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Brexit and Agriculture: Implementing a New Legal Framework for Agricultural Support

Published online by Cambridge University Press:  06 November 2017

Michael CARDWELL
Michael CARDWELL*
Affiliation:
University of Leeds
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Abstract

Brexit has the capacity to impact heavily on the agricultural sector across the United Kingdom in that it is a sector which has been both in receipt of substantial expenditure under the Common Agricultural Policy and subject to a pattern of close regulation at European Union level. This article will explore the legal implications for post-Brexit agricultural support, proceeding in three stages. First, there will be an outline of the current structure of the industry, with particular reference to its diversity in terms of physical landscape, operational scale and legal foundations. Secondly, there will be discussion of emerging policy within both central UK government and the devolved administrations. In this context, specific attention will be directed to the likely extent of funding and the proposed drive towards higher standards in environmental protection and animal welfare. And, in each case, account will also be taken of specific implications which flow from overarching World Trade Organization rules. Thirdly, there will be consideration of the potentially difficult issues which arise as a result of agriculture being a devolved matter, different policy imperatives already becoming evident across the constituent parts of the UK. For the present, the prospect is that a bespoke support regime will survive Brexit and, in this sense, agricultural ‘exceptionalism’ will continue. However, the more precise form of such a regime remains as yet work-in-progress and its realisation will present considerable challenges not only in political terms, but also by reason of the complex legal geometry in which World Trade Organization rules and the constitutional rights of the devolved administrations are weighty factors.

Keywords

agricultureBrexitsupport policiesWorld Trade Organizationdevolution
Type
Articles
Information
Cambridge Yearbook of European Legal Studies , Volume 19 , December 2017 , pp. 311 - 335
Copyright
© Centre for European Legal Studies, Faculty of Law, University of Cambridge 

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Footnotes

*

For their very helpful assistance in the writing of this article, grateful thanks are extended to: Prof Michael Dougan; Dr Brian Jack; Dr Ludivine Petetin; Prof Fiona Smith; and the Editor, who was also most generous in accommodating recent developments.

References

1 See eg European Commission, ‘CAP post-2013: Graphs and Figures’ https://ec.europa.eu/agriculture/graphs-figures/cap_en: ‘Graph 1: CAP Expenditure in the total EU expenditure’ (March 2017).

2 See eg ibid, ‘Graph 5: Share of direct payments and total subsidies in agricultural factor income (2011-15 average)’ (March 2017); Department for Environment, Food and Rural Affairs (DEFRA), Total Income from Farming in the United Kingdom: First Estimate for 2016 (25 May 2017) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/615850/agriaccounts-tiffstatsnotice-25may17.pdf.

3 NFU, EU Referendum: UK Farming’s Relationship with the EU (NFU, 2016), p 20, https://www.nfuonline.com/assets/61993. It may also be noted that the NFU Council in the event resolved ‘that on the balance of existing evidence available to us at present, the interests of farmers are best served by our continuing membership of the European Union’: NFU, ‘NFU Council Agrees Resolution on the EU Referendum’ (18 April 2016) https://www.nfuonline.com/news/eu-referendum/eu-referendum-news/nfu-council-agrees-resolution-on-the-eu-referendum/.

4 DEFRA et al, Agriculture in the United Kingdom 2016 (2017), pp 13, 19.

5 Ibid, p 11.

6 Food and Drink Federation, ‘UK Food and Drink Exports Break £20bn Barrier in 2016’ (20 February 2017) https://www.fdf.org.uk/news.aspx?article=7745&newsindexpage=1; see note 4 above, p 11.

7 House of Lords European Union Committee, Brexit: Agriculture (20th Report of Session 2016-17) HL Paper 169, paras 22–24; and T Hind, Brexit: Implications for Agriculture & Trade (Agriculture and Horticulture Development Board, 2017) http://www.ahdb.org.uk/brexit/documents/SAOSBrexit26Jan17.pdf.

8 For a useful survey of these disparities, see eg V Gravey et al, Post-Brexit Policy in the UK: A New Dawn? Agri-environment (2017) https://www.york.ac.uk/media/yesi/researchoutputs/Brexit%20Agri-Environment%20Brief.pdf.

9 Scottish Government, Agricultural Land Use in Scotland (2017) http://www.gov.scot/Topics/Statistics/Browse/Agriculture-Fisheries/agritopics/LandUseAll.

10 See note 4 above, pp 72–73.

11 European Commission, Factsheet on 2014-2020 Rural Development Programme of England (United Kingdom) (2017), Annex 1 https://ec.europa.eu/agriculture/sites/agriculture/files/rural-development-2014-2020/country-files/uk/factsheet-england_en.pdf.

12 See note 4 above, p 17.

13 DEFRA, Balance Sheet Analysis and Farming Performance, England 2015/2016 (12 January 2017) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/582691/fbs-balancesheetanalysis-12jan17.pdf.

14 Under the Northern Ireland Act 1998, the Scotland Act 1998 and the Government of Wales Acts 1998 and 2006; and see also the Devolution Memorandum of Understanding and Supplementary Agreements (2012). See more generally eg Hunt, J, ‘Devolution’ in M Dougan (ed), The UK After Brexit: Legal and Policy Challenges (Intersentia, 2017)Google Scholar; and, for discussion more closely directed to agricultural considerations, eg A Ross et al, ‘The Implementation of EU Environmental Law in Scotland’ (2009) 13 Edinburgh Law Review 224; and A Ross and H Nash, ‘European Union Environmental Law – Who Legislates for Whom in a Devolved Great Britain?’ (2009) Public Law 564.

15 Agricultural Sector (Wales) Bill – Reference by the Attorney General for England and Wales [2014] UKSC 43, [2014] 1 WLR 2622.

16 The Queen (on the application of Horvath) v Secretary of State for Environment, Food and Rural Affairs, C-428/07, EU:C:2009:458. More precisely, farmers in England (but not Northern Ireland, Scotland or Wales) were obliged to observe obligations relating to visible public rights of way as a condition for receipt of direct payments under the ‘cross-compliance’ requirement imposed by Art 5 of and Annex IV to Council Regulation (EC) No 1782/2003 [2003] OJ L270/1.

17 See eg C Burns et al, 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? (2016), p 39.

18 For the implementing legislation, see Arts 26b, c Directive 2001/18/EC of the European Parliament and of the Council [2001] OJ L106/1 (as amended by Directive (EU) 2015/412 of the European Parliament and of the Council [2015] OJ L68/1); and, for the demands of Member States (and regions), see European Commission, ‘Restrictions of geographical scope of GMO applications/authorisations: Member States demands and outcomes’ https://ec.europa.eu/food/plant/gmo/authorisation/cultivation/geographical_scope_en. See also generally eg M Geelhoed, ‘Divided in Diversity: Reforming The EU’s GMO Regime’ (2016) 18 Cambridge Yearbook of European Legal Studies 20; and M Dobbs, ‘Attaining Subsidiarity-based Multilevel Governance of Genetically Modified Cultivation?’ (2016) 28(2) Journal of Environmental Law 245.

19 C Macauley, ‘GM Crop-growing Banned in Northern Ireland’ (BBC News, 21 September 2015) http://www.bbc.co.uk/news/world-europe-34316778. See also eg Welsh Government, ‘Genetically modified organisms’ (25 July 2016) http://gov.wales/topics/environmentcountryside/farmingandcountryside/plantsseedsbiotechnology/geneticallymodifiedorganisms/?lang=en; and see further eg Hunt, J, ‘Ploughing Their Own Furrow: Subnational Regions and the Regulation of GM Crop Cultivation’ (2011) 13 Cambridge Yearbook of European Legal Studies 135 CrossRefGoogle Scholar.

20 Rt Hon Andrea Leadsom MP, ‘Environment Secretary Speaks at NFU Conference’ (21 February 2017) https://www.gov.uk/government/speeches/environment-secretary-speaks-at-nfu-conference.

21 Rt Hon Andrea Leadsom MP, Farmers’ Weekly (17 October 2016).

22 Rt Hon Andrea Leadsom MP, ‘Environment Secretary Sets out Ambition for Food and Farming Industry’ (4 January 2017) https://www.gov.uk/government/speeches/environment-secretary-sets-out-ambition-for-food-and-farming-industry; and see also ‘Andrea Leadsom promises Brexit bonfire of regulation for farmers’ (The Guardian, 4 January 2017).

23 See eg Treasury, HM and DEFRA, A Vision for the Common Agricultural Policy (London, 2005)Google Scholar. On the provision of ‘public goods’ in the agricultural context, see eg Cooper, T et al, The Provision of Public Goods Through Agriculture in the European Union (Institute for European Environmental Policy, 2009)Google Scholar; and, on the provision of ‘ecosystem services’ generally, see the Millennium Ecosystem Assessment (2005) http://www.millenniumassessment.org/en/Index-2.html. See also generally eg Potter, C, ‘Agricultural Multifunctionality, Working Lands and Public Goods: Contested Models of Agri-environmental Governance under the Common Agricultural Policy’ in JA McMahon and MN Cardwell (eds), Research Handbook on EU Agriculture Law (Edward Elgar, 2015)Google Scholar.

24 House of Commons Written Answer 221523 (27 January 2015). See also eg House of Commons, Exiting the EU: Impact in Key UK Policy Areas (12 February 2016) Briefing Paper 07213, pp 53–55.

25 ‘Farm subsidy system to be overhauled post-Brexit, says Eustice’ (Oxford Farming Conference, 4 January 2017) https://www.ofc.org.uk/blog/farm-subsidy-system-to-be-overhauled-post-brexit-says-eustice.

26 See House of Lords European Union Committee, note 7 above, para 223.

27 http://www.parliament.uk/documents/lords-committees/eu-energy-environment-subcommittee/Brexit-agriculture/Gov-response-Brexit-Ag.pdf.

28 Although the scope of ‘public goods’ delivered by agriculture may remain contested, there is evident consensus that both high environmental and animal welfare standards so qualify: for a comprehensive discussion of this aspect, see Organisation for Economic Co-operation and Development (OECD), Multifunctionality: Towards an Analytical Framework (OECD, 2001).

29 Rt Hon Michael Gove MP, ‘The unfrozen moment – delivering a green Brexit’ (21 July 2017) https://www.gov.uk/government/speeches/the-unfrozen-moment-delivering-a-green-brexit. See also Hansard HC Deb Vol 620 Col 94WH (24 January 2017): ‘[w]e are seriously considering the possibility of introducing incentives to encourage and support higher animal welfare standards and different approaches to animal husbandry that can reduce our reliance on antibiotics, improving animal health while delivering animal welfare outcomes’ (Rt Hon George Eustice MP).

30 See eg House of Lords European Union Committee note 7 above, paras 125–153.

31 ‘Media is “obsessed” with chlorine-washed chicken, says Liam Fox’ (The Guardian, 24 July 2017).

32 Helm, D, British Agricultural Policy after BREXIT (Natural Capital Network, 1 September 2016)Google Scholar

Paper 5, http://www.dieterhelm.co.uk/assets/secure/documents/British-Agricultural-Policy-after-BREXIT.pdf. For further criticism of the agricultural support system by Professor Helm, see R Hawkins, ‘Government adviser urges review of farmers’ tax-breaks’ (BBC News, 29 July 2017) http://www.bbc.co.uk/news/uk-politics-40760114; and, for further advocacy of a ‘public goods’ model, see Tim Breitmeyer, Deputy President, Country Land and Business Association, Oral Evidence to the House of Lords European Union Energy and Environment Sub-Committee (1 February 2017) http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-energy-and-environment-subcommittee/brexit-agriculture/oral/46976.html.

33 See eg Burrell, A, ‘Evaluating Policies for Delivering Agri-environmental Public Goods’ in Evaluation of Agri-environmental Policies: Selected Methodological Issues and Case Studies (OECD, 2012)Google Scholar.

34 See note 25 above.

35 Welsh Government, Securing Wales’ Future: Transition from the European Union to a New Relationship with Europe (2017), p 21. See also eg J Hunt and R Minto, ‘So, what about this “All UK Brexit”?’ (UK in a Changing Europe, 30 March 2017) http://ukandeu.ac.uk/so-what-about-this-all-uk-brexit/.

36 For these figures, see note 4 above, pp 73, 77.

37 See note 23 above, p 16.

38 For the 2015 statistics, see European Parliament, ‘The Common Agricultural Policy in Figures’ Table V, http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_5.2.10.html.

39 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/545767/CST_letter_to_SoS_for_DExEU_August_2016.PDF.

40 Forward Together: Our Plan for a Stronger Britain and a Prosperous Future – The Conservative and Unionist Party Manifesto 2017, p 26, https://www.conservatives.com/manifesto.

41 https://www.gov.uk/government/publications/conservative-and-dup-agreement-and-uk-government-financial-support-for-northern-ireland/agreement-between-the-conservative-and-unionist-party-and-the-democratic-unionist-party-on-support-for-the-government-in-parliament. See also C Macaulay, ‘NI farms “can expect same support” post-Brexit – Gove’ (BBC News, 28 September 2017) http://www.bbc.co.uk/news/uk-northern-ireland-41434078.

42 For an explanation of schedules and on the URAA, generally, see eg McMahon, JA, The WTO Agreement on Agriculture: A Commentary (Oxford University Press, 2006)CrossRefGoogle Scholar.

43 Letter from the UK Permanent Representatives (11 October 2017 https://ec.europa.eu/commission/sites/beta-political/files/letter_from_eu_and_uk_permanent_representatives.pdf). For cogent discussion of this issue, see eg L Bartels, ‘The UK’s status in the WTO after Brexit’ (23 September 2016) https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2841747; L Brink, ‘UK Brexit and WTO farm support limits’ (CAP Reform.eu, 13 July 2016) http://capreform.eu/uk-brexit-and-wto-farm-support-limits/; A Matthews, ‘Establishing the UK’s non-exempt limit on agricultural support after Brexit’ (CAP Reform.eu, 29 January 2017) http://capreform.eu/establishing-the-uks-non-exempt-limit-on-agricultural-support-after-brexit/; and House of Lords European Union Committee, note 7 above, paras 58–69.

44 The position would seem less complex if the UK had become a Member State of the EU after the conclusion of the URAA: in which regard, see eg the specific increase in Total Aggregate Measurement of Support notified by the EU consequent upon the accession of Bulgaria: WTO, G/AG/N/EU/26 (2 November 2015) Notification of Domestic Support by the European Union for the 2012/2013 Marketing Year.

45 See Brink note 43 above.

46 See Bartels note 43 above, pp 11–12.

47 Rt Hon George Eustice MP, Oral Evidence to the House of Lords European Union Energy and Environment Sub-Committee (8 March 2017), Q 84, http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-energy-and-environment-subcommittee/brexit-agriculture/oral/48840.html.

48 Ibid. Concerns about certification were expressed by the House of Lords European Union Committee: see note 7 above, para 69; and the inherent complexities of modifications of WTO commitments have again been illustrated by the recent decision of the Panel in EU – Poultry Meat (China), WT/DS492/R (28 March 2017) (relating to EU modifications of tariff concessions in respect of certain poultry meat products).

49 URAA, Art 6.4(a). In the case of developing country members, the threshold is 10%; in the case of least-developed country members, there is no requirement to undertake domestic support reduction commitments.

50 See Matthews, note 43 above.

51 URAA, Art 6.5.

52 The Queen’s Speech and Associated Background Briefing, on the Occasion of the Opening of Parliament on Wednesday 21 June 2017, p 23, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/620838/Queens_speech_2017_background_notes.pdf.

53 See note 40 above, p 26.

54 URAA, Annex 2, para 1.

55 Ibid, para 6.

56 European Commission, Commission Staff Working Document – Impact Assessment: Common Agricultural Policy Towards 2020, SWD (2011) 1153, p 32.

57 WTO, G/AG/N/EU/34 (8 February 2017). That having been said, an element of doubt remains as to whether the Single Farm Payment (and now the Basic Payment and the Greening Payment) do indeed qualify as ‘decoupled income support’: see eg Swinbank, A and Tranter, R, ‘Decoupling EU farm Support: Does the New Single Payment Scheme Fit within the Green Box?’ (2005) 6 The Estey Centre Journal of International Law and Trade Policy 47 Google Scholar

; and F Smith, ‘Mind the Gap: “Greening” Direct Payments and the World Trade Organization’ in McMahon and Cardwell, note 23 above.

58 See Part III.C below.

59 House of Commons Library, Leaving the EU (2013) Research Paper 13/42, p 60. For full discussion of this aspect, see eg Rodgers, CP, The Law of Nature Conservation (Oxford University Press, 2013)CrossRefGoogle Scholar.

60 For the relevant legislation, see respectively: Welfare of Pig Regulations 1991 SI 1991 No 1477; and Council Directive 2008/120/EC [2008] OJ L47/5. It may, however, also be noted that the UK was not the first of the current Member States to ban closely-confined sow stalls (Sweden having largely done so since 1988): see generally eg Turner, J, The Welfare of Europe’s Sows in Close Confinement Stalls (Compassion in World Farming, 2000)Google Scholar

https://www.ciwf.org.uk/media/3818886/welfare-of-europes-sows-in-close-confinement-stalls.pdf.

61 See The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland Ltd), C-5/94, EU:C:1996:205 (export of live sheep for slaughter to Spain); and The Queen v Minister of Agriculture, Fisheries and Food, ex parte Compassion in World Farming, C-1/96, EU:C:1998:113 (veal crates). See also generally eg Dougan, M, ‘Minimum Harmonization and the Internal Market’ (2000) 37 Common Market Law Review 853 CrossRefGoogle Scholar.

62 See note 40 above, p 26.

63 Regulation (EU) No 1306/2013 of the European Parliament and of the Council [2013] OJ L347/549, Art 93 and Annex II. On cross-compliance generally, see eg Bianchi, D, ‘Cross Compliance: The New Frontier in Granting Subsidies to the Agricultural Sector in the European Union’ (2007) 19 Georgetown International Environmental Law Review 817 Google Scholar; and Is Cross Compliance an Effective Policy? (European Court of Auditors, Luxembourg, 2008) Special Report 8/2008.

64 Regulation (EU) No 1307/2013 of the European Parliament and of the Council [2013] OJ L347/608, Arts 43–47.

65 For recent reviews by the European Commission of the efficacy of these measures, see European Commission, Commission Staff Working Document – Review of Greening After One Year, SWD (2016) 218; and European Commission, Report from the Commission to the European Parliament and the Council on the Implementation of the Ecological Focus Area Obligation under the Green Direct Payment Scheme, COM(2017) 152.

66 Rt Hon Andrea Leadsom MP, ‘Environment Secretary Sets Out Ambition for Food and Farming Industry’, see note 22 above.

67 Regulation (EU) No 1305/2013 of the European Parliament and of the Council [2013] OJ L347/487, Arts 5, 28–30. For general discussion of rural development within the context of the 2013 CAP reforms, see eg Dwyer, J, ‘Transformation for Sustainable Agriculture: What Role for the Second Pillar of CAP?’ (2013) 2(1) Bio-based and Applied Economics 29 Google Scholar.

68 Regulation (EU) No 1305/2013, Arts 28(3), (6); 29(2), (4); and 30(1), (3), (4).

69 Ryland, D, ‘Animal Welfare in the Reformed Common Agricultural Policy: Wherefore Art Thou?’ (2015) 17(1) Environmental Law Review 22 CrossRefGoogle Scholar.

70 See eg HM Government, Review of the Balance of Competences between the United Kingdom and the European Union: Agriculture (2014), para 2.58.

71 See House of Lords European Union Committee, note 9 above, para 225. Bailey et al have gone further, advocating that ideally the CAP should be replaced by a ‘Common Sustainable Food Policy’ or ‘Common Food Policy’: Does the CAP Still Fit? (Food Research Collaboration, London, 2016) Policy Brief, http://foodresearch.org.uk/does-the-cap-still-fit/.

72 Hart, K et al, Learning the Lessons of the Greening of the CAP (Institute for European Environmental Policy, 2016), pp 35 Google Scholar , 58. See also Matthews, A, ‘The Future of Direct Payments’ in Matthews, A et al, Research for Agri-Committee – CAP Reform Post-2020 – Challenges in Agriculture (European Parliament, Directorate-General for Internal Policies, 2016)Google Scholar Workshop Documentation, pp 65–80.

73 For the current EU legislation, see Regulation (EU) No 1307/2013 of the European Parliament and of the Council [2013] OJ L347/608, Art 14 (which also, however, for the first time permits ‘reverse transfer’ from Pillar II to Pillar I).

74 Consultation on the Implementation of CAP Reform in England: Summary of Responses and Government Response (DEFRA, December 2013), paras 6.1–6.18, 6.50–6.54.

75 Welsh Government, The Common Agricultural Policy Reform: Direct Payments to Farmers: Decisions (14 January 2014), p 12.

76 Scottish Government Press Release, ‘CAP transfer set at 9.5 per cent’ (18 December 2013) https://news.gov.scot/news/cap-transfer-set-at-95-per-cent. In Northern Ireland, an initial transfer of 7 per cent was proposed, but this was successfully challenged in Minister of Finance and Personnel’s Application [2013] NIQB 137.

77 See eg National Assembly for Wales Climate Change, Environment and Rural Affairs Committee, The Future of Land Management in Wales (Cardiff, 2017), paras 104–105.

78 Council Regulation (EC) No 1257/1999 [1999] OJ L160/80, Art 24; and Regulation (EU) No 1305/2013 of the European Parliament and of the Council [2013] OJ L347/487, Art 28.

79 See eg WTO, European Communities Proposal: Animal Welfare and Trade in Agriculture, G/AG/NG/W/19 (28 June 2000). It may, however, be emphasised that the list of exempt ‘direct payments to producers’ in Annex 2 would not seem to be exhaustive, since in para 5 reference is made to claims for exemption in respect of ‘any existing or new type of direct payment other than those specified in paragraphs 6 through 13’ (albeit that they too must meet a range of detailed criteria, including no obligation to produce). On the possibility of providing ‘decoupled’ support focused on animal welfare, see House of Lords European Union Committee note 7 above, Written Evidence from RSPCA (ABR0006) http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-energy-and-environment-subcommittee/brexit-agriculture/written/46794.html. At the same time, it may be observed that the EU has recently notified animal welfare payments as ‘payments under environmental programmes’: WTO, G/AG/N/EU/35 (8 February 2017). It may also be observed that animal welfare concerns could be addressed by 'general services' under Annex 2, para 2 (eg pest control).

80 See note 47 above, Q 84.

81 See eg P Minford, ‘Brexit and Trade: What are the Options?’ in Economists for Brexit, The Economy After Brexit (2016) (although also suggesting that farmers should receive deficiency payments).

82 NFU, Back British Farming Brexit and Beyond–The NFU 2017 Manifesto, https://www.nfuonline.com/assets/95509.

83 See eg note 31 above.

84 House of Lords European Union Committee, Brexit: Farm Animal Welfare (5th Report of Session 2017-19) HL Paper 15, para 57.

85 See eg House of Lords European Union Committee note 7 above, para 151; note 84 above, para 59; and Howse, R and Regan, D, ‘The Product/Process Distinction: An Illusory Basis for Disciplining “Unilateralism” in Trade Policy’ (2000) 11(2) European Journal of International Law 249 Google Scholar.

86 See eg Charnovitz, S, ‘The Law of Environmental “PPMs” in the WTO: Debunking the Myth of Illegality’ (2002) 27 Yale Journal of International Law 59 Google Scholar (with reference to the environment); and G Davies, ‘“Process and Production Method”-based Trade Restrictions in the EU’ (2008) 10 Cambridge Yearbook of European Legal Studies 69.

87 On the other hand, it is not impossible to envisage circumstances in which the manner of rearing of livestock in feed lots could generate traces in the end-product (for example, there is likely to be greater use of antibiotics when animals are reared intensively and thereby greater likelihood of antibiotic residues in the meat sold to consumers).

88 Art III.4, WTO General Agreement on Tariffs and Trade: ‘The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use’. For full discussion of ‘likeness’ by the Appellate Body, see eg Japan – Alcoholic Beverages II, WT/DS8/AB/R; WT/DS10/AB/R; WT/DS11/AB/R (4 October 1996). See also, in particular: Art 3.3, WTO Agreement on the Application of Sanitary and Phytosanitary Measures, which provides that, subject to detailed rules, ‘Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations’; and Art 2.2, WTO Agreement on Technical Barriers to Trade, which provides that, again subject to detailed rules, the protection of animal life and health and the environment are ‘legitimate objectives’ in the case of technical regulations.

89 ‘WTO rules and environmental policies: Key GATT disciplines’ (WTO) https://www.wto.org/english/tratop_e/envir_e/envt_rules_gatt_e.htm.

90 WT/DS58/AB/R (12 October 1998). See also Howse and Regan note 85 above; and Charnowitz note 86 above.

91 WT/DS400/AB/R; WT/DS401/AB/R (22 May 2014). See also Herwig, A, ‘Too Much Zeal on Seals? Animal Welfare, Public Morals, and Consumer Ethics at the Bar of the WTO’ (2016) 15 World Trade Review 109 CrossRefGoogle Scholar.

92 In US – Shrimp/Turtle, WT/DS58/AB/RW (22 October 2001), following revisions effected by the United States, the Appellate Body subsequently found in compliance proceedings that the revised regime had the capacity to satisfy the chapeau.

93 Hansard HC Deb Vol 620 Col 94WH (24 January 2017).

94 See House of Lords European Union Committee note 7 above, para 145.

95 For recent discussions of this aspect, see Hunt note 14 above; and House of Lords European Union Committee, Brexit: Devolution (4th Report of Session 2017-19) HL Paper 9.

96 In the words of Lord Sewel during the passage of the Scotland Bill 1997–98, ‘we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament’: HL Deb Vol 592 Col 791 (21 July 1998). However, notwithstanding that the Convention has now been enshrined in statute, it remains a convention and ‘the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary’: R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583, at [151].

97 Scottish Government, EU (Withdrawal) Bill (13 July 2017) https://news.gov.scot/news/eu-withdrawal-bill. On this aspect, see generally eg S Douglas-Scott, ‘Removing references to EU law from the devolution legislation would require the consent of the devolved assemblies’ (13 June 2016) https://constitution-unit.com/2016/06/13/removing-references-to-eu-law-from-the-devolution-legislation-would-invoke-the-sewel-convention/; and S Douglas-Scott, ‘The “Great Repeal Bill”: Constitutional chaos and constitutional crisis?’ (10 October 2016) https://ukconstitutionallaw.org/2016/10/10/sionaidh-douglas-scott-the-great-repeal-bill-constitutional-chaos-and-constitutional-crisis/. Legislative consent memoranda were subsequently issued by the Scottish Government and Welsh Government in September 2017.

98 See eg A Kay, ‘Farmers Embroiled in Devolution Power Struggle’ (Farmers Guardian, 11 November 2016) https://www.fginsight.com/news/news/farming-embroiled-in-devolution-power-struggle-16633.

99 See note 4 above, p 73. For estimates of the respective populations in 2016, see Office of National Statistics, Population Estimates, https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates (1,862,100 for Northern Ireland; 5,404,700 for Scotland; 3,113,200 for Wales; and 55,268,100 for England).

100 See House of Lords European Union Committee note 7 above, para 244; and, in respect of Wales, see also eg Woolford, J and Hunt, J, The UK in a Changing Europe: Wales and the EU: Agriculture and Food (Cardiff University, 2016) http://sites.cardiff.ac.uk/wgc/files/2016/07/AGRICULTURE.pdf Google Scholar.

101 See House of Lords European Union Committee note 7 above, Written Evidence from Dr Alan Greer (ABR0014) http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-energy-and-environment-subcommittee/brexit-agriculture/written/47078.html.

102 See Welsh Government note 35 above, p 21; and House of Lords European Union Committee note 95 above, paras 118-–119.

103 National Assembly for Wales Research Service, ‘Understanding Welsh exports: a look at the latest regional trade statistics’ (27 March 2017) https://assemblyinbrief.wordpress.com/2017/03/27/understanding-welsh-exports-a-look-at-the-latest-regional-trade-statistics/.

104 See National Assembly for Wales Climate Change, Environment and Rural Affairs Committee, see note 77 above, Recommendation 16. For more general emphasis in Wales on a circular economy and sustainable development, See the Well-being of Future Generations (Wales) Act 2015 and the Environment (Wales) Act 2016.

105 See eg Scottish Government, ‘First Minister updates farmers on approach to Europe’ (7 February 2017) https://beta.gov.scot/news/future-of-farming/.

106 See eg Scottish Government, The Future of Scottish Agriculture: A Discussion Document (2015), p 18.

107 See note 105 above.

108 Northern Ireland Assembly Research and Information Service, ‘What now for direct support to farmers in Northern Ireland post-Brexit?’ (22 March 2017) http://www.assemblyresearchmatters.org/2017/03/22/now-direct-support-farmers-northern-ireland-post-brexit/.

109 See note 4 above, p 73.

110 For explicit recognition of the social dimension when less-favoured area support was first introduced, see Council Directive 75/268/EEC [1975] OJ L128/1, Preamble.

111 See House of Lords European Union Committee note 95 above, Summary of Conclusions and Recommendations, para 26. For similar emphasis on the priority of ‘safeguarding the harmonious functioning of the UK’s own single market’, see Department for Exiting the European Union, Legislating for the United Kingdom’s Withdrawal from the European Union (March 2017) Cm 9446, p 27.

112 Scottish Government, EU (Withdrawal) Bill, see note 97 above.

113 The Queen (on the application of Horvath) v Secretary of State for Environment, Food and Rural Affairs, C-428/07, EU:C:2009:458; and see also Cardwell, M and Hunt, J, ‘Public Rights of Way and Level Playing Fields’ (2010) 12 Environmental Law Review 291 CrossRefGoogle Scholar.

114 See eg S Messenger, ‘Royal Welsh Show: Michael Gove’s pragmatic Brexit approach’ (BBC News, 24 July 2017) http://www.bbc.co.uk/news/uk-wales-40698984.

115 See note 47 above, Q 83.

116 As has been noted, the WTO rules do nonetheless seem to offer some opportunities to promote animal welfare through existing and future forms of Green Box support: see note 79 above.

117 Respectively, Agricultural Sector (Wales) Bill – Reference by the Attorney General for England and Wales [2014] UKSC 43, [2014] 1 WLR 2622; and The Queen (on the application of Horvath) v Secretary of State for Environment, Food and Rural Affairs, C-428/07, EU:C:2009:458.

118 On agricultural ‘exceptionalism’, see eg Grant, W, ‘Is Agricultural Policy Still Exceptional’ (1995) 66 Political Quarterly 156 CrossRefGoogle Scholar; and Skogstad, G, ‘Ideas, Paradigms and Institutions: Agricultural Exceptionalism in the European Union and the United States’ (1998) 11 Governance 463 CrossRefGoogle Scholar.