Taking stock of environmental governance in the UK, seven years on from the EU referendum
It has been seven years since the EU referendum and three and a half years since Brexit ‘proper’. This timeframe is both long enough for the UK to have profoundly changed its system of environmental governance and still quite early days to judge how successful those changes have been. Looking back, we can note a worrying tendency in Westminster towards centralised and slapdash environmental law. This centralisation of power (or ‘power grab’) raises questions about the balance of power between Parliament and Government and the implications for the UK territorial constitution.
The hurried and slapdash nature of policymaking does not only raise concerns about the quality of environmental laws but also about the transparency and legitimacy of the decision-making process. In 2019, Prof Liz Fisher argued the proposed Environment Bill (now the Environment Act of 2021) sowed the seeds for ‘Executive Environmental Law’, meaning “the possibility of a legal future in which the executive dominates how the norms, ambitions, and accountabilities of environmental law are defined.”
In 2023, are we living in this troubling legal future? In this post, I will try to answer this by looking at recent developments in the UK, the Retained EU Law Act saga, tensions over the Deposit Bottle Scheme in Scotland and recent (lack of) development on governance beyond Westminster; in Scotland, Wales and Northern Ireland.
Retained EU law Act: a further step towards centralisation
Arguably, whether the UK government can deliver this form of slapdash centralisation depends on the strength of four potential counterweights: civil society, parliament, devolution and the new environmental regulator(s). The Retained EU Law Act saga showcases how these counterweights do matter… but that they can only limit, not negate, the current trend toward Executive Environmental Law.
When first mooted in 2022, the REUL Bill aimed to sunset all secondary retained EU laws (SIs and SRs) by December 31, with exceptions retained by either the UK or devolved governments. Ministers would be granted what the Hansard Society characterised as ‘do anything we want’ powers under the guise of revising Retained EU Law. Civil society, particularly environmental groups, strongly opposed the Bill. In an open letter, they argued that thousands of vital legislations could face repeal not because they are “bad” but solely because they originated from the EU. The OEP called it ‘rushed approach to law’, and called for the establishment of a ‘safety net’, an environmental non-regression clause. Devolved governments in Wales and Scotland expressed strong opposition, citing concerns about constant ‘nibbling’ on their competences. Although MPs and (indeed mostly) Peers obtained some amendments to end default sunset and guaranteed consultation of devolved administrations, the government firmly rejected any idea of environmental non-regression, relying on political promises rather than legal commitments.
The Act gained recently gained Royal Assent, but several issues remain. First, due to the length of recess in the coming months, the deadline of 31/10 to save any of the 578 items is very short. Second, the promises of re-devolution seem to have been disregarded. For instance, the Scottish government explain that it was not consulted or informed about the content of the 578 items, of which 148 possess implications for Scottish devolution, even when these pieces of REUL fall under the agreed Common Frameworks. Third, the long-lasting powers granted to ministers by the Act and the end of the primacy of retained EU law create uncertainty for the courts.
Looking through the Glass Bottle…
The fraught territorial dimension of UK environmental governance is also visible in the Internal Market Act (IMA). Post-Brexit, devolution could have allowed different UK administrations to act as laboratories of policy innovation – testing new approaches. However, the UK government’s key objectives for ‘breaking free’ from the EU, Trade and ‘Global Britain’ have shaped its approach to governing the UK Internal Market, which prioritises policy coherence and reduced trade barriers over diverging exercise of policy competence.
The exact boundaries of devolved powers have yet to be tested as evidenced by the Scottish ban on Single Use Plastics (SUP), which required an exemption from IMA to apply beyond Scotland. The Welsh ban, which includes more SUP types, did not request such an exemption but received Royal Assent after six months. Scotland was asked by the UK government to exclude glass from its bottle deposit scheme (IMA exemption granted except for glass bottles) – Wales intend to keep glass bottles within it and is not asking for an IMA exemption. In both cases, retailers have written to the UK government to ask it to curtail devolved competence and exclude glass. Glass bottles deposit scheme in 2023 thus appears to be the key test for both environmental ambition and devolved capacity to diverge within the UK Internal Market… in an eerie echo to the CJEU’s Danish Bottle Case which came to very different conclusions on the possibility for EU Member States to diverge upwards in certain areas of environmental action.
England v the rest?
It would be overly simplistic to pit the UK government against the devolved administrations based solely on environmental ambition. In Northern Ireland, the democratic and financial crises have led the Department for Agriculture, Environment and Rural Affairs to underfund the OEP this year. In Scotland, the recent review of Environmental Governance was mostly self-congratulatory and rejected proposals for environmental courts or third-party right of appeal. Meanwhile, the Scottish government appears keen to undermine the ban on discarding fish at seas, showing that it is not immune to rolling back EU environmental rules. Finally, the Welsh government appears keen to redefine what ‘interim’ mean. The Interim Environmental Protection Assessor for Wales seems to be here for another few years as the much-promised and much-delayed Welsh Environment Bill is pushed to the earliest 2025.
What we are experiencing is indeed Executive environmental law – governmental control of action, and inaction, political promises not backed by legal realities. This is particularly blatant in Northern Ireland, where the absence of an Executive and Direct Rule results in a lack of executive action. Northern Ireland remains the only part of the UK with no ban on SUP and is bound by a small subset of EU law, making it the least environmentally ambitious of all.
Where does this lead us? Back to our four potential counterweights: Parliament, the Devolved Administrations (and legislatures), Civil Society and the new Regulators (OEP and beyond). As we move beyond the early legislative stage of post-Brexit environmental policy and governance, we need a proper focus on implementation – and evaluation of performance. The UK Government has repeatedly argued political promises were sufficient—time to check that these are indeed delivering.
