Environment Bill

WRITTEN EVIDENCE SUBMITTED BY THE CONVENTION OF SCOTTISH LOCAL AUTHORITIES (COSLA) (EB48)

UK Environment Bill 2019-2021

Overview

1. The Convention of Scottish Local Authorities (COSLA) is the national and international voice of the 32 Scottish Councils.

2. Building upon our extensive policy development and influencing work over the years on EU environmental legislation and on the various EU withdrawal legislation we are keen to provide a range key recommendations ahead of the Environment Bill 2019-2021 reaching the critical amendment stage.

3. COSLA recognises that in addition of the European Union Withdrawal Act 2018 and the European Union Withdrawal Agreement Act (EUWA) 2020 specific legislation is needed in a range of mattes such as environmental protection and enforcement which have been in a very significant way led by EU legislation, with the European Commission having the central role of policy developer, monitoring and enforcement.

Case for UK wide legislation

4. On 27 February 2020 the COSLA Leaders meeting agreed to insist that the new UK common frameworks to deal with cross cutting matters on EU returned powers, and participation of Scottish Devolved and Local Government, such as on environmental matters, is at least equivalent to what has, up to now, been the case when such matters have been dealt with by the European Commission.

5. Environmental legislation is principally a Devolved power but COSLA recognises that that there are matters that due to their transboundary nature or due to the need to keep pace with international agreements that the UK wishes to align with or lead, there are certain matters that need to be dealt with on a UK wide basis.

6. We note therefore the extensive work carried to date by the Scottish and UK Governments to identify which EU returned powers intersect between UK and Devolved powers [1] and which ones such as the ones identify by this Bill that require UK-wide legislation, as opposed to the many others that will be dealt with by the Scottish environmental and continuity legislation.

7. Although this Bill will deal with mostly England matters the the Explanatory Memorandum [2] confirms as expected that will also concern Scottish and UK-wide matters as well, notably , Clause 19 on statements about environmental Bills, and Clauses 21-24 and 26-44 and Schedule 1 on the Office for Environmental Protection and its functions extend and apply to the whole of the UK; Clauses 39-40 (information); Clauses 41-44 (interpretation of Part 1); Clause 47 and Schedule 4 (producer responsibility obligations); Clause 48 and Schedule 5 (producer responsibility for disposal costs); Clauses 49-50 and Schedules 6 and 7 (resource efficiency); Clause 55 (electronic waste tracking across the UK); Clause 59 (transfrontier shipments of waste); Clause 60 (regulations under the Environmental Protection Act 1990); Clause 69 and Schedule 11 (local air quality management framework, partly)Clauses 71-74 (environmental recall of motor vehicles etc); Clause 81 (water quality: powers of Secretary of State);Clause 84 (Solway Tweed river basin district: power to transfer functions);Clause 85 (water quality: interpretation);Clause 129 (financial provisions) ; Schedule 19 Amendment of REACH legislation and Clause 131 on Commencement.

8. Given the significant extent that this Bill will affect Scottish Councils it is absolutely right to ensure that there is proper intergovernmental consultation between Local, Devolved and UK Governments as well as those with the Office for Environmental Protection as the new regulatory body.

Office for Environmental Protection

9. COSLA also notes that the new Office for Environmental Protection will replace the regulatory, investigative and enforcement powers currently exercised by the European Commission, including bringing cases to the Courts against individuals, organisations and public authorities such as Councils.

10. Local Authorities might be investigated, required to cooperate and provide information and Clause 35 provides for the OEP to bring legal proceedings against a public authority regarding an alleged breach of environmental law. Furthermore, public authorities themselves are excluded from complaining to the OEP, as this would amount to one arm of government or the public sector complaining about another. Therefore preventative and consultation mechanisms such as those outlined in this submission need to be developed to support the OEP work.

11. We stress that the OEP as NDPB needs not only to be independent from the government of the day but to ensure that for its all-UK dimension it draws from the expertise and consults widely such as it is the case with the pre-legislative and better regulation consultations that have been put in place by the European Commission.

12. COSLA’s view has consistently been that we are in favour of UK-wide arrangements where they are appropriate; however, we think that it would be contrary to the constitutional Devolution settlements that any new UK-wide body is a UK-Government body. In short:

- Any new UK (regulatory) body should have the ownership of all governments, including local governments , so that they can jointly develop approaches for better environmental protection, develop new shared outcomes, new guidance (e.g. shipments of waste) or implement instruments (e.g. Environmental impact Assessments).

- Any new UK (enforcement) body should be truly independent from all concerned governments, including the UK Government.

Consultation with Local Government

13. COSLA recalls that he UK Government has committed , in dealing with EU returned powers to ensure that Local Authorities enjoy post UK withdrawal the same consultation prerogatives as it had enjoyed during the period of EU membership.

14. Furthermore existing UK legislation, the Localism Act 2011 has been in place to pass down fines set by the Commission if a UK Local Authority was deemed liable to be in breach of environmental legislation such as air quality. Both the English (LGA) and Scottish (COSLA) Local Authority Associations made the ‘natural justice’ case that a punitive approach needed to be preceded by our engagement in an early local-central EU policy formulation mechanism, so by better designing the policy and its application we could avoid EU fines for infringement later on. This resulted in the UK Government "Policy Statement on Part 2 of the Localism Act 2011" [3] . The Scottish Government later produced similar guidance [4] . While both sets of guidance require Local Government to be actively involved in the formulation of UK and Scottish Government policy. There is merit to incorporate and upgrade this mechanism into this Bill.

15. Indeed, the UK Government indicated its intention [5] to find a way forward. It confirmed its goal [6] of a flexible, non-statutory mechanism that, in essence, replicates the kind of engagement Local Government has on EU policy through the Committee of the Regions, but in a lighter-touch arrangement.

Policy Formulation and Enforcement

16. The Environment Bill, and its Devolved equivalents, where applicable, are the most important piece of environmental governance and enforcement in a generation, with consequences to last well into the future. It needs to have a sufficiently robust coordination mechanism so that it can adapt to future environmental ambition, including ongoing negotiations at UN and with respect of the ongoing UK-EU negotiations.

17. In terms of policy formulation as COSLA’s various submissions have shown [7] , there are tried and tested alternative models – the Italian and Austrian cases being perhaps the most promising, as they are constructive, incremental and mainly non-political way of central-devolved-local intergovernmental negotiation. [8] There is also merit in exploring further the Welsh Government proposal for the creation of a UK Council of Ministers [9] - which like the EU council should have specific formations such as Environmental JMC. We hope that the ongoing intergovernmental review of the JMC mechanisms would consider this option.

18. Given the transboundary nature of many environmental issues and the asymmetric nature of Devolution we w ould welcome a new body complementing some of the existing joint bodies between the UK Government and the devolved administrations such as the Joint Nature Conservation Committee (JNCC) or the Committee on Climate Change and Adaptation Sub-Committee (CCC).

19. Given the impact of international and EU frameworks into UK and Devolved environmental ambition the model of the UK Co-ordinating Body (UKCB) that currently exist to co-ordinates the implementation of EU agri-environmental regulations across the UK could be considered.

20. The Bill as it stands does not make reference to the coordination mechanisms that should be in place to ensure that inter-governmental coordination as well as OEP own modus operandi as to ensure that the Bill reflects the diverse nature of the UK.

21. Lastly, it seems logical that in keeping with the Devolution settlement the new UK-wide body or bodies is replicated in Scotland as regards to environmental matters that do not have a transboundary effect. In that case there should be coordination between the Devolved and UK-wide bodies not unlike the mechanisms that exist between the different Environmental Agencies across the UK and Devolved areas.

Dr. Serafin Pazos-Vidal

Head of Brussels Office

Convention of Scottish Local Authorities (COSLA)

www.cosla.gov.uk\europe

May 2020