The Food Strategy for Wales: a soft law instrument? – Robert Lee

The Food Strategy for Wales (hereafter ‘Strategy’ or ‘Food Strategy’) was published in 2010 ‘to identify and address the issues around food (in Wales) including how best to balance the need for increased food production with the need to protect our environment for the immediate and the longer term future.’1 The author of the present chapter was part of a team undertaking all of the research and preparatory work leading to the consultation exercise on the draft food strategy.2 The team approached the work employing a range of research methods, which are referred to below, the intention being to undertake an assessment of strategic needs. However, with the Strategy now published and in place, an intriguing question occurred: what is the status of the Strategy that we helped to create? In particular, has the research activity produced a document that might now be considered ‘soft law’?

The significance of this question lies in the flexible nature of soft law, which is considered below, and its employment by a devolved administration. In particular it suggests that the presence of recognized devolved government may make room for policy innovation without recourse to, or in the absence of, formal legal powers. On this analysis, devolution produces the underpinning legitimacy for soft law instruments quite apart from any other transfer of legal competence. Another question then arises, namely what space is there for the deployment of soft law instruments given the domination of hard, multi-level rules in arena such as trade law, competition and finance, all of which are highly significant in relation to food production and supply? To address these issues, after reviewing the nature of soft law itself, this chapter analyses the potential of the Food Strategy to constitute soft law by reference to its nature, content and purpose.

Core elements of soft law

The notion of soft law emanates from and is perhaps best understood in the context of international law, where Fitzmaurice has pointed out that it may refer to either the form of law or its effect. In other words it might seek to lay down norms but not in any source that is recognized as international law, or it may take the form of an international law instrument, such as a treaty, but could hardly be considered enforceable or binding because of its vague, normative context.3 This chapter considers the first of these categories: instruments that are not conventionally recognized as hard law but that in some way seek to regulate conduct or encourage self-regulation. There is a huge diversity of such instruments, which may take the form of communications, declarations, codes of conduct etc.

In the context of European Community Law, Senden has suggested that these soft law instruments exhibit three ‘core elements’.4 These are: that the instrument is concerned with rules of conduct or commitments; that it is accepted as having no binding force as such; but that it aims to have a practical effect on behaviour. Senden suggests that, although the diversity of such instruments makes it impossible to lay down clear criteria for soft law in terms of nature, function, legal effect and the like, core features of soft law can be ascertained by examining the instrument itself, its contents and the intention of its drafters. One category of soft law identified by Senden is that of steering instruments, which are said to establish or give further effect to Community objectives and policy. Senden’s analysis provides the tools for this chapter, which examines the Welsh Food Strategy by reference to its nature (the instrument itself), contents and purpose (the intention behind it) in steering food policy in Wales.

It might be said then that, in the EU context, a soft law instrument is likely to have the endorsement of a community institution, such as the Commission, but that in terms of its adoption it lacks the formality demanded by Treaty provisions on law making. Given this, it may be difficult for the Commission, or indeed the Court, to demand compliance with its provisions or otherwise enforce it. Yet, while its provisions lack legally binding force, in practice they may be followed to establish clear patterns of conduct which practically may be very little different from legal compliance. At the same time, not every policy instrument promulgated by the European Commission would be considered soft law, as there are many which would be widely accepted as merely informative or explanatory in nature.

A good example of this type of soft law instrument in the context of European environmental law might be the environmental action programmes dating back to the Dublin Summit of 1972. In the absence of any specific reference to environment in the Treaty of Rome, these programmes helped to drive forward programmes of pollution control, environmental improvement, conservation of natural resources and principles of environmental sustainability. In the absence of a more explicit environmental mandate in the founding Treaty, they helped also to legitimize European Commission activity in this area, though the first five at least were explicitly non-binding.5 There are now many other, such soft law provisions in EU environmental law such as the Commission Communication on Sustainable Development or documents such as enforcement or environmental strategies.6

Etherington has suggested that the polycentric nature of environmental issues demands a more flexible approach to accommodate the interests of a wide range of parties so that flexible rules and policies enshrined within a soft law framework may be utilized.7 Pointing to Fuller, the concept of polycentricity is said to refer to a complex network of relationships with multiple points of interaction and many ripple effects of decision making.8 In such territory, ‘open textured’ instruments leaving room for policy and public interest arguments may serve us better than hard law. Commentators on food supply chains frequently remark on their complexity, which presents a challenge in asserting the public interest in food supply.9 Bell and McGillivray in their discussion of tertiary rules and guidance in environmental law point to a number of functions, one of which is a statement of policy or practice.10 Such statements are significant because they are recorded and signify a general level of consent to a policy. Although they are intentionally vague on issues of how such policies might be pursued, there is no doubting that soft law instruments can have normative significance.11

There can be little doubt of the broad shift to soft law instruments in areas which might in the past have been subject to hard law and command-and-control types of approach. This is a theme pursued by the present author and one of the editors elsewhere but can be seen in relation to the contaminated land regime in England and Wales in which primary legislation is underpinned not only by regulations but by a plethora of forms of hard and soft law guidance.12 To take another example, the planning process in Wales has taken on a distinct identity through technical advice notes (TANs) sitting below the legislative framework.

This suggests some doubts about the efficacy of such hard law approaches, which might be seen as more remedial rather than constructive or preventative or might be regarded as resource-intensive in terms of policing compliance. A soft law appeal to conformity in conduct might be seen to be more flexible or corporatist, though it may come at the price of a loss of certainty of compliance. In the EU context such approaches might be thought more in line with ideas of subsidiarity, proportionality and, free from the straitjacket of hard law drafting, more transparent in approach. In the context of a devolved administration, the soft law approach may make an appeal for cooperation in the national interest and, in the context of a Strategy that to a large extent concerns private enterprise, might promote collaborative governance models that hold greater allure and exert more influence than more formal regulation. One might add that, if the common rationale for regulatory intervention is market failure, a food strategy concerns market operations which are not necessarily failing but which government would seek to promote. Soft law would seem to constitute a more appropriate approach in such circumstances.

The nature of the Food Strategy

In examining the first element of the criteria suggested by Senden, it is suggested that the nature of the instrument is analysed. In fact, as an early part of the work on the Welsh Strategy, the team conducted a review of many other strategies related to food or food production.13 The review was particularly keen to locate regions similar to Wales, both structurally and with similar dynamics in its agricultural and food sector. Not all strategies were regional; some were national and some urban.14 All nine English regions had food strategies, typically produced in 2006 or 2007, whereas Scotland’s food strategy was published in June 2009. However, the form and content of other strategies was highly informative almost irrespective of the geographical base. In a documentary analysis of 45 food strategies from around the world, including Europe, Australia, North, Latin and South America, the review adopted certain measures in terms of how comprehensive and well integrated these appeared and of how clearly options were articulated and objectives and timescales set. It is important to note that there was no impact assessment of these strategies or attempt to gauge their success. In most cases the novelty of the strategies alone would have made this an impossible task; indeed one of the remarkable traits of food strategies is their emergence under contemporary pressures.

While the better-devised food strategies set a range of objectives for the food system, there was very often an identifiable focus to the strategy as a whole. A common theme was rural and agricultural development. For example, a strategy might seek to bridge a widening urban/rural division. For example, the British Columbian strategy emphasizes the preservation of family farming units through rural/urban linkages and increasing local food production.15 Unsurprisingly, many of the food strategies from the English regions, being sponsored by Regional Development Agencies, accentuate food production as a significant contribution to economic development.16 Some strategies rehearse initiatives for local food sectors and food sourcing, including issues of food procurement.17 Other strategies have less emphasis on economic development but stress a wider range of interests including environmental and ecological protection or public health and nutrition.18

The review of food strategies also prompted consideration of the components of those strategies found to be most compelling. The first such component is that strategies should deliver a vision of what may be achieved. In some strategies a simple goal may carry this vision. For example, the Oakland strategy sets out to improve food literacy and the idea that Oakland consumers will exercise food-related choices in favour of public health and sustainability.19 Presenting a vision was no easy matter; originally it was thought that this would appear at the conclusion of the Welsh Food Strategy. However, once the idea occurred of presenting the vision as a reflection at the end of the ten-year strategy (in 2020) of how food cultures in Wales had changed in ten years, it became clear that this should go at the front of the strategy and that the detail of how this vision would be delivered would proceed from that initial vision. The concept of a vision is much softer than notions of targets or goals. In fact the Strategy is short of both milestones towards the 2020 vision and indicators of progress. This was made known to both the Food and Drink Partnership and the Welsh Assembly Government with a strong recommendation that these should be placed alongside the Strategy but their formulation was not part of the brief in preparing the Strategy and it was felt that their inclusion in the document itself would detract from the direct messages which it conveyed.20 Nonetheless, the absence of these mechanisms renders the Strategy much softer in tone.

If the task of a strategy is to lead change then not only did the nature of that change have to be articulated but stakeholders had to be drawn in and cultures harnessed to deliver change. A useful example of this is to be found in the strategy for the South East of England, Farming for the Future, which offers examples of ‘champions’ of change in different farming sectors.21 A final component was that of integration. It was clear that the food system intersects with a wide range of other issues on the sustainability agenda, ranging from social sustainability issues connected with nutrition (such as school meals) to issues of environmental sustainability (such as food waste). The difficulties attaching to the task of integrating many policy areas led to an organizing theme for the development of the strategy: building connections and capacities. This is considered below under content, but it is relevant here in discerning the nature of the Welsh Strategy rather than food strategies in general.

This notion of connectivity and capacity gave the Strategy a strong focus on sustainable development, which is described as its foundation through ‘the provision of safe, affordable, healthy food, and on a food system that produces positive social benefits whilst imposing the lowest possible environmental impacts.’22 The emphasis in this sentence on externalities, both positive and negative, is worth noting. One common task of regulation is the internalization of social costs, so that by placing this task at the heart of the Strategy, in the section outlining its goals, there may be some suggestion that the Strategy is seeking to fulfil a traditional function of hard law through a soft law instrument.23 If, as is often mooted in international law literature, soft law has a tendency to harden over time, these soft law approaches may herald later, more formal regulation.24

The Welsh food sector must be sustainable but that cannot remain the only goal. The quotation from the Strategy in the previous paragraph correctly suggests strong concerns with environmental and social sustainability. However, in order to sustain itself the Welsh food sector must also be competitive. This ability to compete is best measured by the profitability of food enterprises in Wales as opposed to a high dependence on subsidy. The sector must move away from its present fragile state and develop resilience to the periodic shocks that threaten the stability of the food system. These four qualities of sustainability, profitability, competitiveness and resilience seemed key to any future strategy for the Welsh food sector. Indeed these became the goals for which the Strategy should aim. Progress towards these goals could be seen as an indicator of the progress of the Strategy itself. Some of these goals, such as profitability and competitiveness, might seem more of a task for the private sector, whereas there is an obvious public interest in issues such as sustainability and resilience. This public/private hybrid nature of the Strategy goes a long way towards illuminating its very soft law approach since its interests spread beyond the public realm.

The content of the Food Strategy

The second tool of analysis for soft law suggested by Senden is to review the content of the potential soft law instrument.25 As indicated above, the Strategy sets out the vision and the goals but, in order to deliver these, at the heart of the document is the attempt, first, to articulate the necessary restructuring of the food sector and, second, to construct drivers to deliver this change. These two elements of the Strategy can now be considered.

Building connections and capacities

Implicit in what is said above about the nature of the Strategy is that it should be based on a more proactive and systemic approach. The theme of ‘Building Connections and Capacities’ would be at the centre of the strategy. This would hope to draw on efforts already made to reinvigorate Welsh food culture and to continue this process through engaging private, public and civic stakeholders in realizing the potential of the Welsh food sector.26 The success of the Strategy would be measured by reference to the traction given to the goals, articulated earlier, of profitability, competitiveness, resilience and sustainability. Delivering these goals would mean integrating policy sectors related to food and negotiating the links and the tensions between these other policy areas, many of which already had their own strategies. On the other hand these other policy areas, such as health, transportation, tourism, conservation and waste, could all be drivers towards the delivery of the Strategy over a ten-year period. In addition, these same drivers present a range of demands and opportunities, outside the public policy realm, within Wales and globally, which could be crucial in achieving goals such as profitability.

Strategy-led change had to deliver, therefore, the future profitability, competitiveness, resilience and sustainability of the Welsh food sector. The goals are interlinked. Greater competitiveness relied on concepts of sustainable production and resource efficiency. This would help drive profitability and build resilience into the system. Each goal would to some degree build upon the institutional, collaborative and relational capacities already well developed in Wales. The move would be towards an internationally well-recognized and -regarded provider of foods of the highest standard and provenance by building on domestic quality standards and the celebration of food.

In order to do this, it becomes necessary to locate areas in which capacity or connections should be assembled. The first of these was that of producing, processing and marketing local and locality-branded foods from Wales. This requires an outward-looking approach based on domestic strength. In terms of connections, it suggests fostering local and regional initiatives while looking to engage with in external markets. Indications of provenance become instrumental in advancing a distinctive Welsh brand, particularly in relation to export markets, in which Welsh producers may find it difficult to compete in terms of cost of production unless the quality and sustainability of Welsh food is well recognized.

However, this approach is more than a mere suggestion to develop and promote local food products; the connection here would be between regional production and processing and a local resource base with identifiable Welsh links. Similarly this initiative is wider than the mere branding or labelling of goods as Welsh, but it is about reaching markets (farmers’ or organic markets, public purchasing, corporate retail outlets) where goods can be differentiated by reference to origin. This is not merely about niche or specialist foodstuffs; lower-value foods and ingredients can also be marketed on this basis. Indeed, it is important that all food sectors contribute to the distinctive nature of Welsh food, not simply by reference to quality but also by other attributes such as reliability or eco-efficiency.