The environmental governance gap: how robust are the interim measures?

Published 29/11/2022   |   Reading Time minutes

Since the outcome of the EU referendum, there has been widespread concern across the environment sector about gaps in environmental governance post-EU exit. The sector fears this ‘governance gap’ could lead to environmental damage with limited mechanisms for holding the Welsh Government to account.

The UK has departed from the EU’s environmental governance system

EU institutions monitor Member States’ implementation of EU environmental law. They receive and consider citizens’ complaints and can take enforcement action against Member States breaching those laws, including issuing fines. The European Commission and the Court of Justice of the EU (CJEU) have played a significant role in governing the implementation of EU derived environmental laws across the UK and resolving cross-border environmental disputes between the UK and other Member States. Our Senedd Research briefing provides more detail.

Stakeholders are concerned about the governance gap, criticising Welsh Government progress

In 2018, the previous Welsh Government committed to “take the first proper legislative opportunity to … close the governance gap”. However, no legislation was brought forward. The current government’s legislative programme includes no commitment to introduce such legislation. This has prompted stakeholders to say Wales has “the weakest environmental governance structures in western Europe”.

The governance gap was an area of concern for the Fifth Senedd’s Climate Change, Environment and Rural Affairs Committee. The newly formed Sixth Senedd agreed a motion to recognise “the need to close the environmental governance gap created by our departure from the EU”. It called on the Welsh Government to “legislate to establish an independent environmental governance body for Wales”.

The other UK nations now have statutory oversight bodies up and running. For example, the Office for Environmental Protection (OEP) in England published a challenging report to UK Government on delivery of its 25 Year Environment Plan.

The Welsh Government has established interim measures

In order to bridge the gap before the implementation of permanent environmental governance arrangements, the Welsh Government established interim environmental protection measures, headed by an Interim Environmental Protection Assessor (‘the Interim Assessor’).

The Welsh Government appointed Dr Nerys Llewelyn Jones as Interim Assessor.  She took up the post on 1 March 2021 for a two year period (with the possibility to extend by another year) “… during which time the Welsh Government will develop a permanent environmental governance oversight body”.

The Interim Assessor’s role is to consider the “functioning of environmental law”. Her strategic objectives are to:

  • provide a service to the public that allows them to submit information about the functioning of environmental law in Wales;
  • through reports, advise the Welsh Ministers on any action that may be required; and
  • contribute to the development of the permanent approach to environmental governance in Wales.

She does not have the legal authority to receive and address complaints regarding breaches of environmental law. To bring a challenge on compliance with environmental law the Welsh Government is advising citizens to pursue existing means of domestic redress like judicial review.

Stakeholders have highlighted these interim measures are far from the EU’s environmental governance system, or what would be desirable under a domestic body.

The Senedd’s Climate Change Committee has concluded although the interim measures have value, a permanent environmental governance body is desperately needed

The Climate Change, Environment and Infrastructure (CCEI) Committee aims to scrutinise the progress of the interim measures until permanent arrangements are in place. Its inquiry on “interim environmental protection measures” is the subject of next week’s debate.

On 30 June 2022, the Committee took evidence on the first year of the interim measures from Dr Llewelyn Jones and representatives of the environment sector. The session was informed by the Interim Assessor’s Annual Report 2021-22, (June 2022) and written submissions from stakeholders.

The Interim Assessor’s Annual Report summarises the establishment of the service to receive and consider submissions from the public. It acknowledges the “significant time” taken which included “constantly reviewing and amending” those processes. It details work to raise awareness of the service and build relationships with UK counterparts.

It says demand on the service had been greater than anticipated during the first year, with 21 submissions received, highlighting this:

…clearly demonstrates that there is a high degree of public engagement with the subject of environmental protection and an appetite to ensure that the law protects the environment in Wales.

The key themes of the submissions were forestry, water quality, and hedgerows.

RSPB Cymru commented the number of submissions indicates significant concern in Wales regarding the implementation of environmental law.

Stakeholders highlighted a lack of transparency in the Interim Assessor’s work. They had questions on how evidence is gathered for the reports to the Welsh Ministers.

During the reporting period, the Interim Assessor did not produce any reports for the Ministers. She explained although she had hoped to report on forestry within the first year, demand on the service last winter impacted on the timetable. She said the office is “a small body with limited resources”.

The Committee concluded it was “encouraged” by how much the Interim Assessor’s office has achieved during its first year, despite limited resource. It highlighted room for improvement, particularly in relation to public awareness and transparency.

The Welsh Government responded with a commitment to undertake an internal review of the resources available to the Interim Assessor, which was welcomed by the Interim Assessor. She detailed ongoing work to make the interim measures more accessible and transparent.

The Interim Assessor emphasised that she is not able to consider breaches in environmental law and further highlighted:

I don't have powers to require action to take place as a result of any recommendations that I make or to require public bodies to undertake certain actions as a result of recommendations that I've made either.

The representatives from the environment sector welcomed the Interim Assessor’s role “as a short term stop gap”. However, they asserted that the narrow scope of the interim measures means a governance gap exists in Wales.

The Committee concluded the interim measures perform an important function to improve environmental law. However, it said they “fall significantly short of the fully functioning, well-resourced oversight body that Wales needs to deliver effective and coherent environmental governance”.

Although the Committee welcomed the environmental focus of the legislative programme, it stressed Wales is “sorely missing” effective oversight when the government fails to deliver. It waits with “growing impatience” for a Bill to be brought forward.

Article by Dr Katy Orford, Senedd Research, Welsh Parliament