Debatable ground: the devolution settlement and environmental law in Wales – Karen Morrow

Devolution and constitutional reform

The implementation of devolution across the UK in the late 1990s, while only one manifestation of an intense period of broader constitutional reform, perhaps represents one of its most significant expressions.1 Indeed it is arguable that, in a system long regarded by commentators as substantially more political than legal, devolution, the one area of constitutional change motivated by popular pressure, has brought statute law more markedly to the fore than had previously been the norm in our constitutional arrangements.2 The devolution legislation introduced in the UK in the late 1990s differentiated clearly between Scotland and Northern Ireland on the one hand and Wales on the other. In the former, broadly parliamentary status was accorded to the new governing bodies, while in the latter something more akin to a glorified form of local government was on offer. The motivation for this aspect of what is often termed ‘asymmetrical devolution’ was attributed to a relatively lukewarm response by the Welsh electorate to the initial referendum on devolution. It would, however, be fair to say that asymmetrical devolution could also be justified in part by the fact that Wales, unlike Scotland and Northern Ireland, did not exhibit a marked separate pre-devolution legal identity.3 As events have played out, devolution in Wales has gained considerable traction in comparatively short order.4 This has resulted in its incremental expansion, making the principality something of a constitutional field laboratory as, given the constraints imposed on the initial form of devolution that was employed in Wales, it arguably represents the most relevant model for possible future reconsideration of the vexed question of devolution to the English regions. Having said this, as will be apparent from the discussion that follows, the story of devolution in Wales so far could equally be seen as revealing the difficulties inherent in keeping a devolved system within tight bounds. Furthermore, it may be taken to illustrate the necessarily dynamic response to governance that is involved in this area in the absence of a more concrete federal constitutional model and the presence of differentiated devolutionary settlements within the UK legal system. The Welsh experience then raises a number of issues, not least relating to the political momentum generated by introducing even a curtailed form of devolution and the implications for its practical/political (if not legal) entrenchment.5 This had already been observed in the context of the comparatively limited form of what is often referred to as administrative or executive devolution that had become operational in Wales from the mid-1960s onwards, despite entrenched opposition in Whitehall.6 It is interesting to note for present purposes that, while the Welsh Office held no ‘environment’ administrative remit as such at this time, the related areas of agriculture and housing and local government were, for a variety of reasons, the subject of particular civil service resistance to devolving competences.7 These areas overlap with mainstream ‘environmental’ issues as they share common features and often raise similar concerns. Also significant, in terms of the emergence of a distinctive Welsh approach to governance, was that, even under this very constrained model of devolution, some ‘policy divergence’ began to become apparent, for example in respect of land reclamation.8

Once the current, executive devolution process was inaugurated, the fact that the post-2004 Labour-majority Welsh Assembly Government (WAG) was actively seeking to carve out its own distinctive niche in policy terms, demonstrating ‘clear red water’ between the regimes in London and Cardiff, exerted a distinct impetus for change.9 Thus, regardless of the initial justification of the Welsh devolved administration or intention for it to operate in a fashion that was distinct from its Scottish and Northern Irish counterparts, pressure emerged to secure the relatively rapid evolution of the initial Welsh devolution settlement into something much more commensurate with the devolutionary approaches applied in Scotland and Northern Ireland. Indeed, Beatson queries whether there are in fact greater difficulties attached to a ‘staged’ rather than a ‘wholesale’ approach to constitutional reform more generally and this question appears to be particularly apposite when considering the impact of the several significant changes that have had to be made in respect of the Welsh devolution settlement in just over a decade.10

This chapter considers the developing nature of the general devolution settlement for Wales, moving on to discuss a number of fundamental matters that shape provision for the environment. It then reflects on whether or not a case can be made for identifying ‘legal distinctiveness’ in environmental law in Wales in legislation, case law and policy. The chapter concludes by contemplating the significance of the outcome of the 2011 referendum for the future development of environmental law in Wales.

The changing landscape of the devolution settlement

The Government of Wales Act 1998

The Government of Wales Act 1998 (GoWA 1998) was adopted following a referendum with a turnout comprising 51.5 per cent of the electorate, which expressed the narrowest of margins of victory; the ‘yes’ campaign registered 50.3 per cent of the vote.11 The Act conferred a range of powers on the Welsh Assembly, including considerable capacity relating to the environment. The initial delegation was achieved by the Transfer of Functions Order (TFO) 1999 and further powers were added by later UK legislation.12 It must be noted that the powers accorded to the Assembly at the outset were primarily executive, rather than legislative in nature.13 In fact, all primary legislative power remained vested in the Westminster Parliament. The Assembly’s delegated powers were limited to areas delineated in Schedule 2 to the GoWA 1998 and broadly comprised those formerly enjoyed by the Secretary of State for Wales under individual statutes.

According to the Rt Hon. Ron Davies AM, the last pre-devolution Secretary of State for Wales, the selection of the executive devolution model under the GoWA 1998 owed more to pragmatic political compromise within the Labour government than to principle.14 Nonetheless, despite its inherent limitations the GoWA 1998 did allow ‘sufficient scope to deliver a distinctive policy agenda for Wales – albeit with some specific constraints, which were more significant in some portfolios than others.’15 Where environment and planning are concerned, WAG placed early emphasis on developing policy distinctiveness, and enjoyed a degree of success in obtaining new powers in UK primary acts with reference to the Wales Spatial Plan, local authority municipal waste strategies and flood defence.16 The Welsh Assembly Government also gained an ability to exercise influence on certain non-devolved decisions. Nonetheless, it is arguable that much of this progress was in spite of the devolution settlement rather than because if it. Despite these developments, pressure points emerged in the environmental devolution context, for example with respect to power generation.17

In terms of day-to-day environmental governance, although the Environment Agency’s remit ostensibly applies without differentiation to England and Wales, the Agency’s regional approach to regulation and the fact that it also enjoys the status of a Welsh Government-sponsored body have allowed Asiantaeth yr Amgylchedd Cymru to attain and continue to develop a degree of administrative distinctiveness.18

The original devolution settlement created a single body corporate to carry out both legislative and executive functions, based on the then-prevailing local government model. This was, however, comparatively rapidly displaced by the Assembly’s institutional practice, which effectively developed a functional separation of powers modus operandi, with the Assembly delegating executive functions to WAG.19 In July 2003, with a more proactive agenda in mind, the Commission on the Assembly’s Powers and Electoral Arrangements (the Richard Commission) was set up to examine, amongst other things, the clarity and breadth of the powers of the Welsh Assembly and the implications of devolution for the operative arrangements in UK policy making relating to Wales.20 The Richard Commission’s final report was published in 2004 and gained considerable support from civil society and the Welsh press.21 In response to the report, in 2005 the Secretary of State for Wales, in collaboration with the Assembly’s First Minister, produced a White Paper, Better Governance for Wales, which focused on institutional reform (specifically introducing formal separation of powers between the Assembly and the Welsh Assembly Ministers), the need to rationalize/streamline the legislative process, and electoral reform.22 This document ultimately set the scene for the adoption of new primary legislation in respect of the devolution settlement for Wales, albeit in narrower terms than those that had been advocated by the Richard Commission.23 Subsequent changes to the legislative process represent the most significant developments for current purposes. The White Paper envisaged striking ‘a new balance of legislative authority for Wales as between Parliament on the one hand and the Assembly on the other’, but at the same time emphasized the continuing significance of Westminster’s contribution to the legislative environment in Wales (in terms of ‘Wales-only’ legislation, and laws applicable to England and Wales or the whole United Kingdom).24

The Government of Wales Act 2006

Unlike the 1998 devolution legislation, the initial changes introduced by the Government of Wales Act 2006 (GoWA 2006) were not the subject of a referendum, arguably because of their largely technical nature. The modifications introduced predominantly served to bring governance arrangements in Wales more into line with those applicable in the other devolved administrations and at Westminster. That said, the additional provisions contained in Part IV of GoWA 2006, geared towards augmenting the legislative settlement applicable to the Welsh Assembly, were conditional on endorsement by the electorate in a referendum and these will, as discussed below, ultimately prove to be of much greater significance in both principle and practice.

It is undoubtedly significant that the then government, in mooting its initial changes to the GoWA 1998 relating to the law-making process for Wales, did not view what was proposed as representing essential change in the existing settlement.25 Rather, what was envisaged was a means to remedy delay in the lawmaking process in Wales that was contingent on the need for Welsh provisions to slot into the Westminster legislative calendar. The first significant feature of the GoWA 2006 was its provision for formal separation of powers between the legislature and the executive, providing official sanction for what was by then well-established institutional practice. Of much greater import, however, was its attempt to introduce a more rationalized legislative process applicable to devolved areas. In the first instance, change focused on extending provision for Orders in Council – specifically Legislative Competence Orders (LCOs) – to expand the Assembly’s law-making powers in devolved fields.26 Where the environment is concerned, this would be achieved through amendment of Part 6 of Schedule 5 to the GoWA 2006. However, despite the developments introduced, the procedure remained decidedly cumbersome, comprising seven distinct phases: a request for enhanced powers by the Assembly; discussion (between WAG, the Assembly and Whitehall); a proposed draft order; pre-legislative scrutiny (in Parliament and the Assembly); a draft order being sent to the Assembly for approval (no changes being allowed at this stage); and (approval being forthcoming) a request for an Order in Council being made to the Secretary of State.27 Finally, if it was to proceed, this would be subject to the Affirmative Resolution Procedure for statutory instruments, thus requiring approval by both Houses of Parliament.28 In controversial areas, this process could take years; see, for example, the not atypical three-year course of National Assembly for Wales (Legislative Competence) (Environment) Order 2010, which is considered below.29 Although the Order in Council process, supplemented by Devolution Guidance Note 16, was undoubtedly ponderous, with only fourteen government-proposed orders and two member-proposed orders being completed in the four years that this regime was in place, it provided for clearly structured and substantial engagement between the Assembly and Parliament.30 Though its nature precluded the procedure from offering equality between actors, it did at least ensure a full and active role for the Assembly throughout the process from initiation to conclusion.

The GoWA 2006 also made provision to extend devolved powers through the inclusion of ‘framework powers’ in Westminster primary legislation. The augmentation of primary legislation and Westminster’s continuing sovereign ability to legislate for the devolved nations even in devolved areas does not, however, offer such formalized and (relatively) predictable interaction between the actors as that outlined above. In this area, a combination of constitutional convention and a variety of agreements and guidance operate to facilitate interaction between Westminster, Whitehall and the devolved legislatures.31 Furthermore, the devolved legislatures employ legislative consent motions (LCMs, also known as Sewel motions in Scotland) in order to give express consent for Westminster to legislate on devolved matters.32 In light of these factors, demarcation issues will inevitably continue to arise in the devolution context under the UK constitutional model, regardless of refinements to the enabling legislation.

Finally, while interaction between Westminster and the devolved legislatures is of central importance, Whitehall too plays a key role in devolution, and a great deal of the associated activity is helped or hindered by UK civil servants. Studies show that attitudes within Whitehall vary considerably across departments but it is undoubtedly significant for present purposes that the Department of Environment, Food and Rural Affairs and the then Department for Transport, Local Government and the Regions, two of the Departments most concerned in environmental governance, have in the past been singled out as being amongst the most obstructive in the context of devolution.33

Contextualising environmental issues in the Welsh devolution settlement

From the outset, the Welsh devolution settlement uniquely placed sustainable development (with environment as a component therein alongside social and economic concerns) centre-stage by making WAG subject to a sustainability duty, now contained in Section 79(1) of the GoWA 2006.34 The duty arguably attempts to shift sustainability from debatable principle to (achievable?) practice. Section 79(1) states that:

The adoption of the sustainability scheme requires consultation, publication, monitoring (by means of an annual report) and review. As a result of the s79 requirement, sustainability is widely integrated into WAG’s activities, in particular policy testing, operational planning and expenditure review. The GoWA 2006 adds an additional dimension to this cross-cutting approach by introducing a ‘Wellbeing’ Power in s60(1), which authorizes the Welsh Ministers to:

The GoWA wellbeing power is broader than both the duty bearing the same name imposed by the Local Government Act 2000 and the extended version introduced in the Sustainable Communities Act 2007.35 Nonetheless, it could be regarded as potentially enabling an atomistic approach to develop towards the concept of sustainability by allowing its constituent economic, social and environmental elements to be treated as distinct from one another, rather than as inherently connected. However, in the Welsh context, it would appear that this is an empty threat, as the wellbeing power must be read in conjunction with the overarching provision of the sustainability duty.

The sustainability duty has other far-reaching implications in terms of the way in which the devolved administration views and presents itself. In its 2009 sustainable development scheme, One Wales: One Planet, WAG adopts its own definition of sustainable development, tackling the problem of the inherent lack of precision in the term itself, in the following terms:

Furthermore, sustainable development is not confined to influencing WAG’s domestic activities. In the Ministerial Foreword to the sustainable development scheme, the then First Minister stated that:

This international dimension is taken very seriously and has been vigorously pursued, notably in the wake of the 2002 World Summit on Sustainable Development, in part through Wales’s role as a founder of and participant in nrg4SD (the network of regional governments for sustainable development).38 These examples, then, illustrate the proactive approach taken by WAG towards sustainability in terms of internal policy and external presentation. While they may be viewed by the cynical as merely making a virtue out of necessity, such an observation fails to acknowledge the degree of ‘buy-in’ that WAG has exhibited in this regard in developing committed and innovative high-level policy approaches and an integrationist agenda that go far beyond tokenism, though the practical implications of this require further consideration and are further discussed below.39

Devolution, the environment and legal distinctiveness

Legislation