Chapter 9: Devolution and the environment
Alignment across the UK
175.Several of our witnesses pointed out that, although broadly governed by common EU legislation, “The environment is, largely, an area of devolved competence.”295 In the words of Ms Griffiths, Cabinet Secretary for Environment and Rural Affairs in the Welsh Government:
“As well as being steeped in the EU’s operating framework, these are also areas where 17 years of devolution [have] resulted in a divergence of both policy and primary legislation between the different parts of the UK, as most recently seen in our Environment (Wales) Act.”296
Ms Cunningham, Cabinet Secretary for Environment, Climate Change and Land Reform in the Scottish Government, developed a similar point: “The majority of matters relating to environment and climate change are within the devolved competence of the Scottish Parliament. For example, Scotland has its own legislative framework on climate change targets, environmental quality and nature protection.”297
176.Devolution has led to environment regimes in each of the nations of the UK that are in some respects distinct. Ms Bunker noted that “agri-environment schemes have been developed by each of the four countries slightly differently”,298 and Mr Bell pointed out that with regard to climate change, “the Welsh Assembly has legislated its own set of targets … Scotland is legislating a new Climate Change Act”, and “[Northern] Ireland has just legislated its own Climate Change Act with its own targets”.299
177.In fact, several witnesses asserted that in some respects the Devolved Administrations’ environment and climate change ambitions were higher than those of the UK as a whole. Mr Hutchings, for example, said that the Scottish Government had probably “moved further ahead” in terms of its designations for marine protected areas, and noted that the Well-being of Future Generations (Wales) Act was “showcased at UN level as an exemplar of how to go about managing the environment in recognition of the social and economic benefits that come from looking at sustainable development in the round.”300 In respect of recycling, Mr Hayler told us that the UK was “currently struggling to meet the 2020 target which is set at 50% household recycling levels. We are around the mid-40s per cent but there is quite a lot of regional variation. In Wales they are already comfortably meeting that 50%.”301 Ms Cunningham told us that the Scottish Government’s “work to decarbonise electricity generation has already made a sizeable contribution to the UK’s climate change goals, and only one other European nation has achieved a greater cut in greenhouse gas emissions.”302 Dr Coffey also acknowledged that “It is fair to say that all the four nations are rather ambitious in their plans for the environment”.303
Impact of policy divergence
178.Ms McIlveen told us: “At the moment, as all UK jurisdictions have to comply with community law … a degree of consistency on environmental policy has resulted.”304 Several witnesses suggested that in the absence of the overarching framework of EU legislation post-Brexit, it would be important to continue to co-ordinate policies between central Government and the Devolved Administrations. Ms Griffiths, for example, stated that “there will of course be issues which will be best dealt with on a UK-wide basis”.305 Ms Bunker agreed: “There is real value within the UK … in operating and working collaboratively to deliver what the natural environment needs to be restored and to succeed.”306 The Wildlife Trusts also agreed.307
179.At the same time, we heard concerns that the potential for increasingly divergent policies within the UK post-Brexit could lead to “friction”.308 Prof Howell noted: “There is a risk that environment policy and delivery could be further fragmented by setting up distinct policy and delivery frameworks in each UK administration, which would be detrimental to the delivery of a coherent environment policy in the UK as a whole.”309 Mr Hutchings said: “If we can have a more coherent management regime [in the Devolved Administrations], it offers certainty for organisations working in the different countries”.310 The Mineral Products Association, in contrast, highlighted existing “inconsistencies between different national governments in the UK when implementing EU legislation”, and suggested that “Brexit offers an opportunity to improve regulatory harmonisation and consistency across the UK.”311 Mr Elliott, while noting that there were already “different environmental regulators” across the UK, thought that “By and large, that co-ordination work currently tends to work very well.”312
180.Both the Scottish and Welsh Governments told us that they would make use of their devolved powers in relation to the environment. Indeed, both Administrations have now published their Brexit priorities, including on the environment.313 Ms Cunningham told us that coordination across the UK “cannot be at the cost of discretion over the direction of policy in the separate countries of the UK.”314 Similarly, we heard from Ms Griffiths that “where European law falls within devolved competence it must be for Wales to decide which parts of it are to be preserved or repealed.”315 Ms Cunningham added that the exercise of devolved powers in the environmental field could be “adversely impacted by matters that are within the reserved competence of the UK Parliament”.316
181.The distinct regimes within the UK may also bring benefits. The Game and Wildlife Conservation Trust noted the importance of taking a local approach to aspects of environment protection:
“The divergence in environmental stewardship approaches, which has developed in the devolved administrations, should be continued and broadened where necessary, as they foster appropriate prioritisation and action within local areas. The consequential divergence in policy is inevitable and necessary but realistically manageable.”317
182.Ms Bunker agreed: “The fenlands of East Anglia are very different from the uplands of Wales, and the interactions between farming, forestry or other sectors and the natural environment are different.”318 She therefore proposed “Working together on common principles and ambitions, but utilising the mechanisms that will work best in the different kinds of environment in the UK”.
183.Mr Elliott noted that the existence of separate environmental regulators in each of the Devolved Administrations—such as the Scottish Environment Protection Agency and Natural Resources Wales—meant there was “an ability for each regulator to learn from one another and for the businesses to share the experience across borders as well.”319 The Game and Wildlife Conservation Trust agreed that “Information sharing to ensure that each administration learns from each other is key”, referring in particular to different approaches in England and Wales to the interpretation of CAP rules on the density of trees on farmland.320
184.The Ministers both recognised the importance of co-ordination with the Devolved Administrations. Dr Coffey noted: “Air quality does not change just when you step over the border from Chester to Wrexham … so we need to ensure that we work together on matters that affect our own residents as well as our commitments to the international community.”321 At the same time, she emphasised that “the United Kingdom Government are responsible for upholding the multinational agreements to which we sign up”,322 and added that the UK Government would “take the lead and are the main party on any infractions or judicial review, even if it is happening in another part of the United Kingdom where we do not have direct control.”323 Dr Norman focused on climate change:
“That central issue is, of course, not a devolved matter, but it is quite important to make sure that, in so far as Devolved Administrations have control over things that bear on policy locally, those things do, as it were, meet the wider emissions targets that we have set ourselves as a country. I do not expect that to be affected particularly by Brexit, as such, but it does mean that we need to continue that process of engagement.”324
185.Ms Griffiths concluded that “any UK wide frameworks must be based on common consent by all four Governments within the United Kingdom and will need robust and independent dispute resolution mechanisms.”325 Dr Norman’s aim was to “construe these potential differences as a fruitful discussion and a fruitful basis for review and consideration rather than, as it were, anything necessarily more conflictual.”326
186.There is already variation in environmental policy between the Devolved Administrations. Such variation is likely to increase in the aftermath of Brexit, once the requirement to act in conformity with EU law is lifted, and as policy areas currently reserved to the EU become devolved matters.
187.We welcome the acknowledgement both by the Devolved Administrations and the Government of the increased need to achieve an appropriate level of policy coordination, while allowing for some variation to reflect local or regional circumstances. The UK Government should consult closely with the Devolved Administrations throughout the withdrawal negotiations, and in the formulation of its Great Repeal Bill, to ensure environmental management can be co-ordinated across the UK where this will enhance its effect.
313 Scottish Government, Scotland’s Place in Europe, December 2016: http://www.gov.scot/Resource/0051/00512073.pdf [accessed 24 January 2017]; Welsh Government, Securing Wales’ Future, 2017: https://beta.gov.wales/sites/default/files/2017–01/30683%20Securing%20Wales%C2%B9%20Future_ENGLISH_WEB.pdf [accessed 24 January 2017]