking into consideration welfare needs and other public policy needs. The bill failed to get through Parliament (HC, 2019).

34  Christie Siettou In March 2019, the government stated that they were engaging with stakeholders to further refine the Animal Welfare (Sentencing and Recognition) of Sentience Bill (Peacock, 2019). The same month an online petition started by singer Alesha Dixon called for the full regard of animal welfare in policy-making and the creation of an independent animal welfare advisory council to provide advice and evidence-based impact assessments (e-petition 242239, 2019). This petition received over 100,000 signatures in its six months of running. Due to the prorogation of Parliament, the scheduled debate for 6 September 2019 was postponed, and subsequently the debate was held on 16 March 2020. In the meantime, the UK officially left the EU on 31 January 2020 and the animal sentience provision was not carried over and enshrined into UK law despite government assurance in 2017 (HC, 2020). Victoria Prentis, the then Parliamentary Under-Secretary of the State for Environment, Food and Rural Affairs, expressed the government’s commitment to legislate on this issue as soon as possible (HC, 2020). On 29 April 2021, the Animal Welfare (Sentencing) Act 2021 received Royal Assent and became law, with tougher sentences for animal cruelty. This development and new Act was heralded as the start of further animal welfare reforms in the UK, including the recognition of animals as sentient beings and a ban on live animal exports.

Trade deals The duty to pay full regard of animal welfare requirements when formulating and implementing policies and trade deals will become more apparent with time. The consideration of animal welfare during the negotiation process has already become a topic of debate in the media and amongst policy-makers with the House of Lords warning the government to act against a “race to the bottom” (Steve et al., 2017) as the potential to trade with countries with lower animal welfare standards could lead to the UK producers facing higher production costs compared to their foreign counterparts because of maintaining high animal welfare standards. Examples of potential detrimental trade deals are the importation of chlorinated chicken from the US and battery caged eggs, or hormone-treated beef from Australia (Eustice, 2019; Wright, 2018). Hudson (2020) suggests such processes are used to mitigate for inferior animal welfare standards. At present, these practices, along with adding ractopamine to pig feed, are banned in the EU (RSPCA, 2018) and in order to avoid such products entering the EU market, there are high tariffs on them (up to 50%). Hence, any trade deal with countries of lower animal welfare or food standards will have a great effect on what products enter the market. In February 2019, Michael Gove stated that in the case of a no-deal Brexit food tariffs would be needed to protect UK farmers (Morris, 2019), although this was scrutinised by the EU Farm Commissioner, Phil Hogan, who stated that any EU tariffs would be illegal under the World Trade Organization (WTO) Rules (Clarke, 2019). The Brexit and Animals Taskforce (2018) published a comprehensive report on the impact of different trade deals on animal welfare, and Bowles et al. (2018) produced a comprehensive report on the impact of WTO rules on animal welfare. The latter report called on the government to decide on specific animal

Maintaining high animal welfare standards in the UK 35 welfare standards for the UK market. Briefly, the publications supported the belief that reverting to the WTO rules would lead to a potential “race to the bottom on welfare standards”. In addition, potential reduction of agricultural tariffs, if trading outside of the Free Trade Agreements framework, would also lead to lower standards undercutting UK welfare standards (Brexit and Animals Taskforce, 2018). In July 2020, over 20 major animal welfare groups sent a joint letter to Liz Truss, the UK International Trade Secretary, urging the government to give MPs and civil society adequate means to hold the government to account and ensure a scrutiny process regarding the content of any new trade deals (Foster, 2020). This was fuelled by fears of not taking full consideration of animal welfare in trade deals. As a response, the International Trade Secretary announced the formation of an independent advisory commission, the Trade and Agriculture Commission (Defra, 2020). This commission represents farmers, retailers, and UK consumers and has been formed to advise the government on trade policies. Concerns still exist that animal welfare considerations in the commission may still be poorly represented.

Live animal exports One of the recommendations of the RSPCA in improving animal welfare is the prohibition of live animal exportation (Bowles et al., 2018). In 2018, the government launched a public consultation for evidence on animal welfare in transport (Defra, 2018c) and through their Live Animal Exports briefing paper recognised the increased calls for a ban on live animal exports after Brexit (Ares, 2019). In January 2017, George Eustice, the Defra Minister, stated that there was no apparent obstacle in stopping the UK from banning live exports (Ares, 2019). However, since then, no action on halting live animal exports has been taken place. This issue has received some moderate media coverage, with the government stating that they will ban live animal exports in future animal welfare reforms. This outcome follows years of debate including Jane Dalton (2020) from the Independent newspaper who raised this issue in June 2020, following comments published by Luke Pollard the UK Shadow Environment Secretary, who raised concerns over the Government’s decision to publish an additional public consultation on live animal exports. A ban on live exports for slaughter and fattening of animals has been proposed by Baroness Fookes as part of the Agriculture Bill, which continues to be discussed and debated at the House of Lords (Conservative Animal Welfare Foundation, 2020b). The UK was part of the Trade Control and Expert System (hereinafter “TRACES”) for live animal movements, which is an EU-digitalised veterinary health certification system for commercial animal movements into and within the EU (Brexit and Animals Taskforce, 2018). The purpose of TRACES is to ensure the compliance with regulations related to animal health and food safety. The departure from the EU means that the UK no longer has direct access to this system, with the potential for longer journey times as border controls hinder transportation. In February 2019, the government rolled out a new tracking system, the Import of products, animals, food and feed system (hereinafter “IPAFFS”),

36  Christie Siettou which is already being used for imports from countries outside the EU and will eventually supersede TRACES (Defra, 2019). A criticism has been raised on how non-compliance with such as system will be penalised, as currently Article 42 that designates the duty of assigning penalties to the EU Commission was omitted and not replaced with an appropriate body from the Trade in Animals and Related Products (Amendment) (EU Exit) Regulation 2019 (House of Lords, 2019).

Conclusion The departure from the EU entails considerable opportunities and threats relating to animal welfare. As a leading proponent of high animal welfare standards within the EU, the UK now has the opportunity to define its own animal welfare standards in future reform and influence positive changes internationally  – the proposed “global gold standard policies”. An encouraging indication of seizing the opportunity of improved domestic animal welfare is the recognition of animal health and welfare as public goods in the Agriculture Act 2020 and the proposed amendments for both the animal welfare standards of imports and the ban on live animal exports. However, some specific threats have been outlined in this chapter, together with the need for consideration of animal welfare standards in all future negotiations for trade deals. With current discussions being veered towards imports being controlled by steeper tariffs rather than product bans, Hudson (2020) proposes that “once the door is opened, then more and more foods produced with poor animal welfare standards will enter our market”, indicating that such an approach would place the development of animal welfare on a downward trajectory.

References A-Law (2017) Brexit, Article 13, and the Debate on Recognising ‘Animal Sentience’ in Law. A-Law Expert Legal Briefing Note. Available at: www.alaw.org.uk/2017/11/alaw-releases-expert-legal-briefing-note-on-brexit-article-13-and-the-debate-onrecognising-animal-sentience-in-law/ (Accessed 18 January 2021). Ares, E. (2018) Animal Sentience and Brexit. Briefing paper Number 8155, House of Commons Library. Available at: https://commonslibrary.parliament.uk/research-briefings/ cbp-8155/ (Accessed 18 January 2021). Ares, E. (2019) Live Animal Exports. Briefing paper Number 8031, House of Commons Library. Available at: https://commonslibrary.parliament.uk/research-briefings/cbp8031/ (Accessed 18 January 2021). BBC (2017) Gove Attacks ‘Distorting’ Social Media after Animal Sentience Row. Available at: www.bbc.com/news/uk-politics-42108236 (Accessed 18 January 2021). Beale, A. (2018) Animal Welfare Legislation – Why We Must Stay Vigilant. Available at: https://frame.org.uk/wp-content/uploads/2018/02/Animal-Sentience-story-Feb-2018Amy-1.pdf (Accessed 10 May 2019). Bowles, D., Williams, R. and McParland, C. (2018) Impact of the WTO on Animal Welfare: Trade Rules and Bans. RSPCA. Available at: http://politicalanimal.org.uk /wp-content/uploads/2018/02/Brexit_-WTO-impact-on-animal-welfare.pdf (Accessed 10 May 2019).

Maintaining high animal welfare standards in the UK 37 Brexit and Animals Taskforce (2018) Brexit and Animals: Opportunities and Threats, UK Animal Welfare under Different Models of Relations with the European Union (EU). Horsham: Brexit and Animals Task Force. Camm, T. and Bowles, D. (2000) ‘Animal welfare and the treaty of Rome-legal analysis of the protocol on animal welfare and welfare standards in the European Union’, Journal of Environmental Law, 12(2), pp. 197–205. Clark, K. (2017) ‘Animal sentience: Principle of Article 13 must be enshrined in UK law, say vets’, The Veterinary Record, 181, 579. Clarke, P. (2019) ‘UK’s “no-deal” Brexit tariffs illegal, warns farm commissioner’, Farmers Weekly. Available at: www.fwi.co.uk/news/eu-referendum/uks-no-deal-brexit-tariffsillegal-warns-farm-commissioner (Accessed 13 May 2019). Compassion in World Farming (2014) Animal Welfare Article of the Treaty of the Functioning of the European Union Is Undermined by Absence of Access to Justice. Available at: www.ciwf.org.uk/media/7427367/article-13-tfeu-undermined-by-lack-of-access-tojustice-december-2014.pdf (Accessed 19 January 2021). Conservative Animal Welfare Foundation (2020a) Support Amendments to the Agriculture Bill on Mandatory Labelling and to Help Prevent Low Welfare Imports in Trade Deals. Available at: www.conservativeanimalwelfarefoundation.org/7998-2/ (Accessed 18 January 2021). Conservative Animal Welfare Foundation (2020b) Amendment to the Agriculture Bill to End Live Exports for Slaughter and Fattening Tabled by Conservative Peer Baroness Fookes. House of Lords, July 23, 2020. Available at: www.conservativeanimal welfarefoundation.org/8072-2/ (Accessed 18 January 2021). Dalton, J. (2020) I’m Fed Up with the Endless Consultations: Tory and Labour MPs Condemn New Delay on Live Export Ban. Available at: www.conservativeanimalwelfarefoundation.org/8065-2/ (Accessed 18 January 2021). Defra (2006) Explanatory Notes for Animal Welfare Act, c.45. Available at: https://www .legislation.gov.uk/ukpga/2006/45/notes/division/7 (Accessed 18 January 2021). Defra (2018a) Animal Welfare (Sentencing and Recognition of Sentience) Draft Bill: Consultation Response. London: Defra. Available at: https://assets.publishing.service.gov .uk/government/uploads/system/uploads/attachment_data/file/751990/sentienceconsult-sum-resp.pdf (Accessed 18 January 2021). Defra (2018b) Draft Animal Welfare (Sentencing and Recognition of Sentience) Bill 2017. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/666576/draft-animal-welfare-bill-171212.pdf (Accessed 18 January 2021). Defra (2018c) A Call for Evidence on Controlling Live Exports for Slaughter and to Improve Animal Welfare during Transport after the UK Leaves the EU. Available at: https://consult.Defra.gov.uk/animal-health-and-welfare/live-exports-and-improvingwelfare-in-transport/ (Accessed 18 January 2021). Defra (2019) Importing Animals, Animal Products and High-risk Food and Feed Not of Animal Origin if the UK Leaves the EU with No Deal. Guidance. Defra (2020) Trade and Agriculture Commission Membership Announced (Press release). Available at: https://www.gov.uk/government/news/trade-and-agriculturecommission-membership-announced (Accessed 18 January 2021). E-petition 242239 (2019) Available at: https://petition.parliament.uk/archived/petitions /242239 (Accessed 18 January 2021). Eustice, G. (2019) ‘The UK can’t accept backward US food standards – or chlorinated chicken’, The Guardian. Available at: https://www.theguardian.com/commentisfree/2019 /mar/06/us-chlorinated-chicken-trade-deal-agriculture (Accessed 13 May 2019).

38  Christie Siettou Foster, P. (2020) Activists Urge More Scrutiny of Standards in Trade Deals. Available at: www.ft.com/content/537de640-cbbb-40fd-99d7-49c12137fab4 (Accessed 18 January 2021). Franco, N. (2013) ‘Animal experiments in biomedical research: A historical perspective’, Animals, 3(1), pp. 238–273. Gard, R. (2018) Is Farm Animal Welfare a Public Good? Available at: https://veterinarypractice.com/article/is-farm-animal-welfare-a-public-good (Accessed 7 April 2021). Garner, R. (1993) ‘Political animals: A survey of the animal protection movement in Britain’, Parliamentary Affairs, 46(3), pp. 333–353. Garner, R. (1998) Political Animals: Animal Protection Politics in Britain and the United States. London: Macmillan. Gove, M. (2017) The Unfrozen Moment- Delivering a Green Brexit (speech). Available at: www.gov.uk/government/speeches/the-unfrozen-moment-delivering-a-green-brexit (Accessed 18 January 2021). Great Britain (1835) A Collection of the Public General Statutes Passed in the Fifth and Sixth Year of the Reign of his Majesty King William the fourth 1835. London: J Richards. HC (2019) Animals (Recognition of Sentience) Bill 2017–19. Available at: https://bills .parliament.uk/bills/2384 (Accessed 18 January 2021). HC (2020) Sentience and Welfare of Animals. Available at: https://hansard.parliament.uk/ commons/2020-03-16/debates/034943BF-81AC-45EB-806A-E166F0AF291B/SentienceAndWelfareOfAnimals (Accessed 18 January 2021). HM Government (2013) Review of the Balance of Competences between the United Kingdom and the European Union. Animal health and welfare and food safety report. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/227367/DEF-PB13979-BalOfComp-HMG-WEB.PDF (Accessed 19 January 2021). HM Treasury (2018) ‘Green book’, Central Government Guidance on Appraisal and Evaluation. Available at: https://assets.publishing.service.gov.uk/government/uploads /system/uploads/attachment_data/file/938046/The_Green_Book_2020.pdf (Accessed 19 January 2021). House of Lords (2017) Brexit: Farm Animal Welfare. Available at: https://publications .parliament.uk/pa/ld201719/ldselect/ldeucom/15/15.pdf (Accessed 2 May 2019). House of Lords (2019) Parliamentary Debates. House of Lords. Official report, Vol. 796, No.262. Hudson, N. (2020) ‘We should uphold animal welfare standards and our values in trade deals’, Veterinary Record, 187(1), e1–e1. Katsarova, I. (2013) Animal Welfare Protection in the EU. Library Briefing. Library of the European Parliament. Krawczyk, V.J. and Hamilton-Bruce, M.A. (2015) ‘The origins of compassion for animals: Legal privileging of non-wild animals in late Georgian Britain’, Journal of International Wildlife Law & Policy, 18(4), pp. 322–336. Lucas, C. (2019) Animal Welfare (Sentencing and Recognition of Sentience) Bill (Draft). Available at: https://questions-statements.parliament.uk/written-questions/detail/2019-02-08/218781 (Accessed 18 January 2021). McCarthy, K. (2019) Animals (Recognition of Sentience). Available at: https://www .theyworkforyou.com/debates/?id=2019-04-03b.1055.0 (Accessed 18 January 2021). McCulloch, S. (2018) ‘Brexit and animal protection: Legal and political context and a framework to assess impacts on animal welfare’, Animals, 8(11), p. 213.

Maintaining high animal welfare standards in the UK 39 Morgan, C. and Walker, L. (2020) Agriculture Bill 2019–2020 Passes 2nd Reading in Parliament. Available at: www.adas.uk/News/agri-bill-passes-2nd-reading (Accessed 18 January 2021). Morris, C. (2019) ‘Brexit: UK will apply food tariffs in case of no deal’, BBC. Available at: www.bbc.co.uk/news/uk-47291378 (Accessed 13 May 2019). NFU (2018) Secretary of State’s speech to Oxford Farming Conference 2018. Available at: www.nfuonline.com/sumamry-of-sos-speech-ofc-2018/ (Accessed 18 January 2021). Peacock, S. (2019) Animal Welfare (Sentencing and Recognition of Sentience) Bill (Draft). Available at: www.parliament.uk/written-questions-answers-statements/written-question/ commons/2019-03-11/230931 (Accessed 18 January 2021). Radford, M. (2001) Animal Welfare Law in Britain: Regulation and Responsibility. Oxford: Oxford University Press. RSPCA (2020) Agriculture Bill. Written Evidence Submitted by the RSPCA (AB17). Available at: https://publications.parliament.uk/pa/cm5801/cmpublic/Agriculture/memo/AB17 .htm (Accessed 18 January 2021). Shavelar, E. (2018) Animals and Brexit. A Report for Keith Taylor MP, Green Party Animals Spokesperson. Available at: http://www.keithtaylormep.org.uk/sites/default/files /download/2019-01/Keith-Taylor-MEP-Animals-and-Brexit-Report-2018.pdf (Accessed 5 May 2019). Steve, P., Crossick, M. and Entertainment, E.M. (2017) ‘Will Brexit lead to “race to the bottom” for UK food animal welfare standards?’, Veterinary Record, 181, p. 104. UK Government (2018) European Union (Withdrawal) Bill 2018. Available at: https://www .legislation.gov.uk/ukpga/2018/16/contents/enacted/data.htm (Accessed 9 May 2019). Williams, R. (2017) Brexit: The Impact on Animal Welfare. Together We Can . . . Improve Animal Welfare. RSPCA. Available at: https://www.thetimes.co.uk/article/australiato-demand-britain-accepts-hormonetreated-beef-htwf9xxsb (Accessed 10 May 2019). Wright, O. (2018) ‘Australia to demand Britain accepts hormone-treated beef’, The Times. Available at: https://www.thetimes.co.uk/article/australia-to-demand-britainaccepts-hormonetreated-beef-htwf9xxsb (Accessed 13 May 2019).

3 Setting the path for UK and devolved agriculture Ludivine Petetin

Introduction Since the EU referendum, one key area where devolution matters have come to the fore is agriculture. Before the referendum vote, agriculture was not a topic often mentioned in the media or by the public. During the referendum campaign, agriculture became a key part of the “Vote Leave” campaign. Arguments highlighting issues with the Common Agricultural Policy (hereinafter “CAP”) started to multiply – mainly its cost, complexity, numerous regulatory constraints, and lack of efficacity to reverse environmental degradation (Vote Leave, 2016). Since the vote, agriculture has remained high on the political agenda, especially in the context of trade relationships with the European Union (hereinafter “EU”) and the rest of the world and now COVID-19, but most vividly within the realm of devolution. Agricultural policy has accentuated the struggle of the devolved administrations when repatriating powers upon EU exit. Since the late 1990s, devolution1 has not functioned in a vacuum but under the auspices of EU law, its single market rules and central policies such as CAP. EU mechanisms such as multilevel governance as well as the principle of subsidiarity have had a profound impact on how devolution has operated; but following the referendum vote, this tripartite relationship between the four nations, the United Kingdom (hereinafter “UK”) and the EU is evolving into a dual one between the UK and the four nations (Petetin, 2020a). Issues around where EU competences should return upon exit and lie have come to the fore against the expansionism of kingdom-wide rules. Governance gaps around the repatriation of powers or the loss of key EU principles have emerged. Leaving the EU means abandoning the CAP (Gravey, 2021). Under the legal and policy umbrella framework of the CAP, four agricultural policies existed in each home nation and still exist after EU exit. However, the core framework of agricultural policies and rules will no longer originate from the EU but will, in principle, emanate either from central government for reserved matters related to agriculture (such as trade and finance) or from the devolved governments for all devolved powers on agriculture and the environment. Future policies are intended to reflect more national and local approaches and practices than the CAP.2 Each nation is in the process of formulating their respective policies but generally a “Green Brexit” DOI: 10.4324/9781003010852-3

Setting the path for UK and devolved agriculture 41 objective has been adopted by the four nations of the UK albeit with differentiated emphases (Gove, 2018). To fill these gaps, the UK government has intervened with both haste and strength to centralise returning powers. This centralised, command-and-control take on governance contrasts with the EU approach of subsidiarity, giving powers to Member States and regions. Combined with the Defra’s emphasis on public money for public goods, the capacities of devolved administrations to deliver forward-looking ambitions outside of the CAP are impeded and a path dependence is visible. It is important to understand the lack of diversity in approaches across the UK to achieve sustainable agriculture, where the similarities and differences lie between the UK government and the devolved administrations and their respective agricultural policies. There is danger of replicating some of the weaknesses of the CAP including deterioration in soil, air, and water quality, land clearing, loss of biodiversity and the degradation of marine, freshwater, and terrestrial ecosystems (European Environment Agency, 2019). To understand the consequences of this centralised, command-and-control frame, this chapter first discusses how governance gaps arising out of Brexit impact on the UK constitutional order and policies and how they reshape multilevel governance in the UK. Second, it compares the approaches adopted by the UK government and the devolved administrations by scrutinising the Agriculture Act 2020 and the path it sets as well as the proposed devolved agricultural policies with a specific focus on Wales. It finally highlights how the UK and the devolved administrations are at risk of missing key opportunities of delivering a sustainable and resilient agriculture outside of the CAP and following COVID-19.

The singularities of the UK constitutional order and filling governance gaps Intergovernmental relationships across the UK have developed in a dynamic fashion since the referendum. The four nations have somehow reinvented their relationships to deal with the challenges facing them, especially to fill governance gaps3 (Burns et al., 2019) created by Brexit where EU competences are returned to the UK and the devolved administrations. Part of the UK constitutional order is built upon a convoluted constitutional framework based on the Devolution Settlements of the 1990s4 where some powers are reserved at UK level (trade and finance, including financial support to farmers) and others are devolved to the three devolved administrations of Wales, Northern Ireland, and Scotland (McEwen and Petersohn, 2015). These powers not only are interconnected but also function independently and concurrently at once, as in the policy areas of agriculture and environment. However, it is essential to note that the constitutional change created by devolution occurred within the context and remit of EU law and had the EU framework as a backdrop. This is significant here as the policy areas of agriculture and environment are not only heavily Europeanised but also devolved and belong to an area of UK “shared governance” (Hunt, 2017). To address holes in governance and the substance of the law, multiple

42  Ludivine Petetin rules, mechanisms, and processes have been put in place to aim to ensure stability within the UK legal order. Greater judicial intervention and executive growth The singular, intricate relationship between the UK government and the devolved administrations is particularly salient in the European Union (Withdrawal) Act 2018 – a UK-wide piece of legislation aimed at filling legal and governance gaps created when repatriating powers from the EU and finding a domestic locus for such powers. The EU Withdrawal Act maintains the status quo to ensure a smooth transition by “copying and pasting” some EU law into national law (ss. 1–7) and Schedule 1 creating a new category of “retained EU law”,5 to act as a legal baseline. This is simplifying the role of the Act but essentially the Act provides for continuity initially. This is an interesting approach by the UK government considering that much of the Brexit referendum rhetoric, especially the Vote Leave Campaign, was about breaking away from “EU red tape”, in particular its regulatory “shackles”, and establishing a clean break (Vote Leave, 2016). The Act, however, only provides a stopgap measure that only addresses the substantive issues in part whilst technical glitches are likely to arise further down the line. Correcting powers in the Act enable the UK government, more specifically Ministers of the Crown, to act through regulatory decision via statutory instruments across a breadth of areas (including typically devolved ones) for up to two years after the end of the transition period (European Union (Withdrawal Agreement) Act 2020 s 3) when EU law does not operate effectively or is deemed deficient to address challenges posed by Brexit.6 The Act also allows the UK government to freeze the powers of the devolved parliaments to amend retained EU law and prevents them from passing legislation that would be inconsistent. These are called “Henry VIII powers” and respond to the need to solve gaps centrally in the governance and legislation created by the departure from the EU. The Act recentralises powers – albeit for a period limited in time – to strengthen the powers of the central executive over the devolved administrations and the legislatures. The EU Withdrawal Act exemplifies the “taking back control” message from the UK government. Central government confirms its inclination for “a ‘whole UK’ Brexit, which affords the devolved nations little constitutional protection of their interests, or accommodation of the demands” (Hunt, 2017, p. 41). The UK leaves the EU as a single, unitary state. More interestingly, although much of the Vote Leave campaign was about parliamentary sovereignty, the EU Withdrawal Act indicates that it is the central executive “taking back control”. Whilst issues around executive growth are not new, Brexit is reinvigorating the debate around “political constitutionalism” with an overarching executive that peaked in the 1970s and 1980s (Fisher, 2020; Gee, 2008; Griffith, 1979). Concomitantly, various judgements from the UK Supreme Court have interfered with the constitutional order of the UK and reshaped it to strengthen the powers of the Westminster Parliament. The first prominent decision to do so is the Miller (or “Article 50”) case (R. (on the application of Miller and another)

Setting the path for UK and devolved agriculture 43 v Secretary of State for Exiting the European Union [2017] UKSC 5). In this decision, the UK Supreme Court asserted the weak constitutional status of the Sewel (or legislative consent) Convention, which states that the UK government will not “normally” legislate in devolved policy areas without the consent of the relevant devolved legislature (Memorandum of Understanding and supplementary agreements between the UK government, Scottish Ministers, the Cabinet of the National Assembly for Wales, and the Northern Ireland Executive Committee (December 2001) (Sewel Convention)). Legislation can be passed without the legislative consent of the devolved administrations since the convention is simply a “constitutional, political convention and accordingly non-justiciable” (Engel and Petetin, 2018, p.  26). The EU Withdrawal Act is the first piece of Brexit-related domestic legislation to be passed where consent was withheld by Scotland. Similarly, the European Union (Withdrawal Agreement) Act 2020 was not granted consent by the devolved administrations whilst the Scottish Parliament and the Senedd Cymru withheld consent for the Internal Market Act 2020. Another example of judicial activism is the Scottish Continuity Act case, which confirms that parliamentary sovereignty only applies to the Westminster Parliament not the devolved parliaments (The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64). These developments have led Pontin (2019) to argue that following the referendum, the trend now combines both greater judicial intervention and executive growth within (environmental) governance. This executive growth is also heavily noticeable in the drafting of other instruments to fill gaps such as common frameworks and the Internal Market Act. Centralisation via common frameworks and the UK internal market As the UK breaks away from the EU single market, avoiding barriers to trade across the four nations is paramount for the UK government, and this is undertaken via two key mechanisms, common frameworks and the UK internal market. Common frameworks are utilised to demarcate where reserved and devolved competences start and lie when EU powers are repatriated. They “consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued” (Joint Ministerial Committee (EU Negotiations) 2017, p. 2). Whilst common frameworks scrutinise each policy area on its own merit, the UK internal market aims to “address the overarching structure, the institutional glue holding all these policies together, accounting for interactions and spill-overs from one policy area to the next” (Gravey and Jordan, 2020). To do so, the Internal Market Act aims to ensure fair competition across the UK and minimise regulatory divergence to establish a level playing field across the UK so that products can cross internal borders freely creating a baseline akin to a minimum common denominator across the UK. Discussions around common frameworks are led by the Joint Ministerial Committee (hereinafter “JMC”) (EU Negotiations)7 – an intergovernmental forum

44  Ludivine Petetin created to cooperate on the UK’s Brexit strategy. Common frameworks are based on a list of policy areas divided into three distinct categories – those where no common framework is essential (115 areas), those necessitating a non-legislative framework (22 areas), and those requiring a legislative one (18 areas) (revised from a 2018 list and updated in 2019) (HM Government, 2020a; HM Government, 2019; HM Government, 2018b).8 Most areas are moving away from legislative frameworks apart from many agri-environment or sanitary and phytosanitary (hereinafter “SPS”)9 matters. Indeed, many of these areas will fall under the scope of legislative frameworks including agricultural financial support, genetically modified organisms (marketing and labelling), food labelling, animal welfare, animal health and traceability, pesticides, fertilisers, plant health, and organic farming. Legally, these legislative common frameworks will prevail over existing UK and devolved legislation. Common frameworks constitute a big departure from EU law for three main reasons. First, once legislative frameworks are in place, they will establish common objectives set by the central government to create uniformity across the four nations (in the event that common frameworks are detailed and restrictive), preventing the devolved administrations from deviating from set standards. Second, common frameworks are based on the principle of commonality rather than on subsidiarity. EU mechanisms of multilevel governance (Hooghe and Marks, 2001) and subsidiarity (Craig, 2012; Davies, 2006) are not carried over by the EU Withdrawal Act. These concepts distribute competences of powers across the different spatial locations of governance with emphasis on the lowest level of governance (Petetin, 2019; Vandenbruwaene, 2014) where divergence can be built into existing frameworks. Third, any lack of formal input into UK-wide policies or power to raise the bar for common frameworks would place the devolved administrations at a disadvantage. This modification in the framing of policies away from the sub-national entities (with subsidiarity) towards the centre (with commonality) forces the devolved administrations to conform to the will of the centre rather than formulating their own policies. The multilevel governance framework for the devolved administrations is being overhauled. The common frameworks document further specifies that central government would not rely on Section 12 of the EU Withdrawal Act, which enables it to legislate in devolved competences, for as long as discussions regarding these frameworks are ongoing or devolved policies do not diverge where these common frameworks are necessary (HM Government, 2019, p. 6) and crucially restricts the devolved administrations from legislating. Further, some frameworks are being developed without the engagement of the four nations. For example, agricultural support is identified as a policy area requiring a legislative framework. Yet, central government is legislating on the matter with the Agriculture Act (ss 43–45) despite Scotland persistently refusing to engage with the Act because agriculture is a devolved area. As noted, upon the return of powers from the EU, each of the four nations can set their own standards and requirements. To this extent, the freedom to set diverging regulation exists. However, this freedom is only relative due to the limitations

Setting the path for UK and devolved agriculture 45 now put in place by the two market access principles in the Internal Market Act. If one part of the UK decides to raise standards, other parts of the UK do not have to comply with such standards under the principle of mutual recognition (Internal Market Act ss 2–4). Other parts of the UK could maintain their production at lower standards when trading in this part, thereby placing local producers at a disadvantage. Conversely, the principle of non-discrimination applies in areas not covered by mutual recognition and makes it unlawful to regulate in such a way that would disadvantage traders of one nation over those of another (Internal Market Act ss 5–9). As such, the devolved administrations will struggle to maintain or increase higher standards against an economically dominant administration (and its sheer size) such as England. The Act generates “legally-binding constraints on devolved competences” (Gravey and Jordan, 2020) that would “see rules set in Westminster for England become the de facto norm across the UK, foreclosing opportunities for devolved policy innovation” (Gravey et al., 2020). Such developments entail a race to the bottom and deregulation across the four nations since the lowest common denominator would become the de facto standard to follow. Ultimately, this approach might prevent the devolved administrations from diverging and innovating in the fields of agriculture and the environment. The Act problematically oversimplifies the characteristics of the UK internal market. Under EU law, there are key exceptions to the principle of mutual recognition including environmental protection, public health, consumer protection, and the protection of health and life of humans, animals, or plants10 and Member States can deviate from harmonised legislation that “relat[es] to the protection of the environment or the working environment” (TFEU Article 114) to raise standards and requirements. However, the Act only considers limited exclusions around human, animal, or public health and more specifically to pests and diseases control, chemicals and pesticides authorisations, or the sale of unsafe food.11 These exclusions can only be set unilaterally by the Secretary of State – not the devolved administrations (either individually or collectively) (Internal Market Act Schedule 1)12 and their restricted scope further limits the powers of the devolved administrations. The Act centralises the powers coming from the EU to provide continuity for goods to be traded within the UK via the use of the principle of commonality reasserting the governmental preference for a unitary Kingdom exit (HM Government, 2020b, p. 12). There are only three pathways for standards to be raised. The first one, now obsolete, was to legislate before the Act came into force (Internal Market Act s 4) – but there was practically little parliamentary time for the devolved to do so due to the pressure of Brexit and the amount of legislation to be passed. The second is for the four nations to collaboratively agree on common frameworks to set higher standards (Internal Market Act s 10(3)(a)). The third includes exclusions to the application of market access principles – as mentioned earlier (Internal Market Act s 10(3)(b) and Schedule 1). Further, despite the obligation for the Secretary of State to seek content from the devolved administrations when making regulations on non-discrimination (both direct and indirect ((Internal Market Act ss 6(7) and 8(9), respectively)), regulations can still be made if consent is withheld by the devolved administrations (Internal Market Act ss 6(8)

46  Ludivine Petetin and 8(10), respectively). Therefore, the freedom for the devolved administrations to set their own agri-environmental standards is an empty power; the Act profoundly modifies the UK constitutional order. The difficulties of dealing with governance gaps left by Brexit have created an unprecedented upheaval across the Kingdom in terms of both the legal baseline and intergovernmental relations. Multiple efforts have been undertaken to adapt to the challenges. Some approaches and positions have somewhat been considerate of UK constitutional underpinnings. Channels of communication and cooperation, that are informal in nature, have relatively improved UK intergovernmental relations and have led to incremental change; others less so. A clear increase in executive growth has superseded many of the relationships between central government and devolved administrations that existed pre-referendum and have diminished the role of elected (devolved) legislatures – with the EU Withdrawal Act and the Internal Market Act bolstering the UK constitutional framework in favour of central government post exit. These constitutional changes are impacting both directly and indirectly on the formulation of agricultural policies across the UK and the powers that the devolved administrations hold to innovate.

Four agricultural policies, four agricultural outlooks? Defra has adopted the public money for public goods model in the legislative framework created by the Agriculture Act and its main tool for implementation, the Environmental Land Management Scheme (hereinafter “ELMS”). This model is generally followed by the devolved administrations, which are at different stages of policy evolution with Wales (Welsh Government, 2018, 2019, 2020) being slightly ahead of Scotland (Scottish Government, 2018) and Northern Ireland (DAERA, 2018). For these reasons, this section will mostly focus on the model developed by Defra and the Agriculture Act and those of the Welsh consultations, and assess the differences between the four agricultural policies13 currently put forward. The path set by Defra When formulating a future agricultural policy, England has acted more swiftly than the devolved administrations by publishing the Health and Harmony paper (Defra, 2018), the 25-Year Environment Plan (HM Government, 2018a), the Agriculture Bill 2017–2019, the Agriculture Act 2020, the Farming for the Future Policy Statement (Defra, 2020b), and the Path to Sustainable Farming Transition Plan (Defra, 2020c). Farmers will be financially supported by public money only if they deliver public goods. They will be rewarded for the environmental outcomes they produce for the public’s benefits. This model focuses on Pillar 2 of the CAP and future schemes will build upon agri-environment schemes (hereinafter “AES”) – the main component of the rural development pillar. It phases out direct payments that support farmers’ income – a key attribute of the CAP under Pillar 1 – by

Setting the path for UK and devolved agriculture 47 gradually transferring the funds towards public money for public goods schemes. For Defra, justifications for financially supporting farmers must be given to the taxpayer and could signal the end of “agricultural exceptionalism” (at least in relation to financial support) and lead to agriculture being increasingly treated like another sector of the economy in the long term. Indeed, funds to support farmers are only guaranteed until the end of this Parliament and their level of support is likely to decrease thereafter. The Agriculture Act establishes the basis for agricultural law and policy primarily for England and incidentally for the rest of the UK on reserved matters (and indirectly on the devolved administrations regarding devolved matters). It transitions away from the EU, its agricultural policy and direct, land-based payments towards an English and British agricultural policy that aims to address the gaps created by leaving the CAP.14 By adapting its agricultural policy to domestic conditions, the Act enables the UK to set its own agricultural path under a multi-annual funding basis of five years (similarly to the CAP and its multi-annual budget) to create certainty for farmers.15 An agricultural transition of seven years, which started on 1 January 2021, aims to give time to farmers to adapt to the new mechanisms and structures to receive payments, get used to the progressive disappearance of direct payments, and improve the economic resilience of farms. Despite the lengthy transition period, such changes could lead to a complete overhaul of farming. Following these changes, it has been estimated that up to 25% of English farms could disappear leading to an increase in the number of large farms (Kay, 2018) and land consolidation and amalgamation. In the Agriculture Act, two pathways or prongs are established for farmers to be financially supported: public money for public goods to deliver environmental outcomes (Section 1.1) and increased productivity, that is how to make farms more efficient and profitable (Section  1.2).16 These two axes of support confirm that greening agriculture and increased yields are the way forward. To a certain extent, these two prongs can feel a little antithetical and appear to be an application of the sustainable intensification discourse that was developed in the late 2000s/early 2010s (Garnett and Godfray, 2012; OECD, 2012). It can prove challenging to identify an equilibrium between sustainability and intensification and often one prevails over the other (in particular if environmental standards decrease) (Petetin, 2015). However, because British agriculture is already one of the most productive in the world, emphasis should be placed on the sustainability component. As such, any future scheme “must” be framed around environmentally sustainable food production (Agriculture Act s 1(4)). Placing sustainability at the heart of any financial scheme is a positive move. However, emphasis is placed specifically on environmental sustainability and leaves in particular the social aspects behind (Agriculture Act s 1(2)). According to the first prong for support, the Secretary of State “may give financial assistance” to farmers when delivering “any one or more” of a list of ten public goods – creating an exhaustive list that evolves around environmental outcomes, such as carbon sequestration and clear water (Agriculture Act s 1(1)). The provisions on financial assistance take the form of enabling powers (rather than

48  Ludivine Petetin duties). The fact that there is no obligation on the Secretary of State to financially support farmers is a huge departure from the regime of the CAP where financial support is not a mere possibility17 and crucially it strengthens the decisive role of the executive when supporting farmers. The Act positively widens the definition of public goods in comparison to the Agriculture Bill 2017–2019 and therefore expands the grounds for financial support to now include some considerations of agroecological methods, the conservation of native breeds, the improvement of the genetic diversity of livestock and plants, and the protection and improvement of soil quality.18 However, the Act generally adopts a definition of a “public good”, which is narrower than generally understood. Examples of environmental public goods include agricultural/rural landscapes, farmland biodiversity, water quality and availability, soil functionality, air quality, terraces and stone walls, resilience to natural disasters (e.g. flooding, fire), maintenance of farmland features, and soil water storage (yielding flood control) (Hejnowicz and Hartley, 2018; Westhoek et al., 2013). Such a tight definition in the Act creates gaps within the scope of future schemes and could lead to an unbalanced approach to the rural environment and how to reverse the trend towards environmental degradation. Further, emphasis on the rural and the social components of the countryside has largely disappeared from the Agriculture Act – as indicated by the limited list of public goods (Agriculture Act s 1(1)). The Act restricts the basis on which farmers can be supported and creates a pathway for financial support that is narrower in scope than current EU direct payments and rural development programmes – thereby impacting on the long-term vitality of rural areas. Financial support under the first prong is to be primarily delivered through ELMS (Defra, 2020a). ELMS is the “cornerstone” of English agriculture policy and provides the details of future land management schemes (Defra, 2020a, p. 7)19 and is composed of three tiers. Tier 1, the entry scheme or the Sustainable Farming Incentive, aims to “encourage the adoption of some simple actions that achieve more important environmental outcomes” (emphasis added) (Defra, 2020c, p. 40). Examples of such actions include cover crops, nutrient, pest or livestock management, and wildflower margins that can be delivered at scale (Defra, 2020a, p. 14). Tier 2 or Local Nature Recovery focuses on collaboration between land managers. Like Tier 1, it would support farmers for “actions that support local nature recovery and deliver local environmental priorities” (emphasis added) to provide locally targeted environmental outcomes (Defra, 2020c, p. 32) such as trees, shrubs, and/or hedge planting, habitat creation, restoration, management, and interventions to mitigate flooding (Defra, 2020a, p. 22). More interestingly, the delivery of landscape scale land-use change projects is supported in Tier 3 with the Landscape Recovery projects (Defra, 2020c, p. 32) through forest and woodland creation, restoration or improvement, peatland restoration, and the creation or restoration of coastal habitats such as wetlands and saltmarsh (Defra, 2020a, p. 13). In sharp contrast to the previous two tiers, this tier is solely supported according to the environmental outcomes delivered. Multiple methods

Setting the path for UK and devolved agriculture 49 of payments are considered including reverse-auction processes (Rodgers, 2021; Defra, 2020a, p. 28). With regard to the devolved administrations, the Act provides a legal basis for the financial support of farmers in Wales20 and Northern Ireland (Agriculture Act Schedule 6) by giving them powers to adopt similar approaches to England to reduce and in the long term eradicate direct payments. There is no schedule for Scotland in the Act. However, the Act will affect Scottish agricultural policy for reserved areas and indirectly when it comes to formulating future policies. Further, any regulations passed under the Agriculture Act by the Secretary of State, the Welsh Ministers or Department of Agriculture, Environment and Rural Affairs in Northern Ireland is exercisable by statutory instruments or rules, which require minimum scrutiny from the relevant parliaments – giving wide powers to the executives when formulating future laws. The Agriculture Act confirms the executive growth instigated by Brexit. The avenues chosen in the Agriculture Act reinforce the unitary, one Kingdom Brexit of the UK government. The public money for public goods policy model is less ambitious than previously envisaged. This is visible in the narrow definition of public goods, the neglect of social components and wide understanding of the importance of rural communities, and the increased emphasis on the payments for actions rather than outcomes as early envisaged. Such backwards steps indicate not only the difficulties in implementing a public money for public goods approach but also the lack of governmental vision for a 21st-century agriculture. It is now time to observe whether and if so how this set path has been followed by Wales. Wales and its agricultural consultations The Welsh government has been proactive in aiming to swiftly reform its agriculture policy and published three key consultations – indicating the importance of farming to the Welsh economy and people. The latest to date, the 2020 Agriculture (Wales) White Paper builds upon the 2019 Sustainable Farming and our Land consultation, the principle of sustainability and the objective of “sustainable land management” (Welsh Government, 2019, 2020). This turn towards sustainability is a positive improvement, in comparison with the 2018 Brexit and our Land consultation, which is simply referred to as “land management” (Welsh Government, 2018). The Welsh Government defines the overarching objective of sustainable land management as an “internationally recognised concept, reflecting the use of land for production, while ensuring long-term productive potential and maintenance of key environmental services” (Welsh Government, 2019, p. 6). This approach replicates the link between land used for (food) production and the delivery of public goods but with emphasis on a sustainable intensification, productivist paradigm  – as in England  – but may be crucial now more than ever in the aftermath of COVID-19 and the threat of global food shortages.

50  Ludivine Petetin The consultations propose to create one scheme to support farmers to replace direct payments and AES. The Sustainable Farming Scheme aims to enable a “holistic assessment of the economic, environmental and social opportunities on farms” (Welsh Government, 2019, p. 66). This holistic approach links back to the regulatory frameworks created by the Well-being of Future Generations (Wales) Act 2015 and the Environment (Wales) Act 2016 and aims to bring together the three pillars of sustainable development. Disappointingly and contrastingly, the 2020 and 2019 consultations take a step back when it comes to cooperation and collaboration at scale to deliver public money for public goods whilst it was one of the main components of Brexit and our Land (Welsh Government, 2018, p. 47). The Sustainable Farming Scheme will phase out direct payments – similarly to the Agriculture Act. Within the scheme, there are two complementary types of farm support: the Sustainable Farming Payment and Business Support – again replicating the two prongs in the Agriculture Act. The Sustainable Farming Payment has four key characteristics to deliver public goods: to provide a stable income to farmers – similar to the CAP; to pay for outcomes; to reward new and existing practices (i.e. for both maintenance and creation); and a flexible application (Petetin et al., 2019; Welsh Government, 2019, p. 46). The second prong is the Business Support payment, which delivers both financial and practical support, which would be jointly decided by the farmer and the adviser. It can include advice (i.e. business capacity), capital investment, knowledge transfer, and skills development (Welsh Government, 2019, p. 9). The majority of the Welsh budget will be spent on the delivery of environmental outcomes, and it is these environmental outcomes that will contribute to the indirect provision of economic and social outcomes (Welsh Government, 2019, p. 27). However, most social outcomes will be the unintended consequences of economic and environmental outcomes with some exceptions such as reducing anti-microbial resistance (Welsh Government, 2019, p. 28). Pursuing social outcomes as standalone benefits is essential to preserve the vitality of rural communities – components, which have been key to rural development programmes. It is interesting to note that both the English and Welsh systems will be based on the application of the polluter pays principle: farmers will no longer be supported to fulfil the legal obligations existing under cross-compliance in the form of statutory management requirements and good agricultural and environmental conditions but to deliver additionality, that is outcomes over and above regulatory compliance (which is different from cross-compliance since it also includes best practices). This constitutes a striking break from CAP practice where farmers receive direct payments to ensure cross-compliance (Petetin, 2015). For example, Sustainable Farming and our Land explains that payments would be subject to the conditionality of the “delivery of outcomes above and beyond the requirements of regulation” (Welsh Government, 2019, p. 47) that is above National Minimum Standards acting as the regulatory baseline (Welsh Government, 2020, p. 13). The proposed National Minimum Standards would consolidate regulations directed at agriculture and agricultural production scattered

Setting the path for UK and devolved agriculture 51 across multiple legislative instruments (Welsh Government, 2020, p. 15) to increase farmer’s awareness of these legal requirements and ultimately facilitating and maintaining compliance. Supporting farmers for their actions rather than the environmental outcomes they create is another similarity with ELMS. Para. 1.31 of Sustainable Farming and our Land states that [i]f a farmer consistently implements the appropriate actions but the outcome does not arise for a reason beyond the farmer’s control, it would be unfair for the farmer not to be paid. We propose the Welsh Government should bear the risk if agreed actions do not lead to outcomes. Farmers are to be paid where they have taken appropriate steps that ought to have achieved the named objectives. This practice is actually moving away from the public money for public goods model and reverts back to the existing system of payments for actions (rather than payments by outcomes) under current AES. Whilst it creates a balance between providing a break from the past and forging the future of agriculture, this is no longer the revolutionary change that was envisaged in 2018 and could lead to inferior environmental and social outcomes and benefits. The Welsh consultations indicate that the path set by Defra is impacting on the formulation of Welsh agricultural policy. It is now time to assess whether this is also the case for Northern Ireland (Dobbs, 2021) and Scotland. Four differing agricultural policies? The four administrations are at different stages of formulation of their respective agricultural policies – each providing some adaptations and different emphases (see Box 3.1). When scrutinising the prospects of the four agricultural policies of the home nations, multiple similarities are visible: all support a move towards public money for public goods, the progressive elimination of direct payments for England and Wales (and a sharp decrease in Northern Ireland and Scotland to protect farmers), a focus on natural capital, and decreased emphasis on rural development. There is a clear goal of achieving greener, more sustainable practices away from farmers simply being paid to own land. Such changes will require an almost complete overhaul of agricultural policies and the operation of holdings – leading to a major restructure of the industry, potential concentration of the industry which, as indicated, could in turn result in some resilience over time. Despite a public money for public goods emphasis, these policies all mention increased productivity and natural capital. Natural capital values the benefits derived from natural resources and include food, recreation, clean air, and water (RSA Food, Farming and Countryside Commission, 2019). Valuing natural capital accounts for the benefits derived from natural assets by managing and mitigating environmental risks for incorporation into the decision-making process. The aim of the valuation of these resources is to quantify better the cost of their

Source: Adapted from Petetin et al., 2019.

Change to policy instruments Environmental considerations

Environmental baseline? Some outcomebased schemes for agriculture (ELMS) Natural Capital

Health and Harmony (2018) Agriculture Bill (2017– 2019) Agriculture Act 2020 Public money for public goods (Section 1.1 Agriculture Act) Productivity (Section 1.2 Agriculture Act) No direct payments

Stage in policy process (key documents)

Key themes

England

 

Table 3.1  Agricultural policies across the UK

Environmental baseline Some outcome-based schemes for agriculture and forestry (Sustainable Farming Scheme) Natural Capital

No direct payments

Brexit and our Land (2018) Sustainable Farming and our Land (2019) Agriculture (Wales) White Paper (2020) Sustainable Farming Scheme: – Sustainable farming payment – Business support

Wales

Some direct payments Environmental baseline Outcome-based schemes for agriculture but not yet determined Natural Capital

Environmental baseline Outcome-based schemes for agriculture but not yet determined Natural Capital

Stability and Simplicity (2018) Strategy document from Agriculture Champions (2018) Agriculture (Retained EU Law and Data) (Scotland) Act 2020 Natural capital Production efficiency Simplification during the transition Maintain standards (as per EU Continuity Act 2021)

Scotland

Productivity Economic resilience An environmentally sustainable agriculture sector Supply chains Some direct payments

Northern Ireland Future Agricultural Policy Framework (2018)

Northern Ireland

52  Ludivine Petetin

Setting the path for UK and devolved agriculture 53 degradation. Arguably, this could lead to better management of natural assets. Valuing non-market goods is, nonetheless, challenging because of “the complexity of ecological systems and the services they generate” (Fisher et al., 2009, p. 649). With natural capital, the way that nature is typically valued is problematic, steered towards more instrumentalist and economic valuations (Hejnowicz and Hartley, 2018). Indeed, natural capital only places emphasis on a purely economic approach to nature. This skewing towards economic valuation then informs how public goods are interpreted. Further and as observed, the Agriculture Act focuses on a narrow definition of public goods not allowing for a true recognition of what natural capital encompasses and accurate valuations. Another similarity is that the documents appear to adopt a one-size-fits-all approach and fail to duly recognise the specific needs of small family and hill farms, which are the glue of rural communities and contribute to the economy via their produce and tourism as well as culture, society (making rural communities viable), and environment (animal and plant diversity in rural landscapes, genetic diversity of crops and livestock). For example, the Agriculture Act treats every farmer the same: from a small hill farmer in Exmoor or Dartmoor to a big arable farmer in the South East of England. By treating every farm and farmer the same, the design of schemes could create unfairness in the systems, especially for small farmers who are more dependent on direct payments. It is hoped that the actual design and implementation of schemes will result in differential application assessing more granularly the ranges of farming systems including hill, upland, peri-urban, and urban farmers. Further, in all the consultations, funds do not seem to be available to cover broad ranging elements and objectives that are currently included in rural development programmes. Such a modification to the approach towards the countryside could negatively impact rural communities and the rural economy. The drive created by Westminster is clearly visible and the devolved administrations largely replicate the English approach. A noticeable difference between the proposals is the lack of guarantee to maintain the existing regulatory baseline in the Agriculture Act whilst the devolved administrations want to at least maintain or improve it. If England were to deregulate, farmers would benefit from lower production/process standards that could lead to economic and financial advantages putting farmers in the devolved nations in a difficult position, potentially pressing them to ultimately deregulate too.21 In the event of a regulatory spiral to the bottom, the environment would suffer and possibly consumer protection. Recent developments around neonicotinoids (Defra, 2021a) and gene editing (Defra, 2021b) indicate that this baseline is already evolving. Different levels of regulatory standards across the UK could lead to various levels of competition across the UK. However, such differentiation may not be possible when thinking about the underpinnings of the UK internal market and common frameworks. Further, differences in the conditions for and levels of financial support for farmers (due to Northern Ireland and Scotland maintaining direct payments) could lead to an uneven level playing field across the UK and place some farmers at a competitive disadvantage internally.

54  Ludivine Petetin Against a backdrop of power contestations between central government and the devolved administrations, there are multiple considerations for the devolved administrations when formulating their agricultural policies. First, Scotland has consistently refused to engage with the Agriculture Bills and Act, yet it is bound by the Agriculture Act – indicating a further limit of the Devolved Settlements. Second, as England is paving the way when formulating its agricultural policy, it creates a clear path dependency for the devolved administrations both in relation to the move towards public money for public goods and productivity mechanisms and the elimination of direct payments. This begs the question as to why Wales is not maintaining direct payments since the Welsh farming landscape – made mostly of hill, small, family farms rather than large arable farms – is closer economically and geographically to those of the devolved administrations than of England, and farmers heavily rely on financial support (financial support represents at least 80% of farm income across the devolved administrations but only 55% in England). These characteristics call for a safety net to also be established for farmers in Wales as otherwise an important percentage of the farming industry could disappear or be forced to restructure (at least payment for actions would provide some semblance of a safety net). Third, the purse strings are held by central government and Treasury. Both the policies around the financing of farming and its source are affecting the design of future policies. Instead of the EU providing a large majority of the funding under the CAP, central government and in particular Treasury now make the decision as to future funding and their levels. This means that the schemes created by the devolved administrations would be more easily funded by Treasury if they follow a similar structure as the Agriculture Act since Treasury would be more readily aware of the schemes developed by Defra. Indeed, the financing of agricultural support is generating a centralised control over the budget of the devolved administrations,22 reinforcing the path dependency analogy made. However, it appears that all four agricultural policies neglect to address some of the ongoing and upcoming challenges facing agriculture.

A lack of foresight in all agricultural policies? When scrutinising the four agricultural policies, it appears that the forward-looking visions discussed early on after the referendum have now been diluted. The added shock created by COVID-19 on agri-food systems also raises the question of whether these policies are still fit for the purpose. These policies appear to lean more towards doing more of the same rather than overhauling British agriculture (as already partially observed). Current UK and devolved proposals replicate three of the five objectives of the CAP: increasing agricultural productivity, stabilising agricultural markets (Agriculture Act Chapter 2), and ensuring the availability of supplies. This contrasts with the Vote Leave campaign and the governmental promise to create a clean break with the CAP (Petetin et al., 2019). In contrast, two key objectives of the CAP are not replicated: ensuring a fair standard of living for farmers and agri-food products reaching citizens at a reasonable price. The lack of guaranteed income support (even in Northern Ireland and Scotland where the amount and period of

Setting the path for UK and devolved agriculture 55 retention of direct payments are unknown) with the move towards public money for public goods could be detrimental to farmers and lead to the disappearance of a number of farms across the UK especially in the devolved administrations – as noted. Mechanisms to support farmers’ income have existed in the UK since before the CAP and their loss will have long-lasting ramifications on agricultural activities.23 Many farmers will only have operated under these regimes and know that in difficult times they benefit from a guaranteed level of protection. Moving away from such a safety net will prove difficult and challenging in the broader context of Brexit (despite the entry into force of the EU/UK Trade and Cooperation Agreement and future trade relationships with the rest of the world) and in the aftermaths of the COVID-19 pandemic. Pressure on this industry will be tremendous and could lead yet again to further reorganisation. Further, the removal of the objective of reasonable prices for consumers could result in increased food prices for British consumers (unless cheaper imports with potentially lower standards enter the UK). Another example of going back to old habits can be identified in the move away from the original goal to only reward environmental outcomes towards paying for actions towards outcomes – as exists under the CAP. As noted in the previous section, both the English and Welsh proposals tend to revert to familiar mechanisms and models to create what could be akin to safety nets for farmers by supporting them for their actions towards environmental benefits and thereby replicating another important feature of the CAP. Scrutiny of the four policies indicates that there has been some confusion between the driver(s) for agricultural policy and financial support. In the documents, it appears that the public money for public goods model has been assimilated as the vision for future agricultural policies. The long-term drivers of UK and devolved agricultural policies are missing in the documents. The closest nation to have a long-term vision is Wales with its objective of “sustainable land management”. The four agricultural policies focus on solving issues on a short-term basis (mostly because they focus on financial support after leaving the EU) to plug the holes created by Brexit. As a result, there is no vision of what UK or devolved farming should look like in the long term and how to build resilience to shocks. The current way of thinking should be undertaken the other way around. A vision for UK and devolved agricultural policies should be explored and developed, to include objectives, such as agroecology (albeit timidly in the Agriculture Act s 1(1) (b)), net-zero (i.e. carbon neutral) farming (Petetin et al., 2019; Poux and Aubert, 2018), and a dedicated focus on new entrants, small, upland, or hill farms. Future agricultural policies in the context of a Green Brexit must duly acknowledge the major contributions the agri-food sector can make to address climate change and biodiversity loss (Committee on Climate Change, 2019; Committee on Climate Change, 2018). Agriculture is not only a contributor to greenhouse gases emissions but also a major tool to reach net-zero ambitions. The National Farmers Union has been more proactive to seize the opportunity and forward looking by aiming to achieve carbon neutrality in the UK by 2040 (National Farmers Union, 2019) – rather than 2050 – as suggested by the Committee on Climate Change (Committee on Climate Change, 2019) and before other industries. Once a 21st-century vision

56  Ludivine Petetin for agriculture is in place, relevant policies should frame how farmers are to be supported (public money for public goods, polluter pays principle, etc.) and consider the specific impacts of the removal of direct payments on small, upland, and hill farmers as well as new entrants (Petetin and Dobbs, 2018). A closer engagement between policies and sectors would also facilitate a holistic approach towards agri-food issues and challenges.24 Joined-up policies are essential to create a British agriculture fit for the 21st century (rather than siloed approaches). Food strategies across the four nations are progressing (Defra, 2020d; Welsh Government, 2010; Scottish Government, 2009). However, these initiatives ought to link to food production and farming more tightly. Closer linking between food and agriculture is underway in the EU with its new Farm to Fork Strategy (European Commission, 2020), part of the European Green Deal (European Commission, 2019). Siloed approaches are no longer sufficient to solve such issues as there can be a relationship between food production and public health. The costs of poor diet and nutrition, disease, obesity, lack of physical activity, and high levels of alcohol consumption are borne by the National Health Service and the taxpayer. However, farmers can indirectly be paid public money to produce food that will impact negatively on health and diet. For example, financial support given to hop farmers that subsequently will result in alcohol production should be duly considered because of its link to negative health consequences. The adoption of a holistic approach between agriculture, environment, and health could be the beginning of a solution to ensure a resilient agri-food system that supports positive relationships with health and diet. COVID-19 has also created added stress on UK mechanisms and policies. At the height of the pandemic, disruptions within agri-food systems and the lack of certain foods on the shelves highlighted the interconnectedness and intricacy of agri-food supply chains from the local to the international level. Global (and consequently local) food shortages are still ongoing due to nationwide or local lockdowns (both within the UK and abroad), disrupted supply chains, the looming economic crisis, ill health of agricultural workers, farmers, employees in meat and food processing plant, logistics, distribution and retail, as well as temporary shutdowns, longer and deeper cleans, and the implementation of social distancing measures. As such, it is likely that agri-food products could become progressively more important in the conclusion of future trade deals. Calls to increase food production to the detriment of environmental protection should also be resisted. Crucially, another trend has positively flourished since the beginning of the pandemic – the growing demand in the UK (and worldwide) for local and shorter supply chains with direct sales rather than longer indirect supply chains. Such enthusiasm should be supported at all levels of governance. Rather than centralised mechanisms, redesigning agri-food systems post-pandemic towards a green recovery should be built on a new model of multilevel governance based on agri-food democracy (Petetin, 2020b) to enhance the reliability, localism (with primary producers and shops in mind), and resilience of agri-food systems post-pandemic (combined with longer, sustainable food supply chains) and increase food security – from local to national authorities.25 The recognition of a sustainable

Setting the path for UK and devolved agriculture 57 and resilient agri-food supply chain is essential more than ever because Brexit offers the opportunity to design policies based on local, regional, and national needs and trends. However, such decentralised approaches are lacking in all four agricultural policies despite agricultural policies being devolved.

Conclusion Following the EU referendum, the UK government identified pathways and mechanisms to fill governance gaps created by EU withdrawal and rebuild the UK constitutional order. Relationships between the UK government and the devolved administrations are interdependent but of a top-down character and led by central government. Constitutional relationships have developed in a dynamic but often unequal manner and engagement across the UK is contrasted. Brexit is remodelling UK intergovernmental relations away from a triumvirate to duumvirate situation where the UK government often favours the concentration and recentralisation of powers to the centre to the detriment of the devolved administrations – reinventing multilevel governance in the UK. The resurgence of an executive growth underpins ongoing constitutional changes (to the detriment of devolved and central Parliaments) in terms of processes with the EU Withdrawal Act, the Internal Market Act (and the principle of commonality), and within specific policies areas such as common frameworks and the public money for public goods model. As noted in the Agriculture Act, like the EU Withdrawal Act, extended powers are given to ministers when legislating – indicating yet again the permeative role of the executive when framing legislation after leaving the EU. The UK government is pursuing a one Kingdom, centralised exit strategy of “taking back control” (for central government), which does not always reflect the priorities and needs of the devolved administrations and could be detrimental to the Union and democratic institutions in the long term. Pontin asserts that in general terms, governance can be defined as “the basic framework of laws and social arrangements within which . . . decision-making unfolds” (2019, p.  86). Brexit is redefining agricultural governance across the UK. The approaches adopted by the devolved administrations tend to mirror those proposed in the Agriculture Act by creating a system based on public money for public goods and a sustainable, productivist paradigm. This mirroring eases the relationship between the devolved governments and Treasury who will allocate the farming funds to the devolved administrations – with some limited adaptation of the policies and legal approaches depending on regional constraints and context to increase the resilience of holdings within the devolved. The Agriculture Act creates a pertinent yet unintended common framework for the four nations, which will be enshrined in the upcoming agriculture bills and ultimately acts to diverse extents. But this common framework was not co-designed by the four nations but led by Defra/England and it is creating a blatant path dependency for the devolved administrations. The perverse effect of this command-and-control frame has led to a lack of foresight in the formulation of agricultural policies both in terms of how to meet

58  Ludivine Petetin the local needs of the devolved administrations and the futureproofing of such policies to respond to the gaps created by Brexit and now COVID-19. The policies do not seem to look to a holistic future for farming and the agri-food supply chain or to fully embrace the opportunities of being out of the CAP. Instead, they lean towards doing more of the same (and remaining in their comfort zone) by replicating key components of the CAP. Crucially, the English and Welsh proposals largely focus on paying for actions towards outcomes rather than outcomes per se. Overall, the four agricultural policies fail to embrace the opportunity to create regimes dedicated to the actual nation they are based in and to truly fulfil local wishes and requirements. Rather, policies ought to be ambitious in the medium to long term and address the issues created by the CAP (not replicating them). Framing holistic agri-food policies based on a “hayfork to table fork” approach would build resilience to achieve net-zero ambitions and construct a road to green recovery across the sector.

Notes 1 This is the decentralisation of powers to the administrations of Wales, Northern Ireland, and Scotland. 2 It must, however, be reminded that under EU law, agriculture is a shared competence between the EU and the member state or region. The devolved administrations had therefore the powers and opportunities to make the CAP their own but often failed to do so. For more, see Petetin et al. (2019). 3 That is leaving the EU governance structures, its principles, and legal frameworks. 4 The Devolved Settlements include the Northern Ireland Act 1998, the Scotland Act 1998 and the Government of Wales Acts 1998 and 2006. 5 Retained EU law converts existing EU-derived law into domestic law. 6 Such powers also enable references to EU institutions and agencies and Member States to be amended and replaced with UK agencies to make such laws applicable in the UK context. It could, however, be argued that a straight swap between EU and UK agencies creates more substantial changes than a “simple correction” of the relevant acts since UK agencies will have increased powers and responsibilities. 7 The JMC is a consultative body (rather than an executive decision-making one) of UK and devolved executives, with resulting decisions that are not binding on the four nations. It is a medium/forum that has frustrated the devolved administrations since the four nations only meet at the instigation of central government. The devolved administrations therefore lack impetus to trigger a meeting and set the agenda – creating a one-way system resulting in an imbalance of powers. Further, it lacks transparency, which restricts parliamentary scrutiny and overall parliamentary sovereignty. For these reasons, the Welsh Government has repeatedly called for a rapid progress on the intergovernmental relations review. 8 All these areas have EU-wide common legislative frameworks. Further, some of these frameworks are not UK-wide but only apply to Great Britain due to agreements reached in the Northern Ireland Protocol. 9 SPS measures are measures to protect humans, animals, and plants from diseases, pests, or contaminants. 10 Please see the exceptions under Article 36 Consolidated version of the Treaty on the Functioning of the European Union (TFEU) OJ C 326, 26.10.2012, pp. 47–390. For the general frame of legal interpretation on overriding reasons of public interest (or mandatory requirements), see Judgment of 20 February 1979, Rewe-Zentral (Cassis de Dijon), 120/78, EU:C:1979:42. 11 The latter only applies to mutual recognition.

Setting the path for UK and devolved agriculture 59 12 The EU single market acts similarly and decisively enables some differentiation to respond to national and regional specifics. 13 This sub-section will draw upon the research undertaken by the author for the following research project: Petetin et al. (2019). 14 The analysis of the Agriculture Act in this sub-section is not meant to be exhaustive. It will focus on key aspects to enable useful comparisons with the devolved proposals. 15 This is a key modification because the Agriculture Bill 2017–2019 did not mention a multi-annual framework. The budget would, therefore, have been set to an annual basis making it difficult for farmer to plan for the future. 16 The second prong in Section 1(2) gives discretionary power to the Secretary of State (again) to support a profitable, business-type agriculture – in line with a sustainable intensification, productivist paradigm. The first prong is of greater interest to this chapter. 17 A key objective of the CAP under Article 39 TFEU is to “ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture”. See also Regulation (EU) No. 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the ­Common Agricultural Policy and repealing Council Regulation (EC) No. 637/2008 and Council Regulation (EC) No. 73/2009 OJ L 347, 20.12.2013, pp. 608–670. 18 The Agriculture Bill 2017–2019 was narrower in scope than the Health and Harmony paper. Defra partially listened to the concerns of stakeholders as expressed in the responses to the consultation and other engagement activities. 19 Provisions within the Environment Bill 2019–2021 could also support the future schemes. 20 Agriculture Act 2020 Schedule 5 with certain provisions expiring at the end of 2024, see ss 46–47. 21 Here standards emanating from the Environment Bill, common frameworks, and the Internal Market Act could impact on the overall level of environmental protection. Similarly, future environment bills (or similar) within the devolved administrations could impact on such levels. 22 The WTO sections in the Agriculture Act 2020 (ss 43 to 45) recentralise powers in particular by giving powers to the Secretary of State over the classification of financial support. The Secretary of State can set the rules for classification and for dispute resolution regarding classification – enabling them to act as the final arbiter and judge in their own court. For more, see Petetin et al., 2020. 23 Before joining the EU, the UK was protecting farmers with deficiency payments since the Agriculture Act 1947. 24 Engagement with reserved policies such as immigration (e.g. linked to migrant labor) and trade impact on the devolved administrations as well. Due to space limit, this falls outside the scope of this chapter. 25 Petetin identifies four characteristics should be strengthened: true information, genuine choice and alternative products being offered to consumers; upstream engagement and bottom-up approach in the decision-making process; good health, food safety, sustainable agriculture and environmental protection, improvement of the rights of farmers and agricultural workers and their opportunities; and restoration of faith and trust in the food system, its institutions and in farmers. See Petetin (2020b).

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60  Ludivine Petetin Committee on Climate Change (2019) ‘Net zero – The UK’s contribution to stopping global warming’. Craig, P. (2012) ‘Subsidiarity: A legal and political analysis’, Journal of Common Market Studies, 50(S1), pp. 72–87. DAERA (2018) ‘Northern Ireland future agricultural policy framework’. Davies, G. (2006) ‘Subsidiarity: The wrong idea, in the wrong place, at the wrong time’, Common Market Law Review, 43(1), pp. 63–84. Defra (2018) ‘Health and harmony: The future for food, farming and the environment in a Green Brexit’. Defra (2020a) ‘Environmental land management: Policy discussion document’. Defra (2020b) ‘Farming for the future: Policy and progress update’. Defra (2020c) ‘Path to sustainable farming transition plan’. Defra (2020d) ‘The national food strategy – Part one’. Defra (2021a) Statement on the Decision to Issue – with Strict Conditions – Emergency Authorisation to Use a Product Containing a Neonicotinoid to Treat Sugar Beet Seed in 2021. Available at: www.gov.uk/government/publications/neonicotinoid-productas-seed-treatment-for-sugar-beet-emergency-authorisation-application/statement-onthe-decision-to-issue-with-strict-conditions-emergency-authorisation-to-use-a-productcontaining-a-neonicotinoid-to-treat-sugar-beet (Accessed 20 January 2021). Defra (2021b) The Regulation of Genetic Technologies. Available at: https://consult.Defra .gov.uk/agri-food-chain-directorate/the-regulation-of-genetic-technologies/ (Accessed 20 January 2021). Dobbs, M. (2021) ‘Northern Ireland’s agricultural quagmire: How to develop a sustainable agricultural policy?’, in I. Antonopoulos et al. (eds.) The Governance of Agriculture in Post-Brexit United Kingdom. Routledge (forthcoming). Engel, A. and Petetin, L. (2018) ‘International obligations and devolved powers – Ploughing through competences and GM crops’, Environmental Law Review, 20(1), pp. 16–31. European Commission (2019) ‘A European Green deal’. European Commission (2020) ‘Farm to Fork Strategy – For a fair, healthy and environmentally-friendly food system’. European Environment Agency (2019) ‘The European environment – State and outlook 2020: Knowledge for transition to a sustainable Europe’. Fisher, B., Turner, R.K. and Morling, P. (2009) ‘Defining and classifying ecosystem services for decision making’, Ecological Economics, 68, pp. 643–653. Fisher, E. (2020) ‘Executive environmental law’, Modern Law Review, 83(1), pp. 163–189. Garnett, T. and Godfray, C. (2012) Sustainable Intensification in Agriculture: Navigating a Course through Competing Food System Priorities. Oxford: Food Climate Research Network and the Oxford Martin Programme on the Future of Food. Gee, G. (2008) ‘The political constitutionalism of JAG Griffith’, Legal Studies, 28(1), pp. 20–45. Gove, M. (2018) Farming for the Next Generation (Oxford Farming Conference 2018). Available at: www.gov.uk/government/speeches/farming-for-the-next-generation. (Accessed 20 January 2021). Gravey, V. (2021) ‘Brexit and the Common Agricultural Policy: There and back again’, in I. Antonopoulos et al. (eds.) The Governance of Agriculture in post-Brexit United Kingdom. Routledge (forthcoming). Gravey, V. and Jordan, A. (2020) ‘Towards an ever closer union?’, Brexit and Environment Network. Available at: www.brexitenvironment.co.uk/2020/07/21/towards-an-ever-closerunion/ (Accessed 20 January 2021).

Setting the path for UK and devolved agriculture 61 Gravey, V., Jordan, A. and Petetin, L. (2020) ‘United against diversity? The UK internal market and environmental ambition’, Brexit and Environment Network. Available at: www.brexitenvironment.co.uk/2020/07/22/united-against-diversity-uk-internal-marketenvironmental-ambition/ (Accessed 20 January 2021). Griffith, J.A.G. (1979) ‘The political constitution’, Modern Law Review, 42(1), pp. 1–21. Hejnowicz, A. and Hartley, S. (2018) ‘New directions: A public goods approach to agricultural policy post-Brexit’. HM Government (2018a) ‘A green future: Our 25 year plant to improve the environment’. HM Government (2018b) ‘Frameworks analysis: Breakdown of areas of EU Law that intersect with devolved competence in Scotland, Wales and Northern Ireland’. HM Government (2019) ‘Revised frameworks analysis: Breakdown of areas of EU law that intersect with devolved competence in Scotland, Wales and Northern Ireland’. HM Government (2020a) ‘Frameworks analysis 2020: Breakdown of areas of EU law that intersect with devolved competence in Scotland, Wales and Northern Ireland’. HM Government (2020b) ‘White paper: UK internal market’. Hooghe, L. and Marks, G. (2001) Multi-level Governance and European Integration. Lanham: Rowman and Littlefield. Hunt, J. (2017) ‘Devolution’, in M. Dougan (ed.) The UK after Brexit: Legal and Policy Challenges. Cambridge: Intersentia, pp. 35–52. Joint Ministerial Committee (EU Negotiations) (2017) ‘Communique: Joint Ministerial Committee of UK and devolved executives’. Kay, A. (2018) ‘Defra makes decision to let quarter of UK farms “disappear” ’, Farmers Guardian. Available at: www.fginsight.com/news/news/Defra-makes-decision-to-letquarter-of-uk-farms-disappear-57116 (Accessed 20 January 2021). McEwen, N. and Petersohn, B. (2015) ‘Between autonomy and interdependence: The challenges of shared rule after the Scottish referendum’, Political Quarterly, 86(2), pp. 192–200. National Farmers Union (2019) ‘Achieving net zero: Farming’s 2040 goal’. OECD (2012) ‘Policy instruments to support green growth in agriculture, Green Growth Studies’. Petetin, L. (2015) ‘The EU Common Agricultural Policy: Towards a more sustainable agriculture?’, in R. Ako and D. Olawuyi (eds.) Food and Agricultural Law: Readings on Sustainable Agriculture and the Law in Nigeria. Ado-Ekiti: Afe Babalola University Press, pp. 201–224. Petetin, L. (2019) ‘Managing novel food technologies and Member States’ interests: Shifting more powers towards the Member States?’, in M. Varju (ed.) Between Compliance and Particularism: Member State Interests and European Union Law. Berlin: Springer, pp. 233–253. Petetin, L. (2020a) ‘La dimension agricole du Brexit’, in Le Club Déméter (ed.) Le Déméter 2020. Riddes: Iris éditions, pp. 119–128. Petetin, L. (2020b) ‘The COVID-19 crisis: An opportunity to integrate food democracy into post-pandemic food systems’, European Journal of Risk Regulation, 11(S2), pp. 326–336. Petetin, L. and Dobbs, M. (2018) Written Evidence on the Agriculture Act to the Climate Change, Environment and Rural Affairs Committee of the Senedd Cymru. Available at: http://senedd.assembly.wales/documents/s80616/Paper%20%20Dr%20Petetin%20 and%20Dr%20Dobbs.html?CT=2 (Accessed 20 January 2021). Petetin, L., Dobbs, M. and Gravey, V. (2019) Written Response to Sustainable Farming and Our Land Consultation of the Welsh Government. Available at: https://orca.cardiff .ac.uk/134322/ (Accessed 20 January 2021).

62  Ludivine Petetin Petetin, L., Dobbs, M., Hunt, J., Pontin, B. and Pritchard, H. (2020) Written Evidence on the LCM in Relation to UK Agriculture Bill, Climate Change, Environment and Rural Affairs Committee of the Senedd Cymru. Available at: https://business.senedd.wales /documents/s99656/Paper%20-%20Dr%20Ludivine%20Petetin%20Dr%20Mary %20Dobbs%20Prof%20Jo%20Hunt%20Prof%20Ben%20Pontin%20and%20Dr %20Huw%20Pritchard.html?CT=2 (Accessed 20 January 2021). Petetin, L., Gravey, V. and Moore, B. (2019) ‘Setting the bar for a Green Brexit in food and farming’, Soil Association. Available at: www.soilassociation.org/green-brexit/. (Accessed 20 January 2021). Pontin, B. (2019) ‘Legal and political conceptions of governance within the Environmental Act debate’, Environmental Law and Management, 31, pp. 85–95. Poux, X. and Aubert, P-M. (2018) ‘An agroecological Europe in 2050: Multifunctional agriculture for healthy eating – Findings from the Ten Years For Agroecology (TYFA) Modelling Exercise’, IDDRI. Rodgers, C. (2021) ‘Legal models for implementing agri-environment policy after Brexit’, in I. Antonopoulos et al. (eds.) The Governance of Agriculture in post-Brexit United Kingdom. Routledge (forthcoming). RSA Food, Farming and Countryside Commission (2019) ‘Natural capital accounting for farms’. Scottish Government (2009) ‘Recipe for success: Scotland’s national food and drink policy’. Scottish Government (2018) ‘Stability and simplicity’. Vandenbruwaene, W. (2014) ‘Multi-level governance through a constitutional prism’, Maastricht Journal of European and Comparative Law, 21(2), pp. 229–242. Vote Leave (2016) Farmers Will Be Better off if We Vote to Leave the EU. Available at: www.nfuonline.com/nfu-online/news/vote-leave-ge/ (Accessed 20 January 2021). Welsh Government (2010) ‘Food for Wales, food from Wales 2010 ̸2020 – Food strategy for Wales’. Welsh Government (2018) ‘Consultation: Brexit and our land – Securing the future of Welsh farming’. Welsh Government (2019) ‘Consultation: Sustainable farming and our land’. Welsh Government (2020) ‘Consultation: Agriculture (Wales) White Paper’. Westhoek, H., Koen, O. and van Zeijts, H. (2013) ‘The provision of public goods by agriculture: Critical questions for effective and efficient policy making’, Environmental Science and Policy, 32, pp. 5–13.

4 “Public money for public goods” and property rights Irene Antonopoulos

Introduction The debate on the effects of Brexit on the UK’s agriculture sector is covered in depth by the chapters of this book. The collective belief is that UK agriculture will inevitably face changes that relate to the impact upon farmers’ financial security, food security in the UK, rural development, land management, animal welfare, and environmental protection. Several policy and statutory documents and schemes such as the Agriculture Act 2020 and the released details of the Environmental Land Management scheme (hereinafter “ELM scheme”) confirmed the desire for change to the farm support system by Defra in the Health and Harmony Report (Defra, 2018b). Leaving the Common Agricultural Policy (hereinafter “CAP”) was viewed with a mixture of emotions: including optimism for the opportunity to formulate a new way forward and concern over the industry’s ability to respond to new challenges that Brexit might bring. The discussion over Brexit and agriculture has to be examined in light of the observation that the referendum’s result reflects “a wider movement to reduce and limit the EU’s influence on its Member States” (Burns et al., 2019, p. 272). Despite the CAP’s contribution to the protection of the four freedoms of the EU and its focus on environmental and rural development in recent years, it was also heavily criticised due to the mechanism through which CAP subsidies were paid. Burns et al. (2016) described the breadth of the negative environmental impact that the CAP has had by fostering the “intensification of agriculture”. However, a renewed focus on the opportunities presented by the vote was pivotal (Maye et al., 2018). Some argue that leaving the CAP could be a good outcome, given the inefficiency and poor design of the CAP (e.g. the equity distribution criticisms that CAP payments have been capitalised in land prices), providing UK policymakers with an opportunity to develop new agricultural policy. (Maye et al., 2018, p. 274) The criticisms over CAP are intensified by the limited evidence that CAP has had a positive impact on the protection of the natural habitat (Stewart et al., 2019). DOI: 10.4324/9781003010852-4

64  Irene Antonopoulos Defra’s 25 Year Environment Plan focuses on the sustainability of the agriculture sector, including the effects of agriculture on the environment (Defra, 2018a). Petetin et al. (2018) have expressed concern that the Agriculture Bill, despite its focus on “public goods”, omits the focus on rural development that will be necessary to achieve such sustainability. Despite this omission, the Agriculture Act 2020 promises a more rewarding framework for those farmers that contribute to environmental protection than the CAP subsidies previously offered. Indeed, the public money for public good approach currently being trialled has been interpreted by Stewart et al. (2019), as “an approach to future land management [that] could be designed around a payment for ecosystem services model and a Results-based Agri-Environment Payment Scheme where farmers are paid for producing goods which benefit nature”. They conclude that “environmental sustainability, an ecosystem approach, explicit recognition of a public good provision, and social welfare should all be at the heart of UK environmental policy post-Brexit” (Stewart et al., 2019, p. 11). The ELM scheme currently at the pilot stage aims at fulfilling the goals of the 25 Year Environment Plant (Defra, 2018a). Clean water and air, protection of wildlife, reduction of environmental pollution, addressing the causes and effects of climate change, and preserving the heritage, culture, and beauty associated with the natural environment are the aims that the ELM scheme focuses on (Environmental Land Management schemes: overview, no date). The ELM scheme recognises that land management is closely connected to the natural environment in an interlinked relationship. Transitioning from CAP to the post-Brexit era, the ELM scheme will pay the land managers who strive for the achievement of these goals, and increase their income stream, rather than rely on subsidies. The scheme illustrates that land managers have to be “paid” for those outcomes that benefit the society as a whole and participate in the efforts to adapt and mitigate to several threats, such as climate change. Land managers will be able to assess whether they can engage with one of the three scheme tiers. The three tiers allow for varied forms of engagement starting with small changes in the production cycle through Tier 1: Sustainable Farming Incentive, up to Tier 3 engaging with landscape recovery. The type of land, production, and resources available would determine which tier is more appropriate for each land manager. The reality of the ELM scheme is that “the ELM scheme will put farmers, foresters and other land managers more in control of how they use their assets to provide environmental public goods” (Environmental Land Management tests and trials: 23 Burns Farmer Group, no date). Despite the voluntary decision to participate in one of the three tiers, the motivation behind the creation of the scheme is to use and influence the use of land by land managers to ameliorate environmental protection. At the centre of the ELM scheme rests the often quoted “public money for public goods”. This chapter aims to add a human rights perspective to this volume through a human rights discussion of the notion of “public goods”, ownership, and control of use of property. This discussion delves into the jurisprudence of the European Convention on Human Rights (“ECHR”) in pursuit of valuable lessons for the future of the ELM scheme. The chapter focuses on the right to property, which forms part of the human rights framework through the protection granted by

“Public money for public goods” and property rights 65 Article 1 of Protocol 1 of the ECHR. The content of this right and the associated state duties are guaranteed by both the ECHR and the UK’s Human Rights Act 1998. The relevance of this analysis to the overall debate rests on the potential effect of the new ELM scheme on the enjoyment of the use of one’s property for agricultural purposes. According to the ELM scheme, farmers will retain the freedom to choose whether to implement practices in line with environmental obligations. However, a potentially increased vulnerability due to the post-Brexit circumstances could affect farmers’ choice to enrol or opt out of the scheme. Limited ability to make a choice could lead to a perception of state control of the use of one’s property or a de facto expropriation if the property cannot be used for agricultural purposes. The absence of genuinely voluntary decision-making under such circumstances potentially brings the “environmental stewardship approach” of the Agriculture Act 2020 within the ambit of the Human Rights Act 1998.1 This chapter is not suggesting that such human rights questions were not relevant prior to the adoption of the Agriculture Act 2020. However, the rare opportunity to reset a state’s policy and reformulate its future path provides an opportunity to consider the surrounding issues that could create legal challenges in the future. The author acknowledges that the creation of a national system for subsidies to support land management for the collective benefit, despite the voluntary character of the scheme, has implications for the notion of “ownership”. In light of the Agriculture Act 2020 and the reliance on “public money for public goods”, the chapter discusses the implications that “public money for public goods” approach could have on the protection of property rights under the ECHR. In addition, the chapter discusses the concept of “ownership” within the European Court of Human Rights (hereinafter ECtHR) jurisprudence. Since the Agriculture Act 2020 has to be aligned with the Human Rights Act 1998, it is important to consider the jurisprudence that has the potential to provide clarity in this area. This chapter begins by exploring the meaning of “ownership” through the jurisprudence of the ECHR, by examining the use of Article 1 of Protocol and occasionally Article 8 by applicants and the approach of the ECtHR. The chapter then proceeds to discuss the potential implications of this case law for the roll out of the ELM scheme, which looks at ways to influence the way agricultural land will be used for the common benefit of environmental protection. The chapter concludes that three themes deriving from the ECHR jurisprudence should be embedded in the ELM scheme rollout: clarity, transparency, and time efficiency.

Ownership and property use as a human right For the purposes of this chapter, the analysis of “ownership” relies on the jurisprudence of the ECtHR on Article 1 of Protocol 1 of the ECHR. This stipulates that Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by the law and by the general principles of international law.

66  Irene Antonopoulos The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Relying on this article, the ECtHR has been very prescriptive in setting out the definition of land ownership and land management, primarily in relation to human rights limitations. This derives from those applications brought before the ECtHR, based on Article 1 of Protocol 1, concerning the balance between environmental protection and the enjoyment of property. These applications have often been raised in conjunction with Article 8 (right to private and family life) associating the economic value of property, with the amenities that it offers for the enjoyment of family and private relations. The combination of Article 1 of Protocol 1 and Article 8 claims illustrates the significance of the property, not just as a means to a livelihood but also as a “home”. The interpretation of the combined articles assumes that they protect the right to enjoy one’s property and the expectation that they can enjoy it in the future as well. In general, the Court has found that states have positive duties to protect individuals’ properties from environmental degradation (Kenna, 2008, p. 195). In the cases where the use of property could interfere with the protection of the environment, the Court has taken the opposite approach. This approach is explained by the very specific wording of Article 1 of Protocol 1, which offers two conditions for the expropriation and control of property. Article 1 of Protocol 1 comprises three rules as the Court stated in Fredin v. Sweden (1991). The first protects the right to the peaceful enjoyment of one’s property. The second protects individuals from being deprived of their property, subject to certain exceptions. The third enables the states to control property use when necessary to satisfy the community interest as a whole. If we apply this reasoning to public money for public goods approach within the ELM scheme, it becomes significant to explore the extent to which property rights can be restricted or affected in a pursuit to satisfy the community interest in environmental protection. The move towards a tier-based system proposed through the ELM scheme promises to achieve this, allowing farmers to choose which tier they would like to direct their voluntary actions towards, and be rewarded for this environmental stewardship. The prescriptive approach of the Court in “property cases” suggests the following: Article 1 of Protocol 1 ensures the protection of one’s right to enjoy their property. This enjoyment includes its potential use for commercial purposes, and residential and other functions subject to the relevant permits in compliance with legitimate requirements imposed by national law. The states are obligated, as with all human rights within the ECHR, to ensure that they do not interfere with this right unless when necessary according to national and international laws. In the pursuit of satisfying legitimate aims, such as protection of national security, safety, and public order, restrictions of the rights under these articles will be allowed. In the context of environmental protection, these duties include informing land owners or users of a potential risk of the destruction of their property due to environmental degradation (Kenna, 2008, p. 195). Additionally,

“Public money for public goods” and property rights 67 states should ensure that when property can no longer be used, or the use needs to be controlled in order to protect the collective interest in environmental protection, information should be provided and the award of compensation should be considered. Nevertheless, loss or destruction of property does not automatically invoke a compulsory compensation within the wording of Article 1 of Protocol 1. In the aftermath of deadly mudslides, Budayeva and others claimed compensation for the loss of property and the mental and physical injuries of the members of their families, but these claims were declined (Budayeva and others v Russia, 2008). The Court held that the article did not protect a right to sufficient compensation; the article required that the compensation would be proportionate to the loss. The convention does not include a right to compensation, despite the right to receive remedies when a violation is found. These remedies vary subject to “just satisfaction”. But the Court’s decision in Budayeva suggests that loss does not automatically create a right to receive compensation. The subject of compensation within the wording of Article 1 of Protocol 1 requires a consideration of the loss but not an automatic award. In the context of the ELM scheme, there is a reward for environmental practices. However, the potential financial disadvantages created by Brexit and the end of the CAP subsidies system would not create an automatic right to compensation for the potential changes to one’s land. The majority of the “property cases” brought under Article 1 of Protocol 1 relate to alleged control of the use of one’s property in ensuring environmental protection. In these cases, environmental protection becomes a legitimate aim whose fulfilment is necessary for satisfying the community’s interests in a protected environment. In “property cases”, the community interest relates to that of the residents and visitors of the surrounding area who want a protected environment and aesthetics and access to protected areas. This relates to the later admission by the Court that the society is increasingly worried about environmental preservation (Déjeant-Pons, 2004, p. 863). The fair balance test is often employed in Article 1 of Protocol 1 cases. The test asks whether a fair balance has been struck between the applicant’s rights and the community’s interests. Any interference with the applicant’s rights needs to be proportionate to the legitimate aim achieved. Occasionally, the rejection of compensation is considered by the Court disproportionate to the aim that the state wants to achieve. For example, the Court in Devečioğlu v Turkey decided that the failure to pay compensation when part of the applicants’ plot was expropriated (as being forestry land) amounted to a disproportionate interference with the right to enjoyment of property (2009).2 The formula required to balance the two, the rights to one’s enjoyment of property and the satisfaction of the community’s interest to a protected environment, was illustrated early on in the case of Herrick v. UK (1985). The applicant was residing in a house situated on a “Green Zone”. This green zone was an area of “outstanding natural beauty” in which limited development was allowed subject to the necessary permit, in pursuit of its protection. The applicant claimed that the prohibition measures against the use of the house in order to safeguard this area of “outstanding beauty” were unreasonable and disproportionate leading to the violation of

68  Irene Antonopoulos her rights under Article 8 and Article 1 of Protocol 1 of the convention. The European Commission of Human Rights applied the fair balance test and decided that the state’s prohibition measures amounted to a control of the use of the property in protecting the public’s general interest to the protection of the environment; therefore, there was no violation of the articles.3 “Public money for public goods”, and the incentivisation of the change of the use of property for environmental purposes sit at the centre of the fair balance test. Restrictions and incentives for altering production methods with a view of the financial sustainability of the farm unit, in pursuit of the collective benefit, raise a potential claim for restriction of the use of property. Pivotal here is ensuring that land managers are able to decide on these changes voluntarily without any financial pressures that could potentially derive in the aftermath of Brexit. The proportionality of a state’s regulatory or enforcement of policy (e.g. planning policy) is more easily considered when the applicant can offer evidence of financial consequences. In addition, lack of clarity on how the “public goods” system as set out in s.1 of the Agriculture Act 2020 will be enforced in practice creates uncertainty for farmers and could have consequences on the enjoyment of their rights within Article 1 of Protocol 1. The ECtHR has previously found that such uncertainty about property rights could result in violations of Article 1 of Protocol 1, even when motivated by environmental protection. For example, in Matos e Silva Lda. and others v. Portugal (1996), the great economic disadvantage suffered by the applicants, and the unreasonably long proceedings (13 years) leading to an uncertainty over their property rights, led the Court to decide in favour of the applicants. The applicants owned property used for the extraction of salt. The Portuguese government declared the applicants’ property part of a nature reserve for animals and demanded its expropriation. The relevant Legislative Decree (no. 373/87) restricted the applicants’ economic activities on their property. The claimants raised two allegations for human rights violations resulting from the decision to expropriate their property. Firstly, they alleged a violation of Article 1 of Protocol 1. Secondly, they alleged a violation of Article 14 on the basis that they had been discriminated against when compared to other landowners who had not been subject to the same decision despite their similar circumstances. They added that the relevant proceedings as to the determination of the status of their property rights were unreasonably long leading to significant financial losses. The Court found a violation of the right under Article 1 of Protocol 1, since the expropriation of the land limited the use of the land, whilst the indeed unreasonable length of the proceedings left the applicants in limbo over their property rights. The Court concluded that the Portuguese government failed to strike a fair balance between the general public interest in the protection of the environment and the interference to claimants’ property rights caused by the uncertainty of whether they could take advantage of the land in its initially intended purpose and economic damage inflicted on the works of the claimants on the land. These factors created a disproportionate interference with the applicants’ rights. Parallels can be drawn from this case, in relation to potential uncertainties over use of property and engagement with the three tiers of the ELM scheme, if no clarification over how “public goods” are measured, how the administrative process of payments are managed,

“Public money for public goods” and property rights 69 and whether varied abilities of farmers to engage with the scheme are going to be considered to avoid financial vulnerabilities. The possibility of different levels of vulnerability, depending on the engagement and the ability to engage with the new “public goods” scheme, could create feelings of differential treatment potentially raising alleged interferences with Article 14 ECHR (freedom from discrimination) and Article 1 of Protocol 1. On the matter of discrimination between owners of same category of land (e.g. intended for farming, residential purposes), the case of Pine Valley Development Ltd & Others v Ireland provides further clarification. The applicants bought property with the prospect of development relying on a planning permission for construction on the land (Pine Valley Developments Ltd and Others v Ireland, 1993). The planning permission was later nullified and their subsequent appeals against this declined. They claimed a violation of Articles 13, 14, and Article 1 of Protocol 1 for lack of compensation and for being discriminated in relation to other owners of land in the area. Article 13 protects the right to remedies if a violation of the other articles is found. Article 14 protects individuals from differential treatment when it comes to protection under the ECHR articles. The Court decided that the interference with the applicants’ rights to property amounted to merely a control of the use of property that satisfied a legitimate aim, that of protecting the environment; therefore, there was no violation of Article 1 of Protocol 1. The Court considered that the applicants received differential treatment compared to owners of land that belonged to the same category as the applicants’ land. Considering the claim of violation of Article 1 of Protocol 1 together with Article 14 (freedom of discrimination), the Court found a violation. What the case illustrates is the need for clarity around the definitions of “public goods” and which practices would fall within this definition, ensuring the avoidance of potential discrimination claims raised in relation to differential treatment observed between production units. In the context of the Agriculture Act 2020, the existence of clear, measurable outcomes for the engagement of farmers with the environmental protection aims can avoid a potential or real differential treatment through consistent application of the ELM scheme. In Alatulkkila and others v. Finland, the Court took a very different approach (2005).4 In this case, the applicants were owners of fishing waters. Following a restriction on certain fishing practices and the fishing of some species, the applicants asked for compensation, which was denied on several occasions. The applicants claimed a violation of Article 1 of Protocol 1 and a violation of Article 14 in relation to Article 1 of Protocol 1 because of the economic losses endured by these restrictions. The Court found that there was indeed control of the use of the applicants’ possessions, but that was justified on the grounds of environmental protection. It also found that the applicants’ fishing rights had not been extinguished but merely limited. In relation to the lack of compensation, the Court allowed a wide margin of appreciation for the state, which determined that there was no violation of Article 1 of Protocol 1. The “margin of appreciation” is of great significance in “property rights” cases. In more detail The Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining

70  Irene Antonopoulos whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question. (DeMerieux, 2001, p. 535) Together with the application of the fair balance test, the Court was able to determine whether the interests of the community were correctly prioritised by the respondent state. The Court found that “possessions” did not only have the meaning of property but also have the expectation of enjoying this property (Desmet, 2010, p. 305). The cases illustrated that the Court had a very consistent approach to the application of the article. It mainly focused on the possibility of the use of the land in question after the interference, and whether the relevant state decision would lead to a de facto expropriation of the land if the original purpose of the land cannot be fulfilled (Katte Klitsche de La Grange v Italy, 1994). If the land can continue to be used, albeit in a different way than the originally intended one, the Court was unwilling to find a violation of Article 1 of Protocol 1 (Alatulkkila and others v Finland, 2005). But, in the context of agricultural land, the question is whether landowners and tenants would be able to adapt their production to the requirements of the ELM. Despite the voluntary nature of the ELM participation, the inability to either adapt or continue the viability of the production upon entering one of the ELM tiers could raise similar issues. These cases illustrate that the pursuit of the public interest could allow interference with Article 1 of Protocol 1. According to the ECtHR, interference under these circumstances would not be a violation of the article. Such public interests could be interpreted as “public goods” for the purposes of the post-Brexit agriculture agenda. The prescriptive jurisprudence of the ECtHR suggests that any control of use of property needs to be justified in achieving a legitimate aim. Any policy, which allows for voluntary or involuntary participation to a programme that aims to interact with one’s property rights, needs to comply with the principles of the Human Rights Act 1998 and the jurisprudence of the ECtHR on Article 1 of Protocol 1. The case law suggests that clarity on the specifics of each tier, the reward system as well as the potential consequences on the survival of each holding, will eliminate any doubt that the new agricultural policy could interfere with the principles of the ECHR. Despite the fact that the scheme relies on voluntary action, human rights jurisprudence can inform its implementation. Within this jurisprudence, time efficiency, clarity of rules, and transparency are elements that are necessary for the protection of property rights.

The ELM scheme from a human rights perspective The previous section illustrated that within the ECHR jurisprudence, ownership and occupation of property carry rights and state obligations. These rights include the ability to use this property as livelihood, enjoy the property, and retain a level of certainty over the future of property ownership and its future use. When this use has the potential to interfere with the collective interest to environmental protection, interference by national authorities with this right is justified. In the context

“Public money for public goods” and property rights 71 of the Agriculture Act 2020, environmental protection is a public good and one that justifies the ELM scheme approach. Work towards achieving the collective good should be rewarded. The choice to undertake such work is voluntary; therefore, it should not raise a potential “control of use of property” concern within the context of human rights, but is driven by a desire to change how private land is used for the benefit of the whole population.5 This is not a clear-cut situation where environmental stewardship is rewarded, and there is a voluntary decision-making involved. Whilst some landowners would have better resources to participate in the ELM tiers, others might feel compelled to do so for reasons related to the survival of their holding. The implication of the latter scenario is that it raises property rights concerns. Varied abilities to participate in the scheme and proportional rewards to facilitate the decision to participate without a burden on one’s livelihood are pivotal. Additionally, the ELM scheme has been promoted as a way to supplement one’s earnings by implementing environmentally friendly practices within their existing land management practices. But it is unclear whether the ELM scheme will counteract the consequences of the withdrawal from CAP. Potential financial vulnerabilities as a result of Brexit, and the lack of subsidies aimed to support production, will not necessarily be covered by any ELM payments. In a study from the Lithuanian perspective, Volkov et al. (2019, p. 331) argue that a reduction in direct payments under the CAP would lead to less favourable areas in Lithuania enduring a reduction in profitability. Resulting farm abandonment could potentially increase the “social problems in rural areas”. These predictions are not irrelevant to the UK context (Hill, 2021). The possibility of increased land vulnerability due to the changes introduced by a new UK agricultural policy and the application of the Agriculture Act 2020 create the risk of land abandonment within UK Agriculture. The new UK agricultural policy may potentially lead to loss of livelihood on some farms (Arnott et al., 2019). The abandonment of land could also have wider economic, social, and environmental consequences including “the loss of farmland biodiversity and cultural landscapes” (Arnott et al., 2019). In a less pessimistic analysis, Cusworth and Dodsworth (2021) discuss the varied issues observed with the adoption of environmental schemes similar to the ELM, such as increased productivity. But the fulfilment of the ELM might require expertise and skills that are not present, turning such schemes into “lost opportunities” (Cusworth and Dodsworth, 2021). In the context of the ELM, two parameters need to be discussed. Due to the financial incentives for participation to the ELM scheme, will the subsidies replace any potential loss of profit due to Brexit (in the context of trade) or engagement with the scheme itself and whether the fulfilment of a “public good” would justify such a loss of profit as achieving a legitimate aim within the meaning of Article 1 of Protocol 1. The ECtHR would decide on a case-by-case basis, whether a fair balance has been struck between this public interest and the individual’s rights under the ECHR. Where domestic law and the pursuit of the “public good” lead to a possible loss of profit and land value, then there are important human rights issues to be raised over satisfying the collective good through the detriment of the individual, if such a detriment is identified to be relevant to the new agricultural policy.

72  Irene Antonopoulos McHarg in 1999 expressed her concern over balancing the two: “There is something of a paradox in a legal scheme which is supposed to protect the individual against the collective, itself sanctioning limitations to right on collective interest grounds” (McHarg, 1999, p. 672). In the event of an examination of such a provision before the ECtHR, the measure should clearly benefit the collective good and should be measurable. In addition, the different capacities of holdings to fulfil these requirements once they are defined should also be accounted for ensuring that there is no possibility for discrimination as seen in Pine Valley if payments for similar engagement with the ELM scheme differ (Pine Valley Developments Ltd and Others v Ireland, 1993). The detailed list of “public goods” included in the Agriculture Act 2020 might allow for an early assessment of one’s capacity to participate in the three tiers of the ELM. “Public goods” are strictly defined in economic terms as being nonexcludable and non-rival goods (Hashimzade et al., 2017, p. 422). The Agriculture Act 2020 goes beyond this definition by including “[s]upporting public access to and enjoyment of countryside, farmland and woodland better understanding the environment” and “[m]anaging land, land or water in a way that maintains, restores or enhances cultural or natural heritage” (Agriculture Act, 2020, s. 1). This broader approach correlates with the WTO’s approach to “multifunctionality” in the context of agriculture. According to the WTO, agriculture has multiple functions, beyond the production of food, which includes “environmental protection” and “landscape preservation” (WTO | Glossary – multifunctionality, no date). The inclusion of more goods within the definition of “public goods” in the Agriculture Act 2020 is an indication of the belief that more aspects, such as health, food security, and nutrition, should be public goods for the purposes of the Act. Such a broad list of “goods” fits squarely within the ECtHR’s interpretation the meaning of “public interest” in property rights cases. The expansion of the term “public goods” beyond its strict economic definition illustrates a need for the inclusion of wider concerns within the term. For example, according to the United Nations, “public good” would include the “construction of a school, hospital or road” (UN OHCHR, 2015, p. 77). Similarly according to the Brazilian constitution, the cultivation of agricultural land is a “social function” (UN OHCHR, 2015, p. 77). This is consistent with the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, which stipulates that the guidelines place the governance of tenure within the context of national food security, and are intended to contribute to the progressive realisation of the right to adequate food, poverty eradication, environmental protection and sustainable social and economic development. (FAO, 2012) “Public interest”, “public utility”, “social interest” and “social function” are used as interchangeable terms in national constitutions and regional human rights frameworks to justify an interference with a property right when necessary in the

“Public money for public goods” and property rights 73 broader interests of society. At a regional level, the European Commission identifies “public goods” in the context of agriculture, as including farmland biodiversity, water quality and availability, soil functionality, and climate stability through the increase of carbon storage and reducing greenhouse gas emissions, resilience to flooding and fire, rural vitality, and food security (Public Goods – ENRD (European Network for Rural Development) – European Commission, no date). Following the case law of the ECtHR, “public goods” can be interpreted as “public interests”, which includes the protection of the environment. As the ECtHR case law indicates, the Court’s judges are putting more and more emphasis on the protection of the environment and are utilising the ECHR as a way of ensuring environmental protection. The Court has been consistent in allowing interference with the use of land, and in some cases expropriation of the land or equivalent. The list of “goods” in the Agriculture Act 2020 might not be exhaustive in the eyes of the ECtHR since it allows for a wide margin of appreciation and the prioritisation of environmental protection. But the ECtHR will require clarity and timely decisions by state authorities in order to decide in favour of such interferences. The ECtHR jurisprudence indicates that interference with one’s rights under Article 1 of Protocol 1 would be justified if necessary for fulfilling the legitimate aim of protecting the environment. In determining this whilst applying the Agriculture Act 2020, the UK should determine how the fair balance test between the public interest in environmental protection and individual property rights will be applied in such circumstances. Pivotal to the discussion is how this “public money for public goods” will be implemented in a human rights context. A clear set of measurable outcomes rewarded within the ELM scheme, transparency to avoid differential treatment of land managers within the same tiers, as well as ensuring that all land managers have an opportunity to engage with the tiers are pivotal elements to be considered during this pilot phase. For example, the argument of potential lack of skills and ability to engage with the requirements of the three tiers (Cusworth and Dodsworth, 2021) might be irrelevant, if only wealthier landowner can meaningfully engage with the ELM scheme compared to those who have the necessary training and resources. Therefore, the definition of a “public good” should be balanced with the needs and production capacity of every holding. On the other hand, several farms that do not have the capacity for high yields might benefit more from engaging with the higher ELM tier and be rewarded more for their environmental stewardship. In order to avoid similar criticisms to the CAP regime, the administration of such payments needs to be transparent, with clear measurable aims and to take into consideration the varied abilities of different units to engage with the potential actions set out in the ELM scheme.

Conclusion Beyond the anticipated changes suggested by the 25 Year Environment Plan and enforced by the Agriculture Act 2020, there are no explicit suggestions that the notion of ownership will change in light of “public goods for public money”. On the other hand, the payments of land managers for practices that aim to protect and

74  Irene Antonopoulos enhance the environment imply a change to the ability of one to ensure that land can be enjoyed in its intended purpose. Incentivising good practices and the altering of the intended use of the land match the application of Article 1 of Protocol 1. In the interpretation of the article, we see a well-defined and well-established notion of ownership that could challenge domestic policies and lead to varied vulnerabilities or uncertainty over one’s property rights status. In light of the ECtHR case law that has addressed the issues of use of agricultural land and its tenuous relationship with environmental protection, it is appropriate to discuss an overlap between the suggested new approach to agricultural policy and human rights protection. The overlap happens once the environmental aspects of the agricultural sector meet the human rights concerns surrounding environmental protection. The ECtHR jurisprudence indicates a tension between the enjoyment and use of one’s property and the potential state’s definition  – or understanding – of a public good. So far, “public good” in this context, is explained as including natural capital principles. Their fulfilment will be ensured through “informed decisions on future land management” (Defra, 2018a). Borrowing the human rights language, that will extent to control of use of property for the purposes of delivering benefits such as adaptation and mitigation methods to climate change, and the protection of the environment/cultural heritage amongst others. In the context of “public goods”, the Agriculture Act 2020 provides a list of elements that will be difficult to measure in the absence of guidelines offered to land managers. It remains to be seen whether the enforcement of this new support system will raise any human rights issues that go beyond the issues that were raised by the shortcomings of the CAP. The existing human rights provisions should not be treated as a threat to the enforcement of the Agriculture Act 2020. On the contrary, a combined reading of the ECHR with the Agriculture Act 2020 will allow a uniform application of the “financial assistance” system that would be free from any human rights concerns if time efficiency, transparency, and clarity remain at the centre of the ELM scheme.

Acknowledgements I would like to thank Dr Brian Jack and Professor Aleksandra Čavoški for their comments on the chapter’s previous versions.

Notes 1 This approach was also present within the CAP. 2 See also the case of Consorts Richer and Le Ber v France App no. 18990/07 (ECHR, 18 November 2011). 3 See also M. v Italy App no 14563/89 (ECommHR, 7 October 1991). 4 See also Claesson and Others v Sweden App no. 13903/88 (ECommHR, 1 July 1992); and Cooperative Producentenorganisatie van de Nederlandse Kokkelvisserij U. A. v the Netherlands App no. 13645/05 (ECHR, 20 January 2009). 5 The chapter focuses on private land but the ELM scheme has also invited land managers of national parks to engage with its objectives.

“Public money for public goods” and property rights 75

References Agriculture Act 2020. Alatulkkila and others v. Finland App no 33538/96 (ECHR, 28 July 2005). Arnott, D. et al. (2019) ‘Vulnerability of British farms to post-Brexit subsidy removal, and implications for intensification, extensification and land sparing’, Land Use Policy, p. 104154. Budayeva and Others v Russia App no 15339/02 (ECHR, 20 March 2008). Burns, C. et al. (2019) ‘De-Europeanising or disengaging? EU environmental policy and Brexit’, Environmental Politics, 28(2), pp. 271–292. Burns, C.J. et al. (2016) ‘The EU referendum and the UK environment: An expert review. How has EU membership affected the UK and what might change in the event of a vote to Remain or Leave?’, Executive Summary. Available at: http://ukandeu.ac.uk/wp-content /uploads/2016/04/Expert-Review_EU-referendum-UK-environment.pdf (Accessed 27 May 2021). Cusworth, G. and Dodsworth, J. (2021) ‘Using the “good farmer” concept to explore agricultural attitudes to the provision of public goods. A case study of participants in an English agri-environment scheme’, Agriculture and Human Values, pp. 1–13. Defra (2018a) A Green Future: Our 25 Year Plan to Improve the Environment. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/693158/25-year-environment-plan.pdf (Accessed 27 May 2021). Defra (2018b) ‘Health and harmony: The future for food, farming and the environment in a Green Brexit’. Déjeant-Pons, M. (2004) ‘Les droits de l’homme à l’environnement dans le cadre du Conseil de l’Europe’, Revue trimestrielle des droits de l’homme, (60), pp. 861–888. DeMerieux, M. (2001) ‘Deriving environmental rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms’, Oxford Journal of Legal Studies, 21(3), pp. 521–561. Desmet, E. (2010) ‘Balancing conflicting goods the European human rights jurisprudence on environmental protection’, Journal for European Environmental & Planning Law, 7(3), pp. 303–323. Devecioğlu v Turkey App no 17203/03 (ECHR, 24 November 2009). Environmental Land Management Schemes: Overview (no date) GOV.UK. Available at: www.gov.uk/government/publications/environmental-land-management-schemesoverview/environmental-land-management-scheme-overview (Accessed 9 July 2021). Environmental Land Management Tests and Trials: 23 Burns Farmer Group (no date) GOV.UK. Available at: www.gov.uk/government/case-studies/environmental-landmanagement-tests-and-trials-23-burns-farmer-group (Accessed 8 July 2021). FAO (2012) Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. Rome. Available at: www. fao.org/3/i2801e/i2801e.pdf (Accessed 30 July 2021). Fredin v Sweden App no 12033/86 (ECHR, 18 February 1991). Hashimzade, N., Black, J. and Myles, G.D. (2017) A Dictionary of Economics. Oxford University Press. Herrick v the United Kingdom App no 11185/84 (ECommHR, 11 March 1985). Hill, B. (2021) ‘Studies of the impact of Brexit on UK agriculture’, in I. Antonopoulos et al. (eds.) The Governance of Agriculture in Post-Brexit United Kingdom. Abingdon: Routledge. Katte Klitsche de La Grange v Italy App no 12539/86 (ECHR, 27 October 1994).

76  Irene Antonopoulos Kenna, P. (2008) ‘Housing rights: Positive duties and enforceable rights at the European court of human rights’, EHRLR, 13, p. 193. Matos e Silva Lda. and Others v Portugal App no 15777/89 (ECHR, 16 September 1996). Maye, D. et al. (2018) ‘ “Present realities” and the need for a “lived experience” perspective in Brexit agri-food governance’, Space and Polity, 22(2), pp. 270–286. McHarg, A. (1999) ‘Reconciling human rights and the public interest: Conceptual problems and doctrinal uncertainty in the jurisprudence of the European Court of Human Rights’, Modern Law Review, 62, p. 671. Petetin, L., Dobbs, M. and Gravey, V. (2018) Written Response to Sustainable Farming and Our Land Consultation of the Welsh Government. Available at: https://orca.cardiff. ac.uk/134322/ (Accessed 30 July 2021). Pine Valley Developments Ltd and Others v Ireland App no 12742/87 (ECHR, 9 February 1993). Public Goods – ENRD (European Network for Rural Development) – European Commission (no date). Available at: https://enrd.ec.europa.eu/enrd-static/themes/public-goods/ en/public-goods_en.html (Accessed 30 July 2021). Stewart, B.D. et al. (2019) ‘Making Brexit work for the environment and livelihoods: Delivering a stakeholder informed vision for agriculture and fisheries’, People and Nature, 1(4), pp. 442–456. UN OHCHR (2015) Land and Human Rights: Standards and Applications. HR/PUB/15/5/ Add.1. Available at: www.ohchr.org/Documents/Publications/Land_HR-Standards Applications.pdf (Accessed 30 July 2021). Volkov, A. et al. (2019) ‘Brexit and EU Common Agricultural Policy: The possible consequences for Lithuania’, Economics and Sociology, 12(2), pp. 328–344. WTO | Glossary – Multifunctionality (no date) Available at: www.wto.org/english /thewto_e/glossary_e/multifunctionality_e.htm (Accessed 30 July 2021).

5 Agroecology, GM crops, and the post-Brexit regulatory framework Miranda Geelhoed1

Introduction In the autumn of 2018, the All-Party Parliamentary Group (hereinafter “APPG”) on Agroecology proposed Amendment 41 to the Agriculture Bill, which sought to establish and maintain “whole farm agroecological systems” (House of Commons, 2018, Amendment 41). Although this initial amendment was voted down and the Agricultural Bill 2017–2019 saw its end with the dissolution of Parliament (Agriculture Bill, 2019), the new Agriculture Act 2020 does seek to support a better understanding of agroecology (Agriculture Act, 2020, section 1(5)), and the APPG was reinstated in March 2020 for the new parliamentary session. The explicit reference to agroecology in the new Act has been considered a welcome albeit modest response to public demands for agroecology in the context of postBrexit regulatory framework, which seeks to integrate food production and the generation of public goods (Petetin and Gravey, 2020). The UK’s efforts should, moreover, be viewed against the backdrop of a wider movement for reform of agricultural and food policy. For example, agroecology has been linked to the need for comprehensive change of EU regulation on food production (De Schutter et al., 2019). The recent Farm to Fork and Biodiversity Strategies (European Commission, 2020a, 2020b) may provide positive steps in this regard, whilst the latter explicitly recognises the potential of agroecology to “provide healthy food while maintaining productivity, increase soil fertility and biodiversity, and reduce the footprint of food production” (European Commission, 2020b, p. 8). Noteworthy are also developments at international level, where agroecology has been mentioned by the United Nations’ Food and Agriculture Organization (hereinafter “FAO”) and by the former Special Rapporteur on the Right to Food as an important concept to aid the achievement of sustainability and the protection of fundamental rights (FAO, 2018; Human Rights Council, 2010). From a legal perspective, however, agroecology is a difficult concept to grasp. With its origins in the environmental and social sciences and further developed through farming practices and civil society, the interactions between law and agroecology have been limited. Moreover, where references have been made, understandings of agroecology have not been homogenous and not without a need for interpretation. At its core, however, agroecology can be linked to more general DOI: 10.4324/9781003010852-5

78  Miranda Geelhoed developments in environmental law and beyond as its central premise entails respect for ecological processes and conservation of ecosystem functioning. In this regard, this chapter uses an example from the wider realm of agricultural and food law, namely the EU’s regulatory regime on the cultivation of genetically modified organisms (hereinafter “GMOs”), to illustrate how regulations in the field of food production could prioritise the protection of ecosystem functioning and resilience (Directive 2001/18/EC, 2001 and Regulation 1829/2003, 2003). It also identifies the obstacles to the full realisation of this potential, notably restrictions imposed by organisational structures that reflect a bias towards industrial agricultural production and disregard the promise of agroecosystem stewards for the promotion of agroecology. Finally, this chapter brings these discussions back to the UK context and the post-Brexit regulatory regime for food production and the cultivation of genetically modified (hereinafter “GM”) crops.

Law and (agro)ecology Since the 1940s, farming within the EU and the UK has seen an unprecedented and continuous technological transition. Characteristics of this industrial model of agriculture, with a primary aim to maximise production, are the upscaling and specialisation of enterprises, reduction of labour due to mechanisation, and the use of artificial inputs such as synthetic mineral fertilisers and chemicals for disease and pest control (Conford, 2001; Mazoyer and Roudart, 2006). Application of these practices can be held to have seen some relative, short-term success in terms of yields and efficiency gains when measured in accordance with the industrial standard per unit of labour (Conford, 2001). However, it has been said that “the greatest triumphs, as long as they are poorly controlled, always lead to excess” (Mazoyer and Roudart, 2006, p. 439). Industrial agricultural production has been held responsible not only for overproduction in some parts of the world but also for grave environmental impacts, such as biodiversity decline, soil degradation, water pollution and depletion, and climate change and negative impacts on rural communities (Díaz et al., 2019; Geiger et al., 2010; Reid et al., 2005). Where industrial agriculture uses technologies to simplify, constrain, and tweak natural laws applicable to agriculture, such as the need for diversity in fields to boost fertility and protect against diseases, weeds, and insects, agroecology, on the contrary, relies upon, mimics, and aims to conserve such ecological processes (Altieri, 2002; Wibbelmann et al., 2013). It must be noted that this way of farming to conserve the functioning of ecosystems for long-term sustainability is not a recent innovation and, before technological short-cuts were available, it was key to the ability of historical farmers to sustain themselves and their communities. Yet, as a contemporary concept, agroecology has profiled itself as a sustainable alternative to the forces of industrial food production. Whilst the industrial model has, historically, found support in post-war regulations on agriculture, such as the basis of the early EU Common Agricultural Policy (CAP) (Treaty Establishing the European Community, 1957, Article 39(1)2; Conford, 2001) and the UK’s Agriculture Act 1947, it is only recently that agroecology is receiving more – albeit modest – attention among regulators to enhance the sustainability of the sector.

Agroecology, GM crops, and the post-Brexit regulatory framework 79 The rise of agroecology Agroecology, initially developed as a scientific discipline, applied ecological principles to the study of agriculture, thereby breaking through disciplinary divisions (Tomich et al., 2011). Accordingly, agroecology studies complex system dynamics and processes and seeks to enhance nutrient cycles, and conserve natural resources and agrobiodiversity (Gliessman, 2014, Chapter 2). Whereas it holds that sustainability lies in imitation and conservation of ecological processes, agroecological research largely supports closed cycles and the recycling of “waste” (Altieri, 1995, Chapter 6). Applied to an agricultural field, reliance on ecological principles to inform agroecosystem management translates into a variety of farming practices, which require adaptation to local contexts. Overlap, in this regard, may exist with agricultural models that are more well-known and established in the EU and UK context, such as organic farming which, in principle, also advocates an ecological focus (IFOAM, no date, Principle of Ecology; Regulation 2018/848, 2018, Articles 5(a) and (f)). Yet, organic farming has seen levels of “conventionalisation” or “industrialisation”, notably under influence of regulatory production rules, which has led some agroecologists to distance themselves from the organic sector (Rosset and Altieri, 1997). Whereas the ecological origins of agroecology are the focus of this chapter, it must be noted that the concept of agroecology also embodies socio-economic aspects. Agricultural models can, directly or indirectly through the deterioration of ecosystem functioning, have negative implications for the well-being of the communities that form an integral part of the ecosystem. Drawing upon the social and economic sciences, agroecology as a scientific discipline seeks to gain a better understanding of humans as the cause, subject, and solution to the sustainability problems of agroecosystems (Tomich et al., 2011; Francis et al., 2003). Furthermore, as agroecology increasingly embraces an agenda of food system change, it is also known as a transformative movement for equity and justice that addresses matters such as conditions of production and community empowerment (Wezel et al., 2009; Gliessman, 2014, Chapter 26). Law and agroecology: limited interactions and conceptual lack of clarity Although agroecology holds great potential to address some of the negative externalities that follow from a dominant industrial model of food production, an economic, political, and legal enabling environment is essential for the upscaling of still largely localised agroecological practices and systems (De Molina, 2013; Altieri et al., 2012). Whereas the EU and UK regulations that are relevant to agriculture initially supported technological developments brought by the industrial agricultural revolution, and, largely, adopted a piecemeal approach to mitigate their negative impacts, comprehensive interactions between the regulatory realm and a sustainable agricultural system such as the agroecological model are largely absent. Monteduro observed that the “law . . . has remained separate and very far from the debate within agroecology” (Monteduro, 2015, p. v) and legal sciences

80  Miranda Geelhoed have “remained alien to agroecology” (Monteduro, 2013, p. 7). Indeed, within the EU context, legal references to agroecology have been few and far between and often fail to explain how the concept is to be understood in a legal sense. Illustrative in this regard are the endorsements of agroecology in the strategies that underpin the European Green Deal, which, despite their welcome nature, bring little clarity on what agroecology is and how it relates to other sustainable agricultural methods such as organic farming practices.3 Operationally, the EU’s proposals for a post-2020 CAP only explicitly mentions agroecology as part of a wide range of “management commitments”, which could be targeted for support by member states at their discretion (European Commission, 2018a). However, Germany has already been one of the first countries to come under criticism for its failure to align its proposed national strategic plan with the broad ambitions of the European Green Deal and for watering down the potential of the eco-schemes altogether (Arc, 2020). At UK level, the isolated reference to agroecology in the new Agriculture Act 2020 highlights the need for a “better understanding” of agroecology (Agriculture Act, 2020, section 1(5)). However, it is feared that the identified need to foster such a better understanding through public financial support may only be interpreted to require extra spending on scientific agricultural courses (West, 2020), rather than a meaningful debate on agroecology as a legal concept, which could provide a basis for regulatory measures that aim to support agroecological practices. In this regard, the Agriculture Act may just end up being one example of the piecemeal uptake of agroecology in national laws whose overall effectiveness for fostering agroecological transitions remains uncertain. Another example is Switzerland’s Law on Agriculture for the Canton of Vaud (2010, Articles 58–77), which references a wide range of technical instruments such as agri-environmental payments, networks of ecological compensation areas, and training awards under the heading of agroecology, but which fails to clarify what can be understood as an agroecological way of farming. Within the EU context, the most prominent example is France’s Law of the Future for Agriculture, Food and Forestry, which was adopted after calls for an agroecological transition (2014; Gonzalez et al., 2018). It holds that public policies should “promote and sustain agro-ecological production systems [. . .] in particular through a high level of social, environmental and health protection” (Law of the Future for Agriculture, Food and Forestry, 2014, Article 1.II). However, this law has been criticised for risking the continuation of an industrial model of food production by attempting to reconcile conflicting objectives such as fostering competitiveness and ecological transition, also taking into account that the French government put forward the belief that agroecology does not require substantial changes (Gonzalez et al., 2018). An ecosystem approach to agriculture The relationship between agroecology and the law has been rather limited and characterised by uncertainty what agroecology could mean in a legal context as mentioned earlier. Yet, if we bring agroecology back to its conceptual core,

Agroecology, GM crops, and the post-Brexit regulatory framework 81 namely its focus on ecological processes to inform farm management decisions, important analogies can be drawn with (eco)system thinking in a broader and also legal sense. Indeed, it has been observed that ecosystems increasingly have found recognition in different areas of law (Tarlock, 2008). An “ecosystem legal regime” has been defined as a cluster of rules, which follow concerns for human impacts on ecosystem functioning and which have as their main objective the maintenance and restoration of such functions (Brooks et al., 2002, p. 3). Various examples exist where ecosystem thinking has informed the drafting of international and EU legislation. For example, with regard to international marine environment, the Ramsar Convention on Wetlands encourages its parties to consider “the fundamental ecological functions of wetlands” (1971, Preamble). Within the EU, the Marine Strategy Framework Directive applies “an ecosystembased approach to the management of human activities”, (2008, Article 1(3)), and, in the broader water realm, the Water Framework Directive seeks to prevent “further deterioration and protects and enhances the status of aquatic ecosystems” (2000, Article 1(a)). Yet, most significant for the agricultural context may be the ecosystem approach as developed under the Convention on Biological Diversity (hereinafter “CBD”), to which both the EU and the UK are parties.4 The CBD’s approach and notably the Malawi Principles (Conference of the Parties to the Convention on Biological Diversity, 2000b) advocate an integrated management approach, which, fundamentally, holds that the “conservation of ecosystem structure and functioning, in order to maintain ecosystem services, should be a priority target” when balancing objectives (Conference of the Parties to the Convention on Biological Diversity, 2000b, Principle 5 and Operational Guidance Point 1; Morgera, 2017).

Protecting ecosystem functioning within the EU’s regime for GM crops The previous section has highlighted that inspiration for ecosystem-based thinking in support of transitions towards an agroecological model of food production can already be found in the legal sphere. The question, however, remains how such an ecosystem approach that prioritises the protection of ecosystem functioning could be applied in a regulatory context relevant to agriculture. This chapter uses the example of the EU’s regulatory regime on the cultivation of GM crops to illustrate this point.5 It must be noted that the topic of GM cultivation touches upon a broader question of compatibility of new technologies such as biotechnologies with agroecological transitions. In this sense, agroecology’s reliance on subtle ecosystem dynamics and processes to achieve agricultural sustainability implicitly embodies an element of precaution regarding introduction of external inputs to, ideally, closed cycles, which suppose universal applications and which longterm implications on ecosystem functioning may not be known or understood. Analogies can be drawn with the organic sector, whereby the principles formulated by the International Federation of Organic Agriculture Movements (hereinafter IFOAM) prescribe a precautionary management approach that emphasises

82  Miranda Geelhoed our “incomplete understanding of ecosystems and agriculture” (IFOAM, no date, Principle of Care). Indeed, whereas the 1999 EU’s ban on GMOs in organic production was partly motivated by consumer expectations (Lynggaard, 2006), the European Parliament had also highlighted the need to mitigate risks due to the unknown, long-term environmental impacts of biotechnology (European Parliament, 1997, Amendment 13). Whilst scholarship, which links agroecology to the precautionary principle, is very limited (Head, 2017), the latter has been recognised as a crucial element of an ecosystem approach, which prioritises the protection of ecosystem functioning and resilience (Conference of the Parties to the Convention on Biological Diversity, 2000b, Principles 6 and 9; Morgera, 2017). Importantly, such a need for prioritisation and the significance of the precautionary principle in this regard, as a general principle of EU law (European Commission, 2002; Case T-74/00 Artegodan and Others v Commission, 2002 par.184), have also found acknowledgement in the EU’s regulatory framework for the approval of GMOs. Adopted with a view to progressively establishing an internal market for such products,6 Directive 2001/18/EC, 2001 on the deliberate release into the environment of GMOs and Regulation 1829/2003 on genetically modified food and feed seek to provide for a high level of protection against environmental risks (Directive 2001/18/EC, 2001; Regulation 1829/2003, 2003, Article 1(a)).7 Furthermore, this objective is to be implemented “in accordance with the precautionary principle” (Directice 2001/18/EC, 2001, Article 1). These normative bases of the EU’s regime thus provide opportunities for making decisions on the approval or prohibition of GMOs for cultivation, which reflect agroecological thinking. Yet, there is an assumption of public merit that underpins risk regulation, which means that (uncertain) environmental risks must justify a ban, as opposed to a high-risk product needing justification before its release into the environment. This assumption, therefore, places a lot of faith in regulators’ ability and willingness to address ecological risks in each and every case. Regulating GM crops: risk assessment and management The previous section highlights that the distribution of authority amongst the regulators that decide on the authorisation of GMOs for cultivation and conditions of their use is a key consideration for the level of environmental protection that is achieved. Crucially, the EU’s regime is characterised by a two-tiered approach to risk governance, where a risk assessment of the GMO is followed by risk management. This structure reflects, at least on paper, a perceived regulatory ideal within which advice by independent technocrats forms the basis of broader riskinformed decisions by political actors (Paskalev, 2012). Accordingly, the approval procedure starts with the submission of an application by the producer to a national competent authority. Under Directive 2001/18/ EC, the national authority has an opportunity to provide a risk assessment. However, in practice, the European Food and Safety Authority (hereinafter “EFSA”) has always provided a scientific opinion due to “reasoned objections” that have

Agroecology, GM crops, and the post-Brexit regulatory framework 83 been made by other member states (Directive 2001/18/EC, 2001, Articles 15 and 28). Furthermore, when overlap exists between the scope of Directive 2001/18/EC and Regulation 1829/2003, for example, for GMOs that are intended for cultivation and use for food and feed,8 a single application under Regulation 1829/2003 suffices. Contrary to Directive 2001/18/EC, under Regulation 1829/2003 the national authorities do not conduct their own assessments but simply forward approval dossiers to EFSA for scientific assessment (Regulation 1829/2003, 2003, Articles 5(1)(2) and 17(1)(2)). Significantly, EFSA’s Panel on GMOs, whose scientific members are selected on the basis of an open call, does not generate its own science but relies on available information and the input from a broad range of public and private, national and EU-based, scientific and lay actors (Regulation 178/2002, 2002, Articles 22(7) and 23). EFSA’s conclusions are forwarded to the European Commission, which, when adopting its implementing acts as the main risk manager, is checked by member states through the framework of “comitology” (Regulation 182/2011, 2011). The commission is not bound to follow scientific opinion, but, in practice, is known to exclusively follow EFSA’s recommendations when adopting its draft GMO decisions.9 Yet, member states have never backed or rejected the commission’s decisions authorising GMOs by the required qualified majority of members of the Standing Committee on Plants, Animals, Food and Feed or the Appeal Committee (Paskalev, 2012). It has, in the absence of national legitimacy, therefore, been up to the commission to approve the application or not (Regulation 182/2011, 2011, Article 6(3)). Specific protection goals and ecosystem services The potential of the EU’s regime for the regulation of GM crops for transitions towards an agroecological model of food production is, firstly, contingent on the degree to which impacts on ecosystem functioning that may follow from GMO cultivation are considered within the decision-making structures. In this regard, it is reiterated that the regulations aim to provide for a high level of environmental protection (TFEU, 2016, Article 114; also, Regulation 1829/2003, Article 1). This generic objective, however, needs to be translated into specific protection goals for environmental risk assessment, which, on a case-by-case basis, aim to “identify and evaluate potential adverse effects” (Directive 2001/18/EC, 2001, Annex II). It has been recognised that decisions on such specificities of scientific analysis disguise crucial political choices on the environmental elements that are most worthy of protection (Nienstedt et al., 2012, p. 32). However, it has been EFSA, primarily, that has sought to bring such clarifications to risk assessment procedures through its opinions and guidance documents. EFSA’s guidance on the environmental risk assessment of GM plants highlights, in this regard, several “ecological functions” relevant to problem formulation and hazard characterisation (EFSA, 2010, p. 17), notably, regarding soil, water, and production systems including biodiversity.10 Importantly, it does not only consider primary effects but it also considers secondary impacts such as loss of habitat and food for animals, insects, and microorganisms (EFSA, 2010, p. 107). Furthermore,

84  Miranda Geelhoed in 2016, EFSA proposed to extend its work on specific protection goals in the field of risk assessment for pesticides to other areas of work, including GMOs (EFSA, 2016). In particular, this common approach would use the framework of “ecosystem services” to operationalise environmental protection goals including biodiversity (EFSA, 2016, p. 6). Whereas the ecosystem services concept is more anthropocentric than the broader notion of ecosystem functions,11 focusing on the benefits of ecosystems and biodiversity for humankind, many listed services are relevant to an agroecological approach (EFSA, 2016, p. 15). This includes, for example, pollination, disease, water and climate regulation, fresh water and habitat provision, soil formation, and nutrient cycling. The framework outlined earlier would, at least on paper, provide opportunities for the integration of agroecological thinking into risk assessment and, consequently, decision-making on the authorisation of GMOs. However, a few reservations need to be made. Firstly, the clarification efforts regarding specific protection goals reflect EFSA’s own preferences, as the topic of specific protection goals is currently still under discussion in comitology. As explained by the EU’s General Court: “The final decision on protection goals needs to be taken by risk managers. . . . That does not, however, mean that EFSA could not rely on its own opinion in the context of the risk assessment” (Case T‑429/13 and T‑451/13 Bayer CropScience and others v Commission, 2018, paras 236–240). In practice, however, the consideration of impacts of GMO cultivation on key ecological functions in the context of individual GMO approval dossiers has not been consistent.12 Secondly, the actual risk analysis is often still very much focused on impacts on specific species in line with the available methodologies for risk assessments. For example, efforts to enhance current testing may focus on improved accuracy of laboratory studies to assess the negative effects on Lepidoptera (butterflies and moths) (Lang et al., 2019). Yet, where (potential) negative effects on non-target species can be identified, even if uncertain or minimal, further studies would still be required to consider wider impacts on subtle dynamics and overall ecosystem health. Lastly, and crucially, the organisational complexity that underpins the EU’s GMO regime operates in such a way that greatly marginalises the type of knowledge held by farmers as ecosystem stewards, which is crucial to any comprehensive assessment of ecosystem functionality, as explained hereafter. Participatory deficits: the marginalisation of ecosystem stewards The “sound science” approach to EU risk governance is based on the idea that a scientific basis reduces potential conflict in decision-making, presuming objectivity as the “rationale for power” (Jasanoff, 2011, p. 311). Objectivity, however, should not be interpreted to equate to simple facts – a mistake that is often made in the regulatory realm – as scientific conclusions involve subjective choices and value judgements regarding the precise content of risk analysis and the question of who is considered to be the most competent expert to generate scientific knowledge. In particular, the workings of the EU’s risk-assessment procedures with EFSA as their main operator have faced criticism for their bias towards certain sources of

Agroecology, GM crops, and the post-Brexit regulatory framework 85 information and expertise over others. It is the industrial applicant who provides the very basis for EU risk governance through submission of a technical dossier, which already contains a full environmental risk assessment (Directive 2001/18/ EC, 2001, Article 6(1) (2a) (vii) and Annex II). The idea behind this is that public money should not be used for the commissioning of expensive studies, which ultimately contribute to the marketing of a product for private gain (European Commission, 2018b, Explanatory Memorandum). Whilst objectivity is to be secured through collection of more information and through peer review, in practice, the inclusiveness of the process can be questioned, whether due to the absence of independent studies or a lack of consideration of other sources (Geelhoed, 2016). From an agroecological perspective, reliance on a single source of information that largely asserts universally applicable truths is problematic. As recognised at international level, protection of complex and dynamic ecosystem functions requires a bottom-up approach that involves all relevant stakeholders, notably those ecosystem stewards with local knowledge (Conference of the Parties to the Convention on Biological Diversity, 2000b, Principle 11). Predominance of certain actors means not only that certain types of information are ignored or undervalued but also that industrial information holders have significant power to shape the debate on the impacts of GMO cultivation. Such influence may, for example, follow from choices regarding the baseline of the receiving environment against which changes are assessed, including physical diversity of flora and fauna and current industrial versus organic agro-management practices (EFSA, 2010, p. 23). In this regard, EFSA has also been known to extend the conclusions of field trials under specific natural and agronomic conditions to more diverse environments despite opposition by member states (EFSA, 2008; Geelhoed, 2016). Moreover, where EFSA’s guidance calls for uncertainty, as a precondition for precaution, to be recognised at every stage in the context of GMO risk assessments (EFSA, 2010, p. 34), in practice, it has only incidentally referred to the limits of “the current state of knowledge” (Paskalev, 2012, p. 203; Case T‑240/10 Hungary v Commission, 2013, par. 37). Moreover, uncertainty can arise not only when information is lacking but also when multiple sources contradict each other (European Commission, 2002, par. 5.1.3; Asselt and Janssen, 2013). This highlights an issue regarding EFSA’s heavy reliance on industry studies as the sole source of knowledge or its dismissal of the relevance of national studies that aim to contradict industry findings.13 Indeed, EFSA’s reluctance to recognise knowledge gaps or scientific conflict in its risk assessments may be the primary explanation for stark differences between the attitudes of EU risk assessors and agroecologists towards the use of GM crops. Where this means that potential ecological risks of GM cultivation are not recognised at the risk-assessment stage, with firm conclusions that the crop has “no adverse effects” (EFSA, 2005), there is little room left for policymakers to manage risks. Many problems outlined have, however, received acknowledgement in the recently adopted EU Regulation 2019/1381 on the transparency and sustainability of the EU risk assessment (Regulation 2019/1381, 2019). Although enhanced transparency indicates only a focus on better communication to foster public trust,

86  Miranda Geelhoed improved sustainability suggests some possibilities to broaden the knowledge base of EU decision-making on GMOs. Notably, new provisions would in certain instances allow stakeholders to be involved in the early stages and design of risk assessment, rather than only having them comment on scientific findings retrospectively (Regulation 178/2002, 2002, new Article 32c(1)). Moreover, in case of “serious controversies or conflicting results”, EFSA can be asked to commission independent studies (Regulation 178/2002, 2002, new Article 32d). Whereas a full analysis of Regulation 2019/1381 is beyond the scope of this chapter, it is noted that its true value for agroecological reform will be dependent on its implementation, the workings of new consultation processes, and the extent to which the latter allow for better consideration of knowledge held by those closest to agroecological realities.

Agroecology and the law: observations post-Brexit The EU’s legal regime for the cultivation of GM crops exemplifies that a regulatory regime that asserts (agro)ecological thinking, should not only acknowledge the relevance of ecosystem functioning, for example through specific protection goals for risk assessment. Indeed, of equal importance is the integration of knowledge that is necessary for the effective protection of ecosystem functioning, notably of local stakeholders and ecosystem stewards, into decision-making processes. The previous section has also implicitly demonstrated the EU-centric nature of the pre-Brexit regime on the authorisation of GMOs. Indeed, applicable laws were adopted primarily at EU level (Directive 2001/18/EC, 2001 and Regulation 1829/2003, 2003), and operate primarily at EU level through implementation by EU institutions, notably EFSA and the European Commission. Thus, it becomes important to analyse the potential for and constraints to the consideration of impacts on ecosystem functioning in a post-Brexit regulatory regime for the authorisation of GMOs. This will be done by briefly extending the findings of this chapter to the wider post-Brexit context and the potential for the UK and its devolved nations to put the agroecological transition at the forefront of agricultural and food law reform. Ecosystem functioning and the regulation of GMOs post-Brexit Prior to the UK leaving the EU, the scope for national derogation from the largely harmonised EU-wide regime for the authorisation of GMOs was very limited.14 Directive 2001/18/EC was implemented through versions of Genetically Modified Organisms (Deliberate Release) Regulations in the devolved nations,15 and Regulation 1829/2003 was directly applicable in the UK legal order. Very restricted powers with regard to the commercial release of GMOs belonged to the UK’s competent authorities, notably the Food Standards Agency (hereinafter “FSA”) with regard to food safety and the Secretary of State for the Environment, Food and Rural Affairs (hereinafter “Defra”) and the devolved agriculture departments for risks to the environment (Scottish Government, no date). The Advisory Committee on Releases to the Environment (hereinafter ACRE), a non-departmental

Agroecology, GM crops, and the post-Brexit regulatory framework 87 public body sponsored by Defra, provided statutory advice to ministers on the health and environmental risks of GMOs. With regard to the regulatory landscape for GMOs after Brexit, it must, firstly, be noted that at the moment there are still many unclarities and unknowns. Under the wider framework provided by the Withdrawal Agreement (2019), various statutory instruments have been adopted to transfer EU regulations on GMOs with direct effect into national legislation.16 Whilst these instruments are still largely the same as their EU counterparts and were adopted without debate, the Amendment of the Genetically Modified Organisms (Deliberate Release) Regulation applicable to England does stipulate that the legislation will be reviewed at intervals not exceeding five years, with a view to seeing if its objective can be achieved “in another way which involves less onerous regulatory provision” (The Genetically Modified Organisms (Deliberate Release) (Amendment) (England) Regulations, 2019). This provision highlights the uncertainty surrounding the question whether, in the long term, the different nations that make up the UK will all continue to align themselves with the EU regime. Indeed, Westminster, in the past, has criticised the EU process for being slow and cumbersome and “unscientific” due to the absence of conclusions on environmental risks that could explain the impasse in comitology (Nelsen, 2019). ACRE has, furthermore, called for a “more effective approach” to environmental risk assessment that bases the need for such an assessment on the crops’ novel (phenotype) trait rather than the technological process of (genotype) manipulation (Advisory Committee on Releases to the Environment, 2013), a product-focused approach that would bring the UK closer to a US-style regulatory regime on biotechnology. A consultation launched at the start of 2021 on deregulation of certain techniques for genetic modification (or “gene editing”) and potential reform of the whole regulatory regime further signals potential for internal conflict and controversy, in particular as relevant to the Scottish legislation which has not indicated any intentions of review the legislations’ objectives and provisions (compare The Genetically Modified Organisms (Deliberate Release) (Amendment) (England) Regulations, 2019 and The Genetically Modified Organisms (Deliberate Release etc.) (Miscellaneous Amendments) (Scotland) Regulations, 2019). The topic of the regulation of GMOs, in fact, touches upon important devolved competences such as agriculture and the environment (Engel and Petetin, 2018) and stark differences between the attitudes of the nations towards GMOs had already become evident prior to Brexit, when Scotland, Wales, and Northern Ireland took the opportunity provided by the EU in 2015 to restrict GMO cultivation in their territories, with reference to the need to protect their green image and environment (Roger and Geelhoed, 2016). It is evident from the earlier paragraph that a lot is still to be decided when it comes to the regulation of GMOs in a UK post-Brexit, notably when taking a longterm perspective. This concerns both the process and the substance of the authorisation of GMOs, as well as the institutions that will be involved. For example, references to EFSA were deleted from some pieces of legislation in preparation of a potential no-deal, despite unclarity about which UK institutions would take over its role and their capacity to do so (Coyne, 2019). From an agroecological

88  Miranda Geelhoed perspective, however, some opportunities may arise from the design of a new regulatory approach, allowing for better integration of ecological considerations in the decision-making processes. Inspiration, in this regard, could be taken from the Norwegian regulatory regime, which, following an amendment to the environmental annex to the Agreement on the European Economic Area (hereinafter “EEA”), has adopted a hybrid approach (Decision of the EEA Joint Committee Amending Annex XX (Environment) to the EEA Agreement, 2008, Article 1(b)). On the one hand, this dual approach seeks alignment with EFSA’s risk assessment, but, on the other hand, it still allows for permanent restrictions on GMO cultivation where there is evidence that the GMO constitutes a risk to the environment (Roger, 2015). The Norwegian approach exploits the benefits that come with centralisation of scientific expertise on highly complex issues such as the effects of particular GMOs, whilst still allowing for more in-depth assessments of impacts on local biodiversity and specific ecosystem functions and services by the Norwegian Scientific Committee for Food Safety.17 Furthermore, it is noteworthy that Norway’s Gene Technology Act of 1993 creates a second avenue to give consideration to broad sustainability concerns through a “societal” assessment by the Biotechnology Advisory Board, which is done in parallel with the safety assessment (Gene Technology Act, 1993, Articles 10 and 26). The Board looks at the environmental dangers within specific local, regional, and national contexts, taking into account not only the intended uses, public perceptions, and gaps in knowledge (Rogne and Linnestad, 2006), but also the impacts on the “functional capacity of ecosystems” and ecological limits and other “eco-ethical” considerations (Rogne and Linnestad, 2006, pp. 14, 19). The Board is an independent body consisting of 21 Members, appointed on a personal basis or by nomination from various public organisations, and includes social and natural scientists and stakeholder interest groups (Rosendal, 2008). In addition, the procedures provide for continuous possibilities for participation, with information being made available to the Board and its opinions also being made public for comments (Binimelis and Myhr, 2016). Whilst the final decision on GMO authorisation is made by the Ministry of the Environment, the holistic nature and inclusiveness of the Norwegian system provide more possibilities to take account of (potential) impacts on ecosystem functioning in line with an ecosystem approach to agriculture. As such, it could inspire agroecologically sound decision-making in a post-Brexit regulatory regime for the use of GMOs. Beyond GMOs: agroecology and the regulation of food and agriculture The findings of this chapter, however, do not limit itself to the context of GMO regulations. The observation that agroecology, in a legal sense, can be best interpreted to require laws and policies to prioritise the protection of ecosystem functioning can be extended to the wider food and agriculture realm. Indeed, this chapter relies on the ecosystem approach as developed under the CBD to which both the EU and the UK are parties. The CBD recognises biodiversity as

Agroecology, GM crops, and the post-Brexit regulatory framework 89 a “common concern of humankind” (Convention on Biological Diversity, 1992, Preamble), which allows for the extension of the traditional focus of international law on transboundary impacts to include areas that could otherwise be seen as internal matters. The relevance of the food and agricultural sectors for the implementation of the ecosystem has been explicitly recognised, for example, in the context of the CBD Initiative on the Conservation and Sustainable Use of Pollinators (Conference of the Parties to the Convention on Biological Diversity, 2002), and work conducted by the UN Food and Agriculture Organization (Koohafkan and Altieri, 2011). The implementation of an ecosystem approach in the context of the UK’s Agricultural Bill 2019–2021, and ultimately the Agriculture Act 2020, requires more than an isolated reference to agroecology. Operationally, UK civil society had already pushed for amendments – which did not go to a vote – which entailed bolder commitments of targeted financial support for agroecology (Sustain, 2020). Conceptually, however, there is also a need for a clearer link to agroecology’s value base and notably its objective to prioritise ecosystem functioning. It is only through such a principled approach that the effectiveness and value of a new Agricultural Act and secondary legislation and policies adopted thereunder, for the fostering of the uptake of agroecology, can be assessed. These recommendations can, furthermore, be extended to developments in the devolved nations, for example, regarding a potential Good Food Nation Bill in Scotland (Scottish Food Coalition, 2017), and the implementation of the Welsh Well-being of Future Generations Act 2015 (Packer, 2019). The case study in this chapter shows, however, that it will not be enough within all these legislative and policy contexts to merely provide recognition of agroecology and clarification and its meaning in a legal sense. Indeed, the EU’s regime for the authorisation of GMOs has illustrated that a bottom-up approach, which gives a voice to those land stewards that are closest to the local and physical realities of agroecosystems, is essential for the implementation of an ecosystem approach in support of agroecology. In the EU, the absence of clear rules for public consultation during the drafting of eco-schemes has been highlighted as a risk for the effective implementation of the CAP post-2020 objectives. Similar observations could be made with regard to the agricultural and food regimes within the UK and the rejection by the House of Parliament of an amendment to the Agricultural Bill 2019–2021 (House of Lords, 2020, Amendment 16B) despite vigorous farmers’ campaigns, which aimed to secure a pre-Brexit baseline for environmental and food standards (Landworkers’ Alliance, 2020). This paints a somewhat bleak picture of the place of agroecosystem stewards in post-Brexit UK.

Conclusion General discussions on Brexit often spark strong and divergent opinions. This is particularly prominent with regard to future developments in agriculture and food production post-Brexit. While some believe that Brexit brings opportunities to address the shortcomings of EU regulations, notably the CAP, others, including

90  Miranda Geelhoed contributors to this edited book, raise concerns about the UK being able to deliver on sustainable agriculture outside of the EU. There is still much uncertainty about the future of the UK’s agricultural and food sectors – notably in the long term – and the protection that its rural environments will receive under new national and devolved laws and policies. However, where tough and impactful decisions will have to be made, this chapter has argued that an ambitious approach should give full attention to the concept of agroecology. In this regard, regulators should not be discouraged by the limited interactions between law and agroecology and the conceptual unclarity that arises from them. In essence, agroecology supports an approach that prioritises the protection of ecosystem functioning, an approach that has found recognition in international instruments to which both the EU and the UK are parties. The effective implementation of an ecosystem approach to agriculture and food production requires explicit acknowledgement in law and policy of such functions being worthy of protection. For example, ecosystem functions should be recognised through specific protection goals, as illustrated by the regulatory regime for GM crops, or within mechanisms for financial support for practices aiming at agroecosystem conservation. Moreover, targeted and effective legal action requires the creation of avenues for consideration of all relevant knowledge, notably knowledge held by those closest to local agroecosystem realities. Public consultation and stakeholder participation should be paramount in the design of a new legal landscape for the UK agricultural and food sectors. Only when innovative laws and policies combine substantive and procedural ecological approaches will agroecology be able to position itself as a sustainable alternative to dominant models of industrial production.

Notes 1 This chapter builds upon my PhD research on agroecology and the ecosystem approach in the context of the EU’s regulation of agricultural production. 2 “The objectives of the Common Agricultural Policy shall be (a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour”. 3 See Farm to Fork Strategy (European Commission, 2020a), which automatically includes organic production under agroecology, whereas the European Green Deal communication lists them as separate categories. 4 See, for example, Conference of the Parties to the Convention on Biological Diversity (2000a), which discusses the relevance of the ecosystem approach for the agricultural sector. 5 Note that the wider EU legal regime for the authorisation GMOs also includes procedures for the authorisation of the use of GMOs for food or feed that are not intended for cultivation (Regulation 1829/2003, 2003). 6 Ex Article 95 Treaty establishing the European Community, 2002; now Article 114 Treaty on the Functioning of the European Union (TFEU), 2016. 7 In accordance with established case law, and in light of the precautionary principle, this means that environmental objectives take precedence over economic interests: Case T-74/00 Artegodan and Others v Commission, 2002, par 184. Note that in other EU risk regulations, this prioritisation has been formulated more explicitly, for example Regulation 1107/2009, 2009 Preambles 24 and 35.

Agroecology, GM crops, and the post-Brexit regulatory framework 91 8 Most applications for GMOs for cultivation will fall under this double scope, yet the Amflora potato, which was intended for industrial application (e.g. the manufacturing of textiles, paper, and adhesives), is an example of a GMO, the application of which was solely processed under the legal regime for deliberate release (Decision 2010/135/ EU, 2010). Its authorisation was annulled in 2013. 9 The commission has to “provide an explanation for the differences” when it diverts from the EFSA’s opinion, Regulation 1829/2003, 2003, Article 19(1). See also Case T-177/13 TestBioTech eV and others v European Commission, 2016, which confirms the discretion of the commission to depart from EFSA’s opinion. 10 Reference in this regard is made to relevant EU law and policy documents, for example the Thematic strategy for soil protection and the Biodiversity Strategy. 11 The concept does face criticism for this reason: Redford and Adams, 2009. 12 See for an example where such “key ecological functions (including ecosystem services) provided by non-target organisms, such as pollination, biological control and decomposition” were considered: EFSA, 2011, p 11. 13 See, for example, EFSA, 2008. See also Geelhoed, 2016. 14 National derogation, in this regard, was limited to the restricted possibilities provided by the “opt-out” Directive 2015/412, 2015 (adding a new Article 26b to Directive 2001/18/EC, 2001), as discussed by Geelhoed, 2016. 15 See the Genetically Modified Organisms (Deliberate Release) Regulations, 2002; the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations, 2002; the Genetically Modified Organisms (Deliberate Release) (Wales) Regulations, 2002; the Genetically Modified Organisms (Deliberate Release) Regulations (Northern Ireland) 2003. 16 See the Genetically Modified Organisms (Amendment) (England) (EU Exit) Regulations, 2019; Genetically Modified Organisms (Amendment) (Scotland) (EU Exit) Regulations, 2019); the Genetically Modified Organisms (Amendment) (Northern Ireland) (EU Exit) Regulations, 2019. 17 Compare in this regard also the language of Preamble 14 Directive 2015/412, which some member states and authors have interpreted to open the door for “Norwegian inspired” derogations within the EU context, see Roger, 2015. Also see Winter, 2016 on a permissive approach to Directive 2015/412.

References Advisory Committee on Releases to the Environment (2013) Towards a More Effective Approach to Environmental Risk Assessment of GM Crops under Current EU Legislation. Available at: https://www.gov.uk/government/publications/genetically-modifiedorganisms-improving-risk-assessments (Accessed 20 June 2021). Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Withdrawal Agreement) (2019), CI 384/1. Agriculture Act 2020 (c. 21). Agriculture Bill (2019) House of Commons Bill 266 2017–2019. Altieri, M.A. (1995) Agroecology: The Science of Sustainable Agriculture. 2nd ed. Boulder: Avalon Publishing. Altieri, M.A. (2002) ‘Agroecology: The science of natural resource management for poor farmers in marginal environments’, Agriculture, Ecosystems & Environment, 93(1–3), pp. 1–24. Altieri, M.A., Nicholls, C. and Funes, F. (2012) ‘The scaling up of agroecology: Spreading the hope for food sovereignty and resiliency’, SOCLA. Available at: ­

92  Miranda Geelhoed https://foodfirst.org/wp-content/uploads/2014/06/JA11-The-Scaling-Up-ofAgroecology-Altieri.pdf (Accessed 20 June 2021). Arc (2020) ‘CAP | Kloeckner Launches Direct Attack on GAEC 9, Eco-Schemes and Green Deal’, Agricultural and Rural Convention. Available at: www.arc2020.eu/capkloeckner-launches-direct-attack-on-gaec-9-eco-schemes-and-green-deal/ (Accessed 20 June 2021). Asselt, M.B.A. van and Janssen, A.M. (2013) ‘The precautionary principle in court. An analysis of post-Pfizer case law’, in M.B.A. van Asselt, E. Versluis, and E. Vos (eds.) Balancing between Trade and Risk: Integrating Legal and Social Science Perspectives. London and New York: Routledge. Binimelis, R. and Myhr, A.I. (2016) ‘Inclusion and implementation of socio-economic considerations in GMO regulations: Needs and recommendations’, Sustainability, 8(1), pp. 1–24. Brooks, R.O., Jones, R. and Virginia, R.A. (2002) Law and Ecology: The Rise of the Ecosystem Regime. London and New York: Ashgate. Case T-74/00 Artegodan and Others v Commission (2002). Case T-177/13 TestBioTech ev and others v European Commission (2016). Case T‑240/10 Hungary v Commission (2013). Case T‑429/13 and T‑451/13 Bayer CropScience and others v Commission (2018). Conference of the Parties to the Convention on Biological Diversity (2000a) The Ecosystem Approach: Towards Its Application to Agricultural Biodiversity. Note by the Executive Secretary, UNEP/CBD/COP/5/INF/11. Conference of the Parties to the Convention on Biological Diversity (2000b) Decision V/6: Ecosystem Approach, UNEP/CBD/COP/5/23. Conference of the Parties to the Convention on Biological Diversity (2002) Agricultural Biological Diversity. CBD/COP/DEC/VI/5. Conford, P. (2001) The Origins of the Organic Movement. Edinburgh: Floris Books. Convention on Biological Diversity (1992) 1760 UNTS 79, adopted 5 June 1992, entered into force 29 December 1993. Convention on Wetlands of International Importance Especially as Waterfowl (Ramsar Convention) (1971) 996 UNTS 245, adopted 2 February 1971, entered into force 21 December 1975. Coyne, K. (2019) Reference to EFSA Removed in Brexit Law Transfer. CIEH. Available at: www.cieh.org/ehn/food-safety-integrity/2019/march/reference-to-efsa-removed-inbrexit-law-transfer/ (Accessed 20 June 2021). Decision 2010/135/EU Concerning the Placing of the Market of a Potato Product (Solanum Tuberosum L. Line Eh92–527–1) (2010) OJ L 53/11. Decision of the EEA Joint Committee Amending Annex XX (Environment) to the EEA Agreement (2008) OJ L 47/58. De Molina, M.G. (2013) ‘Agroecology and politics. How to get sustainability? About the necessity for a political agroecology’, Agroecology and Sustainable Food Systems, 37(1), pp. 45–59. De Schutter, O. et al. (2019) Towards a Common Food Policy for the European Union. The Policy Reform and Realignment That Is Required to Build Sustainable Food Systems in Europe. iPES FOOD. Available at: https://www.ipes-food.org/_img/upload/files /CFP_FullReport.pdf (Accessed 20 June 2021). Diaz, S. et al. (2019) Summary for policymakers of the global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. IPBES Secretariat.

Agroecology, GM crops, and the post-Brexit regulatory framework 93 Directive (EC) 2000/60 establishing a framework for Community action in the field of water policy (Water Framework Directive) (2000) OJ L 327/1. Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (2001) OJ L 106/1. Directive 2008/56/EC establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) (2008) OJ L 164/19. Directive 2015/412 amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory (2015) OJ L 68/1. EFSA (2005) ‘Opinion of the scientific panel on genetically modified organisms for the placing on the market of insect-tolerant genetically modified maize 1507 for import, feed and industrial processing and cultivation from pioneer hi-bred international/mycogen seeds’, The EFSA Journal, 181, pp. 1–33. EFSA (2008) Application EFSA-GMO-CZ-2008–54 (MON88017 maize CULTIVATION) – Scientific comments and opinions submitted by EU Member States (National Competent Authorities under Directive 2001/18/EC) during the three-months consultation period. EFSA. EFSA (2010) ‘Guidance on the environmental risk assessment of genetically modified plants’, The EFSA Journal, 8(11), pp. 1–111. EFSA (2011) ‘Scientific opinion updating the evaluation of the environmental risk assessment and risk management recommendations on insect resistant genetically modified maize 1507 for cultivation’, The EFSA Journal, 9(11), pp. 1–52. EFSA (2016) ‘Guidance to develop specific protection goals options for environmental risk assessment at EFSA, in relation to biodiversity and ecosystem services’, The EFSA Journal, 14(6), pp. 1–50. Engel, A. and Petetin, L. (2018) ‘International obligations and devolved powers – ploughing through competences and GM crops’, Environmental Law Review, 20(1), pp. 16–31. European Commission (2002) Communication on the Precautionary Principle, COM/ 2000/1 final. European Commission (2018a) Proposal for a Regulation Establishing Rules on Support for Strategic Plans to Be Drawn up by Member states under the Common Agricultural Policy (Cap Strategic Plans). COM(2018) 392 final. European Commission (2018b) Proposal for a Regulation on the Transparency and Sustainability of the EU Risk Assessment in the Food Chain, COM(2018) 179 final. European Commission (2020a) A Farm to Fork Strategy. For a Fair, Healthy and Environmentally-friendly Food System, COM(2020) 381. European Commission (2020b) EU Biodiversity Strategy for 2030. Bringing Nature Back into Our Lives, COM(2020) 380 final. European Parliament (1997) Report on the Proposal for a Council Regulation (EC) Supplementing Regulation No 2092/91 on Organic Production of Agricultural Products and Indications Referring Thereto on Agricultural Products and Foodstuffs to Include Livestock Production. A4–0156/97. FAO (2018) The 10 Main Elements of Agroecology: Guiding the Transition to Sustainable Food and Agricultural Systems. Available at: www.fao.org/documents/card/en/c/ I9037EN/ (Accessed 20 June 2021). Francis, C. et al. (2003) ‘Agroecology: The ecology of food systems’, Journal of Sustainable Agriculture, 22(3), pp. 99–118.

94  Miranda Geelhoed Geelhoed, M. (2016) ‘Divided in diversity: Reforming the EU’s GMO regime’, Cambridge Yearbook of European Legal Studies, 18, pp. 20–44. Geiger, F. et al. (2010) ‘Persistent negative effects of pesticides on biodiversity and biological control potential on European farmland’, Basic and Applied Ecology, 11(2), pp. 97–105. Gene Technology Act (Genteknologiloven) (1993). Genetically Modified Organisms (Amendment) (England) (EU Exit) Regulations (2019). Genetically Modified Organisms (Amendment) (Northern Ireland) (EU Exit) Regulations (2019). Genetically Modified Organisms (Amendment) (Scotland) (EU Exit) Regulations (2019). Genetically Modified Organisms (Deliberate Release) Regulations (2002). Genetically Modified Organisms (Deliberate Release) Regulations (Northern Ireland) (2003). Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations (2002). Genetically Modified Organisms (Deliberate Release) (Wales) Regulations (2002). Genetically Modified Organisms (Deliberate Release) (Amendment) (England) Regulations (2019). Genetically Modified Organisms (Deliberate Release etc.) (Miscellaneous Amendments) (Scotland) Regulations (2019). Gliessman, S.R. (2014) Agroecology: The Ecology of Sustainable Food Systems. 3rd ed. Boca Raton, FL: CRC Press. Gonzalez, R.A., Thomas, J. and Chang, M. (2018) ‘Translating agroecology into policy: The case of France and the United Kingdom’, Sustainability, 10(8), pp. 1–19. Head, J.W. (2017) International Law and Agroecological Husbandry: Building Legal Foundations for a New Agriculture. London and New York: Routledge. House of Commons (2018) Notices of Amendments Given to and Including 25 October 2018. Available at: https://publications.parliament.uk/pa/bills/cbill/2017-2019/0266 /amend/agriculture_rm_pbc_1025.1-7.html (Accessed 20 June 2021). House of Lords (2020) Lords Non-Insistence and Amendments in Lieu. Lords Amendment 16. Available at: https://publications.parliament.uk/pa/bills/cbill/58-01/0202/200202 .pdf (Accessed 20 June 2021). Human Rights Council (2010) Report Submitted by the Special Rapporteur on the Right to Food. A/HRC/16/49. IFOAM (no date) The Four Principles of Organic Agriculture. Available at: https://www.ifoam .bio/why-organic/shaping-agriculture/four-principles-organic (Accessed 20 June 2021). Jasanoff, S. (2011) ‘The practices of objectivity in regulatory science’, in C. Camic, N. Gross, and M. Lamont (eds.) Social Knowledge in the Making. Chicago and London: University of Chicago Press. Koohafkan, P. and Altieri, M.A. (2011) A Methodological Framework for the Dynamic Conservation of Agricultural Heritage Systems. FAO. Landworkers’ Alliance (2020) Pumpkins to Save Our Standards. Available at: https:// landworkersalliance.org.uk/pumpkins-to-save-our-standards/ (Accessed 20 June 2021). Lang, A. et al. (2019) ‘Laboratory tests with Lepidoptera to assess non-target effects of Bt maize pollen: Analysis of current studies and recommendations for a standardised design’, Environmental Sciences Europe, 31(1), pp. 1–10. Law of the Future for Agriculture, Food and Forestry (Loi d’Avenir pour l’Agriculture, l’Alimentation et la Forêt) (2014). Law on Agriculture for the Canton of Vaud (Loi sur l’Agriculture Vaudoise) (2010). Lynggaard, K. (2006) The Common Agricultural Policy and Organic Farming. Wallingford: CABI.

Agroecology, GM crops, and the post-Brexit regulatory framework 95 Mazoyer, M. and Roudart, L. (2006) A History of World Agriculture: From the Neolithic Age to the Current Crisis. New York: Earthscan. Monteduro, M. (2013) ‘Environmental law and agroecology. Transdisciplinary approach to public ecosystem services as a new challenge for environmental legal doctrine’, European Energy and Environmental Law Review, 22(1), pp. 2–11. Monteduro, M. (2015) ‘Preface’, in M. Monteduro et al. (eds.) Law and Agroecology: A Transdisciplinary Dialogue. Heidelberg: Springer. Morgera, E. (2017) ‘The ecosystem approach and the precautionary principle’, in E. Morgera and J. Razzaque (eds.) Biodiversity and Nature Protection Law. Cheltenham: Edward Elgar Publishing. Nelsen, A. (2019) ‘UK should be given power to regulate GM crops, MPs say’, The Guardian. Available at: www.theguardian.com/environment/2015/feb/26/uk-should-be-givenpower-to-regulate-gm-crops-mps-say (Accessed 20 June 2021). Nienstedt, K.M. et al. (2012) ‘Development of a framework based on an ecosystem services approach for deriving specific protection goals for environmental risk assessment of pesticides’, Science of the Total Environment, 415, pp. 31–38. Packer, S. (2019) ‘Well-being Wales’ – agroecological food and farming transitions’, Food Manifesto. Available at: https://foodmanifesto.wales/2019/04/01/well-being-walesagroecological-food-and-farming-transitions/ (Accessed 20 June 2021). Paskalev, V. (2012) ‘Can science tame politics: The collapse of the new GMO regime in the EU’, European Journal of Risk Regulation, 3(2), pp. 190–201. Petetin, L. and Gravey, V. (2020) The Agriculture Bill: 8 Key Provisions and Recommendations, Brexit & Environment. Available at: www.brexitenvironment.co.uk/2020/01/24/ agriculture-bill-8-key-provisions/ (Accessed 20 June 2021). Redford, K.H. and Adams, W.M. (2009) Payment for Ecosystem Services and the Challenge of Saving Nature. Wiley Online Library. Regulation 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (2002) OJ L 31/1. Regulation 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (2011) OJ L 55/13. Regulation 1107/2009 concerning the placing of plant protection products on the market (2009) OJ L 309/1. Regulation 1829/2003 on genetically modified food and feed (2003) OJL 268/1. Regulation 2018/848 of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products and repealing Council Regulation (EC) No 834/2007 (2018) OJ L 150/1. Regulation 2019/1381 on the transparency and sustainability of the EU risk assessment in the food chain (2019) OJ L 231/1. Reid, W.V. et al. (2005) ‘Millennium ecosystem assessment. Ecosystems and human wellbeing. Synthesis’, World Resources Institute. Roger, A. (2015) ‘In the public interest? A comparative analysis of Norway and EU GMO regulations’, Review of European, Comparative & International Environmental Law, 24(3), pp. 264–277. Roger, A. and Geelhoed, M. (2016) ‘Exploring untamed territory: Initial reflections on Scotland’s approach to the possibility of national GMO Opt-Outs’, at ECPR Standing Group, University of Trento, 15–18 June 2016. Rogne, S. and Linnestad, C. (eds.) (2006) ‘Sustainability, benefit to the community and ethics in the assessment of genetically modified organisms: Implementation of the concepts

96  Miranda Geelhoed set out in sections 1 and 10 of the Norwegian gene technology act’, The Norwegian Biotechnology Advisory Board. Rosendal, G.K. (2008) ‘Interpreting sustainable development and societal utility in Norwegian GMO assessments’, European Environment, 18(4), pp. 243–256. Rosset, P.M. and Altieri, M.A. (1997) ‘Agroecology versus input substitution: A fundamental contradiction of sustainable agriculture’, Society & Natural Resources, 10(3), pp. 283–295. Scottish Food Coalition (2017) The Good Food Nation Bill & Sustainable Development Goals. Available at: http://www.foodcoalition.scot/uploads/6/2/6/8/62689573/the_good _food_nation_bill_and_sustainable_development_goals.pdf (Accessed 20 June 2021). Scottish Government (no date) Agriculture and the Environment. Available at: www.gov .scot/policies/agriculture-and-the-environment/gm-crops/ (Accessed 20 June 2021). Sustain (2020) Written Evidence Submitted by Sustain (AB19). Available at: https:// publications.parliament.uk/pa/cm5801/cmpublic/Agriculture/memo/AB19.htm (Accessed 20 June 2020). Tarlock, D. (2008) ‘Ecosystems’, in M. Bodanksy et al. (eds.) The Oxford Handbook of International Environmental Law. Oxford: Oxford University Press. Tomich, T.P. et al. (2011) ‘Agroecology: A review from a global-change perspective’, Annual Review of Environment and Resources, 36, pp. 193–222. Treaty establishing the European community (2002) OJL 325/33. Treaty establishing the European economic community (Treaty of Rome) (1957) 298 UNTS 11, adopted 25 March 1957, entered into force 1 January 1958. Treaty on the functioning of the European Union (TFEU) (2016) OJ L 202/1. West, R. (2020) ‘Agroecology finds its way into England’s post-Brexit agriculture bill’, AccessToLand. Available at: www.accesstoland.eu/Agroecology-Finds-Its-Way-intoEngland-s-Post-Brexit-Agriculture-Bill (Accessed 20 June 2021). Wezel, A. et al. (2009) ‘Agroecology as a science, a movement and a practice. A review’, Agronomy for Sustainable Development, 29(4), pp. 503–515. Wibbelmann, M. et al. (2013) ‘Mainstreaming agroecology: Implications for global food and farming systems’, The Centre for Agroecology and Food Security. Winter, G. (2016) ‘Cultivation restrictions for genetically modified plants: On variety of risk governance in European and international trade law’, European Journal of Risk Regulation, 7(1), pp. 120–143.

6 Brexit and the Common Agricultural Policy There and back again Viviane Gravey

Introduction A new agricultural policy is commonly perceived as an overwhelmingly positive Brexit dividend. The EU’s Common Agricultural Policy (hereinafter “CAP”) was widely disliked by farmers, environmentalists, public administrations and, to an extent, the general public. Yet while leaving the CAP is a given, what will replace it still remains uncertain over four years after the 2016 Referendum. Making agricultural policy independently may be daunting – but the UK has had extensive experience in reforming agricultural policy at EU level over four decades, becoming one of the EU’s leading CAP reformers. In setting out objectives for a domestic policy, the UK is therefore not starting from scratch. In order to understand the UK’s priorities and strategy as an agricultural policy setter, we need to understand its previous role as a CAP reformer. This chapter takes stock of agricultural policy debates in the UK since 2016 in light of the UK’s own experience at reforming the CAP. To do so, it draws on the extensive literature on agricultural policy discourses – neomercantilism, neoliberalism, and multifunctionalism – to map the UK’s changing policy positions. It analyses, first, how the UK government developed as a CAP reformer, what were its key reform objectives, and how successful it was – when decided in Brussels, and implemented across the four nations of the UK. Second, it compares the prereferendum agricultural policy vision with emerging post-referendum policy by analysing speeches from the four Defra Secretaries in the Department for Environment, Food and Rural Affairs (hereinafter “Defra”) since 2016 and relevant policy statements. It finds that the UK government was a rather successful CAP reformer in Brussels – even if it did not fully follow through implementing these reforms at home. UK objectives for a British agriculture policy strongly echo earlier CAP reform objectives – espousing in both cases a green neoliberal discourse, even though one of its central tenets, a sharp reduction in agricultural funding, has been (temporarily) shelved. Even though agriculture has been devolved since the late 1990s, UK CAP reforms objectives appeared set principally in London. This chapter finds that this trend continued after the referendum, where debates on visions of farming future tended to ignore the devolved reality of agricultural policy in the UK. DOI: 10.4324/9781003010852-6

98  Viviane Gravey

The UK – CAP reformer or CAP enabler? When the UK finally joined the European Economic Community (hereinafter “EEC”) in 1973, the CAP was already ten years old and “established in a form that could not be modified significantly to accommodate new entrants” (Grant, 1997, p. 63). Differences in agricultural policy objectives – in terms of both form of support and openness to extra-Community trade – had been a major stumbling block to UK’s application to the EEC, underpinning the two French vetoes (Moravcsik, 2000). This early UK disaffection for the EEC’s first common policy morphed into sustained UK opposition to the CAP, and its share of the EEC budget, and made the UK a key member of the (often losing) reform coalition in the Agriculture Council (Grant, 1997). Thus, during the Thatcher years, the UK pushed, with varying degrees of success, for cuts to the CAP budget (which, by then had grown to 80% of the EEC’s budget) by cuts to fixed prices. These efforts to cut CAP costs for everyone did not always work. Thus, Agriculture Minister Peter Walker’s veto on agricultural prices increase was overturned in 1982 (Warlouzet, 2018). Conversely, UK efforts to reduce their share of EEC spending were more successful leading to the “British rebate” negotiated in 1984 at the Fontainebleau European Council. Opposition to the CAP runs across the UK political spectrum. When New Labour came into power in 1997, its manifesto called for “urgent reform of the Common Agricultural Policy”, arguing that the policy was “costly, vulnerable to fraud and not geared to environmental protection” (Labour Party, 1997). Criticism of the CAP was a red line throughout the Blair years, reaching new heights during the UK’s 2005 presidency of the Council. During its six-month presidency, the UK government tried to reframe the CAP reform debate, via the publication of a long 76-page report setting out a “vision for the Common Agricultural Policy”. Jointly authored by the UK’s department overseeing agriculture, the Department for Environment, Food and Rural Affairs and HM Treasury, the 2005 report proposed radical changes to the way agriculture is supported in Europe, mapping out where European agriculture should be by 2020 (Defra and HM Treasury, 2005). Public money for public goods – a mainstay of the UK’s CAP reform agenda The 2005 report echoed a central tenet of UK agricultural policy since at least the early 1990s (Grant, 2016): the justification for supporting farmers had to change, from paying farmers because they farm, to paying farmers because they support the environment: We are (increasingly) in the business of helping farmers directly but those payments must be in return for environmentally acceptable agriculture. . . . There is now no longer any justification in the argument that a farmer must be paid because he is a farmer. John Gummer MP (UK Agriculture Minister), 1993, cited in Potter & Goodwin. (1998, p. 289)

Brexit and the Common Agricultural Policy 99 The UK’s “vision” thus posited the end of agricultural exceptionalism, that is the idea that “the farming industry is different from most economic sectors in modern societies” (Daugbjerg and Swinbank, 2008, p. 633) due to a range of arguments from the sector’s dependency on weather, the instability of food markets, the chronically low incomes of farmers, or the strategic importance of farming and food production. Exceptionalism had long underpinned EU approaches to agriculture (and indeed, agriculture policies globally) – and is a core component to the mainstream agricultural policy neo-mercantilist discourse, espoused by farming unions and many farming ministries alike (Erjavec and Erjavec, 2009). Neomercantilism combines an exceptional view of farming with a productivist slant – farming is exceptional in part because “our” farmers have a duty to “feed the world”, which requires European farmers to increase production and efficiency. The UK’s vision proposed a mix of two discourses, which challenged the overwhelmingly neomercantilist status quo: On the one hand, multifunctionality, that is the idea that farms produce much more than food, and on the other hand neo-liberalism, that is the idea that farming should be treated like any other sector of the economy. What connects these two discourses is a refocusing of agricultural policy on addressing market failures – and the provision of (environmental) public goods in particular. A public goods approach for re-orienting agriculture funding creates “a case for continued government intervention and subsidization where there are environmental services . . . value that would be underprovided if left to the market” (Potter and Goodwin, 1998, p. 289). While Michael Gove during his tenure as Defra Secretary was keen to present “public money for public goods” as a radical, post-Brexit departure, it had been a long-standing department policy. Thus, in Defra’s 2005 vision, farmers would access the single market “as in other sectors of the economy” and the sector would be integrated within the EU competition policy. There would be a gradual phasing out of “price support, export refunds or other production or consumption subsidies” provided under Pillar 1 of the CAP. Instead, agricultural policy would be refocused on Pillar 2 of the CAP, that is environment and rural development policies. The aim would be for farmers to be “rewarded by the market for their outputs, not least safe and good quality food, and by the taxpayer only for producing societal benefits that the market cannot deliver”; that is public money for public goods. This proposed radical shift would serve a neoliberal agricultural policy agenda “allowing a considerable reduction in total spending by the EU on agriculture and bringing this into line with other sectors” (Defra and HM Treasury, 2005, p. 4). When considering the UK as a CAP reformer, we finally need to adopt a broader perspective: the push for reforming the CAP also came from outside government, from civil society, both international development, and environmental protection and rural development groups. Thus, UK actors, both political (such as opposition Labour MPs under Thatcher premiership, HC Deb 24 March 1982) and civil society (such as Oxfam, see Moyes, 1987), were critical in raising awareness of the impact of the CAP, and more exactly, of export subsidies, on international food prices. The UK environmental groups were at the forefront of building Brussels’

100  Viviane Gravey presence for the European environmental movements – from the European Environment Bureau in the 1970s to Birdlife Europe (Berny, 2016). Groups such as RSPB and Friends of the Earth have since become a leading voice in calling for “greening the CAP”, campaigning on this issue at both UK and EU levels (Fouilleux and Ansaloni, 2016). These groups were instrumental in raising the profile for “public money for public goods” in the CAP 2013 reform process (Gravey, 2011). We further need to consider the reality of devolution: while the UK government represented the whole of the UK in the Agriculture Council in Brussels where Member States voted on reforming policy, policy once agreed was implemented differently across the UK since the late 1990s. This chapter focuses on reform visions from London – and whether they include, or not, the variety of views across the four nations. How successful was the UK in reforming the CAP? Writing about the CAP in the mid-1990s, Grant argued that the “reform coalition” in the Agriculture Council was not a “winning coalition” (1997, p. 160). Twenty years later, as Brexit takes its toll on UK–EU relationship, the picture is much more mixed. We can summarise the UK’s CAP reform agenda thus as: • • •

Reducing CAP spending overall as proportion of EU budget; Reducing the share of Pillar 1 (income subsidies and market intervention measures) in the overall CAP budget; Using Pillar 2 (rural development) as a conduit for (environmental) public goods payments.

On two out of three of these issues the UK has repeatedly gained ground since the 1990s. The clearest win concerns the CAP share of the overall EU budget. The CAP budget fell below 50% of the EU budget in the early 2000s and has continued falling ever since. In the latest multi-annual financial framework proposals agreed by the European Council in July 2020, the CAP would take up 32% of the budget (Matthews, 2020). A more mixed picture emerges when we consider environmental public goods, and the shift in justification from supporting farmers’ incomes because they farm, to supporting them because they provide public goods and environmental public goods in particular. On the one hand, a number of instruments – from cross-compliance, to agrienvironmental schemes and the greening payment – have been either created or gained in importance since the late 1990s. This has gone hand in hand with a change in how the commission frames agricultural policy – since the late 2000s “all payments are now justified on the basis of the public goods model” (Feindt, 2010, p. 306). Yet for all the “greening” talk, the result of the recent CAP reforms, most notably the 2013 one, was “greenwashing” (Erjavec et al., 2015; Alons, 2017) as the flagship new green payment failed to change practices (European Court of Auditors, 2017).

Brexit and the Common Agricultural Policy 101

Figure 6.1  European Commission, 2020.

Out of these three CAP reform objectives, the clearest failure was in the phasing out of income support, and the growing share of rural development. As Figure 6.1 shows, the mauve (rural development) share of CAP funding hit a plateau of approximately 20% of the CAP budget in the early 2000s. It has not grown since. Instead, when CAP funding was cut in both the 2014–2020 and 2021–2027 budget negotiations, Pillar 2 suffered greater cuts than Pillar 1 (Matthews, 2020). Yet even there the failure is not complete. It has been at least marginally offset by the UK’s championing and pioneering of modulation (Falconer and Ward, 2000). Modulation was first introduced in 1999 as a way for Member States to transfer funding for Pillar 1 towards Pillar 2, with an aim to increase rural development funding and move gradually away from income support (up to 15% of Pillar 1 can be moved over) (Feindt, 2010). In 2013 “reverse modulation”, from Pillar 2 into Pillar 1 became possible – at the behest of Central and Eastern European Member States whose hectare payments remain much lower than those of older Member States (Wildlife and Countryside Link, Scottish Environment Link and Northern Ireland Environment Link, 2013). While five Member States chose (see Figure 6.2) to transfer funding from Pillar 2 to Pillar 1, modulation still overwhelmingly favoured rural development, with €4 billion transferred during the 2014–2019 funding cycle (European Commission, 2014). Thus, if we consider negotiations at EU level, the UK was most successful in defunding the CAP, and in reframing, not reforming how it worked. While new agri-environment policy instruments were introduced, they were principally

102  Viviane Gravey

Figure 6.2  Modulation between Pillars in the CAP 2014–2020. Source: Author, based on European Commission data.

to maintain the European farming status quo, not to deliver the kind of radical change set out in Defra’s “vision”. Critically, while the UK pioneered environmental instruments, and defended funding for Pillar 2, the implementation of the CAP in the UK tells another story. Great expectations, great disillusion? The UK has been an early adopter for agri-environment payments, cross-compliance, and modulation (Gravey, 2019). Out of all the CAP green instruments, only the “green payments” did not originate from and were not strongly supported by the UK. Yet, strong support for environmental policy instruments while negotiating in Brussels does not necessarily mean strong uptake by farmers – or sufficient levels of funding for the measures. When we consider the reality of the CAP on UK territories, we need to consider two phenomena that have shaped UK politics since the 1990s: devolution and Euroscepticism. The first of these means there is not one, but four CAPs in the UK, with key differences between the four nations (Allen et al., 2014). This diversity of policies is not supported by everyone – for example, the National Farmers Union (for England) warned of the “threat of renationalisation” and called for

Brexit and the Common Agricultural Policy 103

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Priority 1 - knowledge transfer & innovation Priority 2 - Farm viability and competitiveness Priority 3 - Food Chain Organisation and Risk Management Priority 4 - Restoring, Preserving, and Enhancing Ecosystems Priority 5 - Resource-efficient, Climate-resilient economy Priority 6 -Social Inclusion and Economic Development Technical assistance

Figure 6.3  Differences in the UK Rural Development Programmes, CAP 2014–2020. Source: Author’s own compilation, based on European Commission, 2014.

more “commonality” during CAP 2013 reform (National Farmers Union, 2010, p. 8). But commonality has been weakened repeatedly, with profound differences both in how different Member States implement the CAP but also internal differences within countries, both aiming to better tailor the CAP’s menu of options to their specific needs and priorities (Petetin et al., 2019). As Figure 6.3 shows, the four UK Rural Development Programmes show profound differences between the four Nations in their priorities. Wales is very close to the EU average. Scotland comparatively spends more on Priority 5 (driven by its large use of the carbon sequestration and management contracts), and Northern Ireland on Priority 2 (due to high investments in modernising farms). But England, especially, is an outlier, with 80% of the programme spent on Priority 4 – close to twice the EU’s average. This includes €2,682 million spent on agri-environment-climate measures (one of the instruments possible under Priority 4). While agri-environment-climate measures are also the biggest measure for the Welsh programme, it spends almost ten times less than England on it (€292 million), slightly more than the Scottish programme (€276 million), and more than twice what Northern Ireland chose to fund (€128.5 million). Differences in Rural Development Programmes have long been a feature of CAP design, but the 2014–2020 CAP also increased flexibility in Pillar 1 in terms of who could claim support, how support would be calculated, and whether support would be redistributed, and how, between different groups (Henke et al., 2018). This was the sort of move away from “commonality” which organisations such as the National Farmers Union (NFU) had strongly lobbied against (National

104  Viviane Gravey Farmers Union, 2010). In their study of how Member States used this new flexibility, Henke et al. found that different parts of the UK behaved in dissimilar ways. For example, Scotland was much more selective concerning who could claim funds than the rest of the UK. Northern Ireland conversely was much less keen to redistribute funding among recipients old and new, being also described as “cautious” (i.e. staying close to the status quo) when it came to changing the rationale for calculating single payment scheme levels (Henke et al., 2018, p. 410). Diverging devolved priorities further raise the question as to whether these were adequately represented by the UK government in EU-wide negotiations. Hence, in its reaction to the CAP 2014 deal, the Cabinet Secretary for Rural Affairs and the Environment in the Scottish Government argued that the UK government had not defended Scottish interests: in the new CAP, Scotland will probably have lower rates per hectare in both pillars than every other member state in Europe. That is even worse than what we get today. If Scotland had been a member state, we would automatically have got an uplift to €196 per hectare in Pillar 1. As I have said before, that would bring in an extra €1 billion up to 2020. We could also have negotiated an uplift in Pillar 2, in the same way as 16 other member states have done. . . . However, the UK Government took the decision not to press Scotland’s case. (Richard Lochhead MSP cited in National Assembly for Wales Research Service, 2013, p. 27) While devolution affects how the money is spent, Euroscepticism influences the size of available funding for agriculture. This has repercussions for both Pillar 1 (which London has long tried to curtail) and Pillar 2 even though this pillar has long been supported by the UK government. Using Pillar 2 funds requires national co-funding. As Cardwell argues, when it comes to Pillar 2, “much depends upon the appetite of the individual Member State to pay the sums necessary to unlock EU support” (Cardwell, 2010, p. 3) and Euroscepticism in the UK has sharply reduced this appetite. This has been only partly offset by the use of modulation, boosting Pillar 2 funding with Pillar 1 funds, which do not require co-funding (see Figure 6.4). Wales opted for the maximum modulation possible (15%); England for slightly lower rate (12%); Scotland for only 9.5%; and Northern Ireland chose not to transfer funding from Pillar 1 to Pillar 2, indicating a sharp difference in agriculture policy preference, with Northern Ireland definitely not in line with the UK’s long-held vision of reducing Pillar 1 and increasing Pillar 2 (Allen et al., 2014). If we compare the UK to its much smaller neighbour Ireland, Ireland spent more national funds (including co-funding and top-ups) on its Rural Development programmes than the four UK nations combined in the 2014–2020 period. Thus, to recapitulate, the UK government has long supported CAP reform, and, since the 1990s supported three main planks of reform – reducing the overall dependency of the farming sector on public support, sharply increasing the share of public goods payment in the overall farming support mix (“public money for public goods”), and developing new policy instruments to deliver (principally

Brexit and the Common Agricultural Policy 105

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Figure 6.4  Funding Rural Development Programmes (2014–2020) in the UK and Ireland. Source: Author; based on European Commission data.

environmental) public goods. The UK’s success in pushing this agenda at EU level has been mixed. While it succeeded in cutting CAP funding, the CAP’s green turn has more to do with reframing than reforming. This reform agenda also encountered two additional domestic obstacles. First, the reality of devolution in the UK – highlighting how the “UK” reform agenda espoused by Westminster politicians is in step with English priorities, with vastly different priorities across UK. Second, Euroscepticism and an aversion to co-fund EU programmes have severely blunted the potential of UK rural development programmes to radically change farming practices. As Brexit created the opportunities for the UK to “take back control” of its agricultural policies, implementing this would be an increasingly daunting task. Certain previous obstacles to achieving the UK’s “vision” for agriculture were gone – such as the UK’s aversion to use and boost European funds, and the need to devise a policy which worked for 28 Member States with very different “visions” for agriculture. However, others remained, most notably the vastly differing policy aims across the four nations of the UK.

Post-Brexit agriculture policy: same issues, different outcomes? The outcome of the June 2016 referendum surprised many. As David Cameron stepped down as UK Prime Minister, his successor, Theresa May, had to devise a strategy for delivering Brexit even though she had not campaigned for it, and Whitehall had been instructed by her predecessor not to prepare for it. During the referendum campaign, leaving the CAP had been presented as a low hanging fruit of Brexit (Vote Leave, 2016) – and irrespective of which Brexit scenarios (hard or soft) the government was about to choose, every Brexit scenario entailed leaving

106  Viviane Gravey the CAP and replacing it by a homegrown policy (Grant et al., 2016). This made “taking back control” of agricultural policy a clear policy priority. Leaving the EU raised a number of questions for the UK’s agriculture policy reform agenda, most notably: among its many criticisms of the CAP, which of these were principally Eurosceptic in nature (opposing the CAP because it is a European policy), and which of them concerned the CAP’s own objectives and instruments? In an interesting turn of events, the one objective of CAP reform the UK had been most successful at – reducing funding for agriculture by reducing the CAP’s share of the EU overall budget – was the first to be abandoned after the EU referendum. Both Theresa May and Boris Johnson pledged to maintain funding levels for agriculture “in the life of this Parliament”. Not only did May do so in 2016 but she reiterated this pledge after the 2017 elections (thus, expecting this to last until 2022) and Johnson did the same after his December 2019 election (thus up to 2024). This was confirmed with the Agriculture Act, funding up to 2024 but at 2019 levels. This means UK farmers will receive funding of an equivalent level to those European farmers who were entitled to in the 2014–2020 CAP, many years into the new, post-2021 CAP and its reduced support. This also makes maintaining agricultural funding one of the rare policy objectives shared by all four Defra secretaries since June 2016. Whether this is a real change of policy (reducing funding for European farmers may be more palatable than cutting funding for UK farmers) or simply a reprieve until 2024 remains to be seen. While there has been some clarity on funding levels, the content of policy remains unclear. Uncertainty prevailed for years, characterised by two elections, four Defra secretaries, two policy papers (Health and Harmony in February 2018 and Farming for the Future two years later), and finally an Agriculture Act in November 2020. The lack of equivalent devolved Agriculture Acts and the delay in setting up the new policy instruments (only slowly entering pilot phase) mean uncertainty is here to stay. This uncertainty is compounded by the different visions for agriculture set out by each of the four Defra secretaries since 2016. By using the agriculture discourses identified in analysing CAP reforms debate (see, e.g. Erjavec and Erjavec, 2020) we can analyse how these new UK visions differ from each other, and from the previous “vision” for CAP reform (Defra and HM Treasury, 2005). Long held policy objectives meet new reality A mainstay of the UK farming calendar is the Oxford Farming Conference held each year in the first week of January. There, the Defra secretary has the opportunity to speak directly to farming leaders – making the conference the perfect location for extolling their own vision for agriculture. We can thus compare the speeches of Andrea Leadsom (2017), Michael Gove (2018, 2019), and Theresa Villiers (2020). George Eustice has been in post as Defra Secretary since February 2020 and so has not yet given a big farming speech – but as farming minister in 2016 he was the agriculture lead for the VoteLeave campaign, setting out his “vision for a new UK agriculture policy” at the launch of “Farmers for Britain” in March 2016. The analysis of the speeches will be supplemented by an analysis of the 2018 (under Gove) and 2020 (under Eustice) Defra policy statements.

Brexit and the Common Agricultural Policy 107 Neomercantilism, multifunctionalism, and neoliberalism discourses rarely exist on their own – instead, agricultural policies often contain elements of each of these competing discourses, with one or two dominating. Thus, the 2005 UK vision rejected the exceptionalist and protectionist premises of neomercantilist policies (which long dominated the CAP), and offered instead a mix of neoliberal and multifunctional discourses. On the one hand, the vision contained multifunctional elements, as it recognises the roles farmers (can) play in supporting rural communities and their environment. But these were used to reinforce an overall neoliberal discourse, with environmental and rural development objectives identified as examples of market failures, where the state has to act. As such, we can expect UK Brexit agriculture speeches to also offer a mix of discourses – how Defra Secretary of States balances these different discourses in their keynote speeches allows us to analyse their own “visions” for agriculture. Where we can also expect change is in how the EU is portrayed. While reforming the CAP had to occur within the EU system, we can expect UK speeches to offer both alternative views for building a policy, but also a rejection of both the CAP and the political system that sustained it. This is unsurprisingly a strong feature of Eustice’s 2016 campaign speech (Eustice, 2016). Reflecting on his own experience as minister for agriculture, he talks of “spirit crushing regulations affecting the industry”. He presents the CAP as a “centralised and bureaucratic policy”, explaining how “where power has been ceded to the European Union, we see inertia, inconsistency and indecision”. While he lauds his colleagues at Defra, he describes a ministry with “an atmosphere of perpetual legal jeopardy” due to the ever present “disallowance risk”, that is the risk that UK CAP funding would have to be repaid to Brussels as found in breach of complex CAP spending rules. Eustice vision in 2016 can be summarised to five main points: 1 Maintaining the same level of funding; 2 More science and technology (“a new regulatory regime based on science and evidence, rather than the politics of the EU”); 3 The development of insurance schemes based on the US and Canada models; 4 An end to cross-compliance – farm area payments would continue but with “privately operated, UKAS [UK National Accreditation Body] accredited schemes that promote basic measures to deliver environmental sensitive farming”. 5 New, simplified environmental stewardship schemes whose scope would now also cover animal welfare. Compared to the 2005 vision (Defra and HM Treasury, 2005), Eustice’s vision has strong neomercantilist components – continued area farm payments, guaranteed level of supports – and little to say about the environment (only mentioned in terms of “basic measures” for area payments and schemes to “improve wildlife habitats”). There are some neoliberal elements in the mix too: the focus on science and biotechnologies, and especially insurance schemes, but these are layered on top of continued farm area payments – which the 2005 vision aimed to get rid of.

108  Viviane Gravey Andrea Leadsom became Defra Secretary after unsuccessfully running for leadership of the Conservative party following David Cameron’s decision to step down in June 2016. In her only Oxford Farming conference speech during her time at Defra, she espoused a vision of agriculture close to Eustice’s – guaranteed payments and repeated criticism of EU red tape (“no more ridiculous bureaucratic three crop rule”, “I’m quite sure everyone here can still think of at least one piece of EU regulation you won’t miss”) (Leadsom, 2017). A specific form of exceptionalism – British farmers and food as exceptional – is also signalled throughout (“when they choose British, they know they can trust the origins of our unique, great tasting products”). But there are differences too. While Leadsom does speak of risk (“how do we manage risk, and make the industry more resilient to extreme weather and price volatility”) and technology, she does not suggest a move to insurance or to specific biotechnologies, and critically she speaks more prominently of environmental goals (one of the two twin objectives of Defra being “to become the first generation leaving the environment in a better state than we find it”). Leadsom was replaced by Michael Gove after the June 2017 election. A month in his tenure at Defra, he presented his overall vision “delivering a green Brexit” (Gove, 2017) – which would influence his thinking about agricultural policy reform. Gove’s vision differs radically from Eustice and Leadsom – yet, in many ways, it is very close to the 2005 vision, a Brexit revolution where policy preferences do 360-degree turn. Thus, in his 2018 Oxford Farming conferences speech, he deployed a neoliberal greening discourse. First, he called for the phasing out of “unjust” direct farm payments as “[s]ubsidies linked to the size of land holding, or headage payments, reward incumbents, restrict new thinking and ultimately hold back innovation and efficiency”. Then, he called for a new system build on “natural capital” and “public money for public goods”) (Gove, 2018). This green neoliberal framing is perhaps best summarised in his 2019 speech by his description of “the critical business of enhancing the environment” (Gove, 2019). This came together with some limited multifunctional elements discourses (access as a public good, environmental stewardship, attention to smaller farmers “who preserve . . . the culture in agriculture”) (Gove, 2018). Throughout, he was particularly opposed to any forms of protectionism: The history of nationalised industries, state subsidies for particular sectors, guilds to restrict access to trades, high tariff walls and all the other tools of so-called economic “protection” is a melancholy one. The road is paved with good intentions – preserving strategic assets, insulating communities from change, protecting our home market, guaranteeing a supply of essentials. But the path inevitably involves higher costs for consumers, lower productivity from producers, less pressure to husband scarce resources, less concern about sustainability, more rent-seeking and capital accumulation, less investment in innovation, less dynamism and ultimately, less security as others forge ahead economically, scientifically and socially. (Gove, 2018)

Brexit and the Common Agricultural Policy 109 Health and Harmony was published in 2018 during Gove’s tenure at Defra, a landmark policy paper and consultation. This marked the official start of the postBrexit agriculture policy-making. It reiterates Gove’s green neoliberal agenda based on public money for public goods (“We will incentivise methods of farming that create new habitats for wildlife, increase biodiversity, reduce flood risk. . . . We will achieve this by ensuring that public money is spent on public goods”) (Defra, 2018, p. 6). It also takes from Leadsom – with a pledge to phase out “ineffective greening requirements” (Defra, 2018, p. 8) – and Gove and Eustice’s focus on new technologies with promises of a “more effective application of the ‘polluter pays’ principle” (Defra, 2018, p. 8). While Gove’s farming agenda was much greener than Eustice’s, both were keen on biotechnologies. Gove’s 2018 speeches made direct references to gene editing, and his 2019 speech talked of Britain leading a fourth agricultural revolution. Gove was replaced by Theresa Villiers in December 2019. She was then replaced by Eustice in February 2020. In her short tenure at Defra, Villiers called for putting “farming at the heart of tackling the twin climate and nature crisis” (Villiers, 2020). Her vision centred the environment (following into Gove’s footstep of green neoliberal policy with “the principle of public money for public goods”), stressing how the 2019 manifesto had “more far-reaching commitments on the environment than any predecessor government”, announcing that the new environment land management schemes would be “one of the most important environment reforms for 40 years”. The ambition of the vision remains difficult to judge, not only due to her short tenure at Defra but also due to caveats such as “public goods that we all know agriculture already delivers”. The 2013 CAP reform demonstrated the risks of using a public good framing to support the status quo (i.e. greenwashing pre-existing practices) instead of fostering a change of practices (Matthews, 2013). Villiers’ focus on already delivered public goods opens the door to such a greenwashing of the status quo. Shortly after Villiers’ exit, Defra withdrew Health and Harmony and published its replacement, Farming for the Future (Defra, 2020). It set out its revised plans in Farming for the Future. This new plan continued in the same path as Health and Harmony, green and neoliberal, but with a renewed attention on “value for money for the tax payer” (Defra, 2020, p. 8): Our ambition is to channel public money into the delivery of public goods – focusing on improving the health of our environment, on a far greater scale than achieved under the CAP (and at a lower cost). (Defra, 2020, p. 9) The plan detailed how the phasing out of income support will take place – preparing the ground for a reduction in overall funding for agriculture. This goal post had been moved back by every prime minister since 2016 (“during the life time of this parliament” becoming a moving target). But this may change in the future. What this waltz of different secretaries and visions for agriculture since 2016 shows is how uncertain the future of UK agriculture policy has been since the EU referendum. While the pendulum of policy discourses has swung unsurprisingly

110  Viviane Gravey towards neoliberal policies treating agriculture as any other sector of the economy (without yet being able to start cutting funding), the level of environmental ambition has fluctuated wildly. Out of the four Defra secretaries since 2016, Eustice expressed the least environmentally friendly visions – how this will be squared with the high ambition of the 2020 Defra policy paper is uncertain. It creates a challenging environment for setting up the Environment Land Management scheme (the new flagship greening instrument for agriculture policy in England after Brexit). Will their ambition, on paper, materialise in practice? Out of the three building blocks of the 2005 vision – a smaller budget, phasing out income subsidies and market intervention, and delivering environmental public goods – the first has been shelved (but Farming for Future is laying the ground for its come-back), the second is set in motion, to be delivered over a period of agricultural transition in England, but whether the third will materialise (or lead to yet more greenwashing of farming practices) remains to be seen. A devolution shaped hole Analysing the speeches and policy statements can tell us about the policy content Defra secretaries envisage. It can also tell us about the governance process – about who gets invited to shape and design future policy. Critically, while the content of the Defra vision for agriculture is changing, the lack of engagement with devolution has remained a key feature of both pre- and post-referendum UK agricultural policy. The 2005 vision had nothing to say about devolution. It was not a shared vision with the rest of the UK, but the product of work in Defra and HM Treasury. None of the speeches analysed here – keynote policy speeches from Defra secretaries or ministers setting visions for UK agriculture – mention devolution. The only indirect mention is made by Leadsom who speaks of meeting “of course Ministers from right across the United Kingdom” (Leadsom, 2017). Instead, we can see a superficial inclusion of the devolved nations, not as political actors who have a role to play, but as the location of great British landscapes and produces to be celebrated or at least name-checked. Leadsom vision spans “from the Scottish Highlands to the Cornish coast”. In 2018, Gove speaks of challenges for “Welsh sheep farmers or Ulster dairy farmers”, gushes over “Welsh lamb” as well as Scottish “Botanist Gin”, and pledges inclusive support: Whether it’s upland farmers in Wales or Cumbria, crofters in Scotland or small livestock farmers in Northern Ireland, we need to ensure support is there for those who keep rural life vital. (Gove, 2018) But who are the actors included in this “we” of Gove? Elsewhere in his speech he explains that “by we, I mean Defra most of all” – this also appears to be the case here when he speaks about designing support to meet a specific policy aim, irrespective of how policy competences are shared across the UK since devolution in the late 1990s.

Brexit and the Common Agricultural Policy 111 This “devolution-shaped hole” in Defra plans is not new. It was already there in 2005 and continued until after the EU referendum. It was also, at least at first, shared by the environment side of the department. Thus, Michael Gove’s “Unfrozen Moment” speech setting out his vision for a “green Brexit” shortly after starting at Defra also made no mention of devolution, or of the reduced remit of Defra. Not setting new British environmental or agricultural policy, but setting out the English (and reserved) elements of a new set of British environmental and agricultural policies, plural. Contrast this with environmental groups who as soon as 2016 called for “a better future for our countryside”, stressing that while “devolution will require separate policies for UK countries, . . . the UK Government should work with the Governments of Scotland, Wales and Northern Ireland to develop policies that deliver high environmental standards across the board” (WWF et al., 2016, p. 3). It would take the publication of Health and Harmony in February 2018 for devolution to be meaningfully mentioned by Defra. In the consultation document, the department argued: We believe this is a vision that could work for the whole of the UK but we recognise that devolution provides each administration with the powers to decide its own priorities. (Defra, 2018, p. 7) Health and Harmony marked a shift – stopping from wholly ignoring the devolved nations – but it nevertheless appeared to set out a UK-wide vision designed only in London. Agriculture had long been an area of policy divergence – using the CAP overall framework to tailor policy to local needs. Ahead of the EU referendum, the then Welsh First Minister Carwyn Jones explained to the House of Lords: What I would not want to see is the CAP replaced with something run from London. That would be disastrous for Welsh farmers. . . . I have dealt with Defra and its impression of farming is large arable farms, large units. It does not really get, for example, sheep farming, and that has been true regardless of the party running the department. From our point of view, it is much easier for us to be able to be part of a larger system where different types of farming are more recognised. (Carwyn Jones cited in House of Lords EU Select Committee, 2015, p. 9) It had also been an area of friction – between Wales and London on agricultural labour (the Welsh Government won twice in the Supreme Court against the UK government on the right to set its own farm wage board) (Henry, 2014) as well as between Scotland and the rest of the UK on the redistribution of CAP funding across the UK after the 2013 CAP reform (Lord Bew, 2019). After the 2016 referendum, a new question arose – to what extent would Brexit foster, or hinder, the four nations in adopting diverging agricultural policies tailored to their needs? Health and Harmony tried to pre-empt this debate. Defra published its plans early, on its own, offering a vision “that could work for the

112  Viviane Gravey whole of the UK”, which aimed to set the tone of the debate. And indeed, the subsequent Welsh, Scottish, and Northern Irish policy papers followed, to a certain extent, in Defra’s footsteps, each grappling with “public money for public goods” (Hart and Baldock, 2019). But even in these early plans, divergence remains – from maintaining some income support in Northern Ireland, to the focus on collaboration within the supply chain in Scotland (ibid.). As the respective domestic systems are slowly put into place, a new picture emerges – no common British policy (or shared objectives/instruments), but four distinct policies. They will be held together first, by the continued UK government control on agricultural funding (making it difficult for major differences in support level to arise), and second, by a common framework to manage policy divergence, which has not yet been finalised (HM Government, 2019).

Conclusion “Taking back control” of agriculture has been a major focus of the first post-referendum years. Not only had the CAP long been an irritant for the UK government of all political hues, but farmers, land managers, consumers, and the environmental sector each needed regulatory certainty to plan for the new world ahead – a world where the close links between the UK and EU markets would be loosened. This chapter aimed to explore the UK’s current agriculture reform journey in light of its experience as a CAP reformer. The chapter assessed the reform objectives, and tentative successes, of UK governments by drawing on literature on competitive CAP discourses: neomercantilism, neoliberalism, and multifunctionalism. It started by first analysing the type of CAP reformer the UK was. It showed how the UK CAP reform agenda, best exemplified by the 2005 Defra vision policy paper, was three pronged: lower budget, reoriented away from income support, to deliver public money for public goods: a mix of multifunctionalism and neoliberalism producing a green neoliberal agenda. It explained how the UK had succeeded in shaping CAP reforms over the last 30 years in a variety of ways. But it further showed that Euroscepticism and reluctance to co-fund EU instruments meant high ambition and potential on paper often failed to materialise in the field. Further, devolution had led to internal divergence – most markedly on the need to phase out income support and support environmental public goods. Not only was the Defra vision not fully implemented through lack of additional funding commitments, but it was also an English, not UK, vision. The second half of this chapter compared policy development post referendum to the previous CAP reform vision. It drew on policy statements and speeches of Defra secretaries at the yearly Oxford Farming Conference to sketch out competing post-referendum visions for farming. Comparing these to CAP reform objectives revealed how the green neoliberal agenda promoted in particular by Gove was far from a radical departure – indeed appeared straight out of the 2005 vision of lower budget, no income support and greening payments. The main element of that vision (reducing funding for farming) has been put on hold until at least 2024 (the Agriculture Act of 2020 guarantees funding at 2019 levels until then).

Brexit and the Common Agricultural Policy 113 The UK had long pushed for phasing out income support at EU level – this will now happen over a number of years and to varying degrees across the four administrations. All Defra secretaries since 2016 have held fast on maintaining funding and phasing out income support. Where they have differed is on the levels of environmental ambition. Eustice, in post at time of writing, espoused very limited environmental ambition during the 2016 campaign, but he inherited a much more ambitious policy from Gove and Villiers. Whether greening or greenwashing will ensue remains to be seen. As in the pre-referendum stage, devolution was absent from the big pictures set out in the Oxford Farming Conference speeches – and paid lip service to in the policy statements. Instead, Defra has chosen to move early and alone, expecting the other administrations would follow. This “common vision” imposed from on high has not been embraced, and instead four distinct policies are being set up – with only a loose, and still to be confirmed, governance process to share information and manage disputes. Five years ago, the UK was one of the most influential states in shaping agriculture policy for the whole of the EU. Now, the UK government has much greater control over English farming futures – but limited and contested influence on the rest of the UK, and none on its former EU partners.

References Allen, M. et al. (2014) CAP Reform 2014–20: EU Agreement and Implementation in the UK and in Ireland. Belfast: Northern Ireland Assembly, pp. 1–95. Available at: http://www .niassembly.gov.uk/globalassets/Documents/RaISe/Publications/2014/dard/allen10314 .pdf (Accessed 8 April 2021). Alons, G. (2017) ‘Environmental policy integration in the EU’s Common Agricultural Policy: Greening or greenwashing?’ Journal of European Public Policy, 24(11), pp. 1604–1622. Berny, N. (2016) ‘Environmental groups’, in C. Burns, A. Jordan, and V. Gravey (eds.) The EU Referendum and the UK Environment: An Expert Review. pp. 113–125. Available at: http://environmenteuref.blogspot.co.uk/ (Accessed 8 April 2021). Cardwell, M. (2010) ‘Rural development in the United Kingdom: Continuity and change’, International Journal of Land Law and Agricultural Science, 4(November), pp. 1–12. Daugbjerg, C. and Swinbank, A. (2008) ‘Curbing agricultural exceptionalism: The EU’s response to external challenge’, The World Economy, 31(5), pp. 631–652. Defra (2018) Health and Harmony: The Future for Food, Farming and the Environment in a Green Brexit. London. Available at: www.gov.uk/government/consultations/thefuture-for-food-farming-and-the-environment (Accessed 8 April 2021). Defra (2020) ‘Farming for the future: Policy and progress update’, Gov.uk. (February). Available at: www.gov.uk/government/publications/the-future-for-food-farming-andthe-environment-policy-statement-2020 (Accessed 8 April 2021). Defra and HM Treasury (2005) A Vision for the Common Agricultural Policy. London: DEFRA, p. 76. Erjavec, E., Lovec, M. and Erjavec, K. (2015) ‘From “Greening” to “Greenwash”: The drivers and discourses of CAP 2020 reform’, in J.F.M. Swinnen (ed.) The Political Economy of the 2014–2020 Common Agricultural Policy: An Imperfect Storm. London: Rowman & Littlefield, pp. 215–240.

114  Viviane Gravey Erjavec, K. and Erjavec, E. (2009) ‘Changing EU agricultural policy discourses? The discourse analysis of Commissioner’s speeches 2000–2007’, Food Policy, 34(2), pp. 218–226. Erjavec, K. and Erjavec, E. (2020) ‘The Noble or sour wine: European commission’s competing discourses on the main CAP reforms’, Sociologia Ruralis, 60(3), pp. 661–679. European Commission (2014) Rural Development Programmes 2014–2020. Brussels, p. 14. Available at: https://ec.europa.eu/info/sites/default/files/food-farming-fisheries /key_policies/documents/rdp-2014-20-list_en.pdf (Accessed 8 April 2021). European Commission (2020) Common Agricultural Policy: Key Graphs & Figures. Available at: https://ec.europa.eu/info/sites/default/files/food-farming-fisheries/farming /documents/cap-expenditure-graph2_en.pdf. European Court of Auditors (2017) Special Report n°21/2017: Greening: A More Complex Income Support Scheme, not yet Environmentally Effective. Luxembourg: ECA. Available at: www.eca.europa.eu/en/Pages/DocItem.aspx?did=44179 (Accessed 25 June 2021). Eustice, G. (2016) ‘A vision for a new UK agriculture policy’, Farmers for Britain. Available at: www.farmersforbritain.co.uk/single-post/2016/03/23/Transcript-of-George-Eusticesspeech-to-the-Farmers-for-Britain-launch-23032016 (Accessed 8 April 2021). Falconer, K. and Ward, N. (2000) ‘Using modulation to green the cap: The UK case’, Land Use Policy, 17(4), pp. 269–277. Feindt, P.H. (2010) ‘Policy-learning and environmental policy integration in the Common Agricultural Policy, 1973–2003’, Public Administration, 88(2), pp. 296–314. Fouilleux, E. and Ansaloni, M. (2016) ‘The Common Agricultural Policy’, in M. Cini and N. Pérez-Solórzano Borragán (eds.) European Union Politics, 5th ed. Oxford: Oxford University Press, pp. 308–322. Gove, M. (2017) The Unfrozen Moment – Delivering A Green Brexit. London: DEFRA. Available at: www.gov.uk/government/speeches/the-unfrozen-moment-delivering-a-greenbrexit (Accessed 8 April 2021). Gove, M. (2018) Farming for the Next Generation (Oxford Farming Conference 2018). Available at: www.gov.uk/government/speeches/farming-for-the-next-generation (Accessed 8 April 2021). Gove, M. (2019) Oxford Farming Conference 2019 Address by the Environment Secretary. Available at: www.gov.uk/government/speeches/oxford-farming-conference-2019-addressby-the-environment-secretary (Accessed 8 April 2021). Grant, W. (1997) The Common Agricultural Policy. Basingstoke: Macmillan. Grant, W. (2016) ‘The challenges facing UK farmers from Brexit’, EuroChoices, 15(2), pp. 11–16. Grant, W. et al. (2016) The Implications of ‘Brexit’for UK Agriculture – A Report for the Yorkshire Agricultural Society. Harrogate: Yorkshire Agricultural Society, p. 22. Available at: https://yas.co.uk/wp-content/uploads/2019/03/yas-fsn-brexit-full-report.pdf (Accessed 8 April 2021). Gravey, V. (2011) ‘Réformer la PAC pour quoi faire ? Cartographie du débat PAC 2013’, IDDRI -Idées pour le débat, 11(4), pp. 1–22. Gravey, V. (2019) ‘Finally free to green agriculture policy? UK post-Brexit policy developments in the shadow of the CAP and devolution’, EuroChoices, 18(2), pp. 11–16. Hart, K. and Baldock, D. (2019) The Emerging Agricultural Policy Frameworks in the Four UK Administrations a Briefing for the UK Land Use Policy Group December 2019. London: IEEP, pp. 1–10. Available at: https://ieep.eu/uploads/articles/attachments/a6ecdd06-80a442a3-8579-c1943f687dc7/UK%20country%20Ag%20Policy%20developments%20%20LUPG%20briefing%20Dec%202019.pdf?v=63743968264 (Accessed 8 April 2021)

Brexit and the Common Agricultural Policy 115 HC Deb (24 March 1982) vol. 20 col. 964. Available at: https://api.parliament.uk/historichansard/commons/1982/mar/24/Common-Agricultural-Policy (Accessed 25 June 2021). Henke, R. et  al. (2018) ‘The new common agricultural policy: Ηow do member states respond to flexibility?’, Journal of Common Market Studies, 56(2), pp. 403–419. Henry, G. (2014) ‘Welsh government 2–0 attorney general: UK government suffers second supreme court defeat over powers to set wages for farm workers’, Wales Online, 9 July 2014. Available at: www.walesonline.co.uk/news/wales-news/agriculture-wagesbill-uk-government-7394743 (Accessed 25 June 2021). HM Government (2019) Frameworks Analysis: Breakdown of Areas of Eu Law That Intersect With Devolved Competence in Scotland, Wales and Northern Ireland, pp. 1–21. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/919729/Frameworks-Analysis-2020.pdf (Accessed 8 April 2021). House of Lords EU Select Committee (2015) Unrevised Transcript of Evidence Taken before the Select Committee on the European Union Inquiry on VISIONS OF EU REFORM 19/10/2015. London: House of Lords, p. 22. Available at: http://data.parliament.uk /writtenevidence/committeeevidence.svc/evidencedocument/european-unioncommittee/visions-of-eu-reform/oral/23576.pdf (Accessed 8 April 2021). Labour Party (1997) UK Labour Party 1997 General Election Manifesto. Available at: www.labour-party.org.uk/manifestos/1997/1997-labour-manifesto.shtml (Accessed 8 April 2021). Leadsom, A. (2017) ‘Environment secretary sets out ambition for food and farming industry’, gov.uk. Available at: www.gov.uk/government/speeches/environment-secretarysets-out-ambition-for-food-and-farming-industry (Accessed 8 April 2021). Lord Bew (2019) Intra-UK Allocations Review. London: HM Government. Matthews, A. (2013) Greening CAP Payments: A Missed Opportunity? Dublin: The Institute of International and European Affairs, pp. 1–14. Matthews, A. (2020) ‘When the CAP budget pendulum finally stopped swinging’, Capreform.eu, 22 July 2020. Available at: http://capreform.eu/when-the-cap-budgetpendulum-finally-stopped-swinging/ (Accessed 25 June 2021). Moravcsik, A. (2000) ‘De Gaulle between grain and grandeur: The political economy of French EC policy, 1958–1970 (part I)’, Journal of Cold War Studies, 2(3), pp. 4–68. Moyes, A. (1987) ‘Common ground: How changes in the Common Agricultural Policy affect the third world poor’, Journal of Chemical Information and Modeling, Oxford: Oxfam. National Assembly for Wales Research Service (2013) CAP Reform 2014–20: EU Agreement and Implementation in the UK and in Ireland. Cardiff: National Assembly for Wales, p. 77. National Farmers Union (2010) The CAP after 2013. NFU Policy, pp. 1–20. Available at: www.nfuonline.com/assets/6246 (Accessed 8 April 2021). Petetin, L., Gravey, V. and Moore, B. (2019) ‘Green Brexit: Setting the bar for a Green Brexit in food and farming’, The Soil Association, p. 21. Available at: https:// www.brexitenvironment.co.uk/wp-content/uploads/dlm_uploads/2019/06/Soil AssociationFull.pdf (Accessed 8 April 2021). Potter, C. and Goodwin, P. (1998) ‘Agricultural liberalization in the European Union: An analysis of the implications for nature conservation’, Journal of Rural Studies, 14(3), pp. 287–298. Villiers, T. (2020) ‘A vision for future farming’, gov.uk. Available at: https://www.gov.uk /government/speeches/a-vision-for-future-farming (Accessed 8 April 2021). Vote Leave (2016) Farmers Will Be Better off if We Vote to Leave the EU. Available at: https://digital.library.lse.ac.uk/objects/lse:bih902zor (Accessed 8 April 2021).

116  Viviane Gravey Warlouzet, L. (2018) ‘Britain at the centre of European co-operation (1948–2016)’, Journal of Common Market Studies, 56(4), pp. 955–970. Wildlife and Countryside Link, Scottish Environment Link and Northern Ireland Environment Link (2013) Briefing for MEPs Funding for More Sustainable Agriculture: Modulation and Co-financing Funding for More Sustainable Agriculture, p. 4. Available at: http:// mammal.org.uk/sites/default/files/LINK-report-fundingsustagric-aug13.pdf (Accessed 8 April 2021). WWF et al. (2016) A New Policy for Our Countryside. Available at: http://assets.wwf .org.uk/downloads/18109_farming___wildlife_policy___a4_leaflet_27_9_16_c.pdf (Accessed 8 April 2021).

7 Balancing productivity and the environment for more sustainable farming systems Matt Bell

Introduction A challenge for society today is balancing the increasing need for affordable, healthy and nutritious food produced from agricultural land, whilst minimising the impact on the environment. A question for society is, “can we balance the productivity and profitability of food production with a desire to preserve our rural landscape and environment for future generations?”. Sustainable development is commonly described as “meeting the needs of the present without compromising the ability of future generations to meet their own needs” (World Commission on Environment and Development, 1987). Any policy model for food production needs to be economically stable; otherwise, this will threaten to destabilise the other pillars of the “3 pillar” paradigm of sustainable development, namely the environment or social aspects (Figure 7.1). As discussed by Vitalis (2007), the European Commission (2001) has described the relationship between the three pillars as “economic growth [that] supports social progress and respects the environment, social policy [that] underpins economic performance, and environmental policy [that] is cost-effective”. Economic, social, and environmental objectives in this context are meant to be mutually supportive for sustainable development. Economic support payments for a farm business have the intention of ensuring supply of food commodities by distorting prices to alter the amount of goods and services produced and consumed, whilst also promoting regional and rural development through employment and income. This is particularly true for often lower income farm businesses such as beef or lamb producers in more marginal areas (AHDB, 2017). It can be argued that the use of payments to subsidise food production has not always incentivised good practice in food production, which encourages land management that minimises resource use and environmental impact. It has been suggested that subsidies are inefficient, expensive, socially inequitable, and environmentally harmful, imposing a burden on government budgets and taxpayers (OECD, 2005). In New Zealand, the reform of subsidies increased the efficiency of food production as producers turned to practices such as animal breeding, turning marginal land to forestry, less reliance on inorganic fertiliser, pesticides, and water and decision support systems (Vitalis, 2007). Beyond economic incentives and its influence on land management, some of the issue is availability of DOI: 10.4324/9781003010852-7

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Figure 7.1 The three pillars of sustainable development showing a destabilised economic situation.

systems to monitor challenging environmental impacts, such as greenhouse gas emissions and carbon footprint. One approach that has been used in Australia is the Carbon Farming Initiative, which allows farmers and land managers to earn carbon credits by storing carbon or reducing greenhouse gas emissions from land. In a country such as Australia where agriculture is a notable source of national greenhouse gas emissions (almost 25% of national emissions), this initiative was hoped to incentivise farmers to voluntarily reduce greenhouse gas emissions from land over the long term to help the country meet carbon reduction targets. It also requires the carbon credits to have value, which has not been the case in recent years. The credits are for growing trees or reducing tillage to protect soils, prevent erosion and sequester carbon, and use methane emissions from landfill or livestock manure for energy, or the feeding of dietary oils to ruminant animals. The UK government proposes to implement new legislation that pays farmers and land managers for public goods. Public goods are considered more socially accepted attributes that people would be prepared to pay for, such as better air and water quality, improved soil health, higher animal welfare standards, protection of the rural landscape, rural jobs, public access to the countryside, and measures to reduce flooding. Under the European Union, payments to farmers moved away from subsidising productivity to a direct payment for managing land area in a given way, as well as environmental stewardship. An Environmental Land Management system proposed by the UK government aims to reward environmental benefits that are associated with measures to increase productivity, including the adoption of technology. However, to do this requires the outcomes of land management practices to be quantified so a public goods outcome can receive a monetary payment. The belief is that productivity and system efficiencies often move largely in parallel and thus bring more sustainable production, as seen in New Zealand. There is hope that new technology and information will bring timely and objective measures to enhance farm productivity whilst also reducing the environmental footprint per unit product.

Balancing productivity and the environment 119 Land used for agriculture, horticulture, and forestry has captured global interest due to the reported contribution to global greenhouse gas emissions of 24% (IPCC, 2014), the second largest emitter of emissions after the energy sector. However, certain land types can also sequester carbon such as long-term grassland (mainly underground; Gibon, 2005) or forestry (mainly above ground; Xu et al., 2014). These land types have increasingly become recognised for their importance to society and the environment. The net emissions associated with including carbon sequestration in agricultural systems emission inventories (i.e. source minus sink) are often not done mainly due to uncertainties around quantifying the potential of such sinks at a national level. Agriculture, and in particular ruminant livestock, has come under increasing scrutiny as a major contributor to global greenhouse gas emissions (Gerber et al., 2013) and forms part of global commitments to reduce emissions to limit the effect on climate change (UNFCCC, 2019). There are about 3.6 billion domesticated herbivores worldwide (Hackmann and Spain, 2010), including ruminant livestock such as cattle, sheep, and goats. Mankind relies on domesticated herbivorous mammals, such as ruminants, to produce edible food (e.g. meat and milk), fibre, and labour. Importantly, ruminants are efficient convertors of non-human edible plant material into edible energy and protein food products for humans. This chapter discusses some novel approaches that are being developed to help address the current need for enhanced farm management monitoring within livestock farming systems. Such approaches aim to help balance productivity and environmental objectives for the sustainable development of future farm-level food production.

Grasslands and ruminant livestock A total of 37% of the world’s terrestrial land area is grassland, which provides a natural and potential source of affordable nutrients for animals if managed sustainably (Suttie et al., 2005). In many countries, grassland is the dominant land type. Grasslands can be beneficial for preventing soil erosion and building soil fertility (Wilkins and Humphreys, 2003) and biodiversity conservation for plant species and wildlife (Gibon, 2005). Grasslands can be categorised into two main groups, natural grassland and cultivated grassland. In the UK, natural grassland includes rough and hill grazing (representing 5.1 million ha) and cultivated grassland includes permanent and temporary leys (5.1 million and 1.4 million ha, respectively) (McDonald et al., 2011; Defra, 2018). Temporary leys are replaced within five years of sowing and are often part of an arable rotation (Figure 7.2) to help restore soil fertility and reduce weed, pest, and disease problems, whereas permanent pastures are older grasslands of more than five years old (Frame and Laidlaw, 2011). Permanent pastures tend to include a more diverse range of native species than a temporary ley sward (Frame and Laidlaw, 2011). Temporary pastures and permanent pastures provide an affordable source of nutrients for ruminant livestock, with forage on average estimated to contribute 50% to 60% of the diet for dairy cows, 80% to 85% for beef cattle and 90% to 95% for sheep in many farm systems (Frame and Laidlaw, 2011). Purchased cereal feeds are more costly than homegrown forages and have a higher carbon footprint (Thomassen et al., 2008).

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Figure 7.2 Diagram of a mixed farming system with nutrient flows between plant, animal, and soil components.

Gill et al. (2009) found that high inputs of cereals in US monogastric and dairy systems had brought high and efficient production, but these systems were not net contributors of food for human consumption. In the case of sheep and cattle fed predominantly forage or by-products, these systems can be more, or as efficient, as monogastric systems in terms of converting non-human-edible food into products, particularly when comparing systems on energy and protein utilisation (Wilkinson, 2011). However, grasslands are vulnerable to variable nutrient quality and production, which historically has been poorly monitored and any changes due to biotic and abiotic factors are ignored. Several factors can influence properties of the plant biomass (e.g. production and nutrient content) such as maturity, season (Binnie et al., 1997; Wilkinson et al., 2014; Frame and Laidlaw, 2011), plant species, soil properties (Frame and Laidlaw, 2011), and sward management (Curran et al., 2010; Crosse et al., 2015). Land management (e.g. nutrient inputs and grazing/harvesting management) can modify the functioning of the terrestrial ecosystem by altering soil conditions and the plant community composition (Legay et al., 2016). When short and leafy, a grass plant tends to be rich in protein and highly digestible. However, during its growth to maturity, the proportion of cell wall material increases and the proportion of cell contents decreases. The consequence is an increase in the percentage of fibre and a decrease in the percentage of crude protein, which results in decreased digestibility (Finch et al., 2002). Also, during grass growth, the sugar content increases as the stem to leaf ratio increases, with sugars mainly stored in the stem of the grass plant (Finch et al., 2002). New tools and sources of information for biomass and

Balancing productivity and the environment 121 nutrient composition measurements are being developed to help quantify temporal and spatial changes in herbage in real time to provide more timely information for enhanced land management (Pullanagari et al., 2012; Pullanagari et al., 2018; Bell et al., 2018a). Bell et al. (2018a) used real-time near-infrared reflectance spectroscopy (NIRS) combined with a measure of herbage production to show that grazing pastures to a mean height of below 7 cm result in significantly reduced concentration of crude protein and digestibility, which may be detrimental to animal productivity. While the presence of grazing animals may reduce crude protein and increase less digestible plant cell wall nutrients (i.e. lignin and cellulose), leading to reduced digestibility of plant material, the animal appears to enhance plant nitrate concentrations and the potential for plant growth presumably through deposition of dung and urine (Bell et al., 2020). The nutrient content of pastures is typically not monitored but doing so may help farmers improve how they manage grasslands. Real-time and mobile NIRS is highly appropriate for perishable plant material and can provide a timely and reliable analytical method for analysing feed and products of digestion (Decruyenaere et al., 2009). Such an approach could provide not only real-time nutrient concentrations in feed and excreta but also a prediction of feed intake for housed and grazing animals. Improved utilisation of food consumed can result in increased productivity and reduced nutrient losses in the form of methane and nitrogen (Bell et al., 2015). This approach in enhanced grassland management can help producers prevent overgrazing to the detriment of the animal, plant, and wildlife diversity. A study by Toupet et al. (2020) investigated invertebrate populations of beetle and ground-dwelling spiders in grasslands. These generalist predators are valuable for agricultural systems as they contribute to the fundamental ecosystem service of biological control of insect plant pests (Symondson et al., 2002; Begg et al., 2017; Michalko et al., 2019). Toupet et al. (2020) found that the age of the pasture (temporary versus permanent) did not affect spider numbers, but older and permanent pastures had higher beetle numbers compared to temporary pastures. The authors found that ground-dwelling spiders were more abundant in tall and dense grassland. The role of grassland in the rural landscape and its management affects flora and fauna community structure (Gibon, 2005; Rusch et al., 2014; Holland et al., 2016).

Enteric methane emissions Ruminants are a notable source of global methane emissions, which has a global warming potential of 25 times that of carbon dioxide. Ruminant livestock are estimated to contribute 17% of global enteric methane emissions and 3.3% of global greenhouse gas emissions from anthropogenic sources (Knapp et al., 2014). Importantly ruminants have the ability to turn plant material (e.g. grass) into an edible source of nutrients for humans (e.g. meat and milk), along with other useful commodities such as fibre and skin. To be able to ferment and degrade plant material ruminants have evolved a four-chambered stomach that includes the rumen, which contains a mix of bacteria, protozoa, and fungi. Ruminants rely on a diverse community of rumen microbes to digest food to form volatile fatty acids (e.g. acetate and propionate) that provide a source of energy for the animal. The balance

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Me th a n e c o n c e n tr a tio n ( p p m )

of acetate to propionate influences the production of methane, as discussed later. The presence of microbial biomass and other unfermented food components also provides a potential source of nutrients, such as protein. A by-product of enteric fermentation in the rumen is the production of metabolic hydrogen, which is utilised by methanogenic archaea to produce methane gas (between 2% and 12% of gross energy consumed). Attributes of the ruminant animal and its diet influence the amount of methane produced. The main drivers of enteric methane production are diet composition, the rumen microbial community, and their symbiotic relationship with the morphology and physiology of the animal’s digestive system. For a ruminant animal, approximately 35% of energy consumed can be wasted and lost in the form of enteric methane, faeces, or urine, and 77% of nitrogen consumed can be excreted in faeces or urine (Bell et al., 2015). These are wasted nutrients from food consumed by the animal, with the non-gaseous nutrients lost being returned to the land as organic fertiliser (Figure 7.2). The ruminant animal removes the gas building up in its rumen by repeated eructations through its mouth and nostrils (Figure 7.3). It is well recognised that methane production is positively associated with dry matter intake and in particular digestible organic matter intake in ruminant livestock (r = 0.99; Figure 7.4). Even with the high association between digestible organic matter intake and methane production seen across ruminant livestock, there is notable variation in emissions at a given level of intake, which is particularly noticeable for dairy cows (Figure 7.4). Bell et al. (2016) found a positive response in methane produced to per unit dry matter intake to increasing digestible organic matter (0.05 grams per kg dry matter). The positive response to increasing digestible organic matter can be reduced by increasing dietary contents of oil (−0.11 grams per kg dry matter) and/or increasing feeding level (−2.5 grams per multiple of maintenance intake). Due to their chemical composition, individual feed ingredients and diet composition can vary considerably in their methanogenic effect. An increase in more digestible feeds,

1,800 1,600 1,400 1,200 1,000 800 600 400 200 0

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Figure 7.3 Eructations of methane emissions from a dairy cow measured during milking showing measured peak amplitude (dashed black line with arrow) (Bell et al., 2019).

Balancing productivity and the environment 123 y = 40.7x0.89 R² = 0.99

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Figure 7.4 Relationship between digestible organic matter intake and methane production per day for sheep (■; n = 288), beef cattle (●; n = 71), and dairy cows (♦; n = 284). The line of best-fit across all values and passing through the origin is shown (Bell et al., 2016).

such as cereal grains with more rapidly fermented plant carbohydrates, promote rumen bacteria that produce propionate, higher rates of fermentation and passage of food through the rumen, which reduces methane losses per unit intake (Blaxter and Clapperton, 1965). While increased intake of less digestible feeds such as forage with more fibre promote rumen bacteria that produce acetate and methane production, and with little effect on methane production per dry matter intake (Blaxter and Clapperton, 1965). Low enteric methane losses per unit intake appear possible by mechanisms that promote the passage of organic matter to post-rumen digestion and reduce rumen fermentation by high intakes of digestible feed and addition of dietary oil. Both the diet composition, and the morphology and physiology of the host animal influence the microbial community (Weimer et al., 2010; Guan et al., 2008), diet composition appears to have greater influence than the host animal (Henderson et al., 2015). In ruminants, archaea (majority being methanogens) have been found to be less diverse than rumen bacteria, reflecting the narrow range of substrates that archaea depend upon (Henderson et al., 2015). Historically, most studies assessing enteric methane emissions from ruminant livestock have been performed using respiration chambers (Blaxter and Clapperton, 1965; Yan et al., 2010), which is seen as the gold standard for measuring whole animal emissions (i.e. from mouth, nostril and flatulence) due to the controlled environment in a room (Figure 7.5). The air concentrations in the incoming and outgoing air are measured at intervals using gas sensors to determine the gas emission rate and the amount produced by the animal. Housing individual animals in a respiration chamber for usually three days can affect individual animals differently, such as feeding behaviour, unless the animal has visual contact with other animals

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Figure 7.5 Illustration of a respiration chamber for measuring whole animal gaseous emissions (from Bell, 2019).

Figure 7.6 Illustration of the sniffer method for measuring methane emissions from the mouth and nostrils of the animal at a feed trough (from Bell, 2019).

and familiarity with the environment (Storm et al., 2012). The use of respiration chambers is not practical for measuring emissions from populations of animals on commercial farms due to its inability to fit into the animal’s normal environment. Equipment that is non-invasive and can be used in the normal environment of the animal has great interest. Such an approach that can fit into commercial farms allows emissions within populations of animals to be quantified, once the approach works consistently across different farm environments. Using breath analysis and the identification of eructation peaks in methane emitted whilst the animal visits a feed trough or milking station (Figures 7.3 and 7.6) shows great promise (Bell

Balancing productivity and the environment 125 0.30 0.29 Spot methane (g/min)

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Figure 7.7 Relationship between spot measurements of methane emission rate estimated from breath analysis and chamber measurements for the same cows (Bell et al., 2019).

et al., 2014; Lassen and Løvendahl, 2016), with the adopted gas analyser often being developed primarily for the energy industry but adapted for this use. Since the majority of methane is expelled from the nostrils and mouth (e.g. 87% to 93%), rather than the hindgut (Kebreab et al., 2006), peaks in eructations of gas are identified and measured. Using peak analysis software to identify clusters of eructation peaks within a spot measurement period (Figure 7.3) and extract the concentration of the peak with the largest amplitude (to find the ideal peak and remove background emissions), it appears that the methane emission rate of the animal can be estimated with a high correlation (0.75) when compared to the same cows when in a chamber (Figure 7.7; Bell et al., 2020). The frequent sampling of the largest peak amplitude in methane from breath accounts for the proximity of the animal to the sampling tube and the diurnal pattern for methane emissions (Crompton et al., 2011; Manafiazar et al., 2017; Bell et al., 2018b). Methane emissions follow a diurnal pattern whereby emissions are highest after feeding, followed by a gradual decline until the next consumption of feed. The diurnal pattern is affected by feed allowance and feeding frequency (Crompton et al., 2011). Currently, national greenhouse gas emissions for livestock are mainly estimated from annual records of animal numbers for different age groups and the estimated feed intake from animal size (i.e. body weight) to derive energy (methane) and nitrogen losses as a proportion of the amount consumed. In reality, there is considerable variation within populations of animals and among animals fed the same diet and eating the same amount of food (e.g. dairy cows in Figure 4). Overall, quantifying enteric methane emissions from eructation peaks of methane

126  Matt Bell gas whilst feeding has been demonstrated to provide a repeatable and reliable phenotypic estimate of emissions (Garnsworthy et al., 2012; Lassen et al., 2012). This development will provide a reliable method for monitoring individual animal emissions in large populations for more targeted mitigation than currently possible. The outcome of this will be 1) selection for low emitters, 2) benchmarking of farms to improve awareness, and 3) more representative and accurate national inventory greenhouse gas emissions accounting on a global scale.

Animal health and welfare Increasing animal welfare standards is an important social requirement, along with enhanced traceability and consumer confidence in food production. Bell and Wilson (2018) identified that an increase in animal feed utilisation efficiency, health, fertility, and overall survival and a reduction in enteric methane emissions can increase productivity and reduce greenhouse gas emissions. Furthermore, the authors found regional differences in health and fertility performance within dairy cow populations within the UK, with suggested shorter lifespan in the north of the UK. Poor survival rates lead to a higher need for replacement animals and their associated need for resources. Monitoring techniques that balance productivity with animal fitness (e.g. assess locomotion, breath, activity, feeding, behaviour, body, milk composition; Figure 7.8.) are of interest to farmers and society (Eggar-Danner et al., 2015) for more sustainable systems. It may be that combining sources of information provides better decision support. In recent years, the expectation has been for each stockperson to look after more animals, as input costs (including labour) have increased and finding skilled farm

Figure 7.8 An illustration of the range of measures used to monitor dairy cows and their environment (Bell and Tzimiropoulos, 2018).

Balancing productivity and the environment 127 workers has become more challenging. With these changes has come new digital camera systems and image analysis software that provide the potential for continuous and automated monitoring of livestock. A number of sensor technologies that can be used on animals exist such as accelerometers, GPS, rumen boluses, and temperature sensors (Day, 2005; Berckmans, 2008; Wathes et al., 2008; Neethirajan, 2017). Similar to breath sampling animals for their enteric methane emissions, the information captured by sensors can be downloaded when the animal visits a common location such as milking station, and feed and/or water trough that they use frequently. In terms of animal behaviour, often the sensor technology has been calibrated using human visual observations from video recording, which can be prone to subjective errors. In fact, camera images to monitor animal behaviour manually have been used for decades to carry out research studies, and systems for automated monitoring of intensive pig and poultry systems already exist (Wathes et al., 2008). The use of continuous tracking of livestock on farms may add to the current knowledge of the stockperson through awareness of subtle changes in the animal, rather than being seen as replacing the need for a stockperson. Automated image analysis and computer vision, which has arisen mainly from human surveillance systems and facial recognition based on the technique of deep learning (Krizhevsky et al., 2012; Girshick et al., 2014), now allows automated monitoring of live video or image feeds (Figure 7.9) for farming tasks. Compared to other commercially available sensor technologies, image analysis has the benefit of not relying on human intervention, transponder attachments, or invasive equipment (e.g. boluses, collars). The image provides information to determine animal behaviours and metrics such as size and body condition (Stock et al., 2017; Bell et al., 2018a, 2018c). A disadvantage of video image monitoring

Figure 7.9 Pregnant cows identified and tracked by computer vision technology from video surveillance (McDonagh et al., 2020).

128  Matt Bell is that it is more suited to house animal environments but an unmanned aerial vehicle may provide a solution to this current limitation. For detecting objectives such as animals, deep neural networks can be used for recognising the type of animals (recognition), detecting where the animals (and any other objects of interest) are located (detection), localising their body parts, and even segmenting their exact shape (silhouette) from the image. Adaptations of neural networks for analysing video can be made for higher level analysis such as animal behaviour recognition (e.g. standing, lying, walking, eating, drinking, and birth events) (Cangar et al., 2008; McDonagh et al., 2020). A major benefit of automated image analysis is that it allows continuous monitoring during the day and night, which is not possible for a stockperson and may provide early detection of health and welfare problems that require intervention. Improvement in health and welfare of livestock should contribute to enhanced lifespan, which, socially, environmentally, and economically, is beneficial. Image analysis can detect and track not only individuals but also groups of animals (such as mother and offspring), which is not possible using other monitoring methods. The monitoring of animals during parturition is essential for the welfare of the mother and offspring, and their overall survival (Hyslop et al., 2008). Body reserves of animals (i.e. body fat or body condition) change during a typical year due to metabolic demands, such as body maintenance, growth, pregnancy, milk production, and activity (indoors or outdoors under varied weather conditions). Bell et al. (2018c) found that digital images can provide an objective and more accurate estimate of poor body condition, when studying dairy cows, than the more subjective and traditional body scoring methods. Body condition scoring has traditionally been done by manual scoring of the amount of body fat reserves associated with a live animal at a given time. Body condition scores around the world use a variety of scales and approaches (Bewley and Schutz, 2008a), but typically on a scale of extremely thin (1) to very fat (5 or 9 depending on scale adopted) in quarter intervals. The manual scoring method still often used has provided a simple means for the stockperson to assess the body fat of animals rather than rely on more specialised ultrasound equipment to more accurately measure body fat. This is a subjective scoring measure with potential differences in human interpretation leading to reduced reliability and repeatability. Furthermore, it requires frequent monitoring throughout the year as animal metabolic requirements change. Developments in automated image analysis technology provide a more objective assessment of body condition for individual animals (Halachmi et al., 2008; Bewley et al., 2008b; Azzaro et al., 2011). In dairy cows, low fat levels and the mobilising of body fat reserves for milk production have been found to have a deleterious effect on the health and fertility of the cow (Pryce et al., 1999), and ultimately survival. Modern high milk yielding dairy cows have a high genetic potential for mobilising body energy reserves to produce milk.

Conclusions With the growing demand for meat and milk products, which is projected to continue out to the year 2050 and particularly in the developing world (Gerber et al.,

Balancing productivity and the environment 129 2013), innovation for sustainable food production will continue to be required. The productivity of more intensive livestock systems such as dairy, pig, and poultry have doubled during the last 50 years primarily by genetic selection and better nutrition. The challenge to society, scientists, and farmers is to improve efficiency of plant and animal production by better matching available and appropriate resources to requirements, to balance the need for human edible food with environmental protection and public goods. This chapter discussed new approaches that are being developed to help monitor productivity and environmental aspects of food production and make food production systems more sustainable. Any policy model for food production needs to be economically stable; otherwise, this threatens to destabilise the other pillars of the “3 pillar” paradigm of sustainable development. Beyond economic incentives and its influence on land management, this chapter discussed ways to monitor challenging environmental impacts, such as greenhouse gas emissions and carbon footprint. New digital technologies, such as those proposed, can provide new knowledge and information to objectively monitor and enhance our awareness of public goods that are often difficult to quantify using existing measures (e.g. enteric methane, land management, feed utilisation, behavioural, and fitness traits of animals). This new information or data source can enhance farm-level monitoring, awareness, and decision-making from continuous, objective, and repeatable information when easily applied. For any new monitoring system, it needs to easily integrate into the farm system as well as provide timely and accurate information that is valued. Such valued information is often related to cost-saving such as time, labour, health treatments, and nutrition for animals or plants. Adoption by the farm is reliant on the perceived benefits and investment needed, which may be influenced by the production system, that is high versus low input system. Changes that improve production efficiencies and profitability of food production are of great interest to farmers to maintain a financially viable business, and if this is coupled with efficiency savings that can be quantified as proposed in the chapter, and often relate to enhanced public goods (i.e. air and water quality, health and welfare, and rural landscape), then the three pillars for sustainable food production should be more stable for future generations.

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8 The impact of Brexit on epistemic communities in agricultural and environmental sectors Aleksandra Čavoški Introduction Brexit exposed the numerous challenges the UK faces in a range of policy sectors. One significant issue is the future role of epistemic communities defined as “networks of experts with relevant knowledge and policy experience” (Haas, 1992, p. 3). This is particularly relevant for agriculture and the environment as they are prime examples of science-based policy areas. Scientists play an important role in every stage of the legislative process, as well as in implementation and monitoring. As these areas are also reliant on technological innovation and research, epistemic communities make an important contribution to the early identification of problems and finding innovative solutions. Their significance in the policy-making process is well recognised in the EU and strengthened through various formal and less formal fora for production of scientific knowledge. The participation and input of epistemic communities are essential in the policy and law-making processes through their contribution to the assessment of economic, social, and environmental impacts of EU laws and policies. Their interaction with policy-makers is facilitated by a large pool of scientists acting either as external experts or as part of the EU in-house providers of scientific knowledge from different member states and various professional domains. Thus, it becomes important to assess the implications of Brexit on the role of epistemic communities in the UK in the agricultural and environmental sectors.

Understanding of epistemic communities and their roles The concept of epistemic communities emerged in 1980s and was widely deployed with regard to their scope, role, interaction, and building relations with both state and non-state actors (Cross, 2013). Epistemic communities are regarded as providers of information and advice and with the rise in demand for expertise, those communities emerge and proliferate (Haas, 1992, p. 4). Depending on the need and delegation of responsibilities, epistemic communities can act on national or transnational levels (Haas, 1992). Their contribution is particularly valuable in policy areas, which either are inherently complex or require technical and scientific input in policy formulations. Haas (1992) also points to their role in areas DOI: 10.4324/9781003010852-8

The impact of Brexit on epistemic communities in agricultural 135 surrounded by a degree of uncertainty where there is a need to convey the extent of uncertainty in an unbiased manner. Cross (2013) also emphasises the importance of globalised processes which, coupled with varying degrees of uncertainty, creates a demand for specialised knowledge. This in turn emphasises the increasing significance of transnational professional networks. Moreover, we are continuously facing the emergence of new areas where there is a shortage of scientific evidence or conflicting scientific evidence that informs policy-making. Epistemic communities are most valuable for providing advice to state actors though, in recent times, non-state actors also rely significantly on their input (Cross, 2013). Their degree of influence will vary, depending on many internal and external factors. It may depend on internal resources within a professional group offering advice, the quality of experts, the extent of access, and input they have in the policy-making process, as well as the nature of a particular issue and demand for a response. No less important is the ability of epistemic communities to provide prompt advice to state actors in emergency or crisis situations. The concept of epistemic community is broadly construed. Haas (1992, p. 3) defines it as a “network of professionals with recognised expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area”. Epistemic communities are not necessarily comprised of natural scientists but include social scientists or experts “from any discipline or profession who have a sufficiently strong claim to a body of knowledge that is valued by society” (Haas, 1992, p. 16). What brings them together is “their shared belief or faith in the verity and the applicability of particular forms of knowledge or specific truth” (Haas, 1992, p. 3). Although scientists are regarded as primary members of epistemic communities, the notion of epistemic community was further developed since its initial conception. Cross (2013) identifies other groups such as diplomats, judges, defence experts, high-ranking military officials, bankers, and international lawyers who also possess valuable knowledge that may inform decision-making. Besides the role of expert groups at the EU level, Zito (2001, p. 469) identifies advocacy coalitions in addition to epistemic communities, which together form “a wider esoteric knowledge community”. This wider understanding of the notion of epistemic communities is the result of changing dynamics of policy-making in the last several decades with increasing reliance on different types of knowledge for formulating laws and policies that are fit for the purpose, as well as the formulation of policy in increasingly complex governance structures. This is particularly relevant at the EU level where the governance system relies on input of various actors through different phases of policy-making. The value of epistemic communities does derive not only from a broad conception of the term but also from the wide role they have in the law and policy-making process. Adler and Haas (1992) identify some of the purposes of epistemic communities that cover various stages of the policy-making process. Epistemic communities can assist in identifying the nature of the relevant problem and explore complex interlinkages between different components of a problem (Haas, 1992). This role also includes their work in defining state interests, formulating policies, framing the range of political controversy surrounding an issue, and setting

136  Aleksandra Čavoški various standards (Adler and Haas, 1992). Haas (1992) points to their importance following an emergency or crisis situation when they can assist in in identifying causal factors and provide advice on the most appropriate course of action. The significance of epistemic communities becomes particularly relevant when we consider that failing to engage them can lead to unintended consequences of laws and policies. The concept of unintended consequences, developed by Merton (1936), is a key component of informed and well-designed policy-making. This analytical method allows us to identify and assess occurrences that may lead to unintended consequences in formulating laws and policies at any governance level, especially when epistemic communities are not well or sufficiently engaged. Merton (1936) identified three main limitations to an accurate anticipation of consequences of action. The first is a lack of adequate knowledge that may affect the policy response. The second factor is error that may occur in any phase of the policy-making. The third factor denotes situations where an actor is principally concerned with foreseen immediate consequences and discounts other considerations that may result from the same action (Merton, 1936). All three possible scenarios will be dependent on available and accurate knowledge, be it scientific knowledge in its narrow sense or a multi-domain knowledge. This is not to say that there may be other factors that could lead to unintended consequences (Vernon, 1979), but the concept of unintended consequences portrays an importance that epistemic communities have in mitigating the risks of unintended consequences.

Epistemic communities and EU agricultural and cross-cutting environmental policies Epistemic communities are well developed and numerous at the EU level and they undertake research that informs policy-making and also provides valuable advice in the formulation of EU policies. Their work is of particular significance for agriculture and cross-cutting environmental issues, which are two areas of legal regulation heavily shaped by scientific insights. Moreover, policy actions and legal responses in those two areas are dependent on the global setting, and there is uncertainty surrounding some of the issues regulated in those areas. In recent years, the European Commission has been particularly keen to emphasise the importance of science and scientific knowledge in delivering “timely and sound policy decisions” (COM(2015)215 final, p.  3). In the Better Regulation Agenda, the Commission underlined its commitment to using the best available evidence and science (COM(2015)215 final). This should result in designing and delivering “tangible and sustainable benefits for citizens, business and society as a whole” as well as promoting the openness and transparency of the policymaking process (COM(2015)215 final, p. 3). As the Commission relies heavily on external expertise, it also seeks to define the principles and guidelines that should underpin the collection and use of expertise in all stages of policy-making (COM(2002)713 final). Of great importance are principles of quality, openness, and effectiveness that contribute to a well-informed, participatory and transparent process (COM(2002)713 final).

The impact of Brexit on epistemic communities in agricultural 137 Due to the specific governance system and areas of EU competence, the notion of epistemic communities in the EU is broadly construed and expert advice is offered in various forms. Expert advice is primarily provided by experts covering various policy domains and coming from different backgrounds. Scientists are more prevalent with regard to agricultural and environmental issues. They participate at every stage of the legislative process, which includes legal drafting, adoption, implementation, monitoring, and enforcement. Their input is especially valuable in the planning phase and impact assessment where epistemic communities have a key role in providing evidence used to substantiate initial planning and impact assessment reports (Čavoški, 2020).1 However, epistemic communities perform a wider role in agricultural and environmental sectors, and dense networks bring together a web of organisations with diverse membership including activists, representatives of national government, private sector, business, industry, and other public entities. This approach is aligned with the wider understanding of epistemic communities that is not limited only to scientists, in particular natural scientists. As the European Commission has the exclusive right of initiating EU laws and policies, it is regarded as the main beneficiary of expert knowledge. In line with the openness of the policy-making process, this expert and scientific advice is also available and communicated to all other EU institutions involved or having an interest in the policy-making procedure.2 Of course other EU institutions, in particular the European Parliament, also engage with the different expert and scientific communities in receiving appropriate input. Those communities provide scientific advice through different formalised and less formalised scientific and professional fora that bring experts from different member states together. Moreover, scientific advice is provided through the EU in-house providers of scientific advice or by engagement of external experts. The Joint Research Centre (hereinafter “JRC”) is the Commission’s in-house provider of scientific advice. There are also highly formalised and structured providers of external advice, such as the Scientific Advice Mechanism (hereinafter “SAM”), which was established in 2015 and replaced the previous office of the EU’s Chief Scientific Advisor (C(2015) 6946 final). Specialist advice is also provided by external groups, which are formed as either formal or informal expert groups and can bring together experts acting in an individual capacity, representing civil society, private sector, universities and the wider research sector, member states, and other public entities.3 UK scientists have always had a prominent role in providing expert advice. For example, the role of EU’s Chief Scientific Advisor was entrusted to the British molecular biology scientist Anne Glover. Besides external groups, the European Commission also receives advice on certain agricultural and health-related issues through standing committees composed of national experts, representatives from member states, and national public authorities.4 Some expert fora, such as the JRC, are well established and have a long lineage of providing expert and scientific knowledge,5 while some are more recent and are established to complement existing providers. A good example is SAM that has a unique organisational structure consisting of a High Level Group of natural and social scientists who work together with the consortium of European academies and thus

138  Aleksandra Čavoški cover a wide range of expertise domains.6 From 2015, three British scientists have already sat or are still current members of the SAM, which is significantly more than any other member states had. As Haas and Adler pointed out, epistemic communities, regardless of how broadly they are understood, have multiple roles. This is particularly pronounced in the EU where the legislative process entails multi-stage procedures and requires input from various stakeholders. With regard to agricultural and environmental issues, one overarching role of epistemic communities is to facilitate the interaction between science and law in policy-making with the aim of incorporating scientific and expert knowledge into law that is fit for purpose. An important part of that process is the role of scientists and other experts in foresight, which is not a formal part of the legislative process but provides an important contribution to the early conception of a policy. Foresight, which includes sub-activities such as modelling and forecasting, provides policy-makers with different scenarios and probabilities of events to enable to better-tailored policies for future. This is a relatively new tool that is still not widely applied or understood. Unlike many national governments, the EU, through the JRC, managed to institutionalise this tool and apply it to various policy areas to predict long-term effects of policy decisions.7 Modelling as a component of foresight forms an important part of the agricultural policy formulation. JRC leads modelling exercises, which provides policy-makers with different choices based on the assessment of various factors that determine viable policy choices, such as market impacts on food production, demand, and costs of policy scenarios (M’barek et al., 2017). In this endeavour, scientists in the JRC have to reconcile different social, economic, and environmental effects of each policy and tailor a multifunctional Common Agricultural Policy (hereinafter “CAP”) that would respond to demands related to increased market efficiency and competitiveness; fostering jobs and ‘smart’ growth; contributing to climate change mitigation while adapting to a changing climate; ensuring responsible and sustainable biologically renewable resource management; and still respecting its initial aim of ensuring food security. (M’barek et al., 2017, p. 10) JRC also runs a crop yield forecasting system, which has been in place since 1992 and provides policy-makers with timely information during the growing season (FPFIS, 2012). Collection and verification of data and undertaking research activities are other important functions performed by epistemic communities in the EU. The European Environment Agency (hereinafter “EEA”) has been established with the primary aim of providing “objective, reliable and comparable information at European level enabling the EU and the member states to take the requisite measures to protect the environment” as well as providing information to the public about the state of the environment (Recital 5 of the Regulation (EC) No 401/2009). The European Environment Information and Observation Network (hereinafter

The impact of Brexit on epistemic communities in agricultural 139 “Eionet”) is an important partnership network of the EEA that gathers data and provides a forum for data sharing amongst its members (European Environment Information and Observation Network, no date). This is complimented by various other monitoring and observation programmes such as Copernicus, which provides data from satellites and from ground-based, airborne, and seaborne measurement systems (About Copernicus | Copernicus, no date). Copernicus gathers extensive information on different environmental media including atmosphere, land, and marine environment as well as climate change-related data and data that help in managing natural disasters, man-made emergency situations, and humanitarian crises (Emergency | Copernicus, no date). Equally, epistemic communities are heavily involved in EU policy formulation and implementation, especially with regard to agriculture and environmental policies. This not only includes the formulation of internal EU policy but also assists the EU in its external policy portfolio. With regard to agriculture, the JRC as an in-house provider of expertise contributes significantly to the preparation of policy documents in multilateral and bilateral trade negotiations (FPFIS, 2013). To that end, the JRC assesses both the EU agricultural markets and the foreign markets, as well as specific food supply chains. For example, of particular importance concerning the operation of foreign markets is the work of the JRC in assessing the likelihood of more volatile markets by “establishing a theoretical model of storage of agricultural commodities (with a view to assessing the consequences of public intervention policies) and studying the drivers and factors of food prices volatility” (FPFIS, 2013). This is a good illustration of the ability of epistemic communities to assess complex issues in a globalised setting. An important part of formulating policy or responding to changes in the natural environment is also to identify interlinkages with related policies. As Haas (1992) argues, there are different components of a problem that, in the case of agricultural policy, require continuous examination of the relationship between climate change and the agricultural sector. Epistemic communities provide significant input in fostering more sustainable agricultural practices that lead to the reduction of greenhouse gas emissions and the use of pesticides. Innovation forms an important part in addressing the linkages between different polices. With regard to food security, this involves the work of epistemic communities at the EU level working on genetic improvements and biotechnologies that not only address food security challenges but also assist in strengthening the response to climate adaptation (EU Science Hub, 2013).8 Finally, epistemic communities are well integrated in different phases of the legislative process, with their particular engagement in the impact assessment procedure.

The impact of Brexit on epistemic communities in the UK Despite the strong knowledge base in the UK, the cessation of EU membership will have a significant impact on how and the extent to which epistemic communities will be able to fulfil two of their key roles – to undertake research and subsequently provide scientific advice that informs the decision-making process. In its

140  Aleksandra Čavoški 2017 Industrial Strategy, the UK proudly emphasised the world class research that is undertaken in UK universities (UK Industrial Strategy, 2017). However, with changing technologies and uneven economic growth, one of the main challenges for the UK is to remain “a world leader in global science and innovation collaboration” (UK Industrial Strategy, 2017, p. 63). This requires significant investment in research and innovation, as well as maintaining international cooperation between epistemic communities. This will be even more important post-Brexit when the UK cannot avail of full range of EU funds available to EU member states. Furthermore, Brexit exposed the need to urgently put in place various regulatory processes that underpin decision-making in which epistemic communities play key roles. Examples of these are the authorisation of chemicals and genetically modified organisms (hereinafter “GMOs”) on the UK market post-Brexit, which are important for promoting sustainable agriculture. These regulatory processes not only allow for the risk assessment of potentially harmful substances and, as such, reduce adverse effects for humans and environment but are also essential in enabling UK agricultural sector to remain competitive. Enabling epistemic communities to undertake research The importance of research funding was recognised in the 2017 UK’s Industrial Strategy. The Government committed to invest an extra £2.3 billion in addition to what was previously planned in 2021/22, which would bring total public investment in research and development to approximately £12.5 billion in that year (UK Industrial Strategy, 2017, p. 67). This will be coupled by the “rise of total research and development (R&D) investment to 2.4 per cent of GDP by 2027” (UK Industrial Strategy, 2017, p. 66). Agriculture is one of the areas identified as important in terms of research and innovation. The UK government has an ambitious plan in this policy area. One of its objectives is to transform food production in the UK by putting in place a “farm to fork” programme that will “put the UK at the forefront of advanced sustainable agriculture” (UK Industrial Strategy, 2017, p. 45). This can be only achieved with significant investment in technologies, in particular precision technology in agriculture that should “transform food production whilst reducing emissions, pollution, waste and soil erosion” (UK Industrial Strategy, 2017, p. 75). Equally, investment in the use of artificial intelligence in agriculture is attractive as it can be used to improve food production by the use of data in agriculture that would lead to better prediction of crop use and health, pest control, observation of soil, and use of robotics for different agricultural tasks. The emphasis of agri-tech development was echoed in the 25 Year Environment Plan, which highlighted the importance of research and development in that area. Some examples include precision farming technologies, better resource efficiency, and improved livestock and crop management that will result in more effective sustainable productivity growth (25 Year Environment Plan, 2018b, p. 36). These and many other examples of research and innovation in farming were recognised in the 2018 policy paper Health and Harmony. The Government reiterated the importance of innovation for improving productivity and bringing environmental

The impact of Brexit on epistemic communities in agricultural 141 effects, which will require investment in research and development (Health and Harmony, 2018a). In its written observation to the House of Commons during the Brexit debate, the Agricultural Biotechnology Council agreed with this view and emphasised the importance of sharing science and knowledge between different epistemic communities and furthering international collaboration (Agricultural Biotechnology Council in the House of Commons, 2018). However, in order to put these ambitious plans in operation, it is of great importance for the UK government to conclude “a far-reaching science and innovation agreement with the EU that establishes a framework for future collaboration” and to secure funds for research (Written evidence – Agricultural Biotechnology Council, no date). Research in the UK is deeply intertwined with EU research and the UK played an important part in building the European Research Area.9 To that end, UK epistemic communities embraced different forms of cooperation with the EU and other international partners. EU membership was profoundly beneficial for the UK research community. As explained in a Royal Society study “in 2015 over half of the UK’s research output was the result of an international collaboration”, with the predominant focus on cooperation with scientific communities in the EU (Royal Society, 2015, p. 4). Moreover, UK institutions and researchers made significant contributions to the EU policy-making process (Royal Society, 2015). The UK was one of the leading zonal rapporteur member states in the authorisation of pesticides. The UK’s epistemic communities also provided major input into the development of EU legislation. A good illustration is the UK’s contribution to the development of medical research at the EU level by participating in pan-EU clinical trials and providing leadership in certain medical areas such as rare disease and paediatric clinical trials (Varnai et al., 2017). Similarly, the UK’s contribution to EU’s Clinical Trial Regulation was of great importance, especially through the work of the Medicines and Healthcare products Regulatory Agency (School of International Futures, 2018). Thus far, international collaboration between scientific and professional communities was facilitated and funded through numerous EU schemes. There is no doubt that the extent of international and EU cooperation between epistemic communities would be smaller in scale and less productive if it was not for generous EU funding. Of particular significance is the Horizon 2020 scheme, which offered €80 billion of funding for programmes running from 2014 to 2020 (GOV.UK, no date). The UK was one of the most successful recipients of Horizon 2020 funding by securing “€5.5 billion of funding to date (13.5% of the total)” (GOV.UK, no date). In 2013, UK university chemistry departments received more than 21% (~£43 million/€60 million) of their funding from EU institutions (including businesses, charities, and other national governments), compared to only 6% from non-EU overseas sources (Royal Society of Chemistry, 2015, p. 2). Besides substantial funding, those schemes enable wide participation by allowing different legal entities to apply, including universities, research institutions, non-governmental organisations, companies of different size established in different member states, or associated countries (H2020 Online Manual, no date). No less important is the funding provided through the European Structural and Investment Funds and the European Fund for Regional Development.

142  Aleksandra Čavoški These funds were particularly significant in facilitating the collaboration of epistemic communities across the EU in enhancing sustainable agriculture in member states. This objective was recognised in the EU’s Growth Strategy 2014–2020, which provided the basis for launching five European Innovation Partnerships (EIPs), one of which was “EIP-AGRI” specifically devoted to agriculture and forestry with “the aim of fostering a competitive and sustainable sector that ‘achieves more from less’ ” (eip-agri, 2017b). This EU scheme brings different epistemic communities relevant for research and innovation, including farmers, researchers, agribusiness, NGOs, and many other relevant actors (Lamparte, 2014). Projects within this scheme are primarily funded from Rural Development programmes (hereinafter “RDPs”) and Horizon 2020, though there are some other available funding sources (Hoye, 2014). A good illustration of UK epistemic community involvement is the participation of the Natural Environment Research Council in Horizon 2020 project, which examines ways of preventing the impact of Xylella fastidiosa as a plant pathogen on crops as a spill-over effect on economy and environment (eip-agri, 2017a). This commitment to research and innovation as the main vehicles for transition to sustainable agriculture has been recently reaffirmed in the EU Farm to Fork Strategy. Research and innovation are seen as tools in assisting to “develop and test solutions, overcome barriers and uncover new market opportunities” (COM(2020)381, p. 15). The Commission has ambitious plans regarding funding in the agriculture sector by using the Horizon 2020 programme and the European Regional Development Fund. The first commission initiative is to prepare an additional call for proposals amounting to €10 billion for Green Deal priorities in 2020 (COM(2020)381 final, p. 13). The Commission proposes to invest in research and innovation relating to “food, bioeconomy, natural resources, agriculture, fisheries, aquaculture and the environment as well as the use of digital technologies and nature-based solutions for agri-food” (COM(2020)381 final, p. 15). With regard to agriculture, a special emphasis will be on enhancing agro-ecological approaches in primary production, which should lead to reduced use of pesticides, fertilisers, and antimicrobials (COM(2020)381, p. 15). The Commission is particularly keen to strengthen the role of the EIP-AGRI and funding opportunities within this scheme. Finally, the Commission plans to deploy the new Horizon Europe partnership for “Safe and sustainable food systems for people, planet and climate” to put in place a research and innovation governance mechanism (COM(2020)381, p. 15). This new mechanism will assist the member states and other actors in the farm-to-fork food chain in providing innovative solutions that will improve nutrition and the quality of food and have beneficial effects on communities, circular economy, and climate (COM(2020)381, p. 15). Despite the fact that the UK government recognised the value of maintaining links with EU scientific communities and fostering research and innovation from an early point in the Brexit debate, the government was very slow to agree a future research framework with the EU. In its 2013 Strategy for Agricultural Technologies, the government emphasised the value of the EU research environment and funding schemes for Agri-Tech Funding and research, while the European

The impact of Brexit on epistemic communities in agricultural 143 Commission was recognised as “a significant funder of agri-tech research through the Framework Programme of the European Community for research, technological development and demonstration activities” (2013, p. 13). Moreover, the government underlined the interdisciplinary nature of agriculture, which necessitates interactions of science with other disciplines (EU Science Hub, 2013). Finally, the collaborations between epistemic communities and stakeholders both across disciplines and across the EU are also seen as important in addressing the public distrust that some of the new agri-technologies such as GMO or research on antimicrobial resistance can generate (Petetin, 2018). However, these issues have gained little traction in ongoing UK-EU negotiations and delayed the government’s decision on this issue. During the negotiations, the UK government emphasised that the UK’s participation under the new scheme from 2020, which offers an ambitious €100 billion research and innovation programme, was dependant on the outcome of the withdrawal negotiations. As stated in the Government’s Future Partnership Paper, the UK’s involvement depended on the “size of any financial contribution, which the UK would need to weigh against other spending priorities” (House of Commons Science and Technology Committee, 2018, p. 8). The House of Commons Report on Brexit, Science and Innovation further explained that the UK government is led by two main tests – one is the focus on excellence while other is the “value for money” (House of Commons Science and Technology Committee, 2018, p. 8). These governmental statements were a good illustration of the UK government approach to research and innovation and the value and knowledge that epistemic communities are regarded to have. This certainly created an impression that the government’s consideration with regard to the work of epistemic communities through research and innovation is pecuniary and collaboration will only be beneficial for the UK only if there is “value for money”. This is a somewhat problematic approach as research and innovation in any scientific domain, including agriculture, cannot be quantified in the same manner as would be the case with innovation in the private sector. Moreover, funding in research always carries uncertainty as future rewards from research are never guaranteed but that should not necessarily discourage funding. It was clear from early on that the best option for the UK was the “association agreement” with the Horizon Europe as a research and innovation programme opened to different categories of countries, including candidate countries and potential candidates, EFTA countries, as well as countries that form part of the European Neighbourhood Policy. However, association status carries an obligation to contribute to the scheme proportionally to a country’s GDP.10 This had a significant impact on the UK government’s decision regarding any future funding arrangement and delayed its final decision. The uncertainty surrounding funding post-Brexit has immediately taken a toll on UK research. According to a recent UCL analysis, “the number of projects led by UK researchers has fallen by over 60% from approximately 50 in each of 2015 and 2016, to just 20 in 2018” (Mazzucato and Dibb, 2019). Furthermore, the UK rapidly became a less attractive place for EU researchers amounting to a “35% drop in those coming to the UK via

144  Aleksandra Čavoški EU schemes” (BBC, 2019). It was only in January 2021 that the UK government finally decided to be associated with Horizon Europe (Working on EU-funded projects; European Commission, 2021). Despite this long delay in reaching this decision, the UK government still needs to undertake steps to formalise this associated status. Not long after making this decision, the UK government decided to reduce overseas funding available for Official Development Assistance (hereinafter “ODA”), which provides funds for the world’s poorest regions (UKRI Official Development Assistance letter, 2021). One may speculate that the decision to stay associated with Horizon Europe coupled with economic loses as a result of the pandemic led to a withdrawal of ODA funds. This further exacerbated the relationship between the UK government and research communities, especially those in the academic sector. Besides ensuring access to appropriate funding schemes, the UK government must also ensure access of epistemic communities to data and facilities at the EU level, which are necessary to undertake research and promote innovation in the UK. This will be particularly important with regard to data provided by the EEA. After exit day on 31 January 2020, the UK immediately ceased its link with the EEA, and it is neither part of its governance system nor does it participate in meetings or processes that fall within the EEA’s mandate (European Environment Information and Observation Network, no date). It is under no obligation to provide any information to the EEA (European Environment Information and Observation Network, no date). Nonetheless, it would be very prudent for the UK to retain its links with this agency. Membership of the EEA is open to any country that shares the same objectives as the agency (EEA, 2015). The EEA collects and hosts valuable information for fostering sustainable agriculture such as data on water intensity, crop production in Europe, and levels of nitrogen from agriculture (Agriculture – European Environment Agency, no date). Of particular importance in data sharing is access to the Eionet Portal, which hosts both publicly accessible information and certain restricted information (European Environment Information and Observation Network, no date). Similarly, with regard to agricultural issues, it would be also necessary to establish formal links with several EU agencies, in particular the European Food Safety Agency (hereinafter “EFSA”) and the European Chemicals Agency. As research facilities and the ability to attract the best researchers are important components of enhancing research in the UK, it would be advisable to establish cooperation agreements with the EU providers of scientific advice who have those facilities such as the JRC. The role of epistemic communities in regulatory processes Epistemic communities play a significant role in regulatory processes. They are key in risk assessment undertaken as a part of the different EU regulatory processes. This work is of great importance as it informs the decisions of the regulator in authorising the placing on the market of certain products. The risk assessment involves experts from different member states who also engage with wider research conducted across the EU and beyond. Moreover, epistemic communities

The impact of Brexit on epistemic communities in agricultural 145 not only carry out risk assessment as a part of the authorisation process but are also involved in the decision-making process. With regard to agriculture of particular significance are several regulatory procedures – the authorisation of chemicals, pesticides, and GMOs. These procedures are highly complex and involve various actors at the national and EU levels. A good example of this complexity and the involvement of epistemic communities is the authorisation of pesticides, which has two components; the first is the authorisation of active substances followed by the authorisation of plant protection products. When applying for an approval of an active substance, the applicant, who is often the producer, has to submit an application to the rapporteur member states together with a summary and a complete dossier (Article 7(1) of the Regulation 1107/2009). The dossier should include information on individual tests that were conducted and study reports (Article 8 of the Regulation 1107/2009). This demonstrates that epistemic communities are already engaged in the initial testing done by industry, which precedes an application for the approval of pesticides, as well as the research that underpins testing. In assessing the active substances and plant protection product, which are subject to approval, the rapporteur member states and zone rapporteurs carry out an assessment of whether the active substance or plant protection product meets the approval criteria prescribed by the Regulation 1107/2009. This work involves an assessment carried out by experts within responsible national authorities in rapporteur member states. For example, the Chemicals Regulation Directorate of the Health and Safety Executive (hereinafter “HSE”) as an independent UK regulator responsible for regulating and enforcing health and safety played a key role in the authorisation of pesticides.11 The dossiers submitted by producers were evaluated by HSE scientists specialised in chemistry, toxicology, and environmental biosciences (The Applicant Guide: Guidance, no date). Similarly, LCG, which acts as a National Reference Laboratory under Regulation (EC) No 882/2004, provided analytical and scientific support in ensuring effective control of food and feed control across the EU, together with other national reference laboratories (National Reference Laboratories, no date). Finally, epistemic communities are involved in the peer review process conducted by the EFSA. Following its cessation of EU membership, the UK no longer forms part of the EU regulatory framework, which governs use and placing on the market substances and products relevant for sustainable agriculture. The UK is also no longer part of the Common Agricultural Policy. These changes will have a profound long-term effect on the trade in agricultural products, the future of farming in the UK, and the impact that agriculture may have on the UK environment. More importantly, this will also have an effect on epistemic communities, those involved in various risk assessment procedures and decision-making process, as well as those communities involved in research that precedes any commercial use of substances and products on the market. For the moment, there is significant uncertainty as to how these EU regulatory processes will be now replicated and carried out in the UK post-Brexit. Unfortunately, these highly complex and technical issues are discussed as a part of the wider political discourse on what is now known in public as “deregulation” or “regulatory divergence” as opposed to

146  Aleksandra Čavoški regulatory alignment. Those two terms are used to denote the UK’s intention to remove itself from the EU in terms of not just its membership but also its intention to distance itself and create this new regulatory framework. However, this position is at odds with the previous decision of the UK government to retain EU law which now forms parts of UK law. According to the sections 2 and 3 of the European Union (Withdrawal) Act 2018, EU law will remain part of the UK law. The EU-derived legislation will continue to have effect in domestic law on and after exit day (Section 2 of the EU Withdrawal Act), while direct EU legislation will form part of domestic law on and after exit day (Section 3 of the EU Withdrawal Act). Although the UK no longer forms part of CAP and as a result decided not to retain legislation governing CAP, some environmental legislation still remains part of UK national law such as the Council Directive 91/676/ EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources and the Directive 86/278 on soil protection when sewage sludge is used in agriculture. Thus, we have a situation where the UK government decided to retain the legislation but not to replicate same regulatory processes that are underpinned or based on legislation that forms part of retained EU law. This inevitably has a profound impact on the role of epistemic communities, in both undertaking the research that underpins the regulatory processes and undertaking risk assessment that informs the policy-making process. The possible effects of regulatory divergence on the research communities and more widely on science and innovation were addressed in the 2018 House of Commons Report on “Brexit, Science and Innovation”. Businesses were concerned that lack of regulatory alignment will have an impact on trade and emphasised the need for shared regulatory frameworks (House of Common Science and Technology Committee, 2018, p. 14). Research organisations such as the Wellcome Sanger Institute expressed the fear that regulatory divergence may in time lead to weaker legislation and regulatory structures in the UK (House of Commons Science and Technology Committee, 2018, pp. 13–14). This is not to say that Brexit may offer opportunities to develop new and more ambitious regulatory approaches as emphasised by the Royal Society (House of Commons Science and Technology Committee, 2018). However, the current policy developments are not providing us with sufficient understanding on how these ambitious plans will be realised. Several important points should be emphasised with regard to the impact of the future regulatory framework on UK epistemic communities’ post-Brexit. Regardless of how the new regulatory framework will be further developed, it requires extensive involvement of scientists from different domains, as well as other categories of experts. This means, building a robust regulatory capacity that would be able to provide services that were offered within different EU regulatory frameworks (House of Commons, 2018). Moreover, the UK’s decision-making within the regulatory framework is also dependent on the quality of scientific research that underpins and informs this decision-making process. Lack of extensive and good quality research can lead to unintended consequences, which, as argued by Merton, can result from a lack of adequate knowledge in correct formulation of an action. In addition, the lack of appropriate research and understanding of new developments

The impact of Brexit on epistemic communities in agricultural 147 in particular scientific domains by not participating at the EU level can prevent policy-makers from foreseeing the immediate and long-term consequences of planned action, which may lead to wrong policy decisions. These potential unintended consequences will thus result from errors made in the policy cycle. Pesticides provide an example where the UK has to put in place a new regulatory system. At this point, we know that “the Health and Safety Executive will remain the national regulator for the whole of the UK, on behalf of the UK government and the devolved administrations” (Regulating pesticides in the UK after Brexit, no date). However, the policy paper on the Future of Agriculture in the UK indicated that this will require “building on the existing capacity in the Health and Safety Executive’s Chemicals Regulation Directorate” (House of Commons, 2018, p. 71). The lack of more extensive information on how the UK government plants to build this new system adds further uncertainty to the future role of epistemic communities. The UK civil service has already experienced serious cuts over the years, in terms of both human resources and finances, which will further make this endeavour of building regulatory capacity more demanding. Moreover, the regulatory framework should be designed as to enable epistemic communities across developed administrations to cooperate and exchange best practices as well as to cooperate with their counterparts across the EU. This will be particularly important in Northern Ireland, which has the obligation to stay aligned with a set of EU rules, including extensive environmental and agricultural legislation. According to Article 5(4) of the Protocol on Northern Ireland, “the provisions of Union law listed in Annex 2 to this Protocol shall also apply, under the conditions set out in that Annex, to and in the United Kingdom in respect of Northern Ireland” (Protocol on Ireland/Northern Ireland). Legislation governing the use of pesticides is listed in Annex 2.12 Another good example are GMOs where both Defra and the devolved administrations are responsible for deciding on the release of GMOs into the environment (House of Commons, 2018). As the UK and Defra as a relevant ministerial department are no longer part of the decision-making process at the EU level, there should be greater emphasis on the development of independent expert groups at devolved level which will assist in policy-making. Finally, there are two practical challenges related to the research epistemic communities undertake to underpin regulatory decisions. The future of clinical trials was until now governed in the UK by the Clinical Trials Directive 2001/20/EC, now to be replaced by the Clinical Trials Regulation.13 The UK is committed to align its regulatory processes with those prescribed by the EU Clinical Trials Regulation. However, as this regulation will no longer directly apply in the UK once it enters into force, the UK government will need to adopt national provisions to ensure the implementation and alignment with this regulation.14 Moreover, chemical testing used either in pesticides or in other products at the EU level has to be undertaken in compliance with the rules on undertaking clinical trials, which are prescribed by the Clinical Trials Directive. Compliance with clinical trial rules is also an important prerequisite to receive funding from Horizon Europe scheme. A second point refers to the availability of chemicals for further research in the UK. This point was raised very early in the Brexit debate by the Royal Society

148  Aleksandra Čavoški of Chemistry, which expressed concern about how the new regulatory framework that will replace REACH Regulation15 at the EU level will have an impact on collaborative research between universities and businesses (Royal Society of Chemistry, 2015). It was pointed out that manufacturers and exporters in the UK may decide not to register some chemicals and cease production and import, which will have a knock-on effect on the availability of certain chemicals that are needed in research, as well as in other sectors such as agriculture and industry. Thus, this may significantly undermine the progress in scientific research in the UK and reduce the impacts that epistemic communities will have in promoting research.

Concluding remarks Despite the importance of epistemic communities and their role in undertaking research and informing policy-making, during the Brexit debate, there was very limited discussion of this issue or the more intangible costs of leaving the EU associated with the work of those communities. Several issues have set the scene and tone of the debate. First, costs associated with research are also not always visible to the wider public and thus did not attract their attention as a part of Brexit discussions. At the same time, the UK government was facing more pressing issues related to trade and Northern Ireland which side-lined the problems related to research and future of epistemic communities. Equally, the government was keen to put a monetary value on work of epistemic communities through research and innovation in order to assess the benefits of staying associated with EU funding scheme. Finally, during the Brexit debate, the role of experts was also seriously undermined which further set the tone of the Brexit debate. Michael Gove openly stated that “people in this country have had enough of experts” which helped stunt open debate of the impacts of Brexit on epistemic communities (Mance, 2016). Though the role of epistemic communities should not have been undermined, the ongoing pandemic exposed the importance of epistemic communities, in particular the scientific community. Moreover, cooperation between experts and sharing of knowledge and best practice has proven essential in curtailing the spread of the pandemic and finding appropriate medical treatment. Thus, it was not surprising that the UK government significantly delayed deciding whether to remain part of the EU research funding scheme and lost significant time in discussing costs associated with this scheme. It was only in January 2021 that the UK finally decided to remain part of the Horizon Europe research funding scheme that has been used extensively to enhance research and innovation in the UK while it was still an EU member. The European Commission is currently working on a proposal for the new framework programme that will replace Horizon 2020. Once that is adopted, the UK will have an opportunity to formally join the new scheme. Unfortunately, delayed decision and potential of reduced funding available for research have already had a negative impact. The initial decision not to remain associated with Horizon Europe quickly made the research environment less attractive for both UK researchers and many EU and international researchers have already decided to leave the UK. Moreover, recent decision to withdraw some ODA research funds for poorer world regions further eroded trust of epistemic communities in the UK, especially

The impact of Brexit on epistemic communities in agricultural 149 research communities in academia. Thus, the UK government needs to promptly rebuild links and trust with epistemic communities who over the years profited from EU funding schemes and thus were able to contribute to UK’s research excellence. This would be key in ensuring that the UK government is well placed to fulfil ambitious governmental objectives in environmental and agricultural policy areas and to reaffirm its position as a leader in research. Furthermore, the UK government needs to improve its expert capacity in policymaking with a particular focus on growing expert capacity at devolved level. So far, many decisions have been made at the EU level underpinned by scientific input provided by different EU member states, research communities, industry and business sector, and civil society from different corners of the EU. Without having a seat at the decision-making table and access to this rich scientific input, the UK has to focus on its own national capacity. This will be particularly prominent in the agricultural sector, which is highly dependent on extensive research and investment in innovation. In addition, the UK will have to replicate the EU regulatory framework that is complex in environmental and agricultural policy areas and ensure that UK can achieve the objective of being at the forefront of advanced sustainable agriculture. This will be a challenging task as the UK is potentially facing in a medium term a diminished expert capacity to undertake underpinning research that informs policy-making. Finally, besides putting in place new processes and improving national expert capacity, the UK should aim to rebuild links with different epistemic communities in the EU, such as JRC, SAM, and the EEA as the main providers of scientific knowledge. With regard to agricultural and environmental issues, it would be important to enhance links with EU regulatory bodies such as European Chemicals Agency and EFSA. As the UK is putting in place a robust regulatory framework, which should be based on existing EU regulatory processes and the underpinning EU legislation, which is now part of UK law, it would be useful to ensure exchange of best practices and knowledge with these institutions and individual member states. This will also help in building links, which have been eroded during the toxic discourse surrounding the Brexit and form the basis for future cooperation.

Notes 1 See also Guidelines on impact assessment. Available at: https://ec.europa.eu/info/sites/ info/files/better-regulation-guidelines-impact-assessment.pdf (Accessed 29 July 2021). 2 See Framework Agreement on relations between the European Parliament and the European Commission, 2018. 3 See Register of Commission Expert Groups. Available at: https://ec.europa.eu/transparency/regexpert/index.cfm?do=faq.faq&aide=2 (Accessed 29 July 2021). 4 See Paff Committees, Available at: https://ec.europa.eu/food/horizontal-topics/committees/ paff-committees_en (Accessed 29 July 2021). 5 It recently celebrated its 60th birthday. 6 See Group of Scientific Advisors, About the advisors, Available at: https://ec.europa. eu/info/research-and-innovation/strategy/support-policy-making/scientific-supporteu-policies/group-chief-scientific-advisors_en (Accessed, 21 July 2021). 7 See Competence Centre on Foresight, What we do. Available at: https://ec.europa. eu/jrc/en/research/crosscutting-activities/foresight (Accessed 29 July 2021). See

150  Aleksandra Čavoški about environmental projects www.cep.co.uk/news/2019/12/2/first-annual-cycle-ofthe-eu-foresight-system-to-detect-emerging-environmental-issues-forenv-published (Accessed 29 July 2021). 8 See also European Commission (2017). 9 See A post-Brexit agreement for research and innovation: Outcomes from a simulated EU-UK negotiation (European Commission, 2017). 10 See European Commission (2021). 11 See more “Pesticides” (Regulating pesticides in the UK after Brexit). 12 See more at Regulating pesticides in the UK after Brexit, Available at: https://ec.europa. eu/food/horizontal-topics/committees/paff-committees_en (Accessed 29 July 2021). 13 The application of the regulation is dependent on fully functional EU clinical trials portal and database. See Clinical trials – Regulation EU No. 536/2014 (DAUE, 2017). 14 See more on [Withdrawn] Guidance on registration of clinical trials for investigational medicinal products and publication of summary results in a no-deal Brexit, Available at: www.gov.uk/guidance/guidance-on-registration-of-clinical-trials-for-investigationalmedicinal-products-and-publication-of-summary-results (Accessed 21 July 2021). 15 See Regulation (EC) No. 1907/2006 of The European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No. 793/93 and Commission Regulation (EC) No, 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC, and 2000/21/EC.

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9 Legal models for implementing agri-environment policy after Brexit Christopher Rodgers

Agri-environmental policy and the Common Agriculture Policy The arrangements for supporting environmental land management within the context of the CAP are complex. Although public financial support for the agriculture sector has declined in relative terms, spending on the CAP in the UK still stands at over £3 billion annually. Direct payments to farmers are delivered separately under the two “Pillars” of the CAP. Pillar 1 channels direct payments to farmers through the “basic payment scheme” (hereinafter “BPS”), while Pillar 2 funds rural development measures, including the financing of the agri-environment schemes (hereinafter “AES”) under the England Rural Development Plan and the rural development plans for Scotland, Wales, and Northern Ireland. Expenditure under Pillar 1 is fully financed from the EU budget, whereas expenditure under Pillar 2 is, in almost all cases, dependent upon co-financing by member states. In 2019, direct payments under Pillar 1 in the UK rose by 0.9% to £2.77 billion; payments under Pillar 2 for agri-environment measures also rose slightly to £449 million (Defra, 2019, p. 99, Table 10.1). In total, in 2019, 4,229 million euros was paid to UK farmers and landowners under the various CAP support arrangements (Defra, 2019, p. 107, Table 10.7). Refocusing future agri-environment policy to ensure the payment of “public money for public goods” will require us to identify and then place a value on the ecosystem services that agricultural land management provide in different contexts. This will require us to view the interaction between the substantial public financial support for farming and its impact on the natural environment through an entirely different lens than hitherto. Since the 1980s the legal response to the interaction between farming and the natural environment has been characterised by a pluralistic, or multi-strand, approach that has relied upon an increasingly complex framework of regulations and economic incentives to shape land management decision-making. Moreover, legal measures to address the environmental consequences of modern farming methods have often been reactive, that is they have been introduced when a specific environmental problem has arisen and been identified as serious enough to merit a regulatory response. Measures to tackle diffuse water pollution provide a good example of both the reactive nature DOI: 10.4324/9781003010852-9

Legal models for implementing agri-environment policy after Brexit 155 of environmental policy towards agricultural pollution and of the pluralistic legal framework that has become characteristic of agri-environmental policy more generally. These are explained in Box 9.1. The use of excessive quantities of nitrate fertilisers and manure is a major source of diffuse water pollution from intensive farming. This has raised public health concerns linked to high nitrate levels in drinking water, including so called “blue baby syndrome (methaemoglobinaemia), a potentially fatal condition that emerged as a major public health concern in the 1980s and early 1990s. This prompted the European Community to introduce a legal requirement that nitrate concentrations in drinking waters should not exceed 50 mg/litre (Council Directive 775/440, on drinking water quality). The use of manure and inorganic nitrate fertilisers is now covered by a statutory Code of Good Agricultural Practice (Defra, 2009). The largely voluntary approach promoted by the Code is supplemented by regulatory measures introduced by the EC Nitrates Directive in 1991 (Council Directive, 1991/676/EEC) which provided for the designation of “Nitrate Vulnerable Zones” (hereinafter “NVZs”). These are now designated in England by the Nitrate Pollution Prevention Regulations 2015 and implement action plans restricting manure and nitrate applications in NVZs (SI 2015/668).1 These regulatory provisions are also linked to CAP support payments in that compliance with the NVZ regulations are one of the Statutory Management Requirements (hereinafter “SMR”) which are a condition for receipt of Basic Payment Scheme payments – and so failure to comply will jeopardise a proportion of a farmer’s annual support payment. In addition, several land management options within the current suite of voluntary AES, including Countryside Stewardship, are intended to address and reduce water quality problems.2 Notwithstanding the application of this mix of regulatory and voluntary approaches to the problem, nitrate concentrations in drinking water in England and Wales have remained stubbornly high, and regularly breach EU drinking water quality standards.

Box 9.1 A Pluralist Model for Agri-Environment Policy: Nitrate Pollution The use of excessive quantities of nitrate fertilisers and manure is a major source of diffuse water pollution from intensive farming. This has raised public health concerns linked to high nitrate levels in drinking water, including so called “blue baby syndrome” (methaemoglobinaemia), a potentially fatal condition that emerged as a major public health concern in the 1980s and early 1990s. This prompted the European Community to introduce a legal requirement that nitrate concentrations in drinking waters should not exceed 50 mg/litre (Council Directive 775/440, on drinking water quality).

156  Christopher Rodgers The use of manure and inorganic nitrate fertilisers is now covered by a statutory Code of Good Agricultural Practice (Defra, 2009). The largely voluntary approach promoted by the Code is supplemented by regulatory measures introduced by the EC Nitrates Directive in 1991 (Council Directive, 1991/676/EEC), which provided for the designation of “Nitrate Vulnerable Zones” (hereinafter “NVZs”). These are now designated in England by the Nitrate Pollution Prevention Regulations 2015 and implement action plans restricting manure and nitrate applications in NVZs (SI 2015/668).3 These regulatory provisions are also linked to CAP support payments in that compliance with the NVZ regulations is one of the Statutory Management Requirements (hereinafter “SMR”), which are a condition for receipt of Basic Payment Scheme payments – and so failure to comply will jeopardise a proportion of a farmer’s annual support payment. In addition, several land management options within the current suite of voluntary AES, including Countryside Stewardship, are intended to address and reduce water quality problems.4 Notwithstanding the application of this mix of regulatory and voluntary approaches to the problem, nitrate concentrations in drinking water in England and Wales have remained stubbornly high, and regularly breach EU drinking water quality standards.

A move away from a “problem-solving” approach to agri-environmental policy might involve seeking to change the fundamental way in which agriculture interacts with the natural environment. A key element in this change of approach is to identify and then recognise the positive ecosystem services that agriculture provides, and to base future policy and public support on enhancing and maximising them – rather than on reacting to specific environmental problems as and when they arise. Agriculture provides multiple ecosystem services of great value to society and the wider economy.5 The ecosystem services arising from managing land for farming purposes may be of different kinds.6 These include so-called provisioning services – products obtained by the use of natural ecosystems including food, timber, and other agricultural products used in industrial processes (oilseed rape for example). Agricultural land management also provides “regulating” ecosystem services, for example climate regulation or the purification of water. “Cultural” ecosystem services include other benefits we derive from our interaction with the natural environment, for example the preservation and management of aesthetically important precious landscapes or the provision of land for open air recreation. Finally, there are so-called supporting ecosystem services, that is those natural processes that are necessary for the production of all the other beneficial ecosystem services. In the

Legal models for implementing agri-environment policy after Brexit 157 context of agriculture, this might include soil formation through suitable land management and natural nutrient cycling (such as soil breaking down animal or vegetative waste). The transition from the current model for agri-environment policy under the CAP to a more imaginative and ecosystem-focused approach will take time and patience. It will also require us to develop new legal instruments to capture a new understanding of the relationship between farming and the environment. Until 31 December 2020, farmers were supported by the BPS (Pillar 1 of CAP); we are now in a transition period when payments will be gradually phased out by 2027.7 Payments under the BPS were linked to a requirement to maintain land up to at least a “reference” level of good farming practice, which includes maintaining land in “good agricultural and environment condition” (hereinafter “GAEC”) – a standard that incorporates agricultural codes of practice.8 The BPS also requires “cross compliance” with 19 SMRs so that farmers are required to bear compliance costs up to the level of land management equating to “good agricultural practice”.9 The cross-compliance rules have been described as an attempt to apply the “polluter pays” principle of European environmental law to agriculture, and the latest Europe 2020 CAP reform has introduced a “public goods” approach to the funding of the basic payment scheme.10 It remains the case, nevertheless, that as compliance with most of the cross compliance conditions is already a mandatory legal requirement, it may equally be argued that the payment is unjustified. It is certainly questionable whether the cross-compliance conditions deliver additional benefits in return for public expenditure.11 Producers can currently engage in land management to improve the natural environment above the reference level of good farming practice by participating in voluntary AES. Under the CAP, AES use public money to create a market for environmental goods: therefore whilst achieving GAEC and compliance with the SMR are reflected in BPS support payments, farmers can currently receive additional AES payments under Pillar 2 of CAP for environmental improvements above and beyond those required to comply with the BPS.12 This means that there has for some time been a facility within the CAP for the purchase of ecosystem services from farmers – but this has been actioned principally through AES approved by the European Commission in each member state’s rural development plans. The “purchase” of ecosystem services under this model is mediated by the state, with public funding delivered through the use of environmental land management agreements entered into by farmers and a public body (in the English context, this will be Natural England). It is certainly arguable that publicly financed schemes such as this do not fund the direct acquisition of ecosystem services – they provide payment for land management that may (if all appropriate conditions are met) lead to ecosystem services being provided.13 In other words, they are “PES-like” rather than being schemes facilitating the direct purchase of ecosystem services by public bodies.14 In any event, AES programmes implemented using this model have had only a moderate record in delivering environmental gains.15

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Legal models for implementing agri-environmental schemes Contractual models The implementation of AES has until now been largely based on the use of a contractual model using management agreements entered into by farmers and landowners with public bodies. These have changed since 1980 as the contractual models have become more refined. There has been a movement away from the use of standard form agreements with fixed land management prescriptions and payment regimes (as for example under the Environmentally Sensitive Area programme)16 and towards second- and third-generation agreements with more flexible contractual structures based on menus of land management options – but with fixed payment rates. So, for example, the first generation of Environmentally Sensitive Area (“ESA”) agreements in England and Wales, introduced in 1986, were based on a standard contractual model and strongly demand led – in the sense that management prescriptions and objectives for the scheme were fixed by government with no option to offer farm-level ecosystem services other than those centrally prescribed and applicable to all farms in an ESA area. Standardised and relatively inflexible management prescriptions were applied to all participating farms in each ESA, with prescriptions appropriate for the type of farming predominant in each area. A more sophisticated approach was adopted in the second and third generations of ESA agreements from 1992, which combined participation in a basic tier of obligations with optional additional (or higher) “tiers” of participation under which extra premiums could be paid for allowing public access to farmland or for additional environmental obligations targeted at particular habitat types. This was essentially a more sophisticated variant of the standardised or “general” contractual model, in which prescriptions were targeted at particular ESA areas17 rather than at individual farms and farm-based habitats.18 The ESA scheme has been closed to new entrants since 2005 and most management agreements under the scheme are now spent. In contrast, the principal current English AES – the Countryside Stewardship scheme  – is in theory supplier led. Applicants can offer ecosystem services at farm level, specific to their location and resources, and applications for funding are scored by reference to two factors. A Statement of Priorities for the scheme sets out separate priorities for protecting and promoting biodiversity, landscape, water protection and quality, woodland management, protecting the historic environment, and multiple environmental benefits (e.g. establishing new wetlands or enhancing existing woodlands). The priorities are specified in some detail for each region and district in England.19 The applicant’s score will be derived from the priorities selected for each parcel of land submitted, the appropriate land management options chosen, and the targeting priority (high, medium, or low) given to the feature or issue. A standard number of points are assigned to each priority level; so high priority features will score more than medium- or low-priority features. Each score will be ranked to determine which applicants are offered agreements, considering the available budget in a given year of the scheme. There are

Legal models for implementing agri-environment policy after Brexit 159 three levels of participation in the scheme: (1) Mid-Tier agreements are aimed at securing agreements for environmental improvements to the countryside in its widest sense; (2) Higher Tier agreements are aimed at securing agreements to manage environmentally significant sites, and those where complex management is required (e.g. on common land); and (3) there is a capital grant element, which can fund capital improvements, such as providing new hedgerows. The management options and conditions, and rates of payment, are specified in some detail.20 Countryside Stewardship offers land management agreements for five years in most cases. It can be seen that the scheme was ostensibly based on a “public goods” model paying farmers for providing environmental improvements and/or environmentally beneficial land management. This was intended to introduce a targeted mechanism that could deliver more cost-effective farm-level conservation if coupled with competitive allocation mechanisms.21 Nevertheless, the payments are input-based (focused to delivering specific land management actions, not outcomes), and there is little transparency in the link between the public funding received by land managers and the ecosystem services they provide under the scheme. There has been a low uptake from farmers.22 It is seen as overly complex, the land management obligations as overly prescriptive, and its formal requirements (e.g. the bidding process and subsequent reporting requirements) as timeconsuming and burdensome.23 The 2018 Health and Harmony policy statement promised a new environmental land management scheme (hereinafter “ELM” scheme) to replace Countryside Stewardship and deliver the outcomes of the UK government’s 25 Year Environment Plan (Defra, 2018) and its Clean Growth Strategy ([Withdrawn] Health and Harmony: the future for food, farming and the environment in a Green Brexit – policy statement, 2018, p.  36). Brexit offers the opportunity to develop largescale multi-actor PES schemes to deliver environmental services at a landscape scale  – something that was much more difficult to achieve working within the constraints of Pillar 2 of CAP. In England the new “ELM scheme” options are currently under consultation and review, with a view to the new scheme opening in late 2024.24 The ELM scheme will be based on a PES model, and the ethos of “public money for public goods” is the driving focus of the review. The current proposals are based on a three-tier approach. The most generalised support will be provided through the Sustainable Farming Incentive, and will be introduced from 2022; available to BPS recipients, it is intended to encourage sustainable farming and forestry across each farm or land unit and will be delivered at scale. The piloting of two further schemes will commence in 2022. The Local Nature Recovery Scheme will encourage locally targeted environmental outcomes, for which spatial targeting and local planning may be necessary. This may also require new mechanisms to encourage collaboration and joint planning between different land managers on different farms. The most ambitious environmental outcomes would be delivered by the Landscape Recovery Scheme, which would fund landscape scale projects for land use change, for example establishing or expanding peat mires, or new forestry projects. An extensive test and trial programme is being carried out by Defra with a wide range of participating land managers, NGOs, and public and private organisations.

160  Christopher Rodgers The focus of the Local Nature Recovery and Landscape Recovery elements of the ELM scheme is on landscape scale environmental management, an objective that is intended to align AES policy with the priorities of the 25 Year Environment Plan. Public policy has been moving strongly towards adopting a landscape scale rather than a farm-by-farm approach to countryside management since the publication of the Lawton Report in 2010 (Lawton et al., 2010). This can, for example, be seen in the establishment of Nature Improvement Areas (NIA)25 and a large number of Local Nature Partnerships (LNP)26 – initiatives which involve formalised collaborative partnerships and the development of a regionalised approach to environmental management. The introduction of the new ELM scheme will necessitate a major expansion in landscape-scale initiatives. Whilst some environmental management options can generally be undertaken by individual farmers working alone, providing many ecosystem services will require farmers to work in partnership with one another. Managing complex ecosystems such as peat lands, water tables, and sensitive wetlands, or protecting and enhancing the foraging and migration behaviour of wildlife, requires a co-operative approach that crosses traditional property or farm-level boundaries. If the Local Nature Recovery and Landscape Recovery schemes are to successfully deliver landscape scale environmental improvements, they will need to be underpinned by innovative legal mechanisms that foster collaboration between landowners and managers and focus on outcomes as well as inputs. The test and trial programme for the new ELM scheme options is, for example, looking at the potential use of “reverse auctions” as a process for implementing Landscape Recovery – an approach that would require the “buyer” of ecosystem services to stipulate the environmental outcomes required for a specific landscape or area (e.g. improving the natural wildlife habitat provided by peat mires in an upland area), and for the seller of the services (farmers and land managers in that area) to bid to provide those services.27 Fostering collaboration between land managers will also require the development of innovative new legal instruments – a question to which we will return later. Shortcomings of existing contractual models A key characteristic of the management agreements used to implement the AES developed under the CAP is that they are based on a “linear” or “binary” model. They typically engage one purchaser (a public body) and one “seller” (the farmer/ land manager). The linear model is unsuited for capturing complex relationships operating at a large geographic scale focused to protecting and enhancing ecosystems. For example, a river catchment system will provide multiple ecosystem services, including clean water abstracted by the utilities for the provision of drinking water; carbon capture and storage in upland peat mires; clean air; high value natural habitats for bird and animal species; and public access for recreational land use. In order to capture all of these benefits, a catchment-level PES scheme will require the participation of multiple actors, some “buying” and some “selling” the ecosystem services provided by agricultural management of land in the catchment. This will require legal arrangements at a large scale that break free of the property-based focus of previous AES.

Legal models for implementing agri-environment policy after Brexit 161 The use of management agreements to implement AES has, since the 1980s, focused principally on adjusting the property rights subsisting over land in order to control or restrict the activities of the landowner or occupier. Hence most enabling legislation has required the recipient of an agreement – and of payments for environmental management prescriptions – to have a legally recognised “interest” in the land.28 This will typically be a freehold owner or a tenant (with a sufficient leasehold period unexpired to guarantee performance of the agreement). Or it may include someone with rights of common entitling them to take some of the land’s natural produce, for example grazing rights, turbary (the right to take peat), or estovers (the right to take other natural produce, such as timber or bracken).29 In legal terms common rights are a type of profit a prendre – an incorporeal hereditament – and hence an “interest” in land in the required sense (Cousins and Honey, 2012 at 2.03; Beckett (Alfred F.) v. Lyons [1967] Ch. 449; Besley v. John [2003] EWCA Civ 1737). Controlling damaging land use on common land is especially problematic. Those with a relevant “interest” would include the owner of the soil and (additionally) a potentially large number of commoners with rights of common (e.g. grazing rights) over the land in question. In order to establish an effective environmental management scheme on a particular common, all commoners would have to sign up to a menu of prescriptions in one overarching environmental land management agreement. If some fail to participate, then the possible future exercise of their rights to take some of the land resource (e.g. to graze a large number of livestock) could render the long-term viability of the scheme questionable.30 This has led in some cases to commoners creating separate collective legal entities that can enter into a management agreement across a common.31 The approach to implementing management agreements has therefore been heavily oriented around modifying property rights and entitlements. This has resulted in several significant further disadvantages: (1) it limits participation in environmental land management schemes to those with a defined and recognised “property” interest, who may not be the persons actually managing the land; (2) it makes it difficult to establish effective environmental management where there are multiple potential participants; and (3) management agreements only modify a farmer’s property rights for the duration of the agreement. At its termination the property rights “traded” in the agreement will revert to the landowner, who can exploit the land resource as s/he wishes, even if this is environmentally damaging.32 They are not, therefore, a mechanism that can “lock in” for the future any environmental gains generated by agricultural land management and paid for by public funding under an AES.33 Two other features of the model for management agreements used under previous AES merit attention in this context. The first is that the ecosystem services purchased with public funds from a farmer will have been determined by the scheme options set out in the overall design of each AES. In other words, the design of the AES limits the ecosystem services that can be offered and delivered, and the scheme performs a “channelling” function. The history of AES since 1980 shows a move from a strongly prescriptive and inflexible approach under which the environmental management obligations expected of a participant were fixed in the scheme itself,34 to one where a farmer can offer environmental improvements

162  Christopher Rodgers and services and “bid” for public funding at a farm scale – but where the obligations offered are measured and scored against a set of strategic environmental objectives set out in the AES design. Countryside Stewardship is an example of a flexible approach of this kind.35 The second is that AES have, until now, all been input focused, not output focused. In other words, they have been targeted to deliver those changes in land management that have been identified as necessary to produce ecosystem improvement or services, but with no guarantee that the latter will ensue. There has been little focus on measuring the environmental outcomes of individual agreements – “payment for results” – or of tying payment for management obligations to successful delivery of the environmental gains sought. Importantly, the Local Nature Recovery and Landscape Recovery schemes could facilitate the offer of a wider range of ecosystem services than was possible under earlier AES, which focused mainly on wildlife habitats, water pollution, and water management issues. The movement to PES as the basis for future agri-environment policy should lead to a further movement away from the “channelling” of publicly funded environmental management to specific benefits targeted by AES prescriptions. The use of output-based models is also being explored in some of the test and trial work for the Local Nature Recovery and Landscape Recovery elements of the proposed ELM scheme in England.36 Another drawback of the linear model is that management agreements have hitherto only created legal obligations between a public body (the “purchaser”) and each “seller” of ecosystem services (typically a farmer or perhaps a group of farmers). They do not facilitate the creation of multiple and reciprocal legal relations between the different participants in an environmental scheme. In particular, a management agreement will not create legal relations between different “sellers” of ecosystem services to a public body within a large-scale environmental management scheme. In other words, there will be privity of contract between buyer and seller, but not between multiple sellers. This problem is partially addressed in England by the Countryside Stewardship Facilitation Fund, which provides a funding mechanism to enable a “facilitator” or organisation to bring together groups of farmers and land managers to work together in order to improve the environment at a landscape scale.37 The mechanism does not, however, lead to the creation of multiple reciprocal obligations: participating farmers will still have individual stewardship contracts, usually in parallel with a collective agreement between them that coordinates the delivery of scheme benefits.38 Resolving this problem will be important if we are to successfully move to introducing PES schemes at a landscape or catchment scale. The hypothetical example in Box 9.2 illustrates the issues. The Blue water river catchment encompasses a land area of 150,000 ha, some of which is forest, some is upland peat mire, and some 50,000 ha is currently farmed for livestock. The peat mires host rare species of lichen and bog floral mosaics of international importance. They also support a number of protected bird species including hen harriers and merlin. The streams and rivers in the catchment also feed into a water treatment facility operated by Blue Water Services plc, which supplies drinking water to Blue Town and other nearby

Legal models for implementing agri-environment policy after Brexit 163 urban conurbations. The farmers in the catchment entered into an environmental land management agreement with Natural England in 2015 to manage the natural habitats on their land for the benefit of protected wildlife in the catchment. A management agreement of this kind39 creates legal obligations between Natural England and each of the 15 farmers who have signed the agreement. It does not create legal obligations between each or any of the 15 participating farmers. If farmer A decides to opt out of the arrangement (for example he decides to drain a peat mire on his land), he may face enforcement proceedings from Natural England. But they may suspend payments to all 15 farmers under the agreement. This will cause a substantial loss of income to the other participating farmers. Farmers B and C, however, do not have any legal redress against Farmer A to either prevent his/her breach of the agreement or for the loss sustained as a consequence of his/her actions. Similarly, Blue Water Services plc would have no remedy against Farmer A if the water entering its downstream treatment facility has higher levels of pollutants due to Farmer A’s actions.

Box 9.2 An Environmental Management Scheme for the Blue Water Catchment The Blue water river catchment encompasses a land area of 150,000 ha, some of which is forest, some is upland peat mire, and some 50,000 ha is currently farmed for livestock. The peat mires host rare species of lichen and bog floral mosaics of international importance. They also support a number of protected bird species including hen harriers and merlin. The streams and rivers in the catchment also feed into a water treatment facility operated by Blue Water Services plc, which supplies drinking water to Blue Town and other nearby urban conurbations. The farmers in the catchment entered into an environmental land management agreement with Natural England in 2015 to manage the natural habitats on their land for the benefit of protected wildlife in the catchment. A management agreement of this kind40 creates legal obligations between Natural England and each of the 15 farmers who have signed the agreement. It does not create legal obligations between each or any of the 15 participating farmers. If farmer A decides to opt out of the arrangement (e.g. he decides to drain a peat mire on his land), he may face enforcement proceedings from Natural England. But they may suspend payments to all 15 farmers under the agreement. This will cause a substantial loss of income to the other participating farmers. Farmers B and C, however, do not have any legal redress against Farmer A to either prevent his/her breach of the agreement or for the loss sustained as a consequence of his/her actions. Similarly, Blue Water Services plc would have no remedy against Farmer A if the water entering its downstream treatment facility has higher levels of pollutants due to Farmer A’s actions.

164  Christopher Rodgers The movement to a system based on PES therefore offers a challenge, and an opportunity to move to a more flexible legal regime for delivering environmental land management. It also poses difficult questions about how we can establish markets in ecosystem service provision. In the first place, it should lead to a closer focus on the “seller” as the person delivering the service to be purchased – and this may not be someone with a property interest in the land to be managed. This could be beneficial. And secondly, it will require the development of a new approach to targeting management at the broader ecosystem level – this will require legal arrangements that can accommodate the much longer time frames needed for the successful management of ecosystems, and which can capture obligations entered into by potentially numerous sellers and “purchasers”. A good example of the challenges this will pose is the provision of “slow clean water” and its impact on upland water catchment management. Managing upland grasslands to improve water quality will require the participation of the majority of property managers with land in the water catchment of a river system, and the purchasers of the ecosystem services they provide could be numerous, as can be seen from Box 9.3. These might include a water utility company that abstracts water from the catchment for drinking water supply; a charitable rivers trust that manages parts of the system for wildlife enhancement; Natural England if the management benefits protected wildlife species and/or improves the conservation status of protected sites such as SSSIs, SACs, or SPAs; or a dairy manufacturer if the improvement in water quality and water-based habitats leads to an enhancement of the health and productivity of dairy herds on farms that supply it with milk. Consider the environmental management of the Blue water river catchment from an ecosystem services perspective (see Box 9.2). It encompasses a land area of 150,000 ha, some of which is forest, some is upland peat mire, and some 50,000 ha is currently farmed for livestock. It also feeds into a water treatment facility operated by Blue Water Services plc, which supplies drinking water to Blue Town and other nearby urban conurbations. The ecosystem services provided by farmers managing the upland portions of the catchment are potentially numerous. They include regulating services – carbon capture in the peat mires and regulating water quality and water flow into streams feeding into the Blue Water Services treatment plant. Restricting the use of pesticides and herbicides and keeping livestock away from stream margins will financially benefit Blue Water Services, who will save on the cost of extracting pollutants from drinking water. Provisioning services might include the production of rare breed sheep and cattle for food suppliers and manufacturers. Other potential benefits include wildlife protection and enhancement. And cultural services could include expanded recreational access to upland areas provided by participating farmers for walking, hiking, recreational camping etc. These services could be captured in a single PES agreement, comprising a number of “buyers” of the services provided – Natural England, Blue Water Services, the electricity utilities, food suppliers sourcing products from farms in the catchment, and local government bodies (for example if expanded voluntary rights of access are to be provided over the land).

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Scheme Box 9.3 Capturing Multiple Ecosystem Services – A Blue Water Catchment PES Consider the environmental management of the Blue water river catchment from an ecosystem services perspective (see Box 9.2). It encompasses a land area of 150,000 ha, some of which is forest, some is upland peat mire, and some 50,000 ha is currently farmed for livestock. It also feeds into a water treatment facility operated by Blue Water Services plc, which supplies drinking water to Blue Town and other nearby urban conurbations. The ecosystem services provided by farmers managing the upland portions of the catchment are potentially numerous. They include regulating services – carbon capture in the peat mires and regulating water quality and water flow into streams feeding into the Blue Water Services treatment plant. Restricting the use of pesticides and herbicides and keeping livestock away from stream margins will financially benefit Blue Water Services, who will save on the cost of extracting pollutants from drinking water. Provisioning services might include the production of rare breed sheep and cattle for food suppliers and manufacturers. Other potential benefits include wildlife protection and enhancement. And cultural services could include expanded recreational access to upland areas provided by participating farmers for walking, hiking, recreational camping, etc. These services could be captured in a single PES agreement, comprising a number of “buyers” of the services provided – Natural England, Blue Water Services, the electricity utilities, food suppliers sourcing products from farms in the catchment, and local government bodies (e.g. if expanded voluntary rights of access are to be provided over the land).

Implementing a PES scheme at a landscape scale with multiple buyers and sellers will pose significant challenges. The property basis required for participation in legal transactions means that the property rights traded in a management agreement will revert to the “seller” at the end of an agreement. How do we perpetuate any environmental improvements provided by the scheme at public expense? And the use of management agreements to clothe AES obligations with enforceability has meant that the timeframe for providing environmental management is limited41 – whereas improving ecosystem functions is a longterm project. In this context, it has been suggested that the use of conservation covenants – a type of property obligation that binds in perpetuity the land over which it is taken – might offer the flexibility to underpin long-term management under PES schemes. This would certainly be an important addition to the legal toolkit needed to deliver stability and long-term management, and to “capture” the environmental benefits purchased under a PES arrangement. We will return to this later.

166  Christopher Rodgers

Legal provision for underpinning the market in PES As the examples in Boxes 9.2 and 9.3 show, we have the opportunity in reshaping agri-environmental policy to broaden the range of potential “purchasers” of ecosystem services to include private sector bodies, and to widen the range of ecosystem services that can be captured and provided by farmers and landowners. Brexit also offers an opportunity for wider private funding of environmental land management. A well-designed PES scheme could offer a mixture of private and public funding delivering multiple benefits.42 But this will in turn create problems for the efficient integration of private funding streams with public funding – for example under the new ELM scheme in England. Private funding streams may be appropriate to provide “value-added” benefits that are not provided by ELM scheme options but cannot be used to incentivise actions that are a regulatory requirement. In other words, “additionality” is a key problem,43 in that both public funding under an AES such as the new ELM scheme, and/or under alternative or additional private funding streams, cannot be used to pay for actions that “would have happened anyway” because they are covered by regulatory requirements – such as the GAEC “cross compliance” conditions44 or statutory land management prescriptions.45 A possible use of private funding might, for example, be to “pump prime” environmental management and thereby unlock potential participation in further publicly funded income streams for providing specific or advanced ecosystem benefits. One variant of this model would involve the provision of public funding conditional upon private investment in further land management actions, and the release of additional public funding when this has been secured. In this mixed funding model, the private investment acts as a “trigger” to release further public funding streams.46 What legal instruments are available, then, to implement these ambitious policy goals, and what refinements to them might be needed to do so successfully? Management agreements The shortcomings of the existing model of management agreement have been outlined earlier. Contractual arrangements remain, nevertheless, a flexible legal tool that can be used to “wrap” environmental undertakings in a legally enforceable arrangement, which can deliver PES.47 There are flexible contractual models that can be developed and made available to support PES arrangements. So, for example, Natural England has wide power48 to enter into an agreement “with any person who has an interest in land about the management of that land”. This power is not limited (as are other management agreement powers49) to securing management in SSSIs or other protected areas and could be used to underpin an arrangement for the provision of ecosystem services. It could be used to provide long-term (or even perpetual) obligations to provide public goods, but greater flexibility in the legal enabling power to enter into agreements would be required if this was to be achieved. Nothing prevents the power being used to create a perpetual agreement, but it is currently used mainly to enter into short-term agreements with periodic payments for environmental management. Its use to create

Legal models for implementing agri-environment policy after Brexit 167 long-term or perpetual obligations for environmental management would also require substantially increased resourcing, for example for the payment by Natural England of a lump-sum payment on conclusion of the agreement. If private finance were to be provided in an agreement for the provision of ecosystem services, it will also be necessary to widen the scope of potential participants in a management agreement. This is currently limited50 to Natural England (the “buyer”) and those with a legal interest in the land over which the agreement is taken (the “sellers” of ecosystem services). But in an arrangement for providing “slow clean water” (see Box 9.3) a water utility company may also be a “buyer” of the services envisaged by a management agreement; as may a local access forum if public recreational access is to be provided to land in the catchment. And a widened management agreement power would also need to ensure that the agreement binds not only the successors of the land managers providing the service, but also the successors of the recipients of the ecosystem service captured and provided by the agreement, for example a utility company paying for land management in a water catchment. The current legislation provides that a management agreement is “binding on persons deriving title under or from the persons with whom Natural England makes [an] agreement”.51 The term “deriving title” may be problematic in some circumstances and needs clarification to ensure that an agreement would be binding on all successors of the contracting parties, whether deriving legal title to the land or a property interest in it or not. Conservation covenants One solution to the problem of guaranteeing the perpetual effect of a PES arrangement may be the use of a conservation covenant.52 These have been relatively little used in England and Wales, where the National Trust is currently the only body with covenanting power.53 In 2014 the Law Commission recommended the establishment of a new, and much wider, statutory scheme for conservation covenants in England and Wales, with “core conditions” that covenants should meet.54 These proposals are currently being taken forward in the Environment Bill 2021.55 The covenant would have to be agreed by two parties, one of whom would be a landowner56 and the other a “beneficiary” holding the covenant on behalf of the public – this would be a “responsible body” with responsibility for monitoring and enforcing the obligations in the covenant.57 The responsible bodies empowered to hold conservation covenants would include public bodies, conservation charities, and “for-profit” bodies with expertise in land management for nature conservation, such as community interest companies.58 A conservation covenant should include an obligation(s) for the public benefit to preserve, protect, restore, or enhance one or more of three key features of the covenanted land: its natural environment including flora and fauna; its natural resources; or historical, cultural, or built heritage features that are to be found there.59 The covenant would bind the land in the hands of successors of the original covenanting parties, if the land were subsequently sold or transferred. The covenant would, in other words, be “perpetual” in effect and bind the land indefinitely.

168  Christopher Rodgers This would be important for delivering the long-term management and improvement of ecosystems – long-term conservation management of the land which, once dedicated, cannot be released when the land passes into the hands of successors or new owners. This could be a model for an arrangement binding land in a collaborative landscape scale scheme indefinitely, with multiple landowners, land managers, and beneficiaries of each covenant. The model for conservation covenants in the Environment Bill is arguably too narrow to achieve this, however. The range of possible bodies holding the benefits of a covenant would need to be wider than currently proposed:60 for example, a water utility company may wish to enter into a covenant over land in a water catchment, and the range of ecosystem services that can be provided by a covenant would need to be substantially wider than simply the promotion of nature conservation for public benefit.61 Natural Infrastructure Scheme An interesting mixed funding model that is currently being trialled is provided by the Natural Infrastructure Scheme (NIS), developed by the National Trust and Green Alliance (Francis et al., 2016). This seeks to fix the price for ecosystem services on the basis of the avoided cost delivered to the “purchaser”. This would allow the payment calculation to capture the costs saving to (for example) a water utility of “slow clean water” provided through changes in catchment land management by farmers working with the “purchaser” utility. This represents a variation on the PES “payment range” model that has previously been suggested as a best practice option (Defra, 2013). It would cover net profits foregone by farmers in changing their land management so as to provide the service: the upper ceiling would be variable and represent the external benefits of the ecosystem provided. In the case of uplands grazing management, for example, this could be flood risk management, water quality improvements, or habitat protection, as the case may be. The scheme would provide a means to bring groups of land managers together to sell environmental services to groups of beneficiaries, facilitated by a new area-based market in avoided costs.62 Landscape Enterprise Networks Landscape Enterprise Networks (hereinafter “LENS”) are a means to create, and then manage, the market for ecosystem services provided by multifunctional landscapes. They are therefore an innovative way to establish a PES arrangement incorporating both private and public funding streams. A LENS will typically pull together demand-side actors with shared interests in how a landscape is to be managed. It will then arrange the procurement of landscape outcomes on their behalf from “suppliers” of the ecosystem services sought and ensure that suppliers have appropriate accreditation and quality assurance arrangements.63 The collaboration sought by a functioning LENS requires the use of contractual arrangements between demand and supply side actors to provide defined ecosystem services. It will be important to ensure that potentially beneficial LENS approaches to environmental management are integrated with existing regulatory regimes that impact farming. For example, in order to comply with

Legal models for implementing agri-environment policy after Brexit 169 the “additionality” requirements identified earlier,64 environmental management funded through a LENS agreement should only pay for ecosystem services that would not be required by regulatory compliance rules, that is it must not be something that “would happen anyway”. It follows that where environmental permitting requirements for the discharge of pollutants to air and/or water from farm-based activities impose mandatory land-use obligations,65 these cannot then be “sold” or exchanged in a PES arrangement. Similarly, land management obligations imposed to address diffuse water pollution cannot be traded in a PES arrangement. These might include limits on nitrate or manure applications under an NVZ action plan, for example, or requirements for the safe storage of silage and slurry.66 But participation in a LENS as a way of purchasing ecosystem services may be a legitimate way to provide the necessary funding to improve silage and slurry storage facilities on a farm, or to install new drainage systems to eradicate discharges to nearby streams or watercourses and improve water quality.67 Where a LENS is used to purchase ecosystem services, it will also be important to ensure that it does not purchase services that can attract public funding under an AES – for example the new ELM scheme. Conversely, the new ELM scheme will need to be designed in a way that avoids problems of duplication and “additionality” where ecosystem services can be provided by LENS with private funding. In particular, close consideration should be given to whether grant payments under the proposed ELM scheme can be designed to incentivise co-investment with privately funded LENS actions, and also act as triggers for best practice. The grant system should be designed to act as an incentive to participate in privately funded LENS solutions, rather than funding obligations that could have been provided more cost-effectively through a privately funded LENS approach.

Conclusion There are challenges to replacing direct, area-based payments with PES schemes that link public money to the provision of public goods. Some of the challenges relate to the problems of scheme design.68 Others relate to the problems of finding legal mechanisms that can clothe new PES arrangements with enforceability and capture the more sophisticated and multi-faceted legal relationships that a PESbased approach will entail. It was noted earlier that agri-environment policy has, since the 1980s, been implemented through a pluralist approach, using a mix of legal and economic instruments to condition and change land-use decision-making and promote environmentally beneficial outcomes. This has not always proved especially successful. As we move to a new approach based on “public money for public goods”, the basic approach will need to remain one rooted in pluralism: the new ELM scheme, whatever its ultimate shape, will continue to “sit alongside regulation as part of a wider agriculture system” (Environmental Land Management: policy discussion – Defra – Citizen Space, 2020, p. 7). The “mix” of legal instruments in this pluralist system will, however, change. And leaving the CAP regime, in particular, offers the opportunity to develop more innovative approaches to delivering ecosystem services.

170  Christopher Rodgers Management agreements will remain an important tool for delivering the public funding of AES, and the new ELM scheme will be a key element in a revised pluralist approach. It will, however, need to be calibrated in a manner that encourages private supply-side-led initiatives, and care must be taken to ensure that regulatory requirements do not obstruct the development of a larger scale focus to the protection of ecosystems. An important element of this new approach should be the development of so called “blended” agri-environment schemes. Ensuring the integration of public and privately funded environmental management will also require a “blended” approach that recognises and resolves regulatory barriers and facilitates a well-functioning market in natural capital and ecosystem services. This could include the encouragement of demand-side private sector initiatives – for example the NIS- or a LENS-based approach. These could build on cooperation in ecosystem management between private demand-side bodies – for example the water and electricity utilities and dairy manufacturers – and supply-side actors, typically farmers and landowners. It will be necessary to maintain significant levels of public funding through the new ELM scheme to target strategic priorities for environmental policy, for example to develop climate change adaptation and mitigation measures, and to protect high value conservation sites and assets. Blending public and private funding in this way will require the new ELM scheme to be carefully designed to provide strong incentives for private sector funding. It might, for example, be designed so that participation by landowners in privately funded schemes on the LENS model could “trigger” or “unlock” further funding streams for additional publicly funded ecosystem management through entry into higher tiers of the new ELM scheme.69 It will also be important to ensure that work undertaken using private funding streams does not act as a barrier to later participation in ELM scheme.

Acknowledgements This chapter draws on research funded by iCASP (a Natural Environment Research Council programme) and Resilient Dairy Landscapes (a Global Food Security project). I am grateful to Mark Reed and Ole Pedersen for comments on earlier drafts.

Notes 1 SI 2015/668. The 2015 regulations expanded the NVZ scheme’s geographical scope and replaced the Protection of Water Against Agricultural Nitrate Pollution (England and Wales) Regulations 1996 (SI 1996/888). 2 For example, water capital grants to improve water quality are available in water quality priority areas under the current Countryside Stewardship scheme management options: see section 4.3.5 of the Countryside Stewardship Manual (Defra, 2020). 3 SI 2015/668. The 2015 regulations expanded the NVZ scheme’s geographical scope and replaced the Protection of Water Against Agricultural Nitrate Pollution (England and Wales) Regulations 1996 (SI 1996/888). 4 For example, water capital grants to improve water quality are available in water quality priority areas under the current Countryside Stewardship scheme management options: see section 4.3.5 of the Countryside Stewardship Manual (Defra, 2020).

Legal models for implementing agri-environment policy after Brexit 171 5 “The products of natural systems from which people derive benefits, including goods and services, some of which can be valued economically, and others which have a non-economic value”. See The Natural Choice: securing the value of nature (Defra, 2011) at page 12. 6 See the categorisation by the Millennium Ecosystem Assessment, available at: www.millenniumassessment.org/en/index.html. And that by Prager, Matzdorf, Dutilly et al., Contracts 2.0. Key concepts to investigate agri-environmental contracts – shared conceptual framework (Prager et al., 2020, p. 12, Table 3). 7 See Agriculture Act 2020, ss. 6–11. 8 These measures were discontinued in England from the end of 2020: See “Greening measures to be scrapped for 2021, says Defra” (Clarke, 2020). 9 The concept of “cross compliance”, its introduction and then extension in European Agricultural Law is discussed in Agriculture and EU Environmental Law (Jack, 2009, pp. 66–79). “Cross compliance” is the term used to describe the link between entitlement to receive a BPS payment and the requirement that land is managed up to the GAEC standard and in compliance with all SMR. 10 Art174 (2) TEU; 6th Community Environmental Action Programme, Decision 1600/2002 of the European Parliament and of the Council, 2002 OJ L 242/1. And see generally “The Polluter Pays Principle in European Community Law and its Impact on UK Farmers” (Cardwell, 2006). 11 See, for example The Mid-term Review of the Common Agricultural Policy (House of Commons and Defra, 2003, paras 52, 76 et seq.). 12 AES payments are calculated to cover farmers’ costs and loss of profit in introducing activities. As some of these are for reducing negative externalities, it is another example of how the polluter pays concept does not apply to agriculture. 13 See the definition of PES schemes at “Defining Payment for Environmental Services” (Department of Sustainable Development). And see generally: “Payment for Environmental Services: Some Nuts and Bolts” (Wunder, 2005) (esp. at para 2.1 et seq.). 14 See Payment for Environmental Services: Some Nuts and Bolts” (Wunder, 2005, p. 4). The lack of conditionality for payments is the fundamental issue that prevents them being regarded as “true” PES schemes if we adopt this analysis. 15 See: Agri-environmental schemes: how to enhance the agriculture-environment relationship (Science for Environment Policy, 2017) And passim.: Agri-Environment Schemes in England: a review of results and effectiveness (Natural England, 2009); and “Estimating the Supply of Conservation Goods in Britain; A Comparison of the Financial Efficiency of Two Policy Instruments” (Whitby and Saunders, 1996). 16 The Environmentally Sensitive Area scheme was a classic example of this type, with prescriptions for management agreements and payment rates set out in the statutory instruments designating each ESA area: see, for example, the Environmentally Sensitive Areas (Stage 1) Designation Order 2000 SI 2000/3049, Environmentally Sensitive Areas (Stage 11) Designation Order 2000 SI 2000/3050, Environmentally Sensitive Areas (Stage 111) Designation Order 2000 SI 2000/3051 and Environmentally Sensitive Areas (Stage 1V) Designation Order 2000 SI 2000/3052. 17 Some of which were geographically very large, such as the Cambrian Mountains ESA in Wales: see the Environmentally Sensitive Areas (Cambrian Mountains – extension) Designation Order 1987, SI 1987/2026. 18 See Incentives for Countryside Management: the Case of Environmentally Sensitive Areas (Whitby, 1994) especially Chapters 10 and 11. 19 See Statements of Priorities (Statements of priorities: Countryside Stewardship). There are for example 25 sets of local priorities for different districts within the North East of England, and 158 for different districts within England in total. 20 See generally the Countryside Stewardship Manual (Defra, 2020). 21 On which see for example: “Agri-environment policy in an era of lower government expenditure: CAP reform and conservation payments” (Hodge, 2013); Land Stewardship in England post-2013: CAP Greening and Agri-Environment (Institute for European Environmental Policy and Cumulus, 2012) esp. Chapters 4 and 5.

172  Christopher Rodgers 22 See Agriculture in the United Kingdom 2019 (Defra, 2019, p. 106, Table 10.6). There were 13,800 Countryside Stewardship agreements in place in 2019; this was still substantially less than the number of agreements still in place under its predecessor the Environmental Stewardship scheme (20,700 agreements) 23 See the Environmental Land Management: policy discussion document (Environmental Land Management: policy discussion – Defra – Citizen Space, 2020, p. 7). 24 See generally Environmental Land Management: policy discussion document (Environmental Land Management: policy discussion – Defra – Citizen Space, 2020). 25 See Nature Improvement Areas (England, 2020). 26 See Defra Spatial Data. 27 Environmental Land Management: policy discussion document (Environmental Land Management: policy discussion – Defra – Citizen Space, 2020, p. 29). 28 For example, Agriculture Act 1986 s.18 (Environmentally Sensitive Area Agreements); the Conservation of Habitats and Species Regulations 2017 (SI 2017/1012) Reg. 20 (1) (agreements in European wildlife sites); Countryside Act 1968, s. 15 (agreements in SSSIs). 29 For the categories of common right see: Gadsden on Commons and Greens (Cousins and Honey, 2012 at 2–34 ff). 30 For an example of the issues that can arise, see Contested Common Land: Environmental Governance past and present (Rodgers et al., 2010), Chapter 8 esp. pp. 154ff. (Cwmdeuddwr common, Elan valley, Wales). 31 For example, a company limited by guarantee as in Ingleton, North Yorkshire: see Contested Common Land: Environmental Governance past and present (Rodgers et al., 2010, p. 128). 32 See “Property Rights, Land Use and the Rural Environment: A Case for Reform” (Rodgers, 2009). 33 The position is different for forestry projects, where the Forestry Act (1967) prohibits the reversal of land use following afforestation through the felling licence system: Forestry Act (1967), s.9 et. seq. 34 For example, under the ESA programme, above notes 17 and 18. 35 Above notes 20 and 21. 36 See, Improving the link between payments and the provision of ecosystem services in agri-environment schemes in UK peatlands (Reed et al., 2014). One problem of output-based systems is that they allocate the risk of non-performance due to unforeseen circumstances (e.g. adverse weather conditions) to the land manager. Proposals for the new Sustainable Farming Scheme in Wales are, accordingly, based on the state taking the risk of non-performance (see “Sustainable Farming and our Land; consultation” (Welsh Government, 2019b)). Defining the circumstances in which risk is allocated to either seller or buyer is, of course, the key issue – one that needs to be further explored in the trial scenarios for ELM scheme in England. 37 See Facilitation fund: Countryside Stewardship (Facilitation fund: Countryside Stewardship, 2015). 38 See Prager, Matzdorf, Dutilly et al., Contracts 2.0. Key concepts to investigate agrienvironmental contracts – shared conceptual framework at (Prager et al., 2020, p. 28). 39 For example, one under section 7 Natural Environment and Rural Communities Act 2006. 40 For example, one under section 7 Natural Environment and Rural Communities Act 2006. 41 Countryside Stewardship agreements are, for example, typically of either 5 or (in the case of Higher-level agreements) of 10 years duration. 42 See generally Chapter 3 in The Privatisation of Biodiversity (Reid and Nsoh, 2016). 43 See further Integrating Natural Capital Schemes: opportunity analysis for integrating carbon markets into multifunctional landscape market places such as those developed by the Landscape Enterprise Networks (LENS) approach (3Keel, Forest Carbon, and Newcastle University, 2020 at 3.1). 44 Above notes 9 and 10. 45 Examples of statutory requirements would include, for example, the preservation of important hedgerows as required by the Hedgerow Regulations 1997 (SI 1997/1160), or the safe storage of silage and slurry as required by the Water Resources (Control of Pollution) (Silage, Slurry, and Agricultural Fuel Oil) (England) Regulations 2010 (SI 2010/639).

Legal models for implementing agri-environment policy after Brexit 173 46 Examples of how this might work in practice are to be found in Integrating Natural Capital Schemes: opportunity analysis for integrating carbon markets into multifunctional landscape market places such as those developed by the Landscape Enterprise Networks (LENS) approach (3Keel, Forest Carbon, and Newcastle University (2020) at 3.2). 47 For a comparative analysis of the available models, see further: Prager, Matzdorf, Dutilly et al., Contracts 2.0. Key concepts to investigate agri-environmental contracts – shared conceptual framework (Prager et al., 2020, p. 16ff, Concept Note 2). 48 See Section 7 Natural Environment and Rural Communities Act (2006). 49 For example, under section 15 Countryside Act (1968) (SSSIs), or Conservation of Habitats and Species Regulations (2017), Regs. 23 and 24 (SACs and SPAs). 50 See Natural Environment and Rural Communities Act (2006) s 7 (3). 51 Section 7 (3) (a) Natural Environment and Rural Communities Act (2006). 52 See A Green Future: Our 25 Year Plan to Improve the Environment (Defra, 2018, p. 62); and the suggestion in Environmental Land Management: policy discussion document (Environmental Land Management: policy discussion – Defra – Citizen Space, 2020). 53 see National Trust Act (1937), s 8. 54 Law Commission Conservation Covenants (Law Comm.349, 2014) at paras 2.82 et seq. 55 See Part VII Environment Bill 2021, ss. 110 ff. 56 That is, someone with a freehold interest in the land burdened with the covenant, or someone with a lease of at least seven years duration (see Environment Bill 2021 s. 110 (1) and (4); Law Commission Conservation Covenants (Law Comm.349, 2014) at para 2.82. 57 Environment Bill 2021 s. 112. This is a similar model to that in Scotland, where only designated conservation bodies can hold the benefit of a conservation covenant: Title Conditions (Scotland) Act 2003, 38. 58 Environment Bill 2021s. 112 (4), (5). The inclusion of “for profit” bodies is an extension of the Law Commission’s original proposals. 59 Environment Bill 2021 s. 110 (3), s. 112 (9). 60 See Environment Bill 2021, s. 112. 61 See Environment Bill 2019–20, s. 102 (3) (definition of “conservation purposes”). The covenant might provide for public access to land, but this is specifically required to be “ancillary” to the principal purpose, which must be conservation as defined in the Act: s. 103 (3). 62 See New Markets for Land and Nature: how natural infrastructure schemes could pay for a better environment (Francis et al., 2016). 63 See generally Exploring ecosystem markets for the delivery of public goods in the UK (Gosal et al., 2020). 64 Above note 43. 65 See Part 2, Environmental Permitting (England and Wales) Regulations 2016 (SI 2016/1154). 66 For example, as required by an action programme made under the Action Programme for Nitrate Vulnerable Zones (England and Wales) Regulations 1998 (SI 1998/1202); or (as to safe storage of silage and slurry) by the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010 (SI 2010/639) or the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (Wales) Regulations 2010 (SI 2010/1493). 67 See further Exploring ecosystem markets for the delivery of public goods in the UK (Gosal et al., 2020, section 4). 68 For example, how can one design a programme that pays farmers by results rather than on an area basis? See Improving the link between payments and the provision of ecosystem services in agri-environment schemes in UK peatlands (Reed et al., 2014); Public Funding for public goods: A Post-Brexit perspective on principles for agricultural policy (Bateman and Balmford, 2018, p. 296). 69 As suggested in Integrating Natural Capital Schemes: opportunity analysis for integrating carbon markets into multifunctional landscape market places such as those developed by the Landscape Enterprise Networks (LENS) approach (3Keel, Forest Carbon, and Newcastle University, 2020).

174  Christopher Rodgers

References 3Keel, Forest Carbon, and Newcastle University (2020) Integrating Natural Capital Schemes. Available at: https://www.iucn-uk-peatlandprogramme.org/sites/default/files /header-images/Resources/Combining%20LENs%20with%20Carbon%20Markets.pdf (Accessed 10 June 2021). Action Programme for Nitrate Vulnerable Zones (England and Wales) Regulations 1998. Agriculture Act 1986. Bateman, I.J. and Balmford, B. (2018) ‘Public funding for public goods: A post-Brexit perspective on principles for agricultural policy’, Land Use Policy, 79, pp. 293–300. Beckett (Alfred F.) v. Lyons [1967] Ch. 449. Besley v. John [2003] EWCA Civ 1737. Cardwell, M. (2006) ‘The polluter pays principle in European community law and its impact on United Kingdom farmers’, Oklahoma Law Review, 59, p. 89. Clarke, P. (2020) ‘Greening measures to be scrapped for 2021’, says Defra, Farmers Weekly. Available at: www.fwi.co.uk/news/environment/greening-measures-to-be-scrapped-for2021-says-Defra (Accessed 10 June 2021). Committee on Climate Change (2020) ‘Land use: Policies for a net zero UK’, Climate Change Committee. Available at: www.theccc.org.uk/publication/land-use-policies-fora-net-zero-uk/ (Accessed 10 June 2021). Conservation of Habitats and Species Regulations 2017. Consolidated Version of the Treaty on European Union. Council Directive 775/440 [1975] OJ L 194/26. Council Directive 1991/676/EEC [1991] OJ L 375/1. Countryside Act 1968. Cousins, E.F. and Honey, R. (2012) Gadsden on Commons and Greens. London: Sweet & Maxwell. Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme [2002] OJ L 242/1. Defra (2009) Protecting Our Water, Soil and Air: A Code of Good Agricultural Practice for Farmers, Growers and Land Managers. Norwich: The Stationery Office. Available at: https://nls.ldls.org.uk/welcome.html?ark:/81055/vdc_100058624687.0x000001 (Accessed 10 June 2021). Defra (2011) The Natural Choice: Securing the Value of Nature. Cm 8082. Available at: https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment _data/file/228842/8082.pdf (Accessed 10 June 2021). Defra (2013) Payment for Ecosystem Services: A Best Practice Guide. Available at: https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data /file/200920/pb13932-pes-bestpractice-20130522.pdf (Accessed 10 June 2021). Defra (2018) A Green Future: Our 25 Year Plan to Improve the Environment. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data /file/693158/25-year-environment-plan.pdf (Accessed 27 May 2021). Defra (2019) Agriculture in the United Kingdom 2019. Available at: https://assets.publishing .service.gov.uk/government/uploads/system/uploads/attachment_data/file/904024 /AUK_2019_27July2020.pdf (Accessed 27 July 2021). Defra (2020) Countryside Stewardship Mid Tier and Wildlife Offers Manual. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment _data/file/999500/Countryside_Stewardship_Mid_Tier_2020_CS64_v1.0.pdf (Accessed 10 June 2021).

Legal models for implementing agri-environment policy after Brexit 175 Defra Spatial Data Download. Available at: https://environment.data.gov.uk/DefraDataD ownload/?mapService=NE/LocalNaturePartnershipsEngland&mode=spatial (Accessed 16 June 2021). Department of Sustainable Development (no date) Defining Payment for Environmental Services. Available at: http://www.oas.org/dsd/PES/DefinitionPES.htm#_ednref6 (Accessed 10 June 2021). England, N. (2020) Nature Improvement Areas. Available at: https://data.gov.uk/dataset/a19c95e39657-457d-825e-3d2f3993b653/nature-improvement-areas (Accessed 16 June 2021). Environmental Land Management: Policy Discussion – Defra – Citizen Space (2020) Available at: https://consult.Defra.gov.uk/elm/elmpolicyconsultation/ (Accessed 15 June 2021). Environmental Permitting (England and Wales) Regulations 2016. Environmentally Sensitive Areas (Cambrian Mountains – extension) Designation Order 1987. Environmentally Sensitive Areas (Stage I) Designation Order 2000. Environmentally Sensitive Areas (Stage II) Designation Order 2000. Environmentally Sensitive Areas (Stage III) Designation Order 2000. Environmentally Sensitive Areas (Stage IV) Designation Order 2000. Facilitation Fund: Countryside Stewardship (2015) GOV.UK. Available at: https://www.gov .uk/government/collections/countryside-stewardship-facilitation-funding (Accessed 15 June 2021). Forestry Act 1967. Francis, A. et al. (2016) New Markets for Land and Nature. Green Alliance. Available at: https://green-alliance.org.uk/resources/New_markets_for_land_and_nature.pdf (Accessed 10 June 2021). Gosal, A. et al. (2020) Exploring Ecosystem Markets for the Delivery of Public Goods in the UK. Leeds. Available at: https://eprints.whiterose.ac.uk/164709/ (Accessed 15 June 2021). Hedgerow Regulations 1976. Hodge, I. (2013) ‘Agri-environment policy in an era of lower government expenditure: CAP reform and conservation payments’, Journal of Environmental Planning and Management, 56(2), pp. 254–270. House of Commons and Defra (2003) Mid-term Review of the Common Agricultural Policy, Third Report of Session 2002–03. HC 151. Available at: https://eur-lex.europa.eu/legalcontent/EN/TXT/HTML/?uri=LEGISSUM:l11062&from=SL (Accessed 15 June 2021). Institute for European Environmental Policy and Cumulus (2012) Land Stewardship in England post-2013: CAP Greening and Agri-Environment (Report for the National Trust and The Co-operative Farms). CC-P-570. Available at: https://ieep.eu/uploads/ articles/attachments/4ef31fae-0d1b-4c8c-a26e-2338207659cd/Land_Stewardship_in_ England_Post-2013.pdf?v=63664509800 (Accessed 15 June 2021). Jack, B. (2009) Agriculture and EU Environmental Law. London: Ashgate. Lawton, J. et al. (2010) Making Space for Nature: A Review of England’s Wildlife Sites and Ecological Network. Available at: https://webarchive.nationalarchives.gov .uk/ukgwa/20130402170324/http:/archive.Defra.gov.uk/environment/biodiversity /documents/201009space-for-nature.pdf (Accessed 16 June 2021). Natural England (2009) Agri-environment Schemes in England 2009 – NE194. Available at: http://publications.naturalengland.org.uk/publication/46002 (Accessed 15 June 2021). Natural Environment and Rural Communities Act 2006. Prager, K., Matzdorf, B. and Dutilly, C. (2020) Key Concepts to Investigate Agrienvironmental Contracts- Shared Conceptual Framework. Contracts 2.0. Available at: https://www.project-contracts20.eu/wp-content/uploads/2020/05/C20_WP1_D01_ D1.1_UNIABDN.pdf (Accessed 10 June 2021).

176  Christopher Rodgers Protection of Water Against Agricultural Nitrate Pollution (England and Wales) Regulations 1996. Reed, M.S. et al. (2014) ‘Improving the link between payments and the provision of ecosystem services in agri-environment schemes’, Ecosystem Services, 9, pp. 44–53. Reid, C.T. and Nsoh, W. (2016) The Privatisation of Biodiversity? New Approaches to Conservation Law. Cheltenham: Edward Elgar Publishing. Rodgers, C. (2009) ‘Property rights, land use and the rural environment: A case for reform’, Land Use Policy, 26, pp. S134–S141. Rodgers, C.P. et al. (2010) Contested Common Land: Environmental Governance Past and Present. London: Earthscan. Science for Environment Policy (2017) Agri-environmental Schemes: How to Enhance the Agriculture-environment Relationship. Issue produced for the European Commission DG Environment by the Science Communication Unit, UWE, Bristol. Available at: https://ec.europa.eu/environment/integration/research/newsalert/pdf/AES_impacts_on_ agricultural_environment_57si_en.pdf (Accessed 15 June 2021). Scottish Government (2020) Report of the Simplification Taskforce. Available at: www .gov.scot/binaries/content/documents/govscot/publications/corporate-report/2020/01 /report-simplification-taskforce/documents/report-simplification-taskforce /report-simplification-taskforce/govscot%3Adocument/report-simplification-taskforce .pdf?forceDownload=true (Accessed 10 June 2021). ‘Statements of priorities: Countryside Stewardship’, GOV.UK. Available at: https:// www.gov.uk/government/collections/countryside-stewardship-statements-of-priorities (Accessed 16 June 2021). The Nitrate Pollution Prevention Regulations 2015. Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010. Welsh Government (2020) Agriculture (Wales) White Paper: Consultation Document, WG 41711. Available at: https://gov.wales/sites/default/files/consultations/2020-12/ agriculture-wales-bill-white-paper.pdf (Accessed 6 July 2021). Whitby, M. (1994) Incentives for Countryside Management: The Case of Environmentally Sensitive Areas. Wallingford: CAB International. Whitby, M. and Saunders, C. (1996) ‘Estimating the supply of conservation goods in Britain: A comparison of the financial efficiency of two policy instruments’, Land Economics, pp. 313–325. ‘[Withdrawn] Health and harmony: The future for food, farming and the environment in a Green Brexit – policy statement’ (2018) GOV.UK. Available at: www.gov.uk/ government/publications/the-future-for-food-farming-and-the-environment-policystatement-2018/health-and-harmony-the-future-for-food-farming-and-the-environmentin-a-green-brexit-policy-statement (Accessed 9 June 2021). Wunder, S. (2005) Payment for Environmental Services: Some Nuts and Bolts. Available at: www.cifor.org/publications/pdf_files/OccPapers/OP-42.pdf (Accessed 27 July 2021).

10 Northern Ireland’s agricultural quagmire How to develop a sustainable agricultural policy? Mary Dobbs Introduction The Brexit referendum returned repeatedly to the idea of “taking back control” from the EU bureaucracy. Agriculture is an area where the EU has developed considerable policy and laws, reflected in the CAP, meaning that an array of relevant powers is reverting. However, it is not simply a matter of reverting back to the UK’s position before joining the EU, as the context, objectives, and understanding have shifted considerably since then – including developments within the World Trade Organization, devolution, the creation of the Good Friday/Belfast Peace Agreement (hereinafter “GFA”), climate change challenges, and developing global supply chains. Fundamental questions arise, including where do powers return within the UK – Westminster, the devolved nations or elsewhere? Further, where power does increase, what does one desire to do with it, and to what extent is that truly viable? These questions are essential in the context of agriculture and not least for Northern Ireland (hereinafter “NI”). As discussed elsewhere within this book (Petetin, 2021), proposals for post-Brexit agricultural policies have been developed at both UK-wide and devolved levels, with not only some significant overlaps but also differences. However, NI is in somewhat of a quagmire here. NI’s devolved assembly at Stormont collapsed in 2017, and NI was consequently left without the legal capacity to approve policy or legislate (Buick’s (Colin) Application as Chairperson of NOARC 21, 2018). The civil servants in the Department of Agriculture, Environment and Rural Affairs (hereinafter “DAERA”) in conjunction with stakeholders developed a draft agricultural Strategy (DAERA, 2018), providing valuable groundwork in the hope that the Assembly would reform and be able to build on this. Concurrently, the UK developed two Agriculture Bills (2018 and 2019 – the latter now being the Agriculture Act 2020), mainly focusing on England but with some relevance to the devolved administrations including NI. The Assembly is now back in situ and they are faced with a pressing situation. With the end of the transition period on 31 December 2020, it is essential that NI have a suitable agricultural policy in place to provide clarity and certainty to all involved.

DOI: 10.4324/9781003010852-10

178  Mary Dobbs This chapter will therefore investigate whether NI has the capacity to develop its own sustainable agricultural policy and whether either the Agriculture Act or the DAERA’s Strategy would provide a suitable basis for this. To this end, the first section will consider the practical context that may affect the shaping and implementation of an NI agricultural policy. The second section will then sketch out the main legal parameters within which NI is acting – not only within the UK but also internationally. The third section will consider both the UK Agriculture Act and the DAERA’s draft Strategy, before concluding in the final section. Throughout the chapter, I draw on insights from COVID-19 and the recent UK Internal Market Act (hereinafter “IMA”) 2020 where relevant. The former has created significant shocks to agri-food industry, whilst the latter represents a clear attempt to reclaim powers to the centralised level and has significant implications for devolved matters (including agriculture and related policies), the workings of the NI Protocol (The Northern Ireland Protocol, 2020), and international relationships more generally. Regarding the IMA, the House of Lords temporarily stripped specific provisions from the Internal Market Bill, but these were reintroduced by the House of Commons (Walker and Elgot, 2020). While the UK government eventually indicated a willingness to remove some of these clauses (Connelly, 2020) and did so within the IMA itself, nonetheless the intentions themselves remain highly concerning.

Challenges for NI agriculture Any agricultural policy must be practically viable. But the nature of agriculture and its significance already varies considerably across the UK, reflected in the UK’s implementation of the CAP (Allen et al., 2014) and the “starting point is thus divergence, not commonality” (Gravey and Dobbs, 2018). Consequently, it is necessary to consider the specific context of NI agriculture and the key factors impacting upon its viability. To this end, this section outlines NI agriculture generally, before focusing on the issues of supply chains, access to markets, and financing. NI agriculture1 Agriculture is an essential component of the economy (Gravey and Dobbs, 2018) and culture in NI, with strong links to the rural community in particular and most farms are at least partially owned by the farmers working them. Approximately 78,000 agriculture workers are employed in farming and support services (McFarlane et al., 2018, at 11) and NI is the sole net exporter of agricultural produce within the UK (Stennett, 2019),2 with Great Britain (hereinafter “GB”) typically being the primary export market and then Ireland and the rest of the EU, but with variations depending on the produce in question, for example Ireland is the main export market for live animals. However, NI agriculture is also highly vulnerable – including relative to the rest of the UK. Approximately 80% of the farms are in “less favoured areas” and a similar figure is considered to be “very small” (DAERA, 2020 at 43–45), which

Northern Ireland’s agricultural quagmire 179 is relevant to their relationship with the environment, their economic viability, and their capacity to adapt and to undertake different types of farming. Linked to this, there is a very high dependency on financial support via the CAP currently (DAERA, 2020 at 11–15), with most farms running at a deficit without such support (Tonge, 2016; and DAERA, 2020b). Of these, cattle and sheep farms that make up approximately 3/5 of NI farms are the most reliant on subsidies to survive financially. That vulnerability is accentuated when one considers the reliance on external markets – both import and export. As with the rest of the UK, NI also imports components such as animal feed or fertilisers, including from global producers, and relies on migrant labourers for tasks such as harvesting crops and veterinary checks (McGuinness and Garton Frimwood, 2017). Furthermore, the agri-food industry on the island of Ireland is highly interlinked, with milk crossing the border multiple times for instance and processing or waste management occurring on alternate sides of the border (Allen, 2016). Consequently, NI does not independently have the current capacity to produce, process, and sell/consume what it produces, or indeed deal with the waste produced (Greene, 2021). As part of the globalised world, it is intertwined in long supply chains and is currently dependent on others beyond its borders. Any shocks to the system or impact on income raise a real risk of unsustainable intensification, cutting corners (e.g. regarding environmental, food, or health standards), and land abandonment – with negative impacts upon the industry, economy, society, and environment. Furthermore, whilst farming can and does contribute positively to the environment, for example through enhancing biodiversity or maintaining habitats, it is also linked to environmental harms and for instance is the main source of water pollution incidents in NI (DAERA, 2019, at 53). Yet, farmers are dependent on a healthy environment if they are to have agricultural sustainability in the long term, whereby both the environment and agriculture become more resilient. Effective land management on a landscape and ecosystem basis is crucial for both environmental and agricultural sustainability. This can be through stable soil structures, avoiding monocultures, developing carbon sinks, avoiding excessive nutrients in the ecosystem, climate action, etc. This bears emphasising in NI, in light of NI’s poor environmental history and Brexit’s potential impacts on NI environmental governance, including the introduction of governance gaps and increased financial pressure (Brennan et al., 2019). This last point is accentuated now by COVID-19, which has firstly impacted on industry, through for instance restricted availability of workers, reduced and varied demand for agri-food products (e.g. through closure of restaurants), restrictions on haulage/transport, and loss of income of consumers (highlighted by heavy use of food banks, e.g. Gordon, 2020) and secondly increased demands on public expenditure even whilst reducing the tax revenues. Consequently, it is even more important for any NI agricultural policy to bolster environmental governance – for instance, through a combination of environmental objectives and baseline criteria. It is worth noting that 44% of farms are part-owned, part-rented, and that much of the latter is under conacre – a form of landownership peculiar to the island of Ireland, which involves a variation on short-term leasing typically in small patches (DAERA, 2020, at 41; McNeill, 2021). Short-term landownership rights

180  Mary Dobbs can disincentivise long-term investments in the land or environment or even simply take precautions to maintain existing environmental standards – especially where money is tight – calling for changes to the operation of incentives and/or ownership rights. Overall, NI agriculture is simultaneously valuable, but vulnerable. It contributes significantly to the economy, society, and the environment, but is dependent on the land, on access to markets and currently substantial financial support. It also maintains a mixed relationship with the environment. Any NI agricultural policy must address these challenges in the short term and long term. Supply chains and access to markets? Reflecting the significance of both import and export markets (EU, GB, and others), this has been a key focus for NI agri-food industry since the Brexit referendum. However, access is primarily dependent on the UK government and any international agreements, as outlined later in Section II. One aspect that NI can impact upon directly at this stage is regulatory approaches – both in ensuring continued compliance with the EU laws outlined in the NI Protocol and in determining what to do more broadly. Agriculture, food, and environment interrelate and are all devolved in principle. Unless external obligations are imposed, for example through the Protocol, trade deals, UK-wide rules, or environmental treaties, NI may decide to increase or reduce standards and maintain similar approaches or introduce new procedures, measuring systems, and so on. These may impact on the permissibility of imports into NI and also on whether NI goods can access external markets – even if trade deals are in place. The greater the regulatory convergence/alignment with the EU and other jurisdictions, the easier market access will be. It will be important to consider the costs of accessing external markets, including accessing two or more markets simultaneously if criteria vary across the markets. It is also essential to consider the desirability of regulatory standards more broadly, rather than simply swaying to market pressure. NI could also focus more on short supply chains and seek to become more independent or self-sufficient. Some individual companies have undertaken this in preparation for Brexit (e.g. Kelpie, 2017), but there is substantial scope to learn from the Covid-19 experience also (Petetin, 2020). Covid-19 has highlighted the dependence on long supply chains, global markets, smooth transport operations, availability of migrant workers, and much more (Touboulic et al., 2020). It has also highlighted the lack of resilience to shocks. Yet, although it took time to respond, developments in the agri-food industry may provide positive insights also and open up future avenues for a more sustainable agricultural policy. During the pandemic – even whilst some shelves went bare and food banks were in worryingly high demand (Gordon, 2020) – we saw some moves towards shorter supply chains, local producers/suppliers, higher quality goods, and generally greater scrutiny by individuals of what they are buying and from where (Petetin, 2020). As well as improving the industry’s independence, it also can promote environmental and food standards – all of which improve resilience. Whilst these shifts are not

Northern Ireland’s agricultural quagmire 181 necessarily permanent, they do indicate the potential for a significant shift in food culture and practices that could be harnessed to promote valuable objectives. Financial support/control of purse strings A major challenge arises here regarding the financing of any agricultural supports. NI depends financially on Westminster and specifically on the block grants. Under the general approach (the Barnett formula), the devolved administrations receive a block grant with changes linked to the amount spent in England on a pro rata basis. Bearing in mind proposals by England under the UK Agriculture Act and their historical dislike of subsidies, the nature and quantity of funding in England are likely to change significantly in the long term. If the Barnett formula were applied, this would have profound knock-on effects on funding in the devolved, including NI (Keating, 2019). Furthermore, whilst CAP subsidies are ring-fenced at source for claims under Pillars 1 and 2, the money in the block grant is pooled and can be used for any purpose within NI. Consequently, NI would have to balance out needs within competing objectives and decide whether to spend more for instance on public health, education, infrastructure, or agriculture – all of which bring in a considerable political factor to the subsidies. Indeed, the Barnett formula has been acknowledged as unsuitable in an official review (Bew, 2019) and the UK government has previously indicated that the Barnett formula will not apply to agriculture post-Brexit – yet, without providing any guidance as to what might replace it (Farming UK, 2018). Alternatives include asking Westminster to agree to a set figure, potentially equivalent to the current amount provided under CAP, as guaranteed for the duration of the current Parliament and also requested for the future by the NI Minister for Agriculture Edwin Poots (NI Assembly, 2020a). However, if spending is cut across the rest of the UK or even just in England, then such a blanket guarantee is unlikely to be acceptable politically in Westminster – especially as it could arguably give NI farmers a competitive advantage over farmers elsewhere in the UK. The second would be for Westminster to allocate a minimum amount or floor based on what is reasonably required to meet the objectives under a future NI agricultural policy. This already occurs for Wales and its extension to NI and Scotland has previously been proposed (Keep, 2020, sections 1.4 and 2.1). This could thereby enable considerable flexibility in approaches to NI agricultural policy and also potentially ensure adequate ring-fenced support, which would not need to compete with other public objectives such as health or education. The latter also raises a further consideration. Would a change to a focus on “reasonable needs” be more acceptable to Westminster, if Westminster held a positive opinion of the NI agricultural policy? In such a case, to what extent would Westminster’s continued support of such a financing approach be conditional on retaining that positive opinion? Despite devolution, Westminster could retain much influence over future NI agricultural policies through controlling the purse strings.3 Thus, the difficulty is this: unless an alternative arrangement is made, the funding allocated to NI for agriculture is likely to decrease significantly after this

182  Mary Dobbs Parliament (2024 as things stand) with profound consequences. However, in order to persuade Westminster to provide extra funding, NI may have to make concessions on agricultural policy or otherwise that it may not wish to make. To this end, it is sensible for NI to look to English policy developed by Westminster and consider what aspects it may wish to be influenced by at an early stage or even adopt in developing a NI policy (see section on “A NI Agricultural Policy?” later), rather than having aspects imposed unilaterally and disjointedly at a later stage – but all whilst recognising the differences in aims, objectives, and context between NI and English agriculture. It is also necessary to reflect on how agriculture could be made more economically viable in the long run, thereby reducing the need for continued support, for example if goods were to sell at a premium. Conclusion Overall, we can see that NI agriculture is not self-contained or independent. There are intricate relationships at all stages and fronts – and that is without even considering issues such as the impacts of climate change. Access to markets, finance, and a strong environment are all currently essential to the industry – impacts on any of these risk tipping NI farms to breaking point with knock-on effects within the industry and beyond. However, whilst some of these are within NI’s control or at least influence, others currently remain largely dependent on either the UK or external bodies. NI needs to consider how to bolster these aspects and also how to become more independent.

Who governs? Mapping policy and regulatory powers In determining whether Northern Ireland has the capacity to determine its own agricultural policy, it is essential to sketch out both the internal UK division of powers and the core international obligations. Devolution?4 The division of powers within the UK is by no means simple. As a nation state, one might expect that the core policy and law-making powers rest with the UK under the concept of Westphalian sovereignty – especially since the UK follows the concept of parliamentary sovereignty. However, whilst the UK government has the power to negotiate and conclude international agreements (affecting the UK as a whole) with other states and the Westminster Parliament holds the potential to legislate for the entirety of the UK, there are major limitations on the UK in the form of devolution. A range of devolution agreements5 provide for the decentralisation of powers to the devolved administrations in Scotland, Wales, and NI, including most powers relating to agriculture and the related areas of the environment and food. Thus, there are already devolved agricultural policies in existence across the UK that are operating within the context of the EU and CAP. For instance, NI developed its

Northern Ireland’s agricultural quagmire 183 own agricultural policy in 2013, Going for Growth Strategy (Agri-Food Strategy Board, 2013), supplemented by the Rural Development Programmes including the NI Countryside Management Scheme and the Environmental Farming Scheme.6 The devolved competences are also clearly reflected in the mapping exercise by the Joint Ministerial Committee (EU negotiations) (hereinafter “JMC”) evaluating the competences returning from the EU that are in principle devolved (UK Government, 2020a). Consequently, the simple answer is that NI will be the natural recipient of the relevant powers returning from the EU regarding agriculture (as well as regarding the environment and food) and can thereby freely develop its own policies and laws in this field. However, this is a considerable oversimplification. Firstly, devolved and centralised powers can interact and impact upon each other. For instance, powers regarding trade and international agreements remain “reserved”/centralised and these can impact significantly on the ability of devolved administrations to develop and implement their own policies. Secondly, it is possible for all parts of the UK to collaborate together in developing common frameworks in a cooperative manner – as distinct from a centrally imposed measure or framework. Many of the 18 (of a potential 154) areas identified by the JMC in their mapping exercise as potentially needing legislative common frameworks relate directly to agriculture such as organic farming, fertilisers, and food labelling (UK Government, 2020a), but there has been varying progress in developing these – with only two at provisional framework stage by September 2020 (UK Government, 2020b). Whilst there has been some further progress behind the scenes, there has been little stakeholder engagement, transparency, or scrutiny and further development is necessary (House of Lords, Common Frameworks Scrutiny Committee, 2021). Thirdly, as highlighted by the Sewel Convention, devolved administrations can consent to the legislation passed by the centralised Parliament/Government acting in devolved matters (HL Deb 21 July 1998 Vol 592 c791) (Cowie, 2018). Hence, the devolved administrations have examined and voted upon legislative consent motions regarding the UK Agriculture Act 2020 – enabling specific provisions to be applied to the UK as a whole or to individual devolved territories (e.g. NI Assembly, 2020a). Finally, due to parliamentary sovereignty (Elliott and Thomas, 2011 at 46), it is possible for Westminster effectively to reclaim powers without consent – highlighted by two relatively recent Supreme Court cases (The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018]; R (Miller) v Secretary of State for Exiting the European Union, 2017, at 148–151) (Engel and Petetin, 2018, at 26). Westminster is not racing for responsibility for NI policies (or indeed those of other devolved administrations), considering that Stormont was missing in action for three years and only when pushed for support did Westminster include broader components in the UK Environmental Bill for NI conditional on approval by NI Members of the Legislative Assembly. However, Westminster is willing to act in devolved matters where it deems it necessary for legal coherency, protecting the UK’s internal market, or (sometimes) complying with international obligations, for example in the EU Withdrawal Act 2018,7 the Agriculture Act 2020,8 the EU Withdrawal Agreement Act 2020,9 and most recently in the IMA.

184  Mary Dobbs In particular, the IMA’s provisions on mutual recognition (Section 2), non-discrimination (Section 5),10 financial assistance (Section 50), subsidies (Section 52), and the NI Protocol (Part V) centralise considerable powers despite the devolution settlements – causing uproar across the devolved administrations (Brooks and Morris, 2020). For example, Section 50 enables the UK government to provide financial assistance to anyone across the UK for a wide range of purposes, despite its potential to undermine devolved policies and without clarity of its impact on the block grant from Westminster (see the section on “Challenges for NI agriculture” earlier). Further, the mutual recognition provisions require that goods for sale/use that are produced in or enter any part of the GB market legally must be able to be sold/ used in any other part of the GB, without any further restrictions being imposed. Limited exclusions exist,11 but this undermines significantly the potential for the devolved to create effective policies that relate for instance to production methods (e.g. BEIS, 2020, at 25) – risking a race to the bottom in standards. To note, the provisions on mutual recognition and non-discrimination do not apply in the same manner to NI (Section 11), but to all goods for sale/use that are produced in or enter any part of the GB market legally. However, this would still mean that NI goods in the GB market would be in competition with other goods potentially produced with lower standards and at a lower cost – that might in turn incentivise cutting corners or reducing standards in NI. It is worth noting that the House of Lords (temporarily) made three key changes to the Bill that are directly relevant to these issues (Lords Amendments to the United Kingdom Internal Market Bill, no date). Firstly, it removed key clauses, including those on the NI Protocol, financial assistance, and subsidies. Secondly, it introduced protection of common frameworks so that mutual recognition would not apply where harmonised measures had already been developed or even where under consideration within the common frameworks process. Thirdly, it introduced more extensive exemptions under the concept of “public interest derogations”. All of these support measures both individual devolved action and collaborative devolved action over the more centralised approach by the House of Commons and the UK government. However, on 7 December, the UK government rejected each of these changes (Supplement to the Votes and Proceedings, 2020; House of Lords, no date a). Subsequently, due to progress in EU negotiations and also due to political discussions with the devolved administrations, the UK government amended the Bill so that it would no longer breach international law and adopted a more muted version of the approach to common frameworks via Section 10 and Schedule 1. However, the final IMA still does not encompass either the broad approach to common frameworks or the public interest derogations – with the UK internal market being prioritised over these issues (House of Lords, no date b). The NI Protocol Hard international law binds the UK and thereby NI, based on the principle of consent. A range of international law is relevant here, encompassing trade, agriculture, and environmental law. However, the main document that needs to be

Northern Ireland’s agricultural quagmire 185 considered here is the NI Protocol in the EU Withdrawal Agreement (Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 2019), despite the creation since of the UK-EU Trade and Cooperation Agreement (TCA) (Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, 2020). The NI Protocol “frontstop” applies for four years after the transition period (unless superseded by a Future Relationship Agreement (Article 13(8) of the Protocol) – which the TCA does not do (Connolly, 2020) and can be extended where the NI Assembly consents to this (Article 17 of the Protocol). It focuses on preventing a hard border between NI and Ireland, upholding the GFA (‘The Northern Ireland Peace Agreement’, 1998) and broadly maintaining peace and cooperation on the island (Article 1 of the Protocol). Consequently, the NI Protocol guarantees NI valuable access to the EU market, as if still part of the EU and therefore without inspections, quantitative restrictions, or tariffs (e.g. Article 5(5) of the Protocol). To facilitate this, it requires NI to comply with various EU laws, including regarding production standards and processes, labelling, and food quality (Annex 2 of the Protocol). No new requirements are technically imposed on industry exporting to the EU directly, and although there will be some greater burdens on industry itself (paperwork at the least), much of the onus will fall on the authorities within the NI/UK and the EU, for example requirements of checks and site inspections undertaken under EU-led supervision. Furthermore, the focus is on trade and the Protocol does not require NI to comply with most EU environmental laws, including significantly the Nitrates Directive, the Water Directive, and the Habitats Directive. Whilst these have been transposed into domestic law, they will gradually stagnate and without EU governance and enforcement mechanisms, there is considerable risk of environmental degradation (Brennan et al., 2019). Although international environmental law continues to apply including the principle of non-transboundary harm, it tends to be more general and without effective enforcement mechanisms. As the environment is a devolved matter and the Environment Bill does little to address such concerns, the onus lies with NI. The major difficulty for NI industry will be regarding access between NI and GB markets – despite being part of the UK, including its customs territory. Due to a combination of Brexit and the NI Protocol, there will be a need for some checks and controls on goods going between GB and NI. Even though there is supposed to be “unfettered access” of goods from NI to GB at least, at a minimum there will need to be checks to ensure compliance with the Convention on International Trade of Endangered Species (hereinafter “CITES”) and paperwork for customs from the EU perspective (export summary declarations). Whether further hurdles on NI goods going to GB will be imposed depends largely on GB. Further, NI agriculture depends on imports from or via GB, including machinery, chemicals, feed, and seeds. Here, much greater requirements are likely to apply, for example SPS checks, certification, technical checks, and potentially

186  Mary Dobbs tariffs (e.g. under Articles 5 and 7 of the Protocol), which would increase costs for farmers and prices for consumers. Some of these will be very extensive, for example the Northern Ireland Retail Consortium estimated that health certificates for animal products at about £200 per product would amount to approximately £40,000 for a lorry supply from GB to NI (Hipwell and Mayes, 2020). Living organisms and their products will also need to be pre-notified prior to entry into NI, registered on the EU TRACES system, and inspected – typically at official border control posts (hereinafter “BCPs”).12 Capacity is being increased at these BCPs, but this remains insufficient (EURACTIV, 2020) and will intensify delays with knock-on effects on issues such as driver hours, animal welfare, and perishability of goods. Importers may not have the logistical or financial capacity to import in such circumstances, or simply decide it is not worth the hassle. Thus, garden centres have already indicated that they will cease supplying NI after 31 December 2020. Even if they continue to supply NI, this is likely to lead to increased costs being passed on – including to NI farmers (Dobbs & Petetin, 2021). However, the extent of these controls and expenses can vary and some could be reduced for instance if there is regulatory convergence between the EU and GB, if there is mutual recognition of standards or procedures, if the UK does not impose tariffs on EU products,13 and if GB goods are not going to be processed in NI or risk continuing on to the EU.14 The announcement on 8 December that the Joint Committee had made significant progress regarding identifying goods not “at risk” of continuing on to the EU is a very welcome step, as it facilitates exemptions from potential EU custom checks between GB and NI. The Joint Committee’s non-binding “unilateral declarations” (Curtis, 2020) – to provide grace periods for full-compliance with the EU’s SPS regime by approved suppliers (three months) (UK Government, 2020c), or regarding certain chilled meats such as sausages (six months) (UK Government, 2020a) and some rules on human and veterinary medicines (one year) (UK Government, 2020b) – also provides a breathing space on these aspects. The progress by the Joint Committee was also a positive sign more generally, as further agreement between the EU and the UK could help ease the burdens considerably, both via the Joint Committee on implementing the NI Protocol and any future trade agreement. However, whilst the subsequent TCA does provide some comfort in the form of no tariffs and non-regression of environmental standards (where affecting trade), it does not ensure regulatory convergence or remove the need for non-tariff barriers such as SPS checks – which still entail considerable hurdles for imports from GB into NI (Connolly, 2020). Finally, Article 10 of the Protocol mandates that any NI state aid must comply with EU state aid rules. A limited exemption applies to agriculture, provided certain criteria are fulfilled – criteria that remain unclear as of yet, but will be linked to both UK and EU previous expenditure in agriculture and also their future agricultural policies. This still leaves considerable flexibility to NI in determining financing approaches, but within some parameters. However, along comes the IMA again, which directly clashed with the NI Protocol in its previous incarnations. In brief, within the original Internal Market Bill,

Northern Ireland’s agricultural quagmire 187 the key provisions of Part V proposed to claim powers for the UK government to amend requirements for NI exports into GB (Clauses 41 and especially 42) and to regulate on state aid (Clause 43) – irrespective of international law (in particular via Clause 45), including the NI Protocol. This was despite the Withdrawal Agreement and NI Protocol being binding on the UK (irrespective of parliamentary sovereignty) and the UK’s duty of “good faith” under Article 5 of the Agreement. The UK government was proposing to cast aside its commitments under international law, with legal and political ramifications – including legal action by the EU. It also would have left NI in the unenviable position where it must comply with NI Protocol provisions and yet it might simultaneously have needed to comply with new conflicting approaches created by the UK government if those Clauses had been approved. Whilst, as noted, the House of Lords temporarily removed these provisions from the Bill, the UK government reintroduced these in the House of Commons on 7 December with the Bill set to return once more to the House of Lords. Further, the UK government indicated in early December that it would introduce a Taxation Bill, which would once more breach the Protocol by providing UK Ministers with the unilateral ability to determine which goods are at risk of continuing on to the EU, whereas this is the role of the Joint Committee under the Protocol. As a “money bill” the House of Lords do not have the same ability to amend clauses and therefore it would be much easier for the Government to pass a Taxation Bill into law. However, on 8 December, the UK government announced that, in light of progress made by the Joint Committee, it would no longer seek to retain or introduce the relevant clauses in the Internal Market Bill and Taxation Bill (Connelly, 2020). Since then, the IMA was promulgated in a manner that does not breach international law and nor does the Taxation Bill contain such contentious provisions. Whilst this is a very welcome development, especially in respect of the rule of law, nonetheless the government’s approach demonstrates a willingness to breach international law and specifically to renege on agreements only recently concluded – worrying from a legal perspective and also for any potential trade partners, including the EU. Conclusion In principle, agricultural powers revert to the devolved, including NI, and the opportunity and challenges rests with NI to develop its own agricultural policy. However, parliamentary sovereignty remains and the UK can and will act where it considers it necessary or expedient, for example to ensure legal coherency, enable trade deals, and protect the UK internal market. Further, international law does and will impose parameters on devolved action – in particular via the NI Protocol discussed earlier, but also for instance via WTO law (including the Agreement on Agriculture), future UK trade deals, and international environmental law that go beyond the scope of this chapter. UK and international law still leave considerable flexibility to NI to develop its agricultural policies, but this might change as the UK continues to legislate and confirm trade deals. Consequently, it is essential

188  Mary Dobbs that devolved administrations including NI not merely take the initiative in developing and establishing their own policies early on, but also feed into policies for English agriculture or for UK-wide policies/issues (e.g. the UK IMA or the Trade Bill) and trade negotiations that might have knock-on effects for devolved administrations. In this regard, engagement not only with UK departments but also with the newly reinforced Trade and Agriculture Commission will be crucial. It is worth highlighting a number of aspects arising from a combination of international and UK law, especially as different restrictions and opportunities exist for NI than for GB – with the NI Protocol but without full application of the IMA. Firstly, the NI Protocol and IMA address market access to an extent – with the Protocol guaranteeing continued access between the EU and NI for agricultural inputs and products and both documents then supporting the access of NI goods to GB (with slight hurdles entailed under the Protocol). Once NI “qualifying goods” are present in GB, the IMA would enable broad access to the GB market via the mutual recognition and non-discrimination principles. However, although the two documents no longer directly conflict as noted, there will clearly be some substantial hurdles for non-EU imports into NI, including from GB as noted earlier, with significant knock-on effects. Whether these hurdles can be reduced depends on the effective functioning of the Joint Committee and UK trade deals15 – including crucially the newly created EU-UK TCA. Secondly, the Protocol imposes some controls on aspects such as subsidies,16 but without clarity yet regarding the precise limits for exemption (amplifies uncertainty with how funding will be determined by Westminster). Thirdly, NI must comply with a swathe of EU laws, including those regarding agricultural production, food quality, and food labelling – not only imposing burdens but also guaranteeing minimal standards. However, regarding both the subsidies and the regulations, there is considerable flexibility remaining to NI, for example in determining the nature of subsidies, in prioritising certain types of farming, or in enhancing standards. This will help facilitate a level playing field with EU producers, but may impact on competitiveness with GB producers and imports on the GB market. Finally, however, environmental protection is barely addressed by the NI Protocol, international environmental law is insufficient, and no UK-wide environmental common framework has been developed. Consequently, NI or NI farmers could decide to lower some standards or cut corners on the environmental front, for example spreading slurry at times when it is more likely to pollute the water or destroying habitats to make room for crops. Whilst farmers and others in the industry typically would not seek to cause environmental degradation, in part as it would be self-defeating in the long term, if they are placed under significant economic pressure, then this could seem like the only viable alternative in the short term. However, it is worth noting the TCA’s level playing field provisions that apply to the UK as a whole (Part 2, Heading one: trade, Title XI: Level playing field for open and fair competition and sustainable development). On an environmental front, these encompass (1) an obligation to strive to increase levels of environmental protection (Article 391(5)); (2) a principle of non-regression regarding environmental protection and climate change, where measures would “[affect]

Northern Ireland’s agricultural quagmire 189 trade or investment” between the EU and the UK (Article 391, especially Article 391(2)); and (3) a re-balancing mechanism where there is ‘significant divergence’ ‘impacting on trade and investment’ ” (Article 411). Together these may lead to a sensitive, dynamic alignment of environmental provisions where trade and investment would otherwise be affected. However, those provisions remain relatively limited in scope, somewhat vague and difficult to enforce (Gravey, 2021). The loss of specific environmental obligations under EU law (and corresponding governance mechanisms) is consequently an important consideration in developing an NI agricultural policy.

A NI agricultural policy? NI is clearly not faced with a free-for-all, but nonetheless has some considerable powers to design an agricultural policy tailored to its own context. In developing such a policy, the Northern Ireland Assembly has two key documents to consider, being the UK Agriculture Act 2020 and DAERA’s own draft agricultural Strategy. Agriculture Act 2020 Whilst a number of the Agriculture Act’s provisions will impact directly on all devolved administrations, including the ability for the UK Secretary of State to determine the classification of financial supports and the caps for Amber Box financing under the WTO’s Agreement on Agriculture (Sections 43, 44, and 45), it is primarily targeted at England or even at GB,17 not NI. However, the Act firstly enables specific actions by NI (conditional on legislative consent), secondly provides a potential template for NI, and thirdly will influence NI agri-food industry directly through its UK-wide provisions and indirectly through its proposals for England and GB. Schedule 6 is the key enabling provision for NI. It grants DAERA powers addressing aspects such as data collection and sharing, marketing standards and classification, and market intervention. Crucially, the Schedule enables measures regarding NI’s existing financial support system to address the end of CAP funding. However, the Schedule differs significantly from the English provisions. The Schedule provides for DAERA to modify and even extend the basic payment schemes beyond 2020,18 and simplify to modify the rural development legislation. It neither provides guidance nor imposes restrictions, as it does not outline the nature of new financial assistance/support schemes that might be introduced in NI or mandate the gradual eradication of existing schemes. It is essentially a patch job, leaving it open to NI to legislate in future if it wishes to develop its own policy. One option for NI would be to adopt the Act’s approach for England – or to use it as an initial template. Whilst a detailed discussion of proposals for England is beyond the scope of this chapter, it is essential to note three key aspects of significance to NI. The first is that Section 36 and Schedule 3 will enable agricultural holdings in England to be amended in order to further the Act’s objectives – without the landlord’s consent if necessary. This reflects the reality that the landowners

190  Mary Dobbs frequently are not the active farmers/land users and that investments in land and especially environmental goods may take considerable time to manifest. The precise details are not essential here, so much as the very idea to modify land law in order to facilitate agricultural and environmental policy objectives. Wales intend to undertake similar amendments to their agricultural tenancy regime (Welsh Government, 2020, at 50–51). Whilst the approach cannot simply be transposed, it serves as a valuable template for reflecting on NI land law and conacre. The second aspect relates to its objectives. Overall, the Act reflects an intended shift for England away from supporting farmers for simply owning and farming land and towards incentivising productivity and/or achieving environmental goods. This is reflected initially in the intended progressive eradication of direct payments (Sections 8 and 11 in particular) and rural development schemes19 – unlike with CAP and Article 39 TFEU, there is no objective of a “fair standard of living for farmers”. It is also reflected in the two key strands of the financial support mechanisms outlined in the Bill: public money for public goods approach (a range of environmental aims) (Section 1(1)) and simply promoting productivity of “an agricultural, horticultural or forestry activity” or supporting producers’ “ancillary activities” (Section 1(2)). Whilst the promotion of environmental objectives is a welcome component of the Act and an improvement on the 2018 Bill, the list of environmental aims is exhaustive and the objectives generally do not address food quality, food security, public health, or other social objectives – skewing the approach to sustainability. The third related aspect concerns mechanisms for achieving the objectives. Firstly, funding will no longer be linked to cross-compliance with environmental regulations or more broadly supported by an EU environmental regime enforced by the commission and the Court of Justice of the European Union.20 Consequently, a farmer might receive financial support for achieving one of the listed environmental objectives, but simultaneously enable or even cause considerable environmental degradation without penalty. Secondly, generally speaking, payments under these schemes was intended to be for achieving the objectives, rather than for efforts taken. Whilst in principle this is attractive, in practice it may be counterproductive due to the length of time to achieve outcomes and the vulnerability to external factors such as extreme weather events. A positive development from earlier proposals is that the schemes will be in the form of multi-annual financial plans – thereby providing some certainty once they are created and helping incentivise long-term investments. However, outcomes still cannot be guaranteed – a farmer might invest time and resources, improving environmental conditions generally and taking all appropriate steps, but without fulfilling the agreed outcomes and therefore potentially with no eventual pay-out due to no fault of their own. A heavily weighted outcome approach may thus be counterproductive from an environmental perspective.21 Further, in conjunction with the gradual eradication of direct payments and rural development funding, it raises serious concerns about the economic viability of agriculture and the broader impact on the rural community and on the land. However, England has largely swung back to simply paying for actions again with the development of its schemes, for example the

Northern Ireland’s agricultural quagmire 191 Sustainable Farming Incentive seeks to “encourage the adoption of some simple actions that achieve more important environmental outcomes” (emphasis added) (Defra, 2021). This is reflected more broadly across the implementing schemes. Payments for actions on their own do not adequately incentivise or reward outcomes; a combination of payments for actions, milestones, and final outcomes may be more effective and equitable. Finally, whilst payments for actions provide some greater economic security to farmers, they remain insufficient for those farms currently dependent on direct payments. The NI context would accentuate these issues. As noted in Section I, NI farmers are more vulnerable. Funding to achieve environmental objectives (or even take specific actions) or to improve productivity might be of some limited assistance, but it does not equate to the funding available from CAP and especially direct payments from the perspective of economic viability – NI farmers typically have barely enough income to survive much less to invest into environmental schemes and consequently the public money for public goods approach would need to be supplementary to something akin to direct payments. Without this, it can be expected that a large portion of NI farms will be abandoned and/or some may cut corners to save costs, impacting negatively on the agri-food industry, the rural population, and also on the environment. Simply put, the English proposals seem attractive on first blush, but they have their weaknesses that are exacerbated in the context of NI. Nonetheless, the Act is likely to influence NI agriculture more broadly. For instance, aspects such as facilitating changes to labelling and marketing rules in GB will impact on any NI agri-food industry actor who seeks to export to the GB market, even whilst they may simultaneously be seeking to export to the EU market. Similarly, provisions regarding fertilisers and also organic produce will be important considerations for policy-makers and agri-food industry actors in NI. For example, it would be much simpler and more cost-effective to only have to gather one set of information together or have one type of labelling, but it might also be necessary to make a choice between markets if the rules regarding production (such as fertilisers or eventually other agricultural inputs) are sufficiently divergent – this might be done on a whole scale level, on a farm level, or on a crop/animal/product level. Furthermore, varying regulatory approaches and financial support schemes could lead to competitive (dis)advantages between actors across the UK, making it important for NI to keep a close eye on approaches elsewhere and vice versa. The variations in financial support schemes may also be a key factor in funding received by NI from Westminster – whether under the Barnett formula, a “reasonable needs” approach or otherwise – as they may affect how funding is determined and whether Westminster would be willing to support such approaches. The Act is a significant indicator as to Westminster thinking, but NI should not disregard parallel developments in the other devolved administrations or indeed related developments for the UK such as the IMA. NI’s eventual response to the Agriculture Act has been to grant legislative consent to the Act, including Schedule 6 (NI Assembly, 2020a). It did so to provide a continuation of funding for farmers in the immediate future and to create a breathing space to develop a new agricultural policy suitable for NI (CAERA,

192  Mary Dobbs 2020, at paras 10 and 61). However, the Act is not suitable or adequate for NI – whether because some direct payments are required, or the range of public goods/ objectives are excessively limited, or the implementation measures and broader provisions are inadequate to further the objectives. It is inherently flawed and also not tailored for NI. DAERA strategy (DAERA, 2018) As mentioned, the draft DAERA agricultural Strategy was created in the context of a collapsed Assembly and no Minister for Agriculture. Prior to the Assembly’s collapse the previous Minister had established four stakeholder groups, including one on agriculture, with set goals. Whilst DAERA added representatives to the agricultural stakeholder group to provide a broader base, they were curtailed in the focus of the Strategy, which is reflected in the eventual document. Nonetheless, some slight shifts are seen within the document that reflect the changing context, including developments with Brexit and the Agriculture Bills. Whilst the strategy has many positives, there is considerable scope for improvement also (Dobbs et al., 2018). The starting point is the Strategy’s objectives. These primarily reflect those initially identified by the minister: “increased productivity”; “improved resilience”; environmental sustainability; and “an integrated, efficient, sustainable, competitive and responsive supply chain” (DAERA, 2018). Whilst generally laudable, a range of other objectives could have been usefully included, for example the Strategy refers to food security as very important but not as a “primary objective”. It would have been highly desirable also to include objectives such as rural development, food quality, and public health – the former would be of particular value in ensuring the sustainability of agriculture in NI. In contrast, the focus on productivity is excessive (Dobbs et al., 2018). Whilst the Strategy also promotes environmental sustainability, it entails a narrow understanding of productivity – simply of growth – rather than for instance efficiency and quality.22 Linked to this, the focus on resilience appears to be largely limited to economic resilience – yet resilience of the actors (health and social aspects), the land (e.g. soil), and the crops/animals (e.g. biodiversity and appropriate to the conditions) are all essential also. Sustainability is about balance and the focus on productivity throws the balance out of kilter. Further, this focus is simply unrealistic – NI may be the only net exporter of agricultural produce in the UK, but there are practical limits as to what it can achieve. Yet, the Strategy (section 4, p. 21) says that NI “should, at the very least, keep pace with the productivity growth of its competitors [the USA, Netherlands and France] and indeed outperform them if it wishes to capture additional market share”. In light of the size of the nation, as well as the nature of the farms, farming, environment, etc., such ambitions are more like flights of fancy. Increasing productivity to a significant degree would also likely involve intensive farming, monocultures, increased use of chemicals, and other unsustainable practices. Whilst DAERA’s approach is understandable in light of the political situation and careful use of

Northern Ireland’s agricultural quagmire 193 science and innovation could help with enhanced, sustainable productivity, for example through smart technologies to determine when watering is required, there are practical limits to what can be achieved. A key aspect is also the partial retention of direct payments – although it is not clear as to the extent or the duration for which they will be retained. It appears that these will be available until at least 2022, but this seems to be a bit of stopgap measure and no firm suggestions exist after that. It is highly likely that some direct payments will need to be retained in the long term if there is not to be widescale land abandonment in NI, impacting on the local economy, rural development, and environment. Minister Poots has since stated that “no farmer should be left behind”, whilst indicating a potential role for direct payments at a reduced level of a “safety net” (NI Assembly, 2020b). Irrespective of this, much greater legal and financial certainty is needed – as reflected in the changes to the Agriculture Act and the proposal now for multiannual payment schemes. On the environmental front, some influence of the Agriculture Act can be seen across the Strategy, with discussion of various objectives and schemes. However, this has not been developed to the same extent – either as to the scope or as to the implementation. As with the Agriculture Act, the approach to implementation will be essential and will raise questions such as whether a landscape approach is feasible with cooperation between landowners and users. The “engagement” (consultation) flagged several issues, for example the Strategy seems to be leaning towards an outcome-based approach (Section 6) akin to the Agriculture Act and also there is only partial retention of direct payments. Similarly, cross-compliance is flagged in the Strategy, but no firm proposals exist regarding it. Whatever about a technical cross-compliance approach, it will be essential to have a strong complementary environmental regime with regulatory baselines to provide guarantees that the environment will not be degraded. This is recognised in the Strategy but, despite considerable departmental, stakeholder, and committee developments, the Assembly has made little progress in addressing environmental governance in NI post-Brexit and for instance the Minister has also indicated that he considers an independent environmental agency unnecessary. A welcome addition in the NI draft Strategy is the focus on supply chains as mentioned. This is something that has been highlighted as crucial in NI and beyond due to the Covid-19 pandemic and shocks to the system. However, there is insufficient detail on how the supply chains could be improved and there is little to nothing on cross-border matters – despite how significant it is. It is a very welcome first step, but needing further development. The Strategy overall is clearly more tailored to NI, including the retention (for now at least) of direct payments. It represents considerable work by the civil servants and stakeholders, with much of value in it. However, it still remains unbalanced, unclear at times, needing further development and still dependent on other areas of law and policy – not to mind on Westminster for funding. Nonetheless, the Minister for Agriculture indicated his support in November 2020 for the Strategy as a solid starting point for the development of NI agricultural policy (NI Assembly, 2020b).

194  Mary Dobbs It is also worth noting that whilst the Minister for Agriculture has noted the value of the environment, he recently proposed that future payments might be linked to productivity and specifically to outputs (AgendaNI, 2020) – moving away from the four prongs of productivity in the Strategy regarding science and innovation, agricultural education, knowledge exchange (CPD), and investment and restructuring. However, great care would be needed from both legal and environmental perspectives, as this may raise issues under the NI Protocol, future trade agreements, any eventual UK Internal Market legislation, broader international law,23 and could also incentivise unsustainable farming, as with earlier versions of the CAP, leading to considerable environmental degradation.

Conclusion Brexit brings considerable challenges for the agri-food industry across the UK, but also creates incentives to reflect on and re-design agricultural policy and practices. As with the other devolved administrations, NI has the legal powers to design agricultural policy to suit the specific context of NI, including the nature of NI agriculture and the NI Protocol – such a tailored approach will be essential, even whilst it might not be sufficient in and of itself to maintain farming within NI. However, whilst NI holds relevant powers, these can only be availed of within the legal parameters posed by any UK-wide laws and international law, including the NI Protocol and the new TCA with the EU. Further, NI farming is largely precarious and if it is to survive as things stand, there is a fundamental need for external financial support, continued access to GB and EU markets, supply chains and a workforce, and improved environmental protection. Together, the combined legal and practical considerations curtail and drive what might be viable as an agricultural policy in NI. Even whilst they act as limiters on the potential exercise of NI’s powers, the interplay of the legal and practical limiters may work to NI’s advantage and also push NI agricultural policy away from feared declines in production and quality standards and instead towards a broadly sustainable agricultural policy. The proposed policies reflected in the UK Agriculture Act and the draft NI Agricultural Strategy are positive starting points, but are insufficient to ensure sustainable agriculture in NI as discussed – whether being too narrow and restrictive at times, or simply overly ambitious and unrealistic for farms in NI. However, they could be valuable springboards for designing a coherent, holistic, tailored approach for NI that could help promote sustainable agriculture. Whilst adopting the environmental objectives/public money for public goods approach broadly speaking is a desirable aim, consideration should be given to expanding these objectives, adapting the implementation mechanisms (to include a combination of some financing for actions/steps taken, milestones, and final outcomes), and ensuring a robust environmental regime to complement the agricultural policies. Other objectives and support schemes should also be considered – in part because environmental sustainability cannot be ensured if there is land abandonment or if the rural communities are decimated and in part because the economic and social sides of sustainability are also valuable objectives in our

Northern Ireland’s agricultural quagmire 195 society. Consequently, DAERA’s proposal to retain some direct payments is one that should be closely evaluated – will it suffice to maintain farmers on the land in conjunction with other supports? Could this be complemented further by supports for rural development (unmentioned) or even through focusing on short supply chains or for instance cooperatives? Could the law regarding conacre be amended, similarly to how English and Welsh agricultural tenancy law will be? The final point remains that, post-Brexit, the viability of any NI agricultural policy depends greatly on the UK government – for example their commitment to the NI Protocol, assurances of unfettered access to the GB market, and financial support of NI agriculture – something which is uncertain in both the medium and long terms. If concerns over the impact of Brexit had not already sunk in, Covid-19 has amply flagged the vulnerability of NI (and indeed the global) agri-food industry to shocks, supply disruptions, and market shifts. This begs the question of whether NI agriculture can become more independent and indeed more resilient. Here, Covid19 may once again provide valuable insight (Petetin, 2020, at 326) – in response to the pressures and new demands, industry shifted, and adapted. The focus turned to shorter supply chains, to quality and healthy produce, to local produce,24 to key ingredients for home cooking and baking – who hasn’t had a friend experiment with sourdough during lockdown? Whilst some of these changes may only endure for the short term, it also indicates the potential for a long-term shift in consumer behaviour and the potential to develop the home market. If this can be cultivated, then perhaps it may help develop the resilience of the agri-food industry and negate some of the dependence on the UK and external relations.

Acknowledgements Many thanks in particular to Viviane Gravey, Ludivine Petetin, and Irene Antonopoulos for their valuable feedback and comments on earlier drafts of this chapter. Any errors and omissions are the author’s.

Notes 1 For more on NI agriculture historically, please see Jack (2003). 2 Also see the HMRC regional trade statistics www.uktradeinfo.com/trade-data/regional/. 3 Comparisons could be made with the proposed UK Shared Prosperity Fund that would replace the role of the European Structural and Investment funds, for example https:// commonslibrary.parliament.uk/research-briefings/cbp-8527/, accessed 9 June 2021. This might also provide for new rural development funding outside of agricultural policies. 4 See Petetin (2021). 5 The Scotland Act 1998, the Government of Wales Acts 1998 and 2006, and the Northern Ireland 1998. These are supplemented by the Memorandums of Understanding between the UK and devolved governments. 6 For example, 2014–2020 Rural Development Programme accessed 9 June 2021 and Agri-environment schemes accessed 9 June 2021. 7 Aimed to maintain coherency of the UK legal order, by addressing the gaps that would have materialised through the removal of EU law from domestic law.

196  Mary Dobbs 8 Included provisions to ensure compliance with the WTO Agreement on Agriculture, some GB-wide provisions regarding fertilisers and red meat levies for instance, and also enabling Schedules for Wales and NI if desired (see Section III below). 9 Incorporated the EU Withdrawal Agreement and accompanying Protocols into domestic law, thereby facilitating their implementation. 10 These “market access” principles apply to services also, but here I focus simply on goods. 11 Existing restrictions can continue to apply to all goods (Section 4) and new restrictions can be introduced under Schedule 1 (via Section 10), where for instance necessary due to pests or diseases posing threats to plant, animal, or human health. These are much narrower than apply under the EU exceptions in Article 36 TFEU. 12 See Brexit Legal, UK to EU Export/Import Controls (SPS), http://brexitlegal.ie/exportssps-controls-eu/. 13 Under the UK Global Tariff, tariffs would be placed on most products imported from the EU. However, under the new TCA, for the time being no tariffs are being imposed on goods transported between the UK and the EU. 14 A Joint Committee established by the Withdrawal Agreement is to determine which goods may or may not be at risk of continuing on to the EU. 15 Currently, the UK has made some progress in rolling over FTAs and has also created a new FTA with Japan. 16 Subsidies are also affected by the WTO Agreement on Agriculture. 17 For example, Section 35 on a red meat levy. 18 It is worth reiterating that NI might not have sufficient finances to continue with such schemes after the guaranteed funding from Westminster ends. 19 Section 16 addresses rural development. Whilst technically the Act provides for the potential continuation of rural development payments (alongside their potential eradication), it does not enable any new schemes to be introduced – with the Explanatory Memorandum stating that these would be introduced under Section 1 instead (and therefore furthering different objectives). 20 Whilst there are considerable critiques of cross-compliance’s implementation, the general idea of mandating compliance with environmental regulations is desirable. 21 If outcomes are possible but unlikely, incurring significant costs/losing out on alternative income may not be seen as worthwhile. 22 This contrasts with the Agriculture Act, where productivity includes ideas of quality also. 23 Including the WTO’s Agreement on Agriculture. 24 All of which can promote sustainable agriculture, including simply through reducing transport and refrigeration costs.

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Northern Ireland’s agricultural quagmire 199 Keep, M. (2020) The Barnett Formula, Briefing Paper No.7386, 23 January 2020. Available at: http://researchbriefings.files.parliament.uk/documents/CBP-7386/CBP-7386 .pdf (Accessed 26 July 2021). Kelpie, C. (2017) ‘Dairy co-op braced for Brexit with its new £30m centre in Co. Tyrone’, Belfast Telegraph, 12 September 2017. Available at: www.belfasttelegraph .co.uk/business/brexit/dairy-coop-braced-for-brexit-with-its-new-30m-centre-inco-tyrone-36121251.html (Accessed 26 July 2021). McFarlane, G., Lewis, T. and Lang, T. (2018) FRC Food Brexit Policy Briefing – Food, Brexit and Northern Ireland Critical Issues. London: Centre for Food Policy. Available at: http://foodresearch.org.uk/publications/food-brexit-northern-ireland/ (Accessed 26 July 2021). McGuinness, T. and Garton Frimwood, G. (2017) Migrant Workers in Agriculture, Briefing Paper 7987, 4 July 2017. Available at: https://researchbriefings.files.parliament.uk /documents/CBP-7987/CBP-7987.pdf (Accessed 26 July 2021). McNeill, B. (2021) ‘Is the grass always greener? Understanding grazing and cropping rights in Northern Ireland’, in S. Farran, R. Hewitson, and A. Ramshaw (eds.) Modern Studies in Property Law: Volume 11. Hart (forthcoming). NI Assembly (2020a) Agriculture Bill: Legislative Consent Motion, 31 March 2020, Debate. Available at: www.theyworkforyou.com/ni/?id=2020-03-31.5.4&p=13867 (Accessed 26 July 2021). NI Assembly (2020b) Basic Payment Scheme Simplifications and the Direction of Travel for Future Agricultural Policy in Northern Ireland, Including Support Payments, 17 November 2020, Debate. Available at: www.theyworkforyou.com/ni/?id=2020-11-17.1.90 (Accessed 26 July 2021). Petetin, L. (2020) ‘The COVID-19 crisis: An opportunity to integrate food democracy into post-pandemic food systems’, EJRR (Special Issue 2: Taming COVID-19 by Regulation), 11(2), pp. 326–336. Petetin, L. (2021) ‘Setting the path for UK and devolved agriculture’, in I. Antonopoulos et al. (eds.) The Governance of Agriculture in post-Brexit United Kingdom. Routledge. R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. Stennett, A. (2019) ‘Northern Ireland trade in goods, 2018’, Northern Ireland Assembly Research Matters. Available at: www.assemblyresearchmatters.org/2019/04/08/northernireland-trade-in-goods-2018/ (Accessed 26 July 2021). Supplement to the Votes and Proceedings (2020) Available at: https://publications .parliament.uk/pa/bills/cbill/58-01/0224/amend/UKIM_pro_ccla_1207.pdf (Accessed 2 November 2021). ‘The Northern Ireland peace agreement’ (1998) Available at: https://peacemaker.un.org/ uk-ireland-good-friday98 (Accessed 9 June 2021). The Northern Ireland Protocol (2020) Available at: https://assets.publishing.service.gov .uk/government/uploads/system/uploads/attachment_data/file/950601/Northern _Ireland_Protocol_-_Command_Paper.pdf (Accessed 9 June 2021). The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] (2018) UKSC 64. Tonge, J. (2016) ‘The impact of withdrawal from the European Union upon Northern Ireland’, The Political Quarterly, 87(3), p. 338. Touboulic, A., Matthews, L. and McCarthy, L. (2020) ‘Global food supply chains in times of pandemic’, University of Nottingham Blog. Available at: https://blogs.nottingham.ac.uk/futurefood/2020/04/07/global-food-supply-chains-in-times-of-pandemic/ (Accessed 26 July 2021).

200  Mary Dobbs Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (2020) OJ L444/14. UK Government (2020a) Frameworks Analysis 2020: Breakdown of Areas of EU Law That Intersect With Devolved Competence in Scotland, Wales and Northern Ireland. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads /attachment_data/file/919729/Frameworks-Analysis-2020.pdf (Accessed 26 July 2021). UK Government (2020b) ‘The European Union (Withdrawal) Act and Common Frameworks: 26 June to 25 September 2020’, 9th statutory report, December 2020. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment _data/file/941711/The_European_Union__Withdrawal__Act_and_Common _Frameworks.pdf (Accessed 26 July 2021). UK Government (2020c) ‘Unilateral declarations by the United Kingdom of Great Britain and Northern Ireland and the European Union in the Withdrawal Agreement Joint Committee on official certifications’. Available at: https://assets.publishing.service.gov.uk/government /uploads/system/uploads/attachment_data/file/946284/Unilateral_declarations_by _the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_and_the_European _Union_in_the_Withdrawal_Agreement_Joint_Committee_on_official_certification.pdf (Accessed 26 July 2021). Walker, P. and Elgot, J. (2020) ‘MPs vote to keep law-breaking clauses in Brexit bill, but UK offers to drop them’, The Guardian, 7 December 2020. Available at: www .theguardian.com/politics/2020/dec/07/no-10-offers-to-drop-internal-marketbill-clauses-if-eu-deal-agreed (Accessed 26 July 2021). Welsh Government (2020) ‘Consultation Document: Agriculture (Wales) White Paper’ (White Paper) WG41711.

Conclusion Aleksandra Čavoški, Matt Bell, Ludivine Petetin, and Irene Antonopoulos

During the writing of this book, the UK exited the European Union on 31 January 2020. This was preceded by lengthy and highly politicised negotiations that brought into question the likelihood of reaching an agreement between the two parties. Agricultural policy was just one of the many complex areas on the agenda, and it was further complicated by the fact that farming is devolved to the four nations within the UK. Since 1973, UK farming has been governed by the Common Agricultural Policy (CAP), creating a common umbrella across all nations. After exiting the EU, the UK left the CAP and it is now developing its own agricultural policy. Since withdrawal, the relationship between the UK and EU is governed by three main agreements: 1 The Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community; 2 Protocol on Ireland/Northern Ireland to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community; and 3 The Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the One Part, and the United Kingdom of Great Britain and Northern Ireland, of the Other Part (TCA). The Withdrawal Agreement was reached on 17 October 2019 and entered into force on 1 February 2020. According to Article 41 of the Withdrawal Agreement, the circulation of goods already placed on the UK and EU single market remained frictionless until the end of the transition period on 31 December 2020. As this transition period has now expired, the movement of all goods, including agricultural goods, is no longer regarded as an intra-Union movement and, with few exceptions, is subject to import rules that apply to countries outside the EU. The rules applicable to Northern Ireland are more complex as the guiding principle was to ensure unfettered access to the UK internal market to Northern Ireland businesses supported by structures established by the Withdrawal Agreement. The Northern Ireland Protocol clearly emphasises the concerns of the Northern Ireland DOI: 10.4324/9781003010852-11

202  Aleksandra Čavoški, Matt Bell, Ludivine Petetin, and Irene Antonopoulos agri-food industry and the Northern Ireland Executive in safeguarding its excellent reputation in agri-food, which would be addressed through the introduction of specific arrangements for agri-food trade, “while ensuring that these do not impose any additional burdens for manufacturers or other traders using Northern Ireland ports” (Northern Ireland Protocol, p. 8). However, agri-food proves to be the most challenging area in the application of the Protocol and it has led to further extensions delaying the full application of the Agreement. Under the Protocol, some provisions of EU law remain applicable including EU rules on sanitary and phytosanitary agri-food goods coming from Great Britain to Northern Ireland, including live animals, products of animal origin, plants, and plant products. So far, the building of facilities for checks on trade is delayed, which further obstructs the aim for frictionless movement of goods. Moreover, retailers, including supermarkets, have been negatively impacted by these changes due to integrated supply chains across the UK and the Republic of Ireland. There is an urgent need to reach a mutual agreement on the best way to implement the Protocol. Following 11 months of intense negotiations, the TCA was agreed. Crucially for the agri-food supply chain, the Agreement bans tariff and quotas on goods (including agri-food products) that fulfil rules of origin requirements. However, these products are now subject to custom controls including entry and exit summary declarations. Beyond customs, the main difficulties relate to non-tariff barriers that apply at the border. These include both sanitary and phytosanitary (SPS) and technical barriers to trade (TBT) standards such as permits and licenses, conformity assessments, and biosecurity checks and inspections on agricultural products, including live animal, plants, food, and feed. Ultimately, the new Agreement may impact on consumers in terms of volatility in food prices and food supplies, which the CAP aimed to stabilise. The TCA is more economically advantageous to the UK than a no-deal, but creates multiple hurdles in comparison to EU membership. This new Agreement with the EU is reshaping the agri-food supply chain and farming across the UK, along with free trade agreements with other countries. Concerns have been raised around importing food with lower environmental and animal welfare standards when free trade agreements are negotiated. Very little legal guarantee has been offered apart from the establishment of the Trade and Agriculture Commission. This creates further uncertainty for farmers in terms of export markets and competition from imports, along with current policy changes to subsidies, and makes it harder for them to plan for the future. In relation to agricultural policy formulation, given that agriculture is a devolved matter, each nation within the UK has begun to explore their own Agriculture Bill and changes compared to the CAP. While Defra has embarked on developing an Environmental Land Management Scheme as part of the Agriculture Act, with the aim to incentivise farmers for public good outcomes, other nations have taken a more gradual approach to any transition and change for agricultural policy. As in England they all tend to follow a public money for public goods approach – including Wales’ Sustainable Farming Scheme. The main idea of the Environmental Land Management Scheme is to replace the existing Basic Payment and Countryside Stewardship schemes. This process represents a phasing out of

Conclusion 203 direct payments for managing land, and directing any payments towards public good outcomes, for example woodland creation, landscape, and nature recovery actions. The uptake of new environmental initiatives by land owners is not yet known, but by involving land owners in the development of land management initiatives the hope is that engagement with future policy will be high. Despite the voluntary character of the Environmental Land Management Scheme, the potential vulnerabilities in the aftermath of Brexit – among other reasons – might affect the ability to truly voluntarily participate. In light of potential financial vulnerabilities that could affect the voluntariness of the engagement with the scheme’s tiers, incentivising the change of the use of land could have implications for the meaning of ownership and the autonomous decision-making for land managers. These implications become more obvious once ownership and use of property is read through the “language” of human rights. The arrangements post-Brexit may lead to further fragmentation between the four nations of the UK. Considering that various environmental rules intersect with agricultural activity, this fragmentation in the application of rules may affect not just agriculture but also environmental policy. At the same time, the withdrawal from the EU further emphasised the greater importance devolved nations should play in these policy areas and especially in the development and application of schemes that will replace the CAP. Protecting the natural environment, sustainability, and connecting with the public appear to be some of the common aspects of importance across the UK. Furthermore, direct payments that supported farm incomes will reduce (and disappear totally in England and Wales over the medium term) and be directed towards environmental outcomes. The reduction in income support will have major implications for lower income businesses and their profitability, such as beef and sheep farms, unless farms find ways to improve efficiencies of agri-food production. Moreover, the four nations need to further build their institutional and scientific capacities, which will underpin the new schemes as well as to work with farmers to encourage the uptake of schemes and their wide acceptance. However, despite the importance that devolved administrations should have, some of the recent development indicated a diminishing role that is attributed to them. A good illustration is the adoption of the UK Internal Market Act 2020 and common frameworks as two legal mechanisms that were used to remodel the constitutional underpinnings of the UK. Whilst common frameworks require the approval of (some) of the four nations and can lead to raising protection and standards, the Internal Market Act was passed without the consent of the devolved administrations. However, the Act directly impacts on the abilities of the devolved administrations to legislate in devolved matters and raise the bar, such as agriculture and environmental protection, in particular due to the principle of mutual recognition. Over the long term, it could lead to a drop in policy and regulatory ambitions, especially for the devolved administrations. Finally, there are still concerns regarding the extent of the UK’s future regulatory alignment UK with EU rules long term. This political discourse known in public as “regulatory divergence” is part of the wider UK’s sovereigntist approach

204  Aleksandra Čavoški, Matt Bell, Ludivine Petetin, and Irene Antonopoulos that dominated the position of the Johnson government during the withdrawal negotiations and manifested in the UK’s determination to set its own rules in all policy areas. This is particularly pertinent to agri-food as well as in setting wider regulatory mechanisms governing food, products, and safety standards. As UK is embarking on developing its own regulatory framework that will underpin agricultural policy and replace EU mechanisms that were operated by agencies such as EFSA and ECHA, there is a need for a very firm commitment to long-term alignment with EU rules that will bring certainty for farmers but also have a positive effect on future trade with EU partners.

Figure 11.1  Environmental land management schemes from 2021 to 3058.

Index

Note: Page numbers in italics indicate a figure and page numbers in bold indicate a table on the corresponding page. ACRE see Advisory Committee on Releases to the Environment (ACRE) Adler, E. 135, 138 Advisory Committee on Releases to the Environment (ACRE) 86 – 87 AES see agri-environmental schemes (AES) Agricultural Biotechnology Council 141 agricultural policy 46, 97; and financial support 55; policy objectives 106 – 110; post-Brexit agriculture policy 105 – 106; UK–CAP reformer 98; expectations 102 – 105; public money for public goods 98 – 100; reforming 100 – 102 Agricultural Transition Plan 2021 to 2024 7 Agriculture Act 2020 6 – 8, 46 – 47, 49 – 50, 53 – 54, 63, 68, 70 – 73, 77, 80, 106 agriculture/agricultural: commodities 10; consultations 49 – 51; Defra vision for 110; economic viability of 190 – 191; exceptionalism 47, 99; funding 99; industrial model of 78; labour 111; land management 154, 156; policies, 51, 52; post-war regulations on 78; production 50; secretaries and visions for 109 – 110; sustainability 179; systems emission inventories 119; tariffs, potential reduction of 35; transition 47; workers 56 Agriculture and Horticulture Development Board (AHDB) 2, 4, 12, 14 – 15 Agriculture Bill 29 – 30, 48, 77, 89 agri-environmental schemes (AES) 46, 154, 162; history of 161 – 162; implementation of 158; management

agreements to implement 161; merit attention 161; policy with priorities 160; programmes 157 agri-environment payments 9 agri-environment policy: agrienvironmental schemes (AES) 158 – 165; characteristic of 155; and Common Agriculture Policy (CAP) 154 – 158; PES 166; conservation covenants 167 – 168; current model for 157; Landscape Enterprise Networks (LENS) 168 – 169; management agreements 166 – 167; Natural Infrastructure Scheme (NIS) 168; pluralist model for 155 – 156 agri-food products 54, 56, 179, 202 agri-food systems 54, 56 Agri-Tech Funding and research 142 – 143 agrobiodiversity 79 agroecological/agroecology 77 – 78; ecological origins of 79; ecosystem approach to agriculture 80 – 81; functioning and regulation of GMOs 86 – 88; endorsements of 80; isolated reference to 80; and law 78, 86; limited interactions and conceptual lack of clarity 79 – 80; promotion of 78; public demands for 77; reform, true value for 86; regulation of food and agriculture 88 – 89; rise of 79; transitions 80 – 81, 86; understandings of 77 – 78; see also genetically modified (GM) crops agroecosystems 78 – 79, 89 – 90 AHDB see Agriculture and Horticulture Development Board (AHDB)

206 Index ancillary activities 190 animals: body reserves of 128; protection of 28; sentience, recognition of 32 animal welfare standards 28 – 29; advisory council 34; animal sentience 32 – 34; bills on 28; Brexit preparations and 29 – 32; laws 30 – 31; live animal exports 35 – 56; policy, Brexit’s impact on 29; in policy-making 34; trade deals 34 – 35 antimicrobials 142 artificial intelligence 140 association agreement 143 Australia 34, 118 automated image analysis technology 128 Barnett formula 181, 191 basic payment scheme (BPS) 154, 157; payments 155; support payments 157 Bell, M. 121, 128 Berkum, S. 11 biodiversity 1 – 2, 20, 41, 45, 55, 77 – 79, 83 – 84, 119, 158, 179 biotechnology: environmental impacts of 82; US-style regulatory regime on 87 Blair, T. 98 blue baby syndrome 155 Blue water river catchment 162 – 165 Blue Water Services plc 162 – 165 body reserves, of animals 128 Bowles, D. 34 BPS see basic payment scheme (BPS) Bradley, D. 4, 11, 14 – 16 Brexit: commodity markets for 11 – 12; referendum rhetoric 41; revolution 108; strategy 43 – 44; studies 25 – 27; on UK agriculture 11 Brexit, impact on epistemic communities 134; and EU agricultural and crosscutting environmental policies 136 – 139; impact of 139 – 144; in regulatory processes 144 – 148; and roles 134 – 136 Brexit and Animals Taskforce (2018) 34 British Veterinary Association (BVA) 32 British Veterinary Nursing Association 32 Burns, C. 63 BVA see British Veterinary Association (BVA) Cameron, D. 105, 108 CAP see Common Agricultural Policy (CAP) capital accumulation 108 Carbon Farming Initiative 118

cereal feeds 119 climate change 119 Clinical Trials Regulation 147 coastal habitats, restoration of 48 comitology 83 commodity prices 4, 14 Common Agricultural Policy (CAP) 1, 19, 40, 55, 63, 138, 145, 154 – 158, 181 – 183, 190; budget 98; criticisms over 63 – 64; direct payments 154; financial support via 179; funding 101, 189; purchase of ecosystem 157; reforms 97, 100 – 101, 104, 106, 109; reframing 179 – 180; rural development measures 7; support payments 155, 185; UK in reforming 100 – 102; UK’s implementation of 178; versions of 194; withdrawal from 71 commonality 103 – 104 compliance with clinical trial rules 147 conservation covenants 167 – 168 contractual arrangements 166 contractual models, agri-environmental schemes (AES) 158 – 165 conventionalisation 79 Countryside Stewardship Facilitation Fund 162 Countryside Stewardship scheme 158 – 159, 162 cross-compliance 50, 100, 102, 157, 190, 193 crude protein 120 – 121 cultural ecosystem services 156 Cusworth, G. 71 DAERA strategy 192 – 194, 194 – 195 dairy cows 126, 126 Dalton, J. 35 data, collection and verification of 138 Davis, J. 12 decision-making process 139 – 140 Declaration on the Welfare of Animals 28 Defra: plans, “evolution-shaped hole” in 111; policy 2020 110; 2005 vision 99; 25 Year Environment Plan 64 deregulation 145 – 146 devolution 40 – 41, 100, 102, 104, 110 – 114, 177, 182 – 184 Devolution Settlements of the 1990s 41 devolved administrations 184 devolved agriculture 40 – 41; constitutional order and filling governance gaps 41 – 42; centralisation via common

Index  207 frameworks 43 – 46; greater judicial intervention and executive growth 42 – 43; policies 46, 51 – 56; path set by Defra 46 – 49; Wales and agricultural consultations 49 – 51 diet composition 122 digestibility 120 – 121 digestible organic matter 122, 123 direct income payments 6, 16 direct payments 190; to farmers 154; partial retention of 193; progressive eradication of 190 Dixon, A. 34 Dodsworth, J. 71 domestic agricultural policy 1, 3, 6 – 9 domestic market 4, 6, 10, 12 domestic production 10 – 11 domestic surplus 5 – 6 drinking water, nitrate concentrations in 155 ECHR see European Convention on Human Rights (ECHR) economic growth 117 economic incentives 117 – 118 economic protection 108 Economics and Sociology Research Council (ESRC) 3 economic viability, perspective of 191 ecosystem services 160; buyer of 160; functioning 81, 86; improvement of 168; legal regime 81; potential purchasers of 166; provision of 167; purchase of 157; recipients of 167; seller of 162; stewards, marginalisation of 84 – 86 ECtHR see European Court of Human Rights (ECtHR) EEA see European Environment Agency (EEA) Effectual Prevention of Cruelty to Animals 1849 28 EFRA committee see Environment, Food and Rural Affairs (EFRA) committee EFSA see European Food and Safety Authority (EFSA) EIPs see European Innovation Partnerships (EIPs) ELM scheme see environmental land management scheme (ELM) scheme emissions, phenotypic estimate of 126 England 6, 13, 16, 47, 53, 87, 155, 167, 181, 189, 202 – 203; agriculture departments 3; ELM scheme in 162,

166; Environmentally Sensitive Area (ESA) agreements in 158; farm size and performance level in 17; farm support schemes 8; FBS in 15; practical support arrangements for 7 enteric methane emissions 121 – 126 Environment (Wales) Act 2016 50 environment/environmental: ambition 110; degradation 40, 66 – 67, 185, 190; goods 190; groups 99 – 100; management obligations 161 – 162; management scheme 161; objectives 191; protection 56, 66 – 67, 72; provisions 189; public goods 100; standards, tariffs and nonregression of 186; stewardship 118; sustainability 47, 194 – 195 environmental land management scheme (ELM) scheme 46, 48, 63, 159, 164; requirements of 70; scheme 64, 67 – 69, 160 Environmental Land Management system 118 environmental law 77 – 78, 184 – 185 Environmentally Sensitive Area (ESA) agreements 158 environmental management: LENS approaches to 168 – 169; periodic payments for 166 – 167; perpetual obligations for 166 – 167 Environment Bill 2021 167, 168 Environment, Food and Rural Affairs (EFRA) committee 32 epistemic communities: access of 144; Brexit on role of 134; collaboration of 142; concept of 134; enabling 140 – 144; EU policy formulation and implementation 137138; future role of 134; involvement of 145; notion of 137; overarching role of 138; participation and input of 134; in regulatory processes 144 – 148; role of 146; significance of 136; through research and innovation 143; value of 135 eructation, identification of 124 – 125 EU see European Union (EU) European Commission 86, 101, 117, 136 European Commission of Human Rights 68 European Community 155 – 156 European Convention on Human Rights (ECHR) 64 – 66, 69; human rights within 66; jurisprudence 70; principles of 70 European Court of Human Rights (ECtHR) 65 – 66, 68, 70

208 Index European Economic Area (EEA) 88 European Economic Community in 1973 98 European Environment Agency (EEA) 138 – 139 European environmental law 157 European environmental movements 99 – 100 European Environment Bureau, in 1970s 99 – 100 European Food and Safety Authority (EFSA) 82 – 84, 86 – 78; EU’s riskassessment procedures with 84 – 85; guidance 85 European Innovation Partnerships (EIPs) 142 European Regional Development Fund 142 European Union (EU) 40, 118; bureaucracy 177; Common Agricultural Policy (CAP) 78, 97; environmental laws 185; governance and enforcement mechanisms 185; laws and policies 137; policy-making process 141; risk assessment 85 – 86; risk governance 84 – 85; Single Market 10; TRACES system 186; Withdrawal Act 41 Euroscepticism 106 exceptionalism 99 export markets 180 FADN see Farm Accountancy Data Network (FADN) Farm Accountancy Data Network (FADN) 11 farm business income (FBI) 15 – 19, 16 – 18 farm/farmers/farming 51, 56, 179; commodities 11; consequences of modern methods 179; direct payments to 8; income 54 – 55; models 4; and natural environment 154; substantial public financial support for 154; support schemes 8; system 119, 120; types of 179 “farm to fork” programme 140 FBI see farm business income (FBI) fertilisers 44, 78, 142, 155, 179, 183, 191 fibre 120 financial support schemes 191 financing of agricultural supports 181 – 182 flooding 48, 73, 118 flood risk management 168 Food and Agricultural Policy Research Institute (FAPRI-UK) 3, 11 – 12

food labelling 44, 183, 188 food production 56, 117; dominant industrial model of 79; productivity and profitability of 117 Food Standards Agency (FSA) 86 Fookes, B. 35 Free Trade Agreement (FTA) 9 – 10 functional capacity of ecosystems 88 Funding Rural Development Programmes 105 funding schemes 142, 144, 149 Future Relationship Agreement 185 gaseous emissions 123, 124 gene editing 53 “general” contractual model 158 genetically modified (GM) crops 81 – 82; cultivation, ecological risks of 85; participatory deficits 84 – 86; risk assessment and management 82 – 73; specific protection goals and ecosystem services 83 – 44; for transitions 83 genetically modified organisms (GMOs) 82, 145; agroecology and regulation of food and agriculture 88 – 89; authorisation of 82, 84, 86, 89; cultivation 84, 87; EFSA’s Panel on 83; environment of 82; health and environmental risks of 87; post-Brexit 86 – 88; release of 147 Genetically Modified Organisms (Deliberate Release) Regulation 87 genetic modification 87 Gill, M. 120 Glover, A. 137 good agricultural and environment condition (GAEC) 157 Good Friday/Belfast Peace Agreement (GFA) 177 Gove, M. 33 – 34, 99, 106, 108, 111 governance gaps 41 – 42, 46; centralisation via common frameworks 43 – 46; greater judicial intervention and executive growth 42 – 43 governance, lowest level of 44 Grant, W. 100 grass growth 120 – 121 grasslands 119 – 121 Great Britain (GB) 178, 180, 184 – 188; mutual recognition and nondiscrimination principles 188; “unfettered access” of goods from 185 Green Brexit 29, 40 – 41, 55, 108, 111, 159

Index  209 greenhouse gas emissions 118 – 119, 121 – 122, 126 “greening” talk 100 green payments 102 greenwashing 100 Gummer, J. 98 Haas, P.M. 134 – 135, 138 habitat protection 168 Habitats Directive 185 Health and Harmony policy 2018 159 Henry VIII powers 42 higher tier agreements 159 Hill, B. 4, 11, 14 – 16 Hoare, S. 32 Hogan, P. 34 Horizon Europe scheme 147 Hudson, N. 34, 36 human rights 68, 70, 73 – 74; jurisprudence 70; perspectives 64 – 65 Human Rights Act 1998 65, 70 import markets 180 import of products, animals, food and feed system (IPAFFS) 35 – 36 incorporeal hereditament 161 individual agreements, environmental outcomes of 162 industrial agricultural production 78 industrialisation 79 intensification of agriculture 63 intensive farming 155, 192 intergovernmental relationships 41 internal market 183 – 184 Internal Market Act (IMA) 2020 43, 178, 184, 186 – 187 Internal Market Bill 186 – 187 International Federation of Organic Agriculture Movements (IFOAM) 81 – 82 international law 184 – 185 Johnson, B. 1, 106 Joint Ministerial Committee (JMC) 43 – 44, 183 Joint Research Centre (JRC) 137 – 138 Jones, C. 111 labour: availability and costs 9; migrant 20, 179; reduction of 78; regular 15; restrictions in 19; seasonal 2 land abandonment, in NI 193 land management 121, 157; agreements 159; decision-making 154

landownership: form of 179 – 180; rights, short-term 179 – 180 Landscape Enterprise Networks (LENS) 168 – 169 landscape preservation 72 Landscape Recovery schemes 160, 162 Lawton Report in 2010 160 Leadsom, A. 106, 108, 110 legal coherency 183, 187 Lepidoptera, negative effects on 84 livestock 8, 119 – 121, 164; automated monitoring of 127; farmers in Northern Ireland 110; farm management monitoring within 119; on farms 127; health and welfare of 128; management 48 Local Nature Partnerships (LNP) 160 Local Nature Recovery 160, 162 Maastricht Treaty 28 Malawi Principles 81 management: agreements 157 – 159, 163, 166 – 167; commitments 80 May, T. 28, 105 – 106 McCarthy, K. 33 McHarg, A. 72 Merton, R. K. 136, 142 methane 122 methane emissions 123, 124, 125, 127; eructations of 122; spot measurements of 125 methanogenic effect 122 – 123 MFN tariffs see Most Favoured Nation (MFN) tariffs microbial community 123 mid-tier agreements 159 modulation 101, 102 monocultures 192 Monteduro, M. 79 – 80 Most Favoured Nation (MFN) tariffs 10 multifunctionalism 97, 107 multilevel governance 40, 44 National Farmers Union (NFU) 102 – 104 national legitimacy 83 natural assets, management of 51 – 52 natural capital 53, 108 Natural England 163 – 167 Natural Infrastructure Scheme (NIS) 168 natural resources 51, 79, 142, 167 Nature Improvement Areas (NIA) 160 near-infrared reflectance spectroscopy (NIRS) 121

210 Index neoliberal framing 108 neoliberalism 97, 107 neomercantilism 97, 99, 107, 112 neural networks, adaptations of 128 Newcastle University Brexit study 18 – 19 NI see Northern Ireland (NI) NIA see Nature Improvement Areas (NIA) NIRS see near-infrared reflectance spectroscopy (NIRS) NIS see Natural Infrastructure Scheme (NIS) nitrate fertilisers 155 – 156 nitrate pollution 155 – 156 Nitrates Directive 185 Nitrate Vulnerable Zones (NVZs) 155 – 156 non-discrimination 184 non-regression, principle of 188 – 189 Northern Ireland (NI) 147; agricultural quagmire in 177 – 178; agricultural policy 181 – 182, 189, 191 – 192, 195; Agricultural Strategy 194; Agriculture Act 189 – 193; agri-food industry 189, 191; Assembly 189; Brexit’s potential impacts on 179; challenges for 178 – 180; DAERA strategy 192 – 194; draft strategy 193; devolution 182 – 184; environmental governance in 193; environmental protection 188; exports 187; farmers 186; financial support/ control of purse strings 181; mapping policy and regulatory powers 182; income support in 112; industry 185; Internal Market Bill 187; NI Protocol 184 – 187; permissibility of imports into 180; Protocol 186; Retail Consortium 186; suitable agricultural policy 177; supply chains and access to markets 180 – 181; Taxation Bill 187; “unfettered access” of goods from 185; Westminster for funding 193 Norway, Gene Technology Act of 1993 88 NVZs see Nitrate Vulnerable Zones (NVZs) Official Development Assistance (ODA) 144 open air recreation 156 organic farming 183 oversimplification 183 ownership 65 – 66, 70, 180, 203 Oxford Farming Conference 106 Parish, N. 32 parliamentary sovereignty 182 – 183

pastures, nutrient content of 121 People for the Ethical Treatment of Animals (PETA) 33 permanent pastures 119 PES schemes 165 – 166; arrangement 167; conservation covenants 167 – 168; Landscape Enterprise Networks (LENS) 168 – 169; management agreements 166 – 167; Natural Infrastructure Scheme (NIS) 168; “payment range” model 168 pessimistic analysis 71 pesticides 142, 145, 147 plant biomass, influence properties of 120 policy: discourses 109 – 110; divergence 111 Pontin, B. 43, 57 Poots, E. 181, 193 power contestations 53 – 54 precision farming technologies 140 pregnant cows 127 private funding 166, 169 – 170 property: destruction of 67; interest 161; managers 164 property rights 63 – 65, 69 – 70, 161, 165; ELM scheme from human rights perspective 70 – 73; and entitlements 161; ownership and property use as human right 65 – 70 provisioning services 164 public funding 166, 170 public goods 48, 64, 68 – 72, 118; approach 190; environmental objectives/public money for 194; policy, public money for 49; provision of 1 – 2 public interest 72 – 73 public money for public goods model 29 – 30, 41, 51, 65, 98 – 100, 108, 154, 159 public policy 160 public scrutiny, degree of 2 – 3 public utility 72 – 73 Ramsar Convention on Wetlands 81 rationale for power 84 RDPs see rural development programmes (RDPs) REACH Regulation 148 “reasonable needs” approach 191 reasoned objections 82 – 83 recreational camping 164 reform coalition 100 regulatory divergence 145 – 146 research funding, importance of 140 resilience 180 – 181, 195 reverse auctions 160

Index  211 reverse modulation 101 river catchment system 160 RSPCA 29 – 30, 35 rumen: fermentation 123; microbes 121 – 122 rural communities 1 – 2, 49, 50, 190 – 191, 194 – 195 rural development: funding 190; schemes 19, 190 rural development programmes (RDPs) 48, 50, 53, 103 – 104, 108, 142, 183 SAM see Scientific Advice Mechanism (SAM) SAWS see Seasonal Agricultural Workers Scheme (SAWS) Scientific Advice Mechanism (SAM) 137 Scotland 5, 7, 41, 43 – 44, 46, 49, 51, 87, 89, 103 – 105, 181, 183; Agriculture Bills and Act 53 – 54; agriculture departments in 3 Seasonal Agricultural Workers Scheme (SAWS) 9 shared governance 41 – 42 significant divergence 189 “slow clean water” provision 164, 167 – 168 social capital 2 social function 72 – 73 social interest 72 – 73 soil: erosion 119; fertility 119; quality, protection and improvement of 48 sovereignty 42 – 43, 182 – 183, 187 static models 4 Statutory Management Requirements (SMR) 155 – 156 Stewart, B. D. 64 subsidies 117, 188 sustainable development 117, 118 Sustainable Farming Incentive 48, 64, 159, 190 – 191 Sustainable Farming Scheme 49 – 50, 202 sustainable farming systems 117 – 119; animal health and welfare 126 – 128; enteric methane emissions 121 – 126; grasslands and ruminant livestock 119 – 121 sustainable intensification discourse 47 sustainable productivity 140, 193 technical cross-compliance approach 193 TFEU see Treaty on the Functioning of the European Union (TFEU)

threat of renationalisation 102 – 103 Toupet, R. 121 TRACES see Trade Control and Expert System (TRACES) Trade and Agriculture Commission 35, 188, 202 trade: balance 1; models 4, 10 – 11 Trade Control and Expert System (TRACES) 35 – 36 transnational professional networks 137 Treaty on the Functioning of the European Union (TFEU) 190 Truss, L. 35 UK: Agricultural Bill 2019 – 2021 89; Agriculture Act 181, 194; disaggregation of 5; Farm Business Survey (FBS) 4; formal withdrawal from the EU 2; internal market 43 – 46; Rural Development Programmes 103, 103; trade deals 187 UK agriculture, impact of Brexit on 1 – 2; coverage and specification of impact factors 3; domestic agricultural policy 5 – 9; dynamic responses 18 – 19; geographical coverage 4 – 5; impact of Brexit on 13 – 14; labour availability and costs 9; post-Brexit conditions in 12; quantitative studies 11 – 13; regulatory burden 11; sector coverage 4; sophistication of approach 4; studies before 2 – 3; trade arrangements 9 – 10; updated estimates 13 – 18; use of scenarios 3 UK-EU FTA scenario 15 – 16 UK-EU Trade and Cooperation Agreement (TCA) 10, 185 UK Internal Market legislation 194 “Unfrozen Moment” speech 111 uncertainty, degree of 134 – 135 unintended consequences 136 unsustainable farming, incentivising 194 Villiers, T. 106, 109 Vitalis, V. 117 Vote Leave campaign 40, 54 vulnerability, levels of 69 Wales 3, 5, 11, 103, 167; administrations of 41; and agricultural consultations 49 – 51; agricultural policies of 41; agriculture departments in 3;

212 Index Environmentally Sensitive Area (ESA) agreements 158; farmers in 49, 54, 110; policy evolution with 46; rural development plans for 154 Water Directive 185 water: management issues 162; pollution 155, 162; quality improvements 168 Well-being of Future Generations (Wales) Act 2015 50 Wellcome Sanger Institute 146 Welsh consultations 51 Welsh lamb 110

wildlife 160, 162 winning coalition 100 Withdrawal Agreement (2019) 87 World Trade Organisation (WTO) 34, 177, 187; Agreement on Agriculture 8, 189; approach to multifunctionality 72; import and export tariffs of 5, 5; obligations 8 WTO see World Trade Organisation (WTO) Zito, A. R. 135