19.As set out in the previous chapter, academics, NGOs, and business stakeholders all believed that cross-border environmental issues benefited from multilateral action. EU and UK environmental policy making have become more intertwined since the 1972. According to analysis by the IEEP, EU policy-making in this area accelerated during the late 1980s, 1990s and first half of the 2000s. We were told by the IEEP that “UK environmental issues are now almost certainly addressed more by EU policies than national ones.” Professor Maria Lee, Professor of EU Environmental Law at University College London (UCL), stressed “EU law is not foreign law, it is domestic law.”
20.The UK has the ability to influence EU environmental policy directly through UK Ministers sitting on the EU Council and UK MEPs, and indirectly through NGO and business stakeholder pressure on the Commission. The ordinary legislative procedure (OLP) means both the European Parliament and Council have to agree on EU environmental legislation before it becomes law. The Council typically agrees via QMV. Dr Burns at the University of York and Ms Gravey at the University of East Anglia, argued that the use of QMV had benefited environmental protection, meaning the “EU [does] not slide to the lowest common denominator as so often happens in international environmental negotiations where consensus is required.” On the other hand, “a disadvantage is that states can be outvoted, although analysis of voting in Council between 2009 and 2015 found that the UK was on the losing side on environmental issues in only 6 per cent of cases.” Professor Oberthuer at the IES, argued, “on several occasions the UK vote has also been decisive in order to garner a qualified majority in the Council of Ministers.”
21.Many witnesses argued that the UK has been influential in the development of new EU environmental policies. The Commission stated:
The UK either leads or is a partner with others in a wide range of entities with whom the Commission consults while formulating policy. By being an important part of the policy-making process in this way, the UK is able to shape EU-wide policy.
We were told this process had given the UK the ability to push for key environmental directives and policy approaches which suit its national interest. TechUK, the trade association for the UK tech sector, said that, “being at the table while new regulations are being drafted and developed” gave the UK an opportunity to shape and influence design. They gave the example of the Directive on the Restriction of the use of certain Hazardous Substances in Electrical and Electronic Products (RoHS).
22.The previous Government’s Balance of Competences Review cited a number of pieces of EU legislation which have been based partly (or in full) on preceding UK policy and legislation. These included the UK Emissions Trading Scheme, which acted as a forerunner of the EU’s Emissions Trading Scheme. Similarly, the EU’s integrated pollution prevention and control regime (now incorporated into the Industrial Emissions Directive) was heavily influenced by the UK’s system of integrated pollution control under the Environmental Protection Act 1990. Professor Oberthuer from the IES, said that:
It is highly plausible that EU environmental policy would, on average, feature lower standards and take a different shape without UK influence.
23.We also heard examples where the UK had used its influence to delay or block directives which it did not consider were in its national interest. This was sometimes regretted by stakeholders—primarily NGOs, who saw this as holding back stronger environmental protection. Friends of the Earth gave examples of the EU Fuel Quality Directive and the EU Energy Efficiency Directive.
24.The UK’s approach to the development of EU environmental policy has been described as ‘pragmatic’ by the Commission. In recent years, the Government has asserted a cross-cutting position to push for better regulation principles to improve how the EU develops and implements environmental policy (described in chapter 5). DEFRA stated in the written evidence:
The UK has played a significant role in getting better regulation higher up the European Commission’s agenda. […] However, we do believe the Commission can go further: we will seize every opportunity to press them to deliver a more ambitious better regulation agenda.
25.The Commission described the development of EU environmental legislation as an inclusive process informed by robust impact assessments. It stated:
[There is] extensive consultation of both the public and interested stakeholders […]. Groups of experts advise on technical issues [and] the Commission ensures that legislative proposals correspond to the needs of those most concerned and avoids unnecessary red tape.
26.UK stakeholders—NGOs and business representatives alike—believed they had good engagement with the EU institutions on environmental policy development. Dr Diane Mitchell, Chief Environmental Adviser at the National Farmers Union (NFU), argued that there had been significant improvements in the Commission’s engagement with UK stakeholders over the past few years, and that there were many opportunities to discuss how EU directives work and to provide evidence to the Commission. Similarly, Mr Evers at the UKELA viewed the Commission as much more open and transparent in engaging with stakeholders than it had been in the past. He said, “If you take the recent example of the circular economy package, […] the Commission held two public consultations […] and a stakeholder engagement day in Brussels, which I believe more than 500 people attended.” A minority of witnesses were more critical, with the ESA, in particular, criticising the Commission’s consultation processes for not being thorough enough.
27.We heard from EU and UK stakeholders that, in the majority of cases, the UK has considerable flexibility in implementing the minimum standards set by EU directives. Trevor Hutchings, Director of UK and EU Advocacy at WWF-UK, said this allowed member states to implement directives, “in the way that suits them best.” In the context of agri-environment schemes, Martin Harper, Director of Conservation at RSPB, said flexibility allows schemes to be tailored to the different geography and farm situations.” Martin Nesbit, Senior Fellow and Head of Environment and Climate Governance Programme at the IEEP, suggested this allowed member states to be more ambitious than pre-existing national approaches, but not less ambitious. This flexibility has had advantages and disadvantages, as we discuss when we come to implementation. Witnesses had also observed that some directives were inflexible and prescriptive.
28.We heard from academics and business stakeholders that EU directives ensure that a common approach is adopted by member states when addressing cross border environmental problems. Nick Molho, Executive Director at the Aldersgate Group, said, “this [provided] clear market signals as to where innovation is required.” We heard that this common framework also brings benefits to the research community. The British Ecological Society argued that, “the Habitats and Birds directives and the Natura 2000 network of conservation sites provide a framework to prioritise applied research in ecology and conservation biology.”
29.One of the key differences identified by our witnesses between domestic and EU policy-making was the effort required to change policy once it had been made. There was a clear view that changing EU policy was more difficult. Many of our witnesses saw this as an important source of stability. Susan Danger, EU Managing Director at the American Chamber of Commerce EU (AmChamEU), stressed the importance of stability for US businesses operating in the UK and EU, under EU law. She said, “[businesses need] a consistent environment and a predictable environment, harmonised where necessary. […] It is much easier to deal with one set of standards and rules […].” Similarly, the RSPB argued that “many EU businesses support tackling environmental problems at EU level since it provides stability, certainty and a level playing field.” Mr Molho at the Aldersgate Group, suggested that stability in decision making was beneficial to investor and business confidence. The Country Land and Business Association suggested that the inability of directives to be easily changed was mostly a positive thing. They stated:
It allows EU action to offer the stable conditions required to consolidate environmental progress whilst at the same time giving business long term certainty.
30.Some witnesses argued that inability to change directives had led to out-dated legislation which had proved hard to update. Dr Mitchell at the NFU cited the example of the Nitrates Directive as legislation which was “process driven” and “quite old fashioned and out of date.” The Government also suggested seeking change was a frustrating process. Mr Stewart, Minister at DEFRA, said:
Trying to change a directive is an incredibly burdensome, painful business. You have to bring all the other member states on side and you have to make sure that, when you open it up again, they do not make it worse than it was in the first place.
31.A large proportion of UK environmental policy is shaped at EU level. This is a two-way process in which the UK has significant influence through the Council of Ministers, its MEPs and stakeholders, such as NGOs and business representatives. Depending on how they have seen the national interest, the UK Government has led the way in developing key pieces of EU environmental legislation in some areas and have held back or amended measures in others. The Environment, Food and Rural Affairs Minister was clear that the UK Government’s current approach was to press the EU to deliver a more ambitious better regulation agenda. As such, the UK has a reputation for taking a pragmatic approach to environmental law making. Many pieces of environmental legislation allow significant flexibility for member states to implement them in ways that reflect national circumstances.
32.Changing policy in a multi-national context is often more complex, time-consuming and difficult than within a single nation-state. Whilst this has sometimes been a source of frustration for Government Ministers, it has had benefits, particularly for businesses, resulting in policy stability, boosting investor confidence and enabling a degree of long-term planning.
33.The Commission asserted that the national governments of EU member states have “ultimate responsibility” for the design and implementation of EU policy irrespective of specific arrangements within that country. The Commission “[tries] to ensure that any contact is centrally coordinated through the United Kingdom’s Permanent Representation in Brussels (UKREP).” Despite this, the Commission can, and does, meet individual devolved authorities to discuss specific environmental issues. Other member states including Belgium, Germany, Austria, Italy and Spain have had many of their environmental powers devolved to a regional level. The Commission suggested that this has created challenges in other member states in both design and implementation, especially where conflicts in approach exist between the national and regional levels. Mr Evers from the UKELA, said “even if we look within the UK itself at how the devolved Administrations have implemented the revised waste framework directive, we can see that in some respects there is a divergence in the approach.”
34.While many EU directives are flexible in implementation, they also ensure a common approach is adopted by member states when addressing cross border environmental problems. Professor Reid, from the University of Dundee Law School, argues that EU frameworks reduces “disparity and fragmentation” between UK devolved Administrations when implementing environmental laws in structure and content. He stated:
The need to fit within the EU framework has ensured that such divergence will be kept within limits. In the absence of the EU framework, those affected by environmental laws may be much more concerned at the prospect of increased disparities.
35.The countries of the UK currently discuss the design and implementation of EU environmental policy through informal relationships. We heard during the inquiry that there are efforts to formalise these discussions between all the devolved Administrations in the UK. Mr Stewart, Minister at DEFRA, said, “almost every week I am writing around to the devolved Administrations and following up with phone calls. […] we have had a position where we talk honestly and openly and we get an agreed common position.” Similarly, Lord Bourne, Minister at DECC, said:
I am looking at the possibility of formalising this so that we can discuss issues of common concern on a more regular basis because it seemed to me that is a very constructive way of making devolution work.
36.Lloyd Austin, Convenor of Scottish Environment Link’s Governance Task Force at the Wildlife and Countryside Link (WCL), highlighted the need for more transparency and engagement in this process:
[…] there will be a need for us to be more formal in the way our Administrations work together on European issues. […] It will need to be more transparent and with more opportunities for engagement by stakeholders in intra-UK discussions in terms of how they decide on a common UK position and how they then implement the forthcoming European legislation.
Similarly, the Convention of Scottish Local Authorities (COSLA) argued that there should be “arrangements to involve local government or its representative bodies […] in drafting UK negotiating positions.”
37.EU directives have provided a framework within which the UK’s devolved Governments have developed different approaches towards achieving the common environmental objectives set out in EU policy. We welcome the Government’s moves towards establish a more formal and more proactive mechanism for integrating devolved Administrations’ priorities into the UK’s national positions. The Committee noted that the UK has found considerable scope for devolving environmental policy to devolved administrations. However, some EU witnesses could not envisage a single EU competence which could be devolved to Member States.
56 Friends of the Earth (England, Wales and Northern Ireland) (), Chartered Institution of Water and Environmental Management (), Joint Links (), Country Land and Business Association (), Convention of Scottish Local Authorities (), Chartered Institute of Ecology and Environmental Management (), Wildlife Trusts (), Wildfowl & Wetlands Trust (), Dr Charlotte Burns and Ms Viviane Gravey (), Environmental Industries Commission (), Aldersgate Group (), RSPB (), WWF-UK (), National Farmers Union (), Institute For European Environmental Policy (), Mr Christian Hudson (), Professor Henrik Selin ()
57 Professor Maria Lee (), Institute For European Environmental Policy ()
58 Institute of European Environmental Policy, (2012), p 2
59 Institute For European Environmental Policy (), European Environmental Bureau ()
60 Q15 (Professor Lee)
61 Q31 (Professor Lee), Dr Charlotte Burns and Ms Viviane Gravey ()
62 Dr Charlotte Burns and Ms Viviane Gravey ()
63 Q280 (Mr Crespo), Professor Sebastian Oberthuer ()
64 Dr Charlotte Burns and Ms Viviane Gravey ()
65 Dr Charlotte Burns and Ms Viviane Gravey ()
66 Professor Sebastian Oberthuer ()
67 Q46 (Professor Oberthuer), Q52 (Mr Harper), Q54 (Mr Evers), Q69 (Mr Nesbit), Q281 (Mr Crespo), Country Land and Business Association (), Institute of Environmental Management and Assessment (), Mr Andreas Kraemer (), TechUK (), Institute for European Environmental Policy (), Professor Sebastian Oberthuer (), Professor Henrik Selin ()
68 European Commission ()
69 Institute of Environmental Management and Assessment (), Mr Andreas Kraemer (), TechUK ()
70 TechUK ()
71 TechUK ()
72 HM Government, , February 2014, p 23
73 Q69 (Mr Nesbit), Q281 (Mr Crespo), Institute for European Environmental Policy (), HM Government, , February 2014, p 23
74 Institute of Environmental Management and Assessment ()
75 Professor Sebastian Oberthuer ()
76 Friends of the Earth (England, Wales and Northern Ireland) (), RSPB ()
77 Friends of the Earth (England, Wales and Northern Ireland) (), RSPB ()
78 Q281 (Mr Crespo)
79 DEFRA ()
80 DEFRA ()
81 European Commission ()
82 European Commission ()
83 Q28 (Professor Lee), Q55 (Mr Harper, Dr Mitchell), Q56 (Mr Evers), Q248 (Ms Danger), Recolight Ltd (), TechUK (), WWF-UK (), National Farmers Union (), Mr Christian Hudson (), European Commission ()
84 Q55 (Dr Mitchell)
85 Q56 (Mr Evers)
86 Q56 (Mr Evers)
87 Environmental Services Association (), TechUK ()
88 Q11 (Mr Haigh), Q64 (Mr Evers), Chartered Institution of Building (), Services Engineers Institute For European Environmental Policy (), European Commission (), Professor Henrik Selin ()
89 Q112 (Mr Hutchings)
90 Q67 (Mr Harper)
91 Q93 (Mr Nesbit), Dr Charlotte Burns and Ms Viviane Gravey ()
92 Environmental Services Association (AEP0005), EDF Energy (), National Farmers Union (), Energy UK ()
93 Q44 (Professor Oberthuer), Q67 (Mr Harper), Q112 (Mr Austin), Q179 (Mr Harper), Q259 (Mr Crespo), EDF Energy ()
94 Q158 (Mr Molho)
95 British Ecological Society ()
96 Q369 (Mr Stewart), Country Land and Business Association ()
97 Q232 (Ms Danger)
98 Q232 (Ms Danger)
99 UK Major Ports Group (), RSPB ()
100 Q158 (Mr Molho)
101 Country Land and Business Association ()
102 Country Land and Business Association ()
103 Q211 (Dr Michell), National Farmers Union ()
104 Q369 (Mr Stewart)
105 Q369 (Mr Stewart)
106 Q321 (Mr Crespo), European Commission ()
107 European Commission ()
108 Q320 (Mr Crespo), European Commission ()
109 European Commission ()
110 European Commission ()
111 Q64 (Mr Evers)
112 Professor Colin Reid ()
113 Professor Colin Reid ()
114 Q147 (Mr Austin)
115 Q346 (Mr Stewart, Lord Bourne of Aberystwyth)
116 Q346 (Mr Stewart)
117 Q346 (Lord Bourne of Aberystwyth)
118 Q112 (Mr Hutchings)
119 Convention of Scottish Local Authorities ()
15 April 2016