Devil is in the detail

1st December 2017

Charlotte Burns, Viviane Gravey and Andy Jordan discuss the complexities of Brexit, devolution and environmental governance in the UK

Brexit matters for the environment, agriculture and fisheries in the UK. All these policy areas have been profoundly ‘Europeanised’.

Moreover, they are also devolved policies, which makes their future development an issue of political contention between the UK government based in Westminster and the devolved administrations.

Brexit raises some fundamental questions about whether we need common environmental standards, principles and frameworks within the UK, whether it is necessary for all policy areas and what kind of mechanisms are required for future policies to work effectively.

The devolution agreements post-date the UK’s membership of the European Union and were premised on the continuing involvement of the EU.

For devolved policy areas such as the environment, EU rules have provided a minimum benchmark by which all EU (and, by extension, UK) states have to abide. This arrangement has allowed Scotland and Wales to push ahead with more ambitious policies on climate change, and Wales has an ambitious sustainability and wellbeing agenda, supported by a future generations commissioner.

Further divergence in environmental policy across the UK is one possible outcome of Brexit, as responsibility for devolved policy areas may, in principle, revert to the devolved administrations. But the EU Withdrawal Bill suggests that policymaking powers vested in Brussels would be returned to the UK government, which would then decide whether to devolve them down to the Scottish, Welsh and Northern Irish governments.

This prospect was greeted with howls of outrage from the Scottish and Welsh governments, which accused Theresa May of planning a power grab that both undermined their constitutional rights and also failed to allow for sufficient parliamentary scrutiny in Westminster, Cardiff Bay and Holyrood.

The threat from Scotland and Wales to withhold their legislative consent for the bill led to a Joint Ministerial Committee (JMC) meeting, which issued a joint statement calling for common frameworks and highlighting the need for measures to keep the UK internal market functioning effectively.

The JMC statement is primarily designed to calm troubled political waters but leaves some crucial issues unresolved. While it appears flexible on what common frameworks may entail (from minimum standards to common goals or mutual recognition) it remains vague on the process through which the frameworks will be agreed.

The flexibility on common frameworks is welcome, as commonality across the UK is not relevant to all environmental issues to the same extent, and different types of frameworks are needed.

Thus, while common standards for drinking water make eminent sense, different approaches to reach ‘good’ environmental status as currently required by the water framework directive, may be needed, as the UK states are ecologically diverse. This diversity has led to differences in how EU policies are implemented and funding is allocated.

For example, in the field of agriculture, England spends over 70% of its rural development funds on agri-environment schemes, compared with 15% and 21% in Scotland and Northern Ireland.

Given the high level of diversity already present within the UK, further divergence is not necessarily a bad thing. But agreement of when common goals and targets are required must be crafted to mitigate against a race to the bottom. Environment secretary Michael Gove has suggested that devolved nations should continue to develop nationally appropriate policies and strategies.

The devil lies in the detail. A key problem is the UK’s asymmetric devolution settlements. England does not have its own parliament or government, so those of the UK typically represent the English interest. England is also the most populous of the UK states and has the largest markets and higher GDP per capita. Scotland has traditionally enjoyed more constitutional power than Wales, especially in relation to fiscal policy. Meanwhile, Northern Ireland still does not have a government and therefore does not even have a voice in the ongoing debate.

Given these complexities, the pressure on the UK to build a coherent governance architecture to handle these issues is mounting as Brexit day approaches.

But, at the moment, there is still plenty of scope for disagreement. Will size matter in deciding future cooperation or will all states have an equal voice? Will Scotland, Wales and Northern Ireland be able to outvote England?

Here, goodwill will be a precious asset. There are already institutional structures to allow for cooperation across the nations of the UK but they have not always worked well. The Joint Nature Conservation Committee allows for cooperation at a technical level but is primarily concerned with implementation. At a political level, the JMC only meets when UK ministers decide to – creating key uncertainties for the devolved nations.

A key test of the willingness of Westminster to build political goodwill will come when the scope of future common frameworks is determined. For example, there are reserved matters (dealt with by the UK government) that significantly affect devolved responsibilities, such as trade policy. There is ongoing concern that, in seeking new trade deals, the UK may find itself lowering standards as part of the agreement.

There is a need to resolve how devolved competences will be accommodated – such as the ability to opt out of growing genetically modified crops, as is currently the case in Scotland, Wales and Northern Ireland.

From an environmental perspective, the key challenge is to work out which environmental issues require a common approach and which do not . Once that decision is made, the next step is to develop a process of legislating that is flexible enough to accommodate diversity.

One such model is the current EU system, whereby directives specify the ends to be achieved but leave it to the member states to decide the means by which they do so.

For Northern Ireland, different questions arise: what needs to be common, and common with whom? If we consider the island of Ireland as a single biogeographical unit, then shared approaches to deal with biodiversity, water quality or even waste crime are likely to be needed. Yet as Northern Ireland is part of the UK, common product standards and rules concerning, for example, industrial pollution and the application of the polluter pays principles are required.

None of these problems is insurmountable – indeed it is imperative that we find solutions to protect our environment. There are models that can and do work. Ironically, a good guiding principle here is that of subsidiarity, which is commonly used in federal systems, and states that decisions should be made at the most appropriate level.

Subsidiarity was championed as a way to preserve the UK’s national sovereignty within the EU. Now that we are on the cusp of ‘taking back control’, it is a timely moment to have an internal debate about where control should lie.

But the key ingredients to ensure that appropriate structures are put in place are leadership, goodwill and a genuine commitment to cooperative arrangements that work for the environment across the UK nations. Currently, they are notable by their absence.

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