Fersiwn Gymraeg ar gael yma

**Update: 24 November, 2020**

As we approach the end of the EU Transition period, we’re re-sharing our blog on the governance gap that will arise once we are no longer part of the EU. We wrote this during the Welsh Government’s 2019 consultation on post Brexit environmental governance for Wales.

Since then, we have been part of a stakeholder task group convened to help the Welsh Government develop proposals. The task group reported to the Minister in April, and she has just published her response to that report, in which she supports, at least in principle, all of the group’s recommendations. These include the need for legislation to bring core environmental principles into Welsh law and to establish an independent Commission to oversee the implementation of environmental law in Wales.

We are pleased that the Minister has supported the task group’s recommendations. It is a matter of deep concern, however, that with only a few weeks until the end of the transition period, Wales has neither legislation nor a clear timetable for legislation to address the governance gap. While interim measures are being prepared, including the recruitment of an Interim Assessor, these fall far short of the permanent arrangements that are urgently needed for oversight and enforcement of environmental law.  As a result of this, contrary to the stated intentions of the Welsh Government, our environmental protections will be weakened as a result of the UK’s departure from the EU.

It is critical that swift progress is made by the current Government to set out clear legislative proposals.

(The original blog was posted 1 April, 2019)

Most of our current nature and conservation laws come from the EU and are underpinned by the environmental principles that are part of the EU Treaties.

There are four ‘core’ environmental principles:

  • The precautionary principle, which says action must be taken to prevent potential environmental harm even if risks are not fully understood;
  • The polluter pays principle, which says a person responsible for pollution should be responsible for paying for the measures needed to reduce it or clear it up;
  • The preventative principle, which requires action to be taken to avoid environmental happening;
  • The principle that environmental damage should be rectified at source, which says that waste or pollution should be dealt with when and where it occurs

As well as aiming for a high level of protection for nature and the environment, these principles also contribute to the overarching aim of sustainable development.

EU organisations have always played an important role in providing advice, monitoring and enforcement of environmental laws. Losing access to the expertise and oversight provided by these organisations will create a ‘governance gap’ in the UK.

As it stands, any citizen or organisation can complain to the European Commission, free of charge, if they are concerned about how their national government is putting environmental laws into practice. The Commission has the power to investigate, negotiate with governments and ultimately force them to act by referring to the European Court of Justice.

The RSPB has direct experience of the impact of this process. In 2012, we raised a complaint with the European Commission over our concerns that the governments of the UK were failing to protect seabirds adequately as required by the EU Birds Directive. This complaint led to talks between the Commission and the UK, which in turn has resulted in new marine protected areas for seabirds in all four countries.

In Wales, this includes protection for foraging terns off Anglesey, puffins and gannets around the Pembrokeshire Islands, and red-throated divers that spend the winter in Cardigan Bay.

So, what does the current consultation say? The Welsh Government is proposing to make sure that the environmental principles above are kept in Welsh law by making them a part of the Environment (Wales) Act.

This is a good proposal – we will be encouraging the Welsh Government to ensure that all of the core principles are included in the Act and that all Welsh public bodies are given a duty to apply them in order to maintain and enhance the health of our environment.

Disappointingly, the consultation does not make a specific proposal on how to fill the governance gap when we leave the EU. This is especially concerning because any new arrangements will take a while to set up so getting the right plans underway is urgent; without strong governance our environmental laws will be weakened.

However, the consultation does recognise that there is a gap that needs to be filled, and that we need new arrangements to make sure there is independent oversight of environmental law in Wales, that people are still able to raise concerns if they think it is being broken, and that enforcement action can be taken where necessary.

The consultation also goes on to explore what any body charged with providing these functions would need to look like.

We are calling for a new ‘watchdog’ to advise public bodies in Wales on delivering environmental duties; receive and investigate complaints; ensure that the law is being followed correctly and, if necessary, take enforcement action.

Such a body will need to be independent of government, but accountable to the National Assembly for Wales.  This new body could be specific to Wales, or it could be part of a body that serves more than one of the UK countries. Either way, there is no doubt that the four countries of the UK need to work together to ensure that high standards and strong ambitions for our environment are delivered.    

We are glad that the Welsh Government’s consultation asks what is needed to enable the four governments of the UK to work together effectively for the environment – including meeting the UK’s international commitments for biodiversity. After all, nature does not recognise borders and we all have a responsibility to turn its decline around.