Brexit, food law and the UK's search for a post‐EU identity
| Published date | 01 September 2022 |
| Author | Emily Lydgate,Chloe Anthony |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12735 |
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Modern Law Review
DOI:10.1111/1468-2230.12735
Brexit, food law and the UK’s search for a post-EU
identity
Emily Lydgate and Chloe Anthony∗
Food law has played a central, contested role in dening the UK’s post-Brexit identity as a
regulating and trading nation.Mapping refor ms to key areas of food law across retained EU law,
the UK internal market and UK trade law and policy revealsprofound reforms, and an emerging,
distinct UK approach to law-making.Weidentify three themes: increased conferral of regulatory
powers and functions to UK Ministers, coupled with an expansion of so-called non-legislative
approaches to regulation and policy-making and increased scope for divergence between UK
nations. These reforms have achieved core aims of the UK government: autonomy from the
EU,a fully frictionless inter nal market within Great Britain, and streamlined regulatory reform.
However, the achievement of these aims has come at a price.Food law reveals that post-Brexit
legislative processes havebeen shaped by,but also entrench,unilateral executive decision-making,
lessened transparency and disunity between UK nations.
INTRODUCTION
Leaving the EU was predicated on ‘taking back control’ in the UK: re-shor ing
and re-setting legal and decision-making powers previously managed at the EU
level.This process has revealed divided opinions about the UK’s future regula-
tory direction, reecting divisions within the Union itself, and forcing existen-
tial questions about the relationship between the UK nations.Food law,which
establishes how risks to food safety are assessed and sets out animal welfare and
environmental requirementsfor food production, has been deeply implicated in
these divisions. The dierent priorities and positions of the four nations of the
UK are starkly evident.Whilst Nor thern Ireland remains part of the EU Single
Market for food law,1Scotland has recently passed legislation ar ming wide
powers to maintain alignment with EU legislation, including for food law.2
∗Respectively, Reader in Environmental Law, University of Sussex Law School and Doctoral Re-
searcher,University of Sussex Law School.The authors would like to thank L. Alan Winters,Ludivine
Petetin,Viviane Gravey,Erik Millstone, Donald McGillivray and two anonymous reviewers for very
helpful comments, though any errors remain ours alone.This research was made possible by support
from the UK Trade Policy Observatory, with which both authors are aliated (Lydgate as Deputy
Director and Anthony as Research Ocer). Except where otherwise stated,all URLs last visited 5
October 2021.
1 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland
from the European Union and the European Atomic Energy Community, Protocol on Ireland
and Northern Ireland (Northern Ireland Protocol) (31 Jan 2020), Annex 2,Arts 24, 29-33.
© 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022)85(5) MLR1168–1190
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License,which per mits use,distri-
bution and reproduction in any medium,provided the original work is properly cited and is not used for commercial purposes.
Emily Lydgate and Chloe Anthony
Under pressure from Free Trade Agreement (FTA) negotiating partners to
move away from EU -inher ited food l aw and the prec autionary ap proac h that
underlies it, ‘chlorinated chicken’became symbolic of post-Brexit lowering of
consumer protection standards.3Food law has also revealed the contradiction
between the ‘oven ready Brexit’ advertised by Boris Johnson ahead of his re-
election campaign, and the technical complexity of leaving the EU’s regulatory
union. New agr i-food border checking requirements have proven challenging
for UK exporters, causing food and drink exports to the EU to reduce sharply.4
In this article we examine post-Brexit food law from a multi-level regulatory
perspective. We focus on the UK’s general food risk regulatory framework,
which for ms the impetus for controversy about post-Brexit deregulation. We
also examine pesticides, food hygiene (‘chlor inated chicken’) and labelling as
examples of product, process and presentation rules respectively, and areas in
which the EU’s precautionary r isk management approach has been challenged
in international fora. Foregrounding these key areas of food law, we examine
how EU law has been retained and amended in the UK, how the four UK
nations are working together in an area of devolved policy and how the present
UK Government is positioning itself in the international trade arena.
Due to the history of conict, the Northern Ireland Protocol (NIP) has been
the primary focus of attention regarding post-Brexit food law. While recog-
nising its signicance, here we examine food law within Great Britain (GB),
where steep challenges to intergovernmental cooperation have perhaps been
less widely appreciated. In so doing, we aim to contribute to an emerging un-
derstanding of the UK’s post-Brexit regulatory landscape. Changes to retained
EU law are an expected feature of leaving the EU, but after a period of rapid
amendment there has been little stocktaking of how specic regulatory areas
have been reformed and the implications across the internal market and exter-
nal trade negotiations. How far UK regulations remain aligned with the EU
has been identied as a crucial question going forward.5Some analyses, both
in academia and the media, have suggested that the UK is not thus far making
much use of its new regulatory freedoms.6But changes to specic standards –
such as allowing chlorinated chicken or approving new pesticides – are not the
only source of meaningful reform.
Although it is not possible to replicate EU food law exactly,due to dierences
in governance structures,refor ms to policy-making and decision-making pow-
ers have been profound. We identify three cross-cutting trends. Consolidation
refers to an increase in ministerial authority over food law; omission, the cor re-
sponding omission of certain functions set out in EU law and the expansion of
3 E. Millstone, T. Lang and T. Marsden, ‘Brexit and chlorinated chicken: a microcosm of wider
food problems’ (2019) 90 The Political Quarterly 645.
4 N.Tamberi,‘UK_EU trade and TCA update: results to April 2021’ UK Trade Policy Observatory 23
July 2021 at https://blogs.sussex.ac.uk/uktpo/2021/07/23/uk-eu-trade-results-apr il-2021/.
5 K. Armstrong, ‘Regulatory alignment and divergence after Brexit’ (2018) 25 JEPP 1099; A.
Cygan, ‘De-Europeanisation of UK regulatory governance and the future UK-EU trade rela-
tionship’ (2020) 20 ERA Forum 509.
6 G. Parker,‘“Slash and burn” of EU r ules r uled out post-Brexit’ Financial Times 17 February 2021.
A. Menon and M.Bevington, ‘Time to nd out what Brexit really means’(2021) 14 Zeitschrift
für Auβen- und Sicherheitspolitik 1.
© 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(5) MLR 1168–1190 1169
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