Divergence in food safety standards between Scotland and England after Brexit could result in custom checks and border posts at Gretna Green and "fuel a push" for Scottish independence, it was claimed today.
A new report by the UK Trade Policy Observatory at the University of Sussex warns of potential different regulatory approaches between the UK, Scottish and Welsh governments towards controversial food practices including chlorinated chicken, GM crops and pesticides.
And they warn that check points would be required for food travelling between England and Scotland and Wales if the devolved nations retain EU food standards while the UK government lowers them in a trade deal with the US.
The analysis comes as Jeremy Corbyn is expected to warn today that a Trump-Johnson trade deal could leave people facing rat hairs and maggots in their food. The Labour leader is expected to use an election speech today to claim that food safety standards would be lowered by a trade agreement with America.
His stance appears to be backed by the UKPTO report which warns that UK ministers now have powers to make policy changes to food safety laws, including lowering standards, without primary legislation, thereby avoiding the scrutiny of Parliament.
Statutory Instruments confer powers to ministers to amend and make future food safety laws for England, but they do the same for the Scottish Government for Scotland and Welsh ministers for Wales allowing for scope for devolution beyond what is possible in the current EU framework.
According to the report, Scottish and Welsh governments' commitment to retaining EU regulations could impact on any UK-US trade deal, and create the prospect of trade barriers between England and Scotland and Wales.
One of the authors, Dr Emily Lydgate, a senior lecturer in Environmental Law at Sussex University, said: “Food safety SIs are a potential flash-point for Scotland, which wants to maintain alignment with the EU, and Westminster which promises to pursue a US trade deal that will alter UK food safety legislation.
“Negotiating a US trade deal that Scotland opposes is certainly not viable, and could even fuel a push for Scottish independence.
“If one or more devolved administrations refuses to re-align its food safety regulations from those of the EU to comply with US standards, after a US-UK Free Trade Agreement, it will complicate the flows of agricultural and food products within the UK.
“This raises the question of how the UK can avoid introducing internal UK regulatory controls and border checks to ensure that products comply with divergent jurisdictional requirements.”
The UKTPO analysis suggests the UK’s post-Brexit food safety rules will fall short of the level of protection currently provided by the EU and warns that ministers are already using Statutory Instruments to change key policy areas and legal frameworks.
It claims that the discretion given to ministers "exceeds powers currently vested by the EU in officials" and enables ministers "to lower levels of protection for public and environmental health in the UK below those that currently prevail across the EU, without full scrutiny of Parliament and with weakened requirements for the integration of scientific assessment."
The report also highlights the rush to push SIs through Parliament in advance of Brexit, using an "affirmative procedure" and the concerns raised by environmental organisations who have also been unable to scrutinise the legislation in the timeframe.
It states: "The SIs enable the possibility for divergence between devolved nations in some food safety standards that goes beyond what was permitted in the EU framework. As well as complicating the free movement of goods between devolved nations, this could contribute to the fragmentation of unity between Scotland... which has committed to maintain alignment with EU regulation, and England, which has signalled a desire to depart from EU standards in favour of a US trade agreement.
"Further, food safety SIs themselves provide delegated powers for the government to circumvent the legislative protections provided by primary legislation, giving more scope to the government to override Parliamentary opposition to changes to UK food safety legislation that implement such an agreement."
The authors say the government has already replaced the EU requirement for independent scientific assessments on the safety of pesticides with leaving it to the discretion of ministers to decide whether or not to obtain independent scientific advice; has omitted the EU provision for an "effective, proportionate and dissuasive", penalty regime for infringements; and has allowed ministers to lower the threshold for products containing technically unavoidable traces of genetically modified organisms (GMO) that do not need to be labelled.
The SIs have also seen the UK government revoke participation in RASFF, which provides a system for notifying EU member states of unsafe and rejected consignments of food products leaving the UK an easier target for dishonest traders to unload rejected consignments and potentially lessening the appetite for UK food products within EU member states who would no longer be made aware of UK rejections.
Professor Erik Millstone, Emeritus Professor in the Science Policy Research Unit (SPRU) at the University of Sussex, said: “Our analysis suggests Brexit SIs will allow ministers to exercise considerable powers of discretion when authorising ingredients in pesticide products, amending GMO authorisations and thresholds for labelling, authorising food additives and approving substances for animal carcass washes.
“Ministers may issue guidance impacting substantive policy content or make new rules governing food safety by secondary legislation, without proper Parliamentary scrutiny, and using powers that exceed those vested by the EU in the European Commission.
“Those considerable powers could be a way to overcoming Parliamentary resistance and public opposition to aspects of a UK-US trade deal.”
However Adam Tomkins Scottish Conservative shadow constitution secretary said that it was "hysterical nonsense" to suggest food would be less safe after Brexit.
He added: “Continuing to trade with the EU means that our high standards will remain in place, protecting food regulation. This is exactly why the UK government has negotiated a deal with the EU, so the SNP and Labour should explain why they haven’t supported it.”
Earlier this month Scotland’s Trade Minister Ivan McKee held “productive” talks, which covered US tariffs on Scottish products during a trip to the USA and that he had also outlined "Scotland’s likely interests and priorities in the event of a free trade agreement with the US should the UK leave the EU against Scotland's will. These include the need to preserve Scotland's NHS and our food standards, workers’ rights and environmental safeguards."
The academics recommend that primary legislation be required for reforms of legislative frameworks and major policy changes for food safety and that the scrutiny procedures for Brexit SIs be enhanced by providing Parliament with the ability to amend those instruments.
The also say the devolved nations should receive strong oversight over UK external trade negotiations and encourage devolved nations to harmonise food standards where necessary for the internal UK market.
“The meeting was a productive one, and I’m optimistic that progress can be made and opportunities seized upon to further improve trade relations between our two nations.”