6Collaboration with Devolved Administrations
UK Government approach
157.Environment is a devolved matter, subject to a small number of areas that are reserved. Clause 34 sets out the territorial extent of the clauses in the draft Bill. Environmental improvement plans and their scrutiny by the OEP extend to England and Wales only (clauses 5 to 10 and 14).286 The other provisions extend to England and Wales, Scotland and Northern Ireland on matters that are not devolved.287
158.The draft explanatory notes state that the OEP could exercise functions more widely across the UK “subject to the ongoing framework discussions with the devolved administrations”.288 Defra also acknowledged that it would be beneficial to work with the devolved administrations to co-design the proposals:
Overall, we recognise that protecting the environment is inherently an issue that cuts across boundaries, and we continue to welcome the opportunity to co-design with the devolved administrations, should they wish to join any proposals, to safeguard our shared natural environment.289
159.The Government’s response to our inquiry on the 25 Year Plan in November 2018, made clear that no devolved administration had agreed to the proposal of a UK-wide body to replace the role of the European Commission and European Environment Agency.290 We wrote to Roseanna Cunningham MSP, Cabinet Secretary for Environment, Climate Change, and Land Reform at the Scottish Government, Leslie Griffiths AM, Minister for Environment, Energy and Rural Affairs at the Welsh Government and Mr Denis McMahon, permanent secretary at the Department for Agriculture, Environment and Rural Affairs (DAERA) in Northern Ireland, to ask how well the Government’s proposals work with the devolution settlement. Their responses are detailed below.
Scotland
160.Roseanna Cunningham told us the Scottish Government will continue to work with the UK Government and the other devolved administrations to ensure that there are effective measures across the UK.291 On 16 February 2019, the Scottish Government opened a consultation Environmental Principles and Governance in Scotland, to ensure that measures fit with existing Scottish Institutions.292 The consultation included proposals for a new duty on Scottish Ministers to have regard to four EU environmental principles in designing new policies and legislation and sought views on the design of governance arrangements consistent with the roles of the Scottish Parliament and courts.
161.The four principles included the precautionary principle, polluter pays principle, prevention principle and rectification at source principle. It asked whether other principles, drawn from international agreements should be included. On governance, the consultation proposed a number of possible options:
- establishing a Commissioner, such as The Scottish Information Commissioner;
- establishing a non-Departmental public body, which would require legislation;
- extending the powers of an existing public body to undertake scrutiny of environmental matters; and/ or
- create a function for a Scottish body to have the responsibility to refer the Scottish Government or a public authority to a Scottish court for failure to properly implement environmental law.293
162.Roseanna Cunningham said that she was concerned that devolved public authorities will be within the remit of the OEP in respect of reserved matters,294 yet the definition of environmental law closely matches the “purpose test” for judging when a measure is devolved (clauses 31(4)).295 She said it “is difficult to understand the scope of these OEP powers” and recommended that examples could be given of these provisions.296
Wales
163.In Wales, there are existing environmental governance frameworks in place that need to be taken into account. Sustainable development is already embedded in policy through the Well-being of Future Generations (Wales) Act 2015, which requires public bodies to “carry out sustainable development” and meet well-being objectives. It also established a Future Generations Commissioner for Wales, who provides advice and makes recommendations to Welsh Ministers.297 The Environment (Wales) Act 2016 introduced a further set of principles to guide and support policy development towards the sustainable management of natural resources.298
164.Leslie Griffiths told us that as the existing environmental governance framework in Wales “is wider and more integrated”, than the approach proposed in the UK Bill, she did not think it was “an appropriate model to address the gaps in Wales”.299 She added that a UK-wide response could be beneficial for international commitments which require UK-wide action. The Welsh Government published a consultation on its future governance arrangements on 18 March 2019.300 The consultation proposals build on the existing legislation in Wales. It suggested that the principles that are already in legislation will be extended to apply to all those falling within devolved competence and it will incorporate the ‘polluter pays’ and ‘rectification at source’ principles, which are not included in the Environment (Wales) Act 2016, in new legislation.
165.For governance, the consultation does not propose a specific model but asked whether improvements could be made to existing structures or whether a specific oversight body is required. The Public Services Ombudsman and Auditor General for Wales currently provide oversight of public bodies and the Future Generations Commissioner provides advice on sustainable development, but its recommendations are not legally binding. The consultation sought views on what enforcement actions are needed in line with the Welsh devolution settlement.301
Northern Ireland
166.Northern Ireland has not had a sitting Assembly since March 2017, so primary legislation cannot be passed through the Northern Ireland Assembly. In response to our letter, Denis McMahon confirmed that DAERA requested that the scope of the draft Environment Bill be extended to include Northern Ireland as recommended in our previous report, and the Secretary of State for Environment, Food and Rural Affairs agreed.302 DAERA said that “this work is at an early stage” and new provisions are being drafted to ensure that they will work effectively in the Northern Ireland context.303
167.Ruth Chambers from Greener UK explained that the environment in Northern Ireland is already losing out as its environmental governance has been historically “rather weak”.304 Debbie Tripley from WWF considered that it has been difficult for devolved administrations, particularly those with their own legislation in this area, to fit within the Bill. She also questioned which body would bring each of the devolved bodies together.305
168.When asked whether Scotland and Wales had shown any interest in joining the UK Government’s approach, Dr Coffey replied:
I have only just seen the proposals that came out from Wales. My understanding and discussions have been that they already had certain different commission bodies in there and they felt that was sufficient and that Scotland were pursuing another approach. […] Having just read the consultation—I have not had a discussion personally with Lesley in the last 48 hours—then there may be other opportunities for collaboration, but up until recently, my impression has been that they were happy to use their own processes in order to achieve that oversight.306
169.We asked the Michael Gove how the OEP will be extended to Northern Ireland. He confirmed that there be a schedule to the Bill so that the OEP provisions can operate in Northern Ireland.307 When asked how it would work in practice he said that his preference was that the OEP “should be located outside London”.308
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.
172.The inclusion of Northern Ireland within the scope of the Bill is welcome but will require careful consideration. The Government must ensure that there is appropriate representation from Northern Ireland on both the Board and within the staff to ensure it can deal with country specific issues adequately. We are reassured that the Office for Environmental Protection need not be located within London, but thought should be given to whether it will operate effectively in Northern Ireland and should bear in mind the environmental impacts of travel.
Common frameworks
173.European Union law has provided a common framework within which domestic institutions have operated. Our previous inquiries have highlighted that common frameworks are vital to prevent any undermining of environmental protections to gain a competitive advantage.309 The UK Government and devolved administrations coordinate devolved and reserved powers in the Joint Ministerial Committee (JMC). In March 2018, the Government’s analysis suggested that there are 82 areas in which common frameworks may be necessary after leaving the EU, as well as in 24 areas where further discussion will be necessary to determine whether a common framework may be needed in full or in part.310 Of these, six of the 82, and 15 of the 24 were identified as Defra responsibilities.
174.In some areas, such as water quality, the Government has suggested that common frameworks will not be required. We warned in our 25 Year Plan for the Environment report that without common frameworks there will be little to prevent a decline in the quality of transboundary natural assets, such as air, water and biodiversity, should a future Government decide to reduce their protections or not create new targets for improvement.311 We asked Michael Gove for an update on the framework discussions with the devolved administrations. He said that there are only a small amount remaining and they were now down to “single figures”.312 The Secretary of State later responded in writing and stated that as of 29 March 2019, there were 14 EU exit statutory instruments left to lay. Seven of these were required before exit day and the Secretary of State assured the Committee that there were plans for these to be laid.313
175.We reiterate our previous conclusion that common frameworks must be established as soon as possible to ensure that the environment is not simply reliant on the goodwill of this or any future Government. The Government must ensure that common frameworks are in place by exit day or should explain why they are not time critical. We recommend the Government produces an update to its 2018 analysis on common frameworks in response to this report.
286 The territorial extent of the Bill is the legal jurisdictions of which the Bill forms part of the law. The extent of a Bill can be different from its application.
287 Draft Environment (Principles and Governance) Bill, Draft Explanatory Notes, para 42; House of Commons Library. Environmental Principles and Governance: the draft Bill. Briefing paper no 8484, 30 Jan 2019
288 Explanatory note 42
289 Environment Bill: policy paper, 19 December 2018
290 House of Commons Environmental Audit Committee, The Government’s 25 Year Plan for the Environment: Government Response to the Committee’s Eighth Report Twelfth Special Report of Session 2017–19, 6 November 2018, HC1672
291 Letter from Roseanna Cunningham to the Chair on the UK Government’s draft Environment (Principles and Governance) Bill, 26 February 2019
292 Scottish Government. 2019. Consultation on Environmental Principles and Governance in Scotland. Letter from Roseanna Cunningham to the Chair on the UK Government’s draft Environment (Principles and Governance) Bill, 26 February 2019
293 Scottish Government. 2019. Consultation on Environmental Principles and Governance in Scotland, paras 69 and 92
294 Reserved matters are the areas of Government policy where the UK Parliament has kept the power to make laws in Scotland, Wales and Northern Ireland.
295 The purpose test to define legislative competence means that if an Act in some way relates to a reserved matter but its purpose is devolved it can still be within the legislative competence of the devolved administration.
296 Letter from Roseanna Cunningham to the Chair on the UK Government’s draft Environment (Principles and Governance) Bill, 26 February 2019
297 Well-being of Future Generations (Wales) Act 2015; Q7 [Debbie Tripley]
299 Letter from Lesley Griffiths to the Chair on the UK Government’s draft Environment (Principles and Governance) Bill, 28 February 2019
300 Welsh Government consultation document. Environmental Principles and Governance in Wales Post European Union Exit, 18 March 2019
301 Welsh Government consultation document. Environmental Principles and Governance in Wales Post European Union Exit, 18 March 2019
302 Under the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 a senior officer of a Northern Ireland Department can take a decision in the absence of Northern Ireland Ministers if the officer is satisfied that it is in the public interest to do so. See House of Commons Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, 24 July 2018, HC803
303 Letter from the Permanent Secretary to the Chair on the Scrutiny of the Environment Bill, 27 February 2019
309 For example, The Future of the Natural Environment; Environmental Audit Committee, EU and UK Environment Policy, Third Report of Session 2015–16, HC537 and House of Commons Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, 24 July 2018, HC803
310 Cabinet Office. Frameworks analysis. Breakdown of areas of EU law that intersect with devolved competence in Scotland, Wales and Northern Ireland, March 2018
311 House of Commons Environmental Audit Committee, The Government’s 25 Year Plan for the Environment, 24 July 2018, HC803
313 Secretary of State to Chair, 3 April 2019
Published: 25 April 2019