Shuffling the deckchairs (5): lessons from Wales

Defra is currently consulting on whether to merge two of its agencies, Natural England and Environment Agency, or keep them separate.  Redesigning quangos may not be everybody's cup of tea, but as I have written before (here), the outcome could have huge significance for nature conservation. 

We are particularly keen to ensure that the outcome of the review produces at least one organisation whose primary focus is to protect the natural environment and is able to give advice in public, free from political interference.   As I wrote before Christmas (here), we have been concerned about proposals to make Natural England take into account economic factors as well as impact on wildlife when advising on planning proposals and to reduce Natural England’s independence.

There are similar issues facing the statutory nature conservation body in Wales but for different reasons. In Wales, the Countryside Council for Wales (CCW) is being merged with the Environment Agency Wales (EAW) and the Forestry Commission Wales (FCW) to create a new body called Natural Resources Wales (NRW). The second phase of the legislation (the Second Order) to create this new body is currently being scrutinised by the Environment & Sustainability Committee of the Senedd (the National Assembly for Wales).

The RSPB’s most significant and serious concern, based on legal advice we commissioned, is that the wording and caveats on the proposed Nature Conservation duty for NRW result in a weaker duty than that currently applying to CCW, and so is not compliant with the Public Bodies Act 2011. The Public Bodies Act 2011 is the legislative measure that allows Welsh Ministers to create the new body and transfer the existing functions of CCW, EAW and FCW to it. While they are allowed to make some modifications, the Public Bodies Act does not allow them to make widespread legislative changes. In particular, Welsh Ministers are not allowed to remove “any necessary protection” (Section 16(2)(a)). Our view is that a weakened Nature Conservation duty constitutes the removal of “necessary protection” for the wildlife and natural environment of Wales.

The weak Nature Conservation duty is further compounded by the fact that the new statutory purpose for NRW (set out in the First Order to create the new body) is ambiguous. It implies that the new body must show benefits for people and the economy as well as environmental benefits when carrying out actions to conserve nature. This could seriously undermine the effectiveness of the NRW as often the economic and/or social benefits of conservation action are indirect or may not be immediately quanitified or realised. It also sets a dangerous precedent, as it implies that achieving environmental objectives and protecting the natural environment for its own sake are no longer sufficient.

This begs the question, how will the Welsh Government, and the UK Government for that matter, meet the EU and international target to halt and reverse the loss of biodiversity by 2020 (the Nagoya agreement), if the main bodies responsible for the natural environment, NRW and NE, are unable to put wildlife and the natural environment first?

Just before Christmas, the news in Wales was of a leaked European Commission document criticising both the Welsh and the UK Governments over the consenting of the Pembroke gas-power station in the international important wildlife site of the Milford Haven Sound. In this case, the views of CCW were ignored and the permissions granted for the power station in a marine Special Area of Conservation without proper consideration of the impacts or respect for a host of international environmental laws. I believe that if Welsh Government sets up NRW without giving it that clear nature conservation purpose and with robust nature conservation duties, it will be at risk of many more infractions in the years to come. The UK Government would do well to take note of this case, as it seems the root of the problem was the Department for Energy and Climate Change’s initial permission for the power station in Pembroke without fully considering the environmental impact.

The understandable political imperative to prioritise economic growth must not undermine the role or responsibilities of any environmental agency.  This is why, in Wales, we are calling on the Welsh Government to make the necessary changes to the draft Order to ensure the Nature Conservation duty is at least as strong as the current CCW duty and that the statutory purpose is amended to set out a clear and robust natural environmental remit for NRW. And this is why in England we shall continue to make the case for a strong independent champion for the natural environment through the triennial review consultation.

These agencies must be free to do the job that we and wildlife need them to do: conserve and enhance biodiversity while also safeguarding the natural capital on which we depend.