Environmental governance post-Brexit: closing the ‘governance gap’

Published 27/06/2018   |   Last Updated 27/05/2021   |   Reading Time minutes

EU bodies, such as the European Commission and the European Court of Justice currently play an important governance role in implementing and enforcing EU derived environmental laws across the UK.

These laws, and how they are interpreted, are shaped by the ‘EU environmental principles’, which are designed to ensure high environmental standards.

There is wide concern across the environment sector that there will be a ‘governance gap’ if these governance bodies and environmental principles no longer apply in the UK after Brexit.

The Welsh Government has committed to ‘take the first proper legislative opportunity to enshrine the environmental principles into law and close the governance gap’. But what will fill this gap?

The UK Government (Defra) is currently consulting on this issue. The consultation is a precursor to an Environmental Principles and Governance Draft UK Bill which is expected in the autumn.

The consultation relates to England and non-devolved matters only. However, the UK Government is inviting joint working with the devolved administrations to develop shared arrangements for both the environmental governance body and the environmental principles. In response to the consultation, Lesley Griffiths, Cabinet Secretary for Energy, Planning and Rural Affairs, said that the Welsh Government had not been ‘fully engaged’ prior to the announcement, but ’stands ready to work in collaboration.’

The Assembly’s Climate Change, Environment and Rural Affairs (CCERA) Committee recently considered these issues in its recent inquiry into environmental governance and principles post-Brexit.

  1. Environmental governance body

Functions of a governance body

Enforcing environmental law is a key function of any environmental governance body. The Committee heard that the enforcement powers proposed in Defra’s consultation are not strong enough as they simply advocate ‘advisory notices’ that request compliance. Stakeholders stressed that the governance body would require the power to initiate legal action that could result in fines being imposed if necessary. There was consensus that the governance body would also need to be independent from government and would require appropriate resourcing, expertise and be accountable to legislatures.

The potential of existing bodies to fill the gap

There has been speculation around whether existing UK bodies could fill the governance gap. In Wales, the Future Generations Commissioner has been suggested; however, the Committee inquiry highlighted that this would require a major transformation of the Commissioner’s functions as the current role does not have the required environmental focus. Natural Resources Wales (NRW) was also discussed. It was felt that NRW, as the environmental regulator, does not have sufficient independence.

The geographic extent of the body

A proposal heard repeatedly in the inquiry was for a joint UK body co-designed and shaped by the devolved administrations alongside the UK Government. This option could provide a level of detachment from the politics of individual governments, as well as assessment of cross border environmental issues and efficiency saving through joint working. This would also set a level playing field for businesses and other bodies that operate across the UK.

Stakeholders acknowledged that having separate bodies could mean that the individual bodies would be more in tune with devolved issues, although this option would still require coordination at the UK-level. It was highlighted however that establishing a devolved governance body has timescale, costs and capacity limitations. There were concerns that if funding for the environment is subject to the Barnett formula, then there may be insufficient funds to set up an adequate governance body for Wales.

Stakeholders warned that the task of setting up an effective governance body/bodies will be challenging within the time constraints, even with the additional time provided by the transition period.

The Committee’s recommendations on an environmental governance body are:

Recommendation 1: The Welsh Government should clarify whether it supports the establishment of a UK-level governance body.

Recommendation 2: The Welsh Government should report back to this Committee as a matter of urgency on discussions that have taken place with the UK Government about the potential for establishing a UK body.

Recommendation 3: The Welsh Government should report back to the Committee as a matter of urgency on any exploratory work it has undertaken to assess the resources that would be required to establish a Welsh body and any discussions with the UK Government on this matter.

Recommendation 4: The Welsh Government should report back to the Committee as a matter of urgency on any work to explore potential transitional arrangements for environmental governance, if no governance body is established before the UK leaves the EU.

Recommendation 5: A UK-level governance body must meet the following criteria:

  • it must be co-designed by all of the different countries of the UK;
  • it must be accountable to legislatures, rather than governments;
  • it must be resourced appropriately; and
  • there must be appropriate mechanisms to resolve disputes.

Recommendation 6: The new environmental governance architecture must include the following functions:

  • promoting environmental protection among government actors and the wider community;
  • monitoring and reporting on progress in the implementation of environmental laws and providing essential scientific data;
  • taking action where targets/objectives are not met, for example through the imposition of economic sanctions;
  • providing citizens and civil society organisations with access to the complaints and enforcement systems; and
  • adopting a long-term strategy transcending political cycles.

coedwig niwlog

  1. Environmental principles

The core EU principles

There is wide agreement that there is a strong case for retaining the core EU environmental principles and ensuring they are included in the environmental governance architecture post-Brexit. The EU core principles are the:

  • Prevention principle;
  • Principle that environmental damage should as a priority be rectified at source;
  • Polluter pays principle; and
  • Precautionary principle.

Retaining the principles

There is still uncertainty on how the environmental principles will be retained. Defra’s consultation considers two main options:

  1. To be listed in the draft Bill, with a statutory policy statement issued under the Bill to explain how they should be interpreted and applied; or
  2. The draft Bill itself would not list the principles. Instead, the principles would be set out and explained in a statutory policy statement issued under the Bill.

The Committee heard the main benefits and limitations of each option. Option 1 would give greater status to the principles than Option 2. Option 2 has so far been criticised by environmental NGOs for lacking a commitment to the well established EU environmental principles. While Option 2 would allow greater flexibility for the principles to be kept up to date with emerging scientific evidence, this flexibility may actually limit durability and application of the principles. The consensus during the inquiry was that the principles need to be enshrined on the face of the Bill to offer commitment (Option 1), but there should also be a mechanism for them to change, for example as a result of legal decisions and/or societal changes.

Environmental principles in Wales

Stakeholders felt that while Welsh law enshrines valuable principles such as ‘the sustainable management of natural resources’ (Environment (Wales) Act 2016) and ‘sustainable development’ (Well-being of Future Generations (Wales) Act 2015), these do not replicate the EU principles. These Acts were designed with the assumption that the EU principles would continue to apply to Wales.

Stakeholders believed that the existing EU core list of principles should not be considered to be exhaustive, and that emerging principles, such as a ‘non-regression principle’ and ‘integration principle’, should also be considered.

If the principles are enshrined in UK law, there would be a question of how the principles would interact with the existing Welsh principles and which definitions would take precedence. For example, stakeholders highlighted that the Welsh definition of ‘sustainable development’ goes further than the EU definition. This poses the question of whether or not the principles should be devolved. If they were to be devolved, there would then be a question of which principles would apply when the UK Government made, for example, a consenting decision for an activity Wales – would it be the Welsh principles or the UK principles?

The Committee’s recommendations on environmental principles are:

Recommendation 7: The Welsh Government should bring forward legislation at the earliest opportunity that will enshrine the environmental principles in law. The principles should be included on the face of the Bill.

Recommendation 8: The Welsh Government should clarify and report back to this Committee as a matter of urgency about when and how it intends to bring forward legislation to enshrine the environmental principles in law.

Recommendation 9: The Welsh Government should report to this Committee as a matter of urgency on discussions it has had with the UK Government to resolve the issue of the UK potentially making decisions on reserved matters in Wales that conflict with Welsh environmental principles or standards.

Article co-authored by Dr Lindsay Walker, ESRC IAA Fellow with the National Assembly for Wales Research Service, and Dr Katy Orford, National Assembly for Wales Research Service.