Devolution of environment policy in jeopardy, say NGOs

27 October 2023

A significant group of environmental organisations from across the UK have today written to the Prime Minister, setting out a series of problems for environmental policy-making caused by the Internal Market Act, passed in 2020 following Brexit. These problems have been most obviously illustrated by the blocking of Scottish and Welsh policy on their deposit return systems for drinks containers, an area which is fully devolved.

The signatories support the principle that goods or services should not face arbitrary barriers or costs simply because a company operates in one part of the UK rather than another. However, the letter points out that:

• the Act has led to significant hurdles to progress on environmental issues, and added bureaucratic overheads to policy-making in every part of the UK;
• it undermines the ability of the Scottish and Welsh institutions, and Northern Irish, as and when the current suspension ends, to operate in areas which were clearly devolved, as with deposit return;
• the timescale for devolved institutions to begin the formal process that can lead to an exemption is unclear - in particular, does it begin before or after the Scottish Parliament or Senedd passes relevant legislation?
• the way the Act is structured means that devolved institutions do not have certainty about policy-making even when Ministers at all levels believe an exemption is not required: third parties, like businesses, could still launch challenges under it; and
• provisions made prior to the passage of the Act are protected (such as minimum unit pricing), but changes to those provisions are only protected if they are not “substantive”, a term which is not properly defined.
  

Kat Jones, Director of Action to Protect Rural Scotland, said:

“The first principle of devolution is that anything not reserved to Westminster in the relevant legislation is for the devolved institutions to legislate on. The Internal Market Act undermines that principle, and neither the institutions nor the businesses and organisations affected now know what can be legislated for.

“Devolution has allowed Scotland, Wales and Northern Ireland to pioneer new policies which were then picked up across the UK. This worked most successfully with the smoking ban and the plastic bag charge. That pipeline of innovation has now been stifled, as the collapse of the Scottish deposit return system shows, and it is not an exaggeration to say that devolution itself is in jeopardy as far as environment policy goes.”

Richard Benwell, CEO of Wildlife and Countryside Link, said:

“The four UK administrations should be free to ramp up environmental action, while shared commitments like the Global Biodiversity Framework form a safety net to ensure that none fall behind. Unfortunately, the Internal Markets Act has blocked any race to the top with bureaucratic obstacles and legal uncertainty.

“Although the Act is an obstacle across the UK, only Westminster can fix it. All parties should commit to clarify the rules, so that the four nations are free to respond to growing public demand for stronger environmental law.”

Dr Deborah Long, Chief Officer of Scottish Environment Link, said:

"We have already seen one direct effect of the Internal Market Act, when it was used by UK Ministers to impose serious restrictions on the Scottish deposit return system, legislation which was previously accepted as fully devolved to Scotland. Such a move would not have been possible prior to Brexit, given the exemptions available for environmental and public health policy within the EU single market rules.

"Unless these elements are amended or repealed, it seems likely that this scenario will repeat itself. Devolution has worked as a proving ground for positive policy measures, but without those changes we will be left with a race to the bottom on environmental and public health standards."

Karen Whitfield, Co-Director of Wales Environment Link, said:

“The Internal Market Act has caused confusion in relation to the devolution settlement, as it’s no longer clear where Wales has full autonomy to legislate in any area that can affect the interconnecting UK market. More than anything, this is interfering with our ambitions in Wales to reduce our carbon emissions, achieve a truly circular economy and to protect the environment for now and future generations.

“Recycling has taken us as far as we can on preventing litter. Environmental charities, local councils, land owners and statutory bodies like Natural Resources Wales all know first-hand how many problems litter causes to wildlife, nature and clean water bodies. Kerbside recycling has been a great success in Wales, but there is still ‘on-the-go’ litter - namely bottles, cans and takeaway food containers - everywhere.

“The UK consulted on the deposit return scheme with all four nations involved, and agreed that an ‘all-in’ scheme was the best. We want to see all sizes of bottles and cans, and in any kind of material, and we were delighted to see the consultation conclude that this was indeed the best way forward. England’s subsequent decision to then exclude glass, and to suggest they will prevent the Welsh and Scottish Governments from going ahead with schemes that do include glass, has brought the development of the UK-wide scheme to a halt. It will create unnecessary cross-border confusion if a drinks container bought in Wales cannot be part of the return scheme in England. The best way to ensure take up is for the same rules in each nation.”

ENDS