“Time is rapidly running out” for the Welsh Government to establish an environmental watchdog

The UK nations have been developing new domestic environmental governance systems since the UK left the EU.

Newly established environmental watchdogs are checking up on public bodies’ environmental performance in England, Northern Ireland and Scotland.

We recently saw the watchdog for England identify possible failures by DEFRA, the Environment Agency and Ofwat to comply with environmental law regulating sewer overflows.

Meanwhile no such environmental governance body exists in Wales to hold public bodies to account. Transitional arrangements are in place before a Welsh watchdog is established - an Interim Environmental Protection Assessor for Wales has been monitoring the functioning of environmental law.

This article explores what is meant by environmental governance, the gaps in Wales, and the interim arrangements, ahead of a Senedd debate.

The ‘environmental governance gap’

The UK has departed from the EU’s system of environmental governance. This is where the European Commission monitors Member States’ implementation of EU environmental laws. It receives citizens’ complaints and can refer cases to the Court of Justice of the EU (CJEU). This can result in enforcement action (including fines) against Member States breaching those laws.

For example, in 2016, the CJEU ruled that the UK had failed to limit emissions from Aberthaw power station, and ordered the UK to pay the associated legal costs. The breach came to light following the Commission’s enquiries as part of its monitoring of large combustion plants. The coal-fired station, which closed in 2020, was found to be emitting illegal amounts of nitrogen oxides between 2008-2011.

The EU referendum triggered concern of an ‘environmental governance gap’ in the UK, with calls for replacement domestic environmental governance arrangements.

Statutory domestic governance bodies or “watchdogs” have been established for England and Northern Ireland (the Office for Environmental Protection) and Scotland (Environmental Standards Scotland) (Figure 1).

To date, no legislation has been brought forward to establish a Welsh environmental governance body, though a Bill is expected during this Senedd term.

The previous Welsh Government advised citizens to pursue existing means of domestic redress (e.g. judicial review), to bring a challenge in relation to compliance with environmental law.

Stakeholders argue interim measures in Wales fall short of what’s needed

The Welsh Government appointed Dr Nerys Llewelyn Jones as an ‘Interim Environmental Protection Assessor for Wales’ in February 2021. The post was originally for two years, however it has been extended by a year to February 2024.

The Interim Assessor’s role is to consider the “functioning of environmental law”, which Dr Llewelyn Jones described as:

… considering whether the law is still fit for purpose or whether it is still relevant, whether the information or explanatory material on the law is accessible or whether the practical implementation of the law is prevented in any way.

The Interim Assessor has been receiving submissions from stakeholders and the public where there are perceived issues on the functioning of environmental law. Her role is to produce reports to the Welsh Government on these issues to improve environmental outcomes. She has published one report during her appointment (February 2023) to advise the Welsh Ministers, on the Retained EU Law (Revocation and Reform) Bill. Several reports are being developed, on forestry, hedgerows, protected sites and civil sanctions.

The environment sector has raised concern that the interim arrangements do not fill the gap, and called for a Welsh Bill to establish a fully functioning governance body as a matter of priority. Wales Environment Link (WEL) concluded:

It is clear that the interim arrangements do not constitute a route to environmental justice nor do they provide a substitute for the oversight and enforcement role required to replace that provided by EU institutions.

The Interim Assessor has attended two sessions with the Senedd’s Climate Change, Environment and Infrastructure (CCEI) Committee (in 2022 and 2023).

The Committee had concerns about the effectiveness and resourcing of the interim measures following both sessions. Following the 2022 session, the Welsh Government carried out a resource review and committed to provide extra resource for the interim measures.

However, after its second session, the Committee felt this extra resource hadn’t been made available in a timely manner to support the Interim Assessor to produce reports. It was also concerned about a lack of impact monitoring.

In terms of longer term arrangements, the Committee concluded:

It will be an unforgivable failure of this Welsh Government if the new body is not fully operational before the end of its term in office.

The Welsh Government has set out resourcing plans for the Interim Assessor. And the Interim Assessor intends to introduce a formal process to monitor the impact of her work.

The Committee concluded that evidence it heard from the other UK watchdogs provides “a sharp illustration of what Wales is missing out on”. Learning from the other UK nations, it recommended early establishment of an interim/shadow Welsh body to allow much of the groundwork to be done in advance of the statutory body.

More detail can be found in the Committee’s reports, the most recent will be the subject of the upcoming Senedd debate. The Interim Assessor fully supports the Committee’s recommendations to the Welsh Government.

When can we expect a Welsh environment watchdog?

The Welsh Government first committed to legislate to address the gap in 2018.

A consultation was carried out in 2019 outlining the Welsh Government’s proposals for a domestic environmental governance system, as summarised in a Senedd Research Briefing.

Following that, in 2020 a Stakeholder Task Group provided further recommendations to which the previous Welsh Government responded.

Establishment of an environmental governance body is now a Programme for Government (2021-26) commitment.

Stakeholders had hoped that legislation would come forward in 2023/24. However, the Welsh Government’s 2023/24 Legislative Programme didn’t include such a Bill, instead the First Minister committed to bring forward the legislation “this Senedd term”.

Although environmental legislation has dominated the 2023/24 legislative agenda, it has been said that such laws will lack effectiveness without governance arrangements to oversee implementation e.g. to achieving air quality targets.

A White Paper for a Bill to establish a governance body (and nature targets) has been proposed for January 2024. If legislation comes forward in the 2024/25 legislative year, accounting for the legislative process and timescales for establishment of a body (nine months in the case of Scotland), it may be 2026 by the time the watchdog is functional. This is almost a decade since environmentalists warned of a ‘governance gap’.

And as the Committee has said, “time is rapidly running out for the Welsh Government to deliver” on its commitment to establish an environmental governance body.

More information can be found in a Senedd Research briefing.

Figure 1: Timeline of events for the development of domestic environmental governance bodies in the UK

Article by Katy Orford, Senedd Research, Welsh Parliament