Made in Wales: devolving and evolving environmental policy making – Elen Stokes

Introduction

In supermarkets and corner shops across Wales, consumers are charged at least 5 p for every carrier bag used.1 Cross the border into England, however, and bags are given away for free with the purchase of goods. The example might seem trivial but it gives some indication of the shape of things to come, with Wales showing an increasing willingness to do things differently. In the aftermath of the referendum, in which Wales voted ‘yes’ to direct law-making powers, one might expect the disparities between policies in Wales and England to grow in both number and size. Yet, as this chapter suggests, although Wales has shown huge ambition in improving policies in a range of fields, most notably environmental protection, there may be good reasons for taking stock of some of the practical implications of a distinctly Welsh approach.

The chapter begins by looking at the story so far, introducing some of the areas in which differences of approach have emerged between the Welsh Government (formerly the Welsh Assembly Government) and the national and/ or other regional administrations. In order to give a flavour of the capacity for divergence, an overview of some of the differences is presented in relation to sustainable development policy, waste law, marine protection and the planning system. The chapter then proceeds to look at some of the problems encountered when a Welsh approach is pursued, particularly where (prior to the recent expansion of the Welsh Government’s law-making facilities) devolved powers were sought primarily from UK Acts.2 Amongst the difficulties arising were a lack of scrutiny and, particularly early on, a high degree of complexity, lack of clarity of purpose, multiple accountabilities and insufficient leadership. Broadly speaking, the significance of these problems has diminished following recent and considerable changes to the Welsh legislative landscape. Environmental policy making in Wales is now far less constrained by the challenges it faced in the past, and the Welsh agenda has gained new momentum. However, the chapter concludes by highlighting that the Welsh project should be approached with care and caution. If too little is distinctive about environmental policy in Wales, supporters will be left disappointed and disillusioned. Yet, if too much is done, there is a danger that the Welsh ambition, admirable though it is, will begin to outstrip resource capacity and undermine efforts to promote an improved and more holistic approach to environmental legislation.

Welsh stance

Environmental policy is a sphere densely packed with different types of protective measures and, importantly, one in which governments in devolved administrations have expressed a preference for forms of quasi-legislation.3 In keeping with this trend there have been significant opportunities to deploy secondary powers following the devolution settlement. For instance, the powers originally transferred using the Transfer of Functions Order under Section 22 of the Government of Wales Act 1998 were wide ranging, the most significant exceptions being for the development of natural energy resources and nuclear power. These powers were used extensively in the first term of the Assembly, as evidenced by the thirty-two pieces of secondary legislation on the environment passed.4 However, much of the environmental legislation either was identical to its English counterpart or mirrored it very closely.

Replication can also be seen to occur in the transposition of EU requirements, and it has been suggested that legislation from EU sources is more likely than measures first enacted at UK level to be cut and pasted directly into Welsh policy. When he was Secretary of State, John Gummer famously stated that 80 per cent of British environmental policy came from the EU.5 The extent to which this is an accurate assessment can be questioned, but it is undoubtedly true that EU measures have proved a dominant feature of UK environmental legislation. It follows that in Wales, as elsewhere in the UK, many environment measures transpose EU environmental directives using powers under Section 2(2) of the European Communities Act and the relevant designation orders, which empower the Welsh Ministers in areas such as air, quality, waste management and localized pollution such as noise or contaminated land.

Jenkins makes the point that notwithstanding the extrapolation of legislative content, sometimes referred to as the ‘copying-out’ technique, the possibility of a distinctively Welsh approach to the implementation of provisions nonetheless remained.6 Towards the end of the first term, the Assembly adopted quite different regulatory regimes in respect of nitrate pollution and access to the countryside.7 These measures probably reflect greater sensitivity than their English equivalents to the needs of agricultural landowners, which in turn points towards the more extensive rural environment in Wales. A more significant source of difference, however, was the use of ‘Wales only’ provisions in UK statutes. Examples can be found in the Water Act 2003 (in relation to membership of flood defence committees), the Waste and Emissions Trading Act 2003 and the Household Waste Recycling Act 2003. These waste statutes certainly contributed to a more distinctive approach in Wales, explored further below.

This begins to paint a picture of a Welsh agenda growing in prominence but with fairly small windows of opportunity to see this through to distinct legislation. With time, and as the administration has developed confidence, these opportunities are beginning to be taken, resulting in a regulatory landscape that is no doubt complex but one where Welsh features have gradually been carved out.

Sustainable development

To some extent the potential for divergence has stemmed from the presence of clear policy visions and structures. Wales has for some time had in place an institutional and governance framework for sustainable development. This derives in no small part from the Government of Wales Act 2006, which imposes a duty on the Welsh Government to promote sustainable development, to ensure a scheme for its implementation and to keep that scheme under review.8 The Act makes Wales one of very few jurisdictions in the world to have a distinctive statutory duty of this kind.9 The duty is non-delegable and the aim a hugely ambitious one: to embed sustainable development as the central organizing principle of Welsh government.10 There is no accountability to or monitoring of the process by the UK government in relation to either the scheme or its delivery. The review of the scheme remains within Wales, further strengthening the sense of Welsh ownership and oversight.

Two possible effects may have emerged from the existence and observance of such duties. First, it could mean that sustainability policy is better developed in Wales than in Westminster. One crude indication of this is that the policy instruments, particularly the Environment Strategy for Wales and the sustainability indicators, are more detailed than in the UK equivalent documents.11 The second effect is that there is a legitimacy at the heart of Welsh policy. Given the inclusive process of developing the scheme and the task of integrating sustainability principles into all policy-making activities, it is difficult for the Welsh Government to stray much beyond the sustainable development agenda. In light of this, environmental initiatives, which constitute one of the pillars of sustainability, should develop differently in Wales. This is reflected in the policy literature, which leaves little doubt that the Welsh Government sees the formulation of sustainability as offering a distinctive Welsh approach.12

Waste

The UK is charged with compliance with EU law by altering the way it manages waste from an over-reliance on landfill disposal to a more sustainable integrated waste management system. The Waste Framework Directive, together with its daughter directive the Landfill Directive, requires all Member States to move towards a system of reduction, reuse and recycling, whilst at the same time following the principles of self-sufficiency and proximity.13 Severe financial penalties attach to any infractions, and targets for diversification away from landfill are generally accepted as tough. The UK’s current system of devolved governance has resulted not in one waste strategy but four; Scotland, Wales and Northern Ireland have all issued their own separate waste management policies and strategies.

Welsh waste strategy has always recognized that waste is Wales’s ‘biggest environmental problem’ and that Wales must improve its approach to waste management.14 The underpinning intention is:

The Welsh waste strategy has two primary objectives. The first is to make Wales a model for sustainable waste management; the second is to comply with the requirements of relevant EU directives in promoting options of disposal.

Waste strategy in Wales strongly espouses the proximity principle. The Wales Waste Strategy strongly favours ‘solutions that meet the needs and aspirations of local communities’ that ‘waste should be recovered or disposed of as close as possible to where it has been produced in order to reduce the environmental impact of transporting it’.16 A sustainable transportation of mixed waste streams is favoured, as these should be dealt with as near as possible to the source of production. Finally, areas should be self-sufficient; that is, there should be sufficient capacity in terms of waste management facilities to manage the wastes produced in any given area.

If the ‘distinctiveness’ of environmental law and policy in Wales were to rest on any one sector, it would be waste. In this area more than others, the Welsh Government has shown that it seeks to adopt a stronger, more stringent stance than what might be perceived as a minimal approach taken in other administrations.17 The most compelling evidence of this commitment comes from the fact that the first measure to be passed under the Environment Legislative Competence Order was the Waste (Wales) Measure 2010 (which, among other things, requires retailers to impose charges for single-use carrier bags).18 The Measure provides the legislative frame on which Wales’s Waste Strategy, Towards Zero Waste, can hang and the practical means by which the long-term goal, which is that Wales becomes a zero-waste country by 2050, can be realized. A zero-waste approach seeks to encourage a shift away from waste disposal and towards waste prevention; however, where it cannot be eliminated it ought to be reused or recycled. Whereas, elsewhere in the EU, the definition of waste and the weight attached to different levels of the ‘waste hierarchy’ (prevention, recovery and reuse, disposal) have caused considerable confusion, the Welsh policy (if not the practice) is refreshingly focused on prevention and, where this is not possible, on recovery. This finds support in the policy emphasis on material resource efficiency and on the creation of jobs in the environmental industry sector.19

Similar pledges can, of course, be found in the policies of other administrations elsewhere in the UK.20 The suggestion that the Welsh approach exhibits different characteristics becomes more convincing, however, on a closer look at the finer detail of legislative content. For instance, the 2010 Measure has been used in Wales to extend the reach of environmental permitting regulations in order to exert greater control over the deposit of waste to landfill, irrespective of whether or not that waste is capable of causing environmental pollution.21

A further example of difference arises from the Landfill Allowance Schemes, which transpose elements of the Landfill Directive. Unlike the scheme in England, Wales’s Landfill Allowance Scheme does not allow the trading of landfill allowances.22 Under the Landfill Allowance Trading Scheme, waste disposal authorities in England were given individual targets although they were able to trade those allowances in a cost-effective way. Although the initial aim was to introduce a degree of flexibility to the meeting of targets, the idea was resisted in Wales from the outset:

These limits have also been recognised more recently in a UK government review of waste policy, in which it announces its decision to end landfill allowance trading in England. It has been noted that, ‘While LATS [Landfill Allowance Trading Schemes] has undoubtedly been effective in kick starting significant efforts to divert waste away from landfill, the rising level of Landfill Tax means it is now by far the more significant driver’.24

The approach in Wales is clearly paying off, as recent evidence has shown.25 Recent results, for instance, show that all twenty-two local authorities in Wales achieved their 2010/11 allowance obligations. In total, 458,2641 tonnes of biodegradable municipal waste was sent to landfill in 2010/11 compared with an overall Wales allowance of 630,000 tonnes. This was 27 per cent less than the allowance.26

Divergences show signs of emerging in other respects besides, and it need not be the result of proactive policy making. It can also stem from the lessons learned from the experiences of other regional administrations. For example, under the Clean Neighbourhood Act 2005, Wales has indicated that it intends to develop more stringent Site Waste Management Plans than those in England. It has been suggested that Wales is now in a strong position to draft more effective plans because it has been able to observe and learn from the implementation of the Site Waste Management Plans Regulations 2008 in England.27

Yet, in spite of its laudable aims, there have been times when the Welsh Government’s progress has been held back by its (at the time limited) legislative competences. One example of this arises in relation to the Climate Change Act, under which five local authorities in England were allowed to pilot a waste reduction scheme introducing rebates and incentives for households that reduced their waste quantities.28 That provision does not, however, apply to Wales. In line with its stringent waste aims, the Welsh Government explored the possibility of imposing direct and variable charges (‘pay as you throw’) on households if they throw away a greater volume of waste than is prescribed or place recyclable materials in non-recyclable waste streams. The problem facing the Welsh Government at the time was that Section 46(1) of the Environmental Protection Act does not permit local authorities to charge for certain waste disposals. Although, under the Environmental Protection Act 1990, local authorities can implement charging, the Environment Legislative Competence Order 2009 does not bestow these powers on the Welsh Government. As a result, the issue remains in the hands of individual local authorities instead of forming part of a coherent, all-Wales approach. This serves to show that, whilst there might have been a will, there was not always a way.

Marine protection