Environment and Sustainability Committee
E&S(4)-28-12 paper 2
Evidence from the RSPB to the Environment & Sustainability Committee
Inquiry into the Draft Natural Resources Wales (Functions) Order
8th November 2012
The RSPB is Europe’s largest wildlife
charity, with more than one million members, over 51,000 of them
living in Wales. The Society manages one of the largest
conservation estates in the UK, covering more than 140,000
hectares; over 16,000 of these in Wales. Across the UK the
RSPB’s reserves are home to 80% of our rarest or most
threatened bird species. The RSPB also works beyond our reserves,
including in Futurescapes areas, with a range of organisations,
businesses and landowners to bring about habitat improvements for
species of conservation concern. We work to protect and enhance
habitats such as upland and lowland farmland, heather moorland,
coastal heath, wet grassland, estuaries and reedbeds, and our
reserves help to protect rare and threatened wildlife.
RSPB Cymru welcomes the opportunity to respond to the
Committee’s scrutiny of the Second Order and the invitation
to give oral evidence to the Committee. RSPB Cymru has serious
concerns about many of the main aspects proposed for inclusion in
the draft second Order for the Natural Resources Wales (NRW). We
have provided an overview of these concerns under headlines below.
Our views are based on the proposals within the draft second Order
and the recent NRW consultation which closed 5th October
2012. The latter according to the explanatory note accompanying the
draft second Order, provides further detail and is aligned with the
draft second Order.
Providing Leadership in Addressing
Wildlife Declines
To deliver sustainable development (SD), the objectives of all
three pillars of SD – social, economic and environmental
– must be achieved. Consequently, without a public body that
specifically leads on environmental enhancement and sustainability,
the Welsh Government will not achieve SD. Moreover, without
environmental sustainability, Welsh society and the Welsh economy
will no longer be able to derive the ecosystem service benefits
which we value. We would also add that nature should be protected
and conserved for its own sake (i.e. its intrinsic value).
The RSPB and many of our supporters would agree that we have a
moral responsibility for the stewardship of nature, as well as
managing it for the utilitarian services humans receive from
it.
NRW is not and should not be a sustainable development body – a separate SD Body is being proposed by the Welsh Government under the SD Bill. The aim of NRW must be to protect biodiversity (i.e. the building blocks of ecosystems) as well as ecosystems themselves. A healthy natural environment where biodiversity loss has been halted and reversed would be a key test to achieving SD in Wales.
Statutory Purpose
The recently published ‘Summary of Responses to the
Sustaining a Living Wales consultation’[1]
provides the Welsh Government with the mandate for creating a body
that provides leadership on nature conservation. However, this is
not reflected strongly enough in the statutory purpose for the
body.
Within the first Order the terms “sustainably maintained” and “sustainably enhanced” are ambiguous. Furthermore, the definition of “sustainably” itself is also ambiguous, but appears to imply that NRW must show benefits for people and the economy as well as the environmental benefits when carrying out conservation and biodiversity enhancement actions.
Whilst NRW must proactively contribute to delivering SD, it cannot be responsible for delivering SD alone – this is the responsibility of the Welsh Government as a whole. Given that our environment has suffered degradation and still faces significant pressures, it is essential that NRW is able to take actions and give advice based on what the Welsh environment needs.
We believe that many, if not most, of the actions to improve the environmental management by NRW will also provide economic and social gains and make a clear contribution to sustainable development. However, NRW must also be free to take actions and give advice for the good of the Welsh environment even when the economic and social benefits are not immediately obvious. Restoring our environment requires direct investment even when the wider benefits are not apparent or quantifiable but will be essential in order to move towards living within our environmental limits – a key tenet of sustainable development.
NRW must provide robust and proactive leadership for the natural environment and wildlife of Wales and improve on the work delivered by CCW, EAW and FCW up until now.
Nature Conservation & Natural Beauty
Duty
RSPB Cymru’s most significant
concern is that the proposed Nature Conservation & Natural
Beauty duty is weaker than the existing nature conservation duty
for CCW, and consequently is legally not permissible under the
restrictions of the Public Bodies Act
[2] as it weakens the “necessary
protection” for the wildlife and natural environment of
Wales.
Although the Second Order make some improvements on the proposals in the Welsh Government’s consultation document, the wording is still weaker than the current CCW conservation duty, plus there are still outstanding weaknesses.
The main issue is that the proposed duty is limited to applying “... so far as is consistent with” four subclauses. These subclauses create caveats that result in a proposed conservation duty (and the Public Access & Recreation Duty which is drafted in a similar fashion) that can only be exercised if the impacts on people and the economy are also acceptable. We believe that this drafting limits any conservation of the natural environment to actions that can be shown to have benefits for people and the economy. Often this is not possible, as the benefits are either indirect, such as pollination or maintaining healthy soils, or will not be realised in the short-term, such as water purification or the storage of Carbon in peatlands.
In addition, the wording of the duty appears to imply that it applies only when the body is formulating “proposals”, rather than covering the body when exercising any of its functions or carrying out any actions. While this wording comes from the existing duty on the Environment Agency, compared with the existing CCW duty, this is narrower wording and consequently risks non-compliance with the Public Bodies Act by removing “necessary protection”.
Should the word “proposals” be removed from the text, we would welcome the duty “... to further the conservation and enhancement of natural beauty and the conservation of flora, fauna, geological or physiographical features” as specified in the consultation document. However, a positive proposal in the consultation document to amend this duty to exclude the phrase “of special interest” at the end and so align it with the current CCW duty has not been included in the draft second Order. We urge the government to ensure the tightening up of the wording around the duty in the publication of the second Order to ensure compliance with the Public Bodies Act.
Overall,
the outcome is a weaker conservation duty than that currently
applying to CCW, hence, under the Public Bodies Act is considered
as the removal of “necessary protection” for the
natural environment. This limitation means the Welsh Government are
reducing the action that will be taken to meet the international
target to halt and restore biodiversity loss also puts us at a
disadvantage with respect to achieving sustainable development.
Lack of Transparency and
Accountability
RSPB Cymru is concerned that a
number of significant proposals regarding how NRW will operate are
presented with inadequate levels of detail in the consultation
document making it impossible to determine whether and how these
proposals will deliver the requisite levels of openness,
transparency and accountability. In particular, we are concerned
about the following:
1. Self-Permitting & Self-Assessment
The lack of effective internal separation and transparency
specified in the legislation regarding decisions when NRW advises
on and regulates its own operations – self-permitting and
assessing its own projects.
With respect to self-permitting and assessing the
environmental effect of its own projects, Welsh Government are
proposing providing transparency and accountability through
internal separation of decision-making within NRW, i.e. the part of
NRW proposing the project will be operationally separate from that
part which will be assessing the implications of the project (under
a number of EU Directives) and awarding the permit. However, the
proposals lack any detail about how this separation is to be
carried out in practice and how NRW intends to achieve genuine
transparency and accountability.
The consultation document states that the proposals are compliant with a piece of case law on this issue (the Seaport Investments judgment). However, this case law states that the operational separation must ensure real autonomy within the organisation, including at an administrative level to ensure that an “objective opinion” can be given on a project. Legal advice received by RSPB Cymru finds that this means that the separation must be permanent rather than temporary and supported by separate administration, including human resources, finance, etc. Without further detail, it is unclear whether the proposals will be adequate to ensure openness and accountability and whether they are compliant with the current case law.
A further concern is that even operational separation within NRW would not be adequate to allow prosecutions in relation to European Protected Species (EPS) licenses or SSSI protected site issues (for which CCW currently has responsibility) to be brought, where NRW is carrying out projects which might be in breach of these offences. The Welsh Government need to provide more detail on this issue.
2. Statutory Consultee Role
We believe it necessary to set out in the legislation the detail of
how NRW should conduct itself when it is consulting with itself in
order to be appropriately transparent.
The consultation document proposes that the requirement to consult with itself be removed from NRW, except where such requirements stem from EU legislation. It is only sensible that if there are going to be circumstances where NRW is no longer obliged to consult with itself that there should be greater transparency and accountability of decision-making. Information which previously would have been publicly available in responses to consultations from each of the existing bodies for example, will no longer be available if there is no consultation process between organisations. However, Welsh Government have not provided information within the consultation document about how this will be achieved in practice in the future. This information may be contained within the ‘scheme’ (see point 3 below) which is due to be developed by NRW but again, the consultation document does not provide enough information to be satisfied that this is what will happen or whether it will be adequate.
3. Publication of ‘Schemes’ & Public Registers
There are issues regarding the timing or order of actions, in particular the timing of the publication in ‘schemes’ and public registers of decisions that have already been made by NRW.
Welsh Government are proposing that NRW publishes a ‘scheme’ identifying conditions where formal publication of decision documents will be required, irrespective of whether or not publication is required by other legislation, as well as the publication of public registers. The scheme should cover decisions made where NRW no longer has to consult with itself (see point 2 above) and list permits including those where it has assessed its own projects (see point 1 above).
However,
the current proposals relate to decisions that have already been
taken and permits that have already been granted. This means that
interested parties would not be able to make representations prior
to or during the decision-making process, unless they were a
consultee. It would also prejudice civil society’s ability to
bring legal actions, for example, judicial review of decisions
because the first the public would learn of it would be after the
decision was taken or the permit granted. The issue here is the
timing and order of the various aspects of the process which
remove, rather than deliver, openness and transparency.