Brexit, Environment and Devolution: the Welsh case

By Dr Margherita Pieraccini, Senior Lecturer in Law (University of Bristol Law School).

© BBC

© BBC

These were notes prepared for a seminar held by the External Affairs and Additional Legislation Committee of the National Assembly for Wales on the 31st of October 2016 to discuss the implications of Brexit for Wales in the field of environment and marine policy in particular. The notes discuss a number of constitutional and sector specific issues, key challenges and present some suggestions.   

Constitutional issues

Article 50 does not establish any substantive conditions for a Member State to be able to exercise its right to withdrawal. There is much uncertainty regarding what will replace British EU membership. Environmental law will differently be affected depending on the type of agreement that will be negotiated. Certain environmental sectors (i.e. nature conservation law) are likely to be affected whichever the option. Uncertainty relates also to how devolved administrations will be included in negotiations (foreign affairs is a reserved matter) and to the Welsh devolution in particular considering the current transition from the conferred powers model to the reserved powers model under the Wales Bill 2016.

In a post-Brexit world, devolved administrations may have more power to develop their own legislation and policies, as distinctiveness will not be constrained by EU law. At present, the Government of Wales Act 2006 remains the current law. The key section is 108 and Part 1 Schedule 7 (containing the list of devolved matters as well as exceptions). Following the Agricultural Wages case in 2014,[1] if the Bill relates to a devolved matter and at the same time to a ‘silent’ matter, decision is by reference to the purpose of the provision in line with s 108(7). Things may change due to the Wales Bill 2016. The House of Lords has expressed some concerns in the Constitution Committee Report of the 28th of October 2016, regarding 1) the coherence and stability of the Union and 2) the fact that many silent subjects become reserved matters in Schedule 7 (hence the 2014 judgment may be reversed), 3) the difficulty to align legislative and executive competences[2] and 4) no provisions regarding a Welsh jurisdiction despite growing body of Welsh law.[3]

Sector-specific issues

The environment is an area in which UK and EU law have become intertwined.  Much of environmental law in the UK derives from EU Directives and Regulations. A concern is that Brexit will result in the lowering of environmental standards and in the weakening of enforcement, considering the loss of EU enforcement mechanisms. Yet, depending on the option chosen, EU standards could continue to apply in many environmental areas. The Court of Justice of the European Free Trade Association States, for example, will play a role in enforcing law if the UK remains within the EEA. However, certain areas, notably nature conservation are not part of the EEA agreement.

The future of environmental law and policy is even more uncertain if the UK reaches a bilateral agreement with the EU.[4] The UK will still need to meet standards of safety and other environmental standards for product being put on the EU market. Environmental resources (such as a habitats) that are not subject to the market and trade rules will be most at risk. It will be up to the UK government and devolved administrations to choose what to do (with the exception of domestic laws that are giving effects to international law requirements).

So far, devolution in Wales has meant that important steps have been taken in the environmental field (in respect to waste law for example and with the creation of the Natural Resources Wales in 2013 reducing administrative fragmentation). Also the recent Environment (Wales) Act 2016 has taken an innovative approach to environmental issues, endorsing an ecosystem-based approach, putting a positive biodiversity duty on public authorities to seek to maintain and enhance biodiversity taking into account the resilience of ecosystems[5] in the exercise of their functions in relation to Wales.  The Welsh Assembly Government is also subject to a sustainability duty (s 79(1) Government of Wales Act 2006).

In the specific field of marine policy, the Marine and Coastal Access Act 2009 (MCAA) affords many executive powers to the Welsh Government. Welsh Ministers have already powers in relation to inshore issues and differences with England have emerged (powers granted to the Inshore Fisheries Conservation Authorities in England are in Wales in the hands of the Welsh Government, licensing in England is in the hands of the Marine Management Organisation while in Wales in those of  the Natural Resources Wales since 2013). The Wales Bill 2016 extends some of the powers offshore (clause 42 on marine licensing and clause 43 on Marine Conservation Zones (MCZs) designation offshore).

Challenges

  1. With reserved powers model of devolution, it could be possible to witness more fragmentation in environmental decision-making within the UK. Of course, environmental matters do not respect administrative boundaries so this can be problematic.
  2. Resource constraints- can legislative Welsh innovation be met by existing resource infrastructure?
  3. Is there a case for a Welsh jurisdiction?
  4. In the marine field, the Welsh approach to the designation of MCZs has proven problematic (Highly Protected MCZs proposal has been abandoned) and to date only a Marine Nature Reserve (Skomer) has been reclassified as a MCZ. Wales has already many European marine sites under the Habitats and Wild Birds Directives but is the marine Natura 2000 network at sea enough to meet the goal of ecologically coherent network of MPAs set in the MCAA? Also will the Conservation of Habitats and Species Regulations 2010 that transpose EU nature conservation Directives be repealed in a post-Brexit world? The Habitats Regulations Assessment to be found under the 2010 Regulations is a very strong, scientifically driven test to ensure biodiversity protection on European sites (cf. provisions for MCZs in the MCCA 2009 where more discretion is left to the public authority).
  5. How does the Welsh Government ensure consistent practices to Inshore Fisheries Conservation Authorities and licensing?

Some Suggestions

Will the Wales Bill 2016 provide for an enduring and clear settlement? If not, this could have negative repercussions on Welsh devolution potential. Also concerns expressed by the HoL Constitution Committee should be taken into account. In the field of the environment, attention should be paid to proposed legislation that related also to a former silent subject, as it now may fall under the reserved matters category.  The question of the development of an environmental court is to be taken into account.

The devolution settlement in Wales opens windows of opportunity in relation to environmental matters. It would be desirable that environmental standards are maintained or enhanced after Brexit with a view to ensure coherence with environmental law and policy in the UK (and indeed EU) and the high level of enforcement of environmental law, enabled so far by the CJEU, is maintained.

In the face of economic constraints, clear principles of decision-making process in the environmental field are needed.

Designation of MCZs is needed in both inshore and offshore areas of Welsh waters. The biodiversity duty could play a key role in limiting discretion of public authorities in deciding whether to grant authorization for an activity within the protected area. European marine sites should continue to have same level of protection and subject to the same strict requirements provided under EU law, with the continued operation of the Conservations Regulations 2010.

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[1] Attorney General for England and Wales v Counsel General for Wales [2014] UKSC 43, [2014] 1 WLR 2622.
[2] Transfer to Welsh Ministers is done by Order rather than clear-cut transfer of power to Welsh government.
[3] House of Lords, Select Committee on the Constitution, 5th Report of Session 2016-17. Wales Bill. HL Paper 59 at: http://www.publications.parliament.uk/pa/ld201617/ldselect/ldconst/59/59.pdf.
[4] It is worth making the point that Therese May has said in her recent speech to the Tory Party Conference that the Great Repeal Bill will enshrine all EU law into UK law. Therefore, if the UK decides to reduce any environmental standards, it will be done through a process of gradual reform.  That is meant to provide reassurance that, whatever options are chosen for the future, the EU law regime will not disappear in the short term, although there is a lot of uncertainty about how all this will be done, and indeed whether it is possible.
[5] In particular, s. 6(2) specifies (a) diversity between and within ecosystems, b) the connections between and within ecosystems, (c) the scale of ecosystems, (d) the condition of ecosystems (including their structure and functioning), (e) the adaptability of ecosystems.

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