New law making powers

Professor Robert Lee | 11 years ago

INCREASED legislative powers may be given to the Welsh Assembly following a ‘Yes’ vote in the referendum held on 3 March 2011. The new powers are likely come into force following the Welsh Assembly Elections in May.

Voters supported the idea of Wales being able to pass its own laws in 20 devolved fields when they went to the polls last Thursday.  One of those devolved areas is the environment. An order to activate the Assembly’s new powers is to be debated in the Senedd on 29 March 2011.  If, as is likely, a majority of AMs support this Order then, as from the election day of 5 May 2011, the new powers will be available to the incoming administration.

In that new Government, the Assembly will no longer need the approval of Westminster in order to pass primary legislation – with the current system of Legislative Competence Orders replaced by Bills and Acts.  Using the Legislative Competence Order on the Environment, the Assembly has already passed a Welsh ‘Measure’ on waste. This deals with revenues should a scheme for charging for plastic shopping bags be introduced in Wales and allows conditions attaching to environmental permits to be modified in order to meet waste minimisation and diversification targets in Wales.

So Wales as shown a willingness to do things differently and one question is how different Welsh environmental law might be in the future. For example Friends of the Earth Cymru has put in an early call for a wide ranging and protective ‘environmental rights law’.

I was asked by BBC Wales to give a considered view of the new powers in the context of environmental law. In the course of the interview I was prodded towards expressing some sceptical views, although my own stance would be in favour, on balance. It was not so difficult to point to downsides as well as upsides in greater devolution. Excellent though public officials are in Wales, their expertise is necessarily limited when compared to Whitehall. So freedom from scrutiny is not unproblematic.

Wales has also had a remarkably fine Environment Minister in Jane Davidson, but she is due to step down at the election and few if any of her political colleagues in the Assembly are of her calibre. New legislative powers demand leadership and imagination, which may be in short supply.

Finally there is a real issue about just how distinctive one would wish environmental law in Wales to be. From an Environment Agency point of view the harmonious enforcement of environmental regulation demands a degree of uniformity. To take but one example, the lack of any effective Welsh infrastructure for hazardous waste management means that there is regular waste transhipment to England, which has a quite legitimate interest, then, in waste regulation in Wales.

The new environmental law making powers for the Welsh Assembly are not unwelcome but ambition ought not to outstretch either capacity or cohesion with the remainder of the UK.

Robert Lee, Director of Eric, acted as specialist adviser to the House of Commons Welsh Affairs Committee in their consideration of The National Assembly for Wales (Legislative. Competence) (Environment) Order 2010.

About the author

Professor Robert Lee

ERIC Director and Head of Birmingham Law School, Professor Robert Lee was co-director of the publicly funded Centre for Business Relationships, Accountability, Sustainability and Society at Cardiff University (BRASS). He is an expert on regulation, including environmental regulation and regulation of biotechnology and biomedicine. He previously worked for two top 10 UK law firms, and remains a professional-development consultant to one of the largest law firms in Europe, working on pan-European delivery of legal services.