Cynulliad Cenedlaethol Cymru | National Assembly for Wales
Y Pwyllgor Newid Hinsawdd, Amgylchedd a Materion Gwledig | Climate Change, Environment and Rural Affairs Committee
Ymchwiliad i lywodraethu ac egwyddorion amgylcheddol ar ôl Brexit | Inquiry into environmental principles and governance post-Brexit
PG01
Ymateb gan : Wyeside Consulting Limited
Evidence from : Wyeside Consulting Limited
Introduction
1.
My name is William Wilson, and I am a barrister and director of my
own consulting company, Wyeside Consulting Ltd – www.wyesideconsulting.com. I
have specialised in environmental law for over 25 years, in
government, consultancy and private practice. In 1996-97, on
secondment from DETR, I undertook a Harkness Fellowship in the USA,
visiting 25 states and writing a book ‘Making
Environmental Laws Work – Law and Policy in the UK and
USA’ which compared and contrasted approaches to
effective environmental governance in the UK, USA and EU. These
comments represent my personal views and not those of any other
organisation.
Committee’s
questions
2. The Committee is seeking views on:
Gaps in environmental governance structures and principles
post-Brexit in Wales and whether the Welsh Government’s
analysis (within the consultation) correctly and comprehensively
identifies the deficiencies;
The Welsh Government’s consultation proposals and questions
regarding the environmental principles, and the
function/constitution/scope of the proposed governance body;
and
The value and practicality of a UK joined approach given
the UK
Government’s Department of Environment Food and Rural
Affairs’s (DEFRA) proposal that new governance
structures in England could
exercise functions more widely across the UK.
I have tried to reflect on those questions in this evidence, and to
take into account the Committee’s initial Report and the
Welsh Government’s response.
Brexit uncertainties
3.
It is not known yet, as at May 2019, whether, when, how, on what
terms or even if the UK will leave the European Union. The
terms of departure may include
parallel commitments with major implications for the way that
environmental laws are applied. Other political commitments to
regulatory alignment will affect this area, for example commitments
to “maintaining environmental standards.” There are
also some other legal considerations, such as the “non
regression” commitments in the Withdrawal Agreement between
the UK and EU. Some of the answers to the Committee’s
questions therefore remain subject to decisions yet to be taken on
these wider aspects.
Why this matters
4.
Finding effective ways to
implement environmental laws is both a vital national priority, but
also an important factor in international negotiations. We can say
what will be lost in terms of enforcement of EU environmental law
through Brexit, but the question is what will replace it, and also
how that will be seen by the UK’s trading partners.
“Non-regression” sounds like an obscure technicality,
but is really about whether the UK and its component parts have the
commitment to maintain the same level of environmental protections
as they have done of late.
5.
In a major new report published
in January 2019 by the UN Environment Programme, Environmental
Rule of Law: First Global Report, the authors noted that
-
“While environmental laws have become commonplace across the
globe, too
often they exist mostly on paper because government
implementation and enforcement is
irregular, incomplete and
ineffective.”
That is what is at risk: whether the UK and Wales is really
committed to have properly enforced and fully effective
environmental laws.
EU Exit and UK response
6.
For environmental laws, EU Exit will mean that the UK no longer has
-
(i) Treaty
obligations reinforcing environmental laws
(e.g. Article 191 Treaty for European Union);
(ii) Application of
environmental principles through EU law;
(iii) Enforcement by the European
Commission;
(iv) Enforcement by the Court of
Justice of the European Union;
(v) The ultimate sanction of
Member States risking fines for continuing breaches of EU
law;
(vi) Legal requirements on government
to ensure that penalties for breaches are “effective,
proportionate and dissuasive”
(see e.g. Water, Waste, Air Quality Framework Directives, REACH
etc);
(vii) The right of individuals to activate
enforcement of environmental laws, at no cost, through complaints
to Commission; and
(viii)
Application of EU derived environmental laws throughout the
UK.
7.
The political commitment by the
UK government was to ‘repatriate’ the whole of the
acquis communautaire or body of EU law, to allow for
decisions on what should replace it to be taken by future
governments.
8.
In environmental law terms and
at UK level, this resulted in section 16 of the European Union
(Withdrawal) Act 2018, which committed the Secretary of State to
publish a Bill setting out how he would apply environmental
principles, and to set up a body which would be able to challenge
Ministers for non enforcement of environmental laws.
9.
Section 16(2) of the European
Union (Withdrawal) Act 2018 sets out what the UK government
considers to be the main EU environmental law principles involved
-
“(2) The set of environmental principles mentioned in
subsection (1)(a) must (however worded) consist of -
(a) the precautionary principle so far as relating to the
environment,
(b) the principle of preventive action to avert environmental
damage,
(c) the principle that environmental damage should as a priority
be rectified at source,
(d) the polluter pays principle,
(e) the principle of sustainable development,
(f) the principle that environmental protection requirements
must be integrated into the definition and implementation of
policies and activities.“
The CCERA Committee of NAW will be aware that this resulted in
publication of the Environment (Principles and Governance)
Bill, and its pre-legislative scrutiny by two committees of the
House of Commons, the Environmental Audit Committee and the
environment Food & Rural Affairs Committee.
Whilst recognizing that this
mainly applied to England, a great deal was learned from this
pre-legislative scrutiny and consideration in detail of the UK
government’s proposals, and both of the reports contain
important reflections which could be of assistance to the CCERA
Committee (if only in seeking to avoid the same pitfalls in Wales)
-
EAC Committee report 25 April 2019
‘MPs call for urgent action to plug gaps in environmental
protection’
https://www.parliament.uk/business/committees/committees-a-z/commons-select/environmental-audit-committee/news-parliament-2017/draft-environment-bill-report-publication-17-19/
EFRA Committee report 30 April 2019
‘New environmental watchdog needs greater independence and sharper teeth’
10. Both
reports were highly critical of key areas within the draft
legislation as published, calling it a ‘significant
regression’ from EU standards of enforcement. They called for
greater independence and additional enforcement powers for the
proposed Office for Environmental Protection; more accountability
for Government Departments and public bodies; enforcement of
environmental law in the climate change area; reinstatement of the
aims for a high level of protection of the environment from the EU
treaties; and removal of the wholesale exclusions from the
application of environmental principles.
11. Neil Parish MP, the Chair of the Environment, Food
and Rural Affairs Committee, said:
“Although the Government has made a real attempt to establish
a robust framework for environmental governance, the draft Bill
clearly fails to meet its own ambition to ‘ensure the
environment is even better protected in future’ as we exit
the EU. In some areas it actually marks a significant regression on
current standards.
“Given this unique opportunity to rethink how we protect the environment in the future, we cannot afford to see the standards we currently adhere to slip.
“There is also little point in setting up an environmental watchdog if it is unable to fulfil its essential function of holding the government to account. The new watchdog must not solely be a creature of Government but needs real independence.
“To achieve real independence there needs to be a role for Parliament in all decisions relating to the membership of the OEP’s board. Funding for the OEP must also not be solely at the whim of Defra ministers, as is currently the proposal. Sustained cuts to arm’s length bodies such as the Environment Agency and Natural England demonstrate the need for the OEP to have greater budgetary protection to guarantee genuine independence.
“The watchdog will also need sharper enforcement teeth. The Government must explore appropriate ways to ensure greater personal accountability for Ministers and public servants if they fail to uphold environmental law before presenting this Bill to Parliament.
“It is
imperative to future generations that the Government does not
squander its chance to get this right it is unlikely they will get
another any time soon.”
It might be thought that similar
considerations will apply to any comparable body established in
Wales.
12. The EAC Committee report in particular noted the particular differences between UK and Welsh legislation through the implementation of the Well-Being of Future Generations Act 2015, Planning Act 2015 and Environment (Wales) Act 2016. The EAC Report, on devolution, noted that -
“170. We are disappointed that limited effort has been made to co-design a body and governance framework to cover all four nations of the UK, given this would provide greater independence, a level playing field and more coordinated action. We consider that although it appears coordination has improved since the publication of the Bill, the lack of action in the lead-up to, and drafting of the Bill, had already ruled out possible areas of collaboration which could extend into the future.
171.
The Government should set out in response to this report how it
intends for the Office for Environmental Protection to work
collaboratively and without overlap with its potential equivalent
bodies in Wales and Scotland. The response should clearly set out
which provisions are within the scope of the Office for
Environmental Protection in respect of reserved matters.
“
13.
Welsh Government consultation questions
Environmental Principles
Question 1: Do you agree the following principles should be
included within legislation for Wales?
(a) Rectification at Source;
(b)Polluter-pays
Question 2: Do you think there are other principles, which may
also need to be included?
In my view Wales (and all parts of the UK) should include a
commitment in their legislation to apply the same four
environmental principles as are presently found in Article 191.2 of
the Treaty for European Union (the precautionary principle,
preventive action, rectification at source and polluter pays). The
whole of the UK is legally committed to observe those principles at
present. I don’t agree that it helps to argue that the
precautionary principle is the same
as the duty in s. 4 Environment (Wales) Act 2016 to “take
account of all relevant evidence”.
I also believe that it is wrong for the UK government to have so
far failed to re-enact Article 191.1 of the Treaty for European
Union, and think that this too ought to be reflected in the law in
Wales, and each part of the UK-
“A.191.1 Union policy on the environment shall contribute to
pursuit of the following objectives:
preserving, protecting and improving the quality of the
environment;
-
protecting human health;
-
prudent and rational utilisation of natural resources;
- promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.”
It is true that Welsh legislation in particular applies the
principle of sustainable development, in its own way, as
Sustainable Management of Natural Resources (which may reflect the
third indent of Article 191.1 above). I understand that the view of
Welsh Government may be that any gaps in application
could be different for Wales with its distinct legislation than for
the rest of the UK. However, Article 191.1 and 191.2 of TFEU
matters for each part of the UK.
Question 3: Do you agree the duty to pursue sustainable
management of natural resources and the application of the SMNR
principles should be extended?
Question 4: On which Welsh public bodies, within devolved
competence, do you consider a duty to pursue SMNR should
apply?
I suggest that it ought to be possible to apply all four of the main environmental principles to the discharge of their functions by all government departments and public bodies, so far as relevant to those functions, and that ought to apply also to the SMNR principle.
Accountability
Question 5: Do you agree with the gaps identified, or do you
consider there are other gaps, which need to be considered?
I have set out at paragraph 6 above the gaps that I
suggest will arise on EU exit.
Question 6: What role should existing accountability bodies
provide in a new environmental governance structure for
Wales?
If any body is to do the job presently carried
out by the European Commission of holding government to account for
non compliance with environmental law, it must be established in a
properly independent way, with some role for the National Assembly
in ensuring that its appointments and funding are protected by
statute and by its relationship with the Assembly. This
measure of independence from the executive might be possible by
adding to the role of the national auditor, as is done with the
Commissioner of the Environment and Sustainable Development in
Canada, or through a new body.
Question 7: Is the outlined role and objective appropriate for a
body responsible for overseeing the implementation of environmental
law in Wales?
I suggest that part of the new body’s
role would be to scrutinise the Welsh Government’s
implementation of environmental law. That part of its job would be
similar to the role of a Parliamentary Commissioner for the
Environment, for which there are successful models in New Zealand,
Canada, and in some ways the role of the UK Climate Change
Committee.
Question 8: Which policy areas should be included within the scope of new governance arrangements?
I suggest that Wales should not replicate the mistake made in England with the draft Environment (Principles and Governance) Bill of trying to take an artificially narrow definition of environmental law.
Question 9: Do you consider the proposed list of bodies to be appropriate?
Question 10: Do you consider there are other Welsh bodies, which should also fall within the remit of an oversight body?
It is suggested that all government
departments and public bodies should be required to apply the high
level environmental principles as far as relevant, and that the
remit of the new body should therefore match this
requirement.
Question 11: What should be the status, form and constitution of
an oversight body?
Experience elsewhere suggests that a new body able to
call government to account must be robustly independent, and that
the National Assembly will need to have a role independent of the
executive in confirming appointments and ensuring that the new
body’s budget is protected.
Question 12: Should an oversight body be
able to act in an advisory capacity?
Some models of Parliamentary Commissioner have included
an ability to assist inquiries by Parliaments or to review and
respond to annual environmental reports from agencies. It should
not duplicate the work of other agencies such as NRW.
Question 13: Should an oversight body be able to scrutinise implementation of environmental legislation?
Question 14: What should be the extent of this function?
The new body will need sufficient resources,
know-how and experience to be able to investigate and speak with
authority about whether environmental legislation is being properly
applied.
Question 15: What powers should a body have in order to
investigate complaints from members of the public about the alleged
failure to implement environmental law?
The right that EU citizens currently have to
bring complaints of breaches of EU law by public bodies to the
attention of the Commission for investigation is a very important
right in practice. It will need to be able to prioritise
complaints, reject those with no merit, but investigate those of
significance, and to challenge ongoing non compliance.
Question 16: What informal and formal methods of enforcement do
you consider an oversight body should operate in order to delivery
on its role and objectives?
Question 17: What enforcement actions do you consider need to be
available?
The new body needs to be able to
resolve investigations without formal action once there is a proper
answer to suggestions of non-compliance. Ultimately it will need a
straightforward way - whether by reference to a Tribunal or
otherwise - of confirming that a government department or public
body remains in breach of environmental laws, and the means to
require that department or public body to come back into compliance
(the EU law obligation is for this to be done as quickly as
possible) – ultimately by some mechanism such as judicial
review. Having the power to require that Ministers responsible for
government departments or the heads of public bodies should be
required to attend National Assembly hearings to explain continued
non-compliance with environmental laws might also be a significant
practical sanction.
Other
Question 18: Would there be advantages in have a shared core set of common environmental principles?
Yes. This is done at the moment through EU law, and without undermining the different devolution settlements. It is not clear how the environment would benefit from having gaps in the application of core environmental principles in the different parts of the UK as the UK diverges from the application of these principles in the rest of the EU.
Question 19: What potential governance structures do you
consider are needed to enable collaboration and collective
decision-making to enable interface between
administrations?
It is a matter for real regret that the UK
government did not address this need more effectively in its
proposed legislation. I agree with the House of Commons
Committees’ criticisms of this lack of action, and very much
welcome the willingness of the Welsh Government (reflected in the
consultation) to continue to look for ways to make this sort of
collaboration work in practice.
It is notable that the UK Climate Change Committee seems to be
widely respected in all parts of the UK, perhaps because of its
structure and the way that it reports to each Parliament, so that
there is ‘ownership’ of the Committee in each part of
the UK.
It may be that this sort of structure, fully respecting the differences in devolved environmental law, could still be developed. I support the suggestion that this could be further reviewed in 5 years time.
Meanwhile I would suggest that all bodies established to carry out similar functions in the different parts of the UK should be subject to a statutory duty to seek to collaborate and cooperate with their counterparts, with a view to encouraging the adoption and promotion of similar principles and standards.