Legal models for implementing agri-environment policy after Brexit

Abstract

Brexit has created an opportunity to refashion the way in which we support agriculture, and in how we incentivise land managers to enhance farmland biodiversity and protect the environment. Reforms to farm policy post-Brexit are based on the idea that in future public money will only be paid for delivering “public goods”. But what are “public” goods in this context, and how should they be paid for? And how can improvements to ecosystems be delivered at a landscape scale? This chapter examines legal models for capturing the environmental objectives of future farm policy, and in particular the idea that farm policy should be based on payments to farmers for providing ecosystem services (hereinafter “PES”). It will also explore initiatives to develop landscape scale environmental management, including Landscape Enterprise Networks and other collaborative arrangements for delivering future policy for agriculture and the environment.The 2018 Health and Harmony policy statement signalled major changes in the way that public financial support for agriculture is delivered in England ([Withdrawn] Health and Harmony: the future for food, farming and the environment in a Green Brexit – policy statement, 2018). Similar discussions on future policy are ongoing in Scotland, Northern Ireland, and Wales. See “Agriculture (Wales) White Paper: Consultation Document”, WG 41711, December 16 2020 which posits the basis of future farm support in Wales on a new Sustainable Farming Scheme. The Scottish Government has established a taskforce to examine changes to the way the CAP is administered in Scotland up to 2024, see “Report of the Simplification taskforce”. Public financial support for agriculture post-Brexit will be based on the principle of “public money for public goods”. But what are “public goods” in this context, and how should environmental policy be restructured in its application to agriculture if it is to fit within this new policy framework? Agriculture will also need to play a central role in our response to climate change mitigation, and this will, similarly, require significant shifts in public policy (and public financial incentives) for future farming, see “Land use: Policies for a Net Zero UK”.This chapter will examine legal models for capturing the environmental objectives of future farm policy, and in particular the idea that farm policy should be based on payments to farmers for PES. This can be done either through payments for land management actions that will produce identified ecosystem benefits (using an “input” payment method where the generation of ecosystem benefits is not guaranteed); or through payments for producing specific ecosystem benefits (using a results-based or “output” payment method). Key questions include the identification of those ecosystem services that farming can deliver for the future; how these should be measured and incentivised; how private funding for environmental land management might be encouraged and then captured in mixed public/private funding models for PES; and how PES arrangements can be given transactional effect and legal force? These are important issues that will need close examination if post-Brexit agri-environment policy is to be successfully restructured. To fully understand the scale of the challenge that this presents, we must first consider the manner in which agri-environment policy is implemented within current EU arrangements, before moving on to consider the options for reform following Brexit, and finally looking at the shape of the legal framework needed for the future governance of agri-environment policy in the UK.