Devolution

A series of devolution statutes was passed by the UK Parliament 1998. These created new elected assemblies for Scotland, Wales and Northern Ireland, and a new "devolved administration" in each area to take executive responsibility for substantial areas of government. Although each settlement is different, they have a number of things in common. The first is that each settlement confers both legislative and executive power. The second is that responsibility for environmental policy is substantially devolved in each case. The third is that each devolution statute is just a starting point. Devolution is not an event, it's a process.

Devolution therefore has huge implications for the development and practice of environmental law in the UK, and those implications are almost certain to increase. This section explains the main features of each settlement. The related pages are introductions from the relevant UKELA regional groups to the main substantive features of environmental law in each area.

Scotland

The Scotland Act 1998 established a Scottish Parliament and provides for the appointment of the Scottish Ministers to exercise executive functions in relation to Scotland. The Act enables the Parliament to makes a form of devolved primary legislation - Acts of the Scottish Parliament (ASPs). Those Acts may confer delegated legislative powers, including on the Scottish Ministers. Pre-existing delegated legislative powers in devolved subject-areas were also generally transferred to the Scottish Ministers in 1998.

There is a presumption of devolution in relation to Scotland: legislative and executive powers are devolved unless expressly "reserved" to UK Ministers or the UK Parliament. The list of "reserved matters" in the Act does not include environmental protection, and so responsibility for environmental law in Scotland is generally devolved. The Scottish Ministers have also been designated under section 2 of the European Communities Act 1972 in relation to many environmental subjects. This means that they can also legislate under that Act for the purposes of giving effect to European environmental law in Scotland.

The boundaries of reserved matters are not in all cases entirely clear. The Act therefore provides mechanisms for amending or supplementing the Act itself, and the UK Government and Scottish Ministers have agreed a series of memoranda setting out practical arrangements for managing devolution questions. These are available from the Ministry of Justice.

Northern Ireland

Recent devolution in Northern Ireland is historically more complex than elsewhere in the UK. A Northern Ireland Parliament legislated from 1921 to 1972 and, since then, there has been a halting sequence of elected Assemblies. Current arrangements derive from the Northern Ireland Act 1998 (though that was itself suspended between 2002 and 2007, when direct rule by Order in Council operated under the Northern Ireland Act 2000). Since May 2007, devolved legislative and executive powers have once again been vested in the Northern Ireland Assembly and Northern Ireland Ministers.

Like Scotland, the Assembly can make a form of devolved primary legislation - Acts of the Assembly - and, also like Scotland, there is a presumption of devolution. This includes responsibility for environmental protection. A two-tier structure of reservations and exceptions - some of which cannot be changed - is different to and more elaborate than the Scottish comparator.

In practice, Northern Ireland Ministers also have extensive powers to give effect to European obligations in Northern Ireland under the European Communities Act 1972.

Wales

The 1998 settlement, though establishing the National Assembly for Wales and providing for Welsh ministers to exercise functions on the Assembly's behalf, was a form of executive rather than legislative devolution. The powers of the Assembly were broadly equivalent to those of UK Ministers, and in relation to named (and pre-existing) legislative functions rather than presumed devolution with reservations. This has been substantially modified by the Government of Wales Act 2006. Although there remains no presumption of devolution, that Act does for the first time provide for devolved primary legislation - Assembly Measures - in relation to specified subjects and, subject to a referendum, for replacement powers to be conferred on the Assembly to make its own Acts.

The functions transferred before the 2006 Act remain with the Assembly and Welsh Ministers and, in practice, continue to provide the bulk of their legal powers. They include most executive powers (including the power to make delegated legislation) under environmental legislation applying in relation to England and Wales. Assembly Measures will become more common as the particular matters for which the Assembly may legislate are fleshed out - a process generally requiring further legislation in Westminster.

As elsewhere in the UK, it is important to note the extensive powers given to the Assembly under the 1972 Act to give effect to a wide variety of European environmental obligations in relation to Wales.