Overarching EU environment legislation acted as a glue that helped to bond together legislation in the four UK nations, but Brexit has seen those bonds gradually start to break. Michael Nicholson explores how the four UK nations’ priorities for environmental legislation are likely to diverge further in the new year.

This article was originally published in ENDS Report on 13 December 2023.

While it is true that devolution pre-dated Brexit – meaning that Scotland, Wales and Northern Ireland had responsibility for their own environment, agriculture and fisheries policy – the nations worked within the binding, and in parts very specific, framework that the EU provided.  

And without that framework, the four nations can now go their separate ways.  

There are limits to this, however. The nations have different levels of ambition, Scotland for example has expressed its intention to ‘stay aligned (where possible and meaningful to do so)’ with EU legislation, they have varying priorities and levels of capacity and all are affected by the rules of the UK internal market. The Internal Market Act is a constraint on all four nations’ ability to diverge and grants significant powers to the UK government in its application. In practice, the constraints have been felt most keenly in Scotland, as in the case of the regulation of single use plastics and the drawn out deposit return scheme saga.  

So, in what areas might the four nations diverge from one another in 2024?  

Agriculture 

Without the EU’s Common Agricultural Policy, the four UK nations are slowly moving further apart. Changes in England bring this trend into the sharpest relief. Here, the various Environment Land Management Schemes will continue to be rolled out in 2024 with the aim of delivering ‘public money for public goods’. Meanwhile, direct payments are being phased out progressively by the end of 2027.  

In Wales, a new sustainable farming scheme is being developed and is scheduled from 2025, whereas in Scotland and Northern Ireland there is less impetus to remove direct payments. Related, a long awaited land use framework consultation in England will generate significant debate about, but perhaps not concrete steps, towards changing land use to address the climate crisis. This follows a land use strategy already in place in Scotland.  

Water 

In England, discussion around ‘reforming’ the laws that implemented the Water Framework Directive and to tackle nitrate pollution – supposedly so that more homes can be built –may well be taken further. Both Labour and the Conservatives are aiming to build many more homes if they win the next election, but neither have addressed how to do so without adding to existing problems around urban wastewater discharges and nutrient pollution. Similarly, the changes to Environmental Impact Assessment in England, the new Environmental Outcomes Reports, will open up an intra-UK divergence of approach. 

Governance gaps    

In Wales, pressure is growing to fill an ‘environmental governance gap’. An interim Environmental Protection Assessor for Wales has no independent legal footing unlike similar oversight bodies in the other UK nations.  

In Northern Ireland, despite introducing drafts of both an Environment Strategy and an Environmental Principles Policy Statement, there has not yet been formal adoption of those because of a lack of political representation at Stormont since May 2022. These documents are important underpinnings of Northern Ireland’s post Brexit environmental governance landscape. The first sets out long term strategy (and is a legal requirement of the 2021 Environment Act) and the second requires Ministers to have ‘due regard’ to core environmental principles when devising new policy.  

Furthermore, without that political representation, the transposition of new EU laws that are required in Northern Ireland under the terms of the Northern Ireland Protocol / Windsor Framework is not possible. A good example of this is the current revision to the Packaging & Packaging Waste Directive currently going through the EU legislative process. If passed in the EU as is likely, it would require Northern Ireland to transpose and implement this legislation, and incidentally lead to further divergence in approach taken by the other UK nations.  

A widening of ambition?  

Changes to EU laws being debated in Brussels will continue to affect the UK and potentially fuel further divergence between UK nations.  

The UK will not immediately follow all of the developments in EU law, although in some areas it has signalled that it may be minded doing just that. The introduction of the EU Carbon Border Adjustment Mechanism (CBAM) in early November has prompted the UK Government to seriously consider introducing one of its own – probably to avoid hefty costs for British businesses exporting to the EU who would likely fall foul of the comparative discrepancy between the EU and UK’s carbon price.  

Ongoing discussions in the EU about revising (and toughening up) the environmental crime directive, have coincided with a consultation in Scotland to introduce the crime of ecocide into Scots law would mark that nation out in the fight against particularly egregious acts of environmental crime and destruction. Whilst In Wales, plans to put a duty on ministers to consider soundscapes and tackle noise pollution are particularly novel and would also see divergence in approach with the other nations. 

The prospect of Westminster elections could render some of the expected changes, specifically those in England, moot points, should a newly elected government decide to chart a new course entirely. Although it is too early to predict the outcome of those elections, what seems highly likely is that the glue holding the four nations together will continue to become a little more unstuck as each of the UK’s four nations implements its own environmental ambitions.

Michael Nicholson is head of environmental policy at the Institute for European Environmental Policy UK (IEEP UK)  

Photo by Jens Lelie on Unsplash