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Scotland and Spain: The Division of Environmental Competences

Published online by Cambridge University Press:  17 January 2008

Colin T Reid  and
Gerardo Ruiz-Rico Ruiz
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Extract

Two conflicting forces beset any attempts to fit responsibility for environmental matters into modern constitutional structures. On the one hand the political desire for less centralised government calls for devolution of power to regional or local authorities, so that responsibilities are divided and distributed between different levels of government. On the other, the fact that no aspect of the environment can be treated as if it were a separate compartment suggests that responsibilities should be integrated in one place, an approach supported by the increasing awareness that there is a need for environmental considerations to influence all areas of policy if the goal of sustainable development is to be achieved. Fitting responses to the conditions1 of a particular locality is an important element in successful environmental policy, but so is ensuring that a coherent and holistic approach is taken, unhindered by institutional divisions.2 The purpose of this paper is to examine how two structures of devolved administration, for the Autonomous Communities in Spain and for Scotland, meet the challenge of reconciling these opposite forces, and how the constitutional structures influence the way in which potential problems are resolved.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 52 , Issue 1 , January 2003 , pp. 209 - 225
Copyright
Copyright © British Institute of International and Comparative Law 2003

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References

1 Including natural, social, and economic circumstances.

2 Other considerations such as administrative efficiency and preventing environmental regulation becoming a focus of competition between regions are also relevant in determining the appropriate division of powers; see, eg, Engel, K and Rose-Ackerman, S, ‘Environmental Federalism in the United States: The Risks of Devolution’, in Esty, D and Geradin, D, Regulatory Competition and Economic Integration: Comparative Perspectives (Oxford: Oxford University Press, 2001).Google Scholar

3 As just one example, see Verhoosel, G, ‘The division of powers with respect to environmental policy in federal B elgium’, in Deketelaere, K and Faure, M (eds), Environmental Law in the United Kingdom and Belgium from a Comparative Perspective (Antwerp: Intersentia, 1999).Google Scholar

4 The use of the term ‘region’ to include areas where there are significant nationalist movements and strong concepts of ‘national’ rather than ‘regional’ identity is not ideal, but this usage is adopted since the term has come to be widely recognised as the generic name for the first level of geographical division within a nation state.

5 See generally Heywood, P, The Government and Politics of Spain (Basingstoke: Macmillan, 1995), ch. 7.CrossRefGoogle Scholar

6 Scotland Act 1998.

7 Government of Wales Act 1998.

8 Northern Ireland Act 1998. See Wilford, R and Wilson, R, ‘A “Bare-Knuckle” Ride: Northern Ireland’, ch.4, in Hazell, R (ed), The State and the Nations: The First Year of Devolution in the United Kingdom (Thorverton: Imprint Academic, 2000).Google Scholar

9 See generally, Reid, C, ‘Devolution and the Environment’, ch 6, in Ross, A (ed), Environment and Regulation (Edinburgh: Hume Papers on Public Policy vol 8 No 2, Edinburgh University Press, 2000)Google Scholar; Little, G, ‘Scottish Devolution and Environmental Law’ (2000) 12 JEL 155CrossRefGoogle Scholar; B Hadfield, ‘Devolution and the Environment: Northern Ireland’ and Lee, R, ‘Devolution and the Environment: Wales’, both in Faris, N and Turner, S (eds), Public Law and the Environment: New Directions? (Upper Basildon: UKELA, 2000)Google Scholar; Aguirre, J Beltran, ‘La Distribution de Competencias entre el Estado y las Communidades Autonomas en Materia de Medio Ambiente’ 41 Revista Vasca de Administracion Publica 549.Google Scholar

10 Eg, Scotland Act 1998, s 28(7).

11 Heywood, op cit, 142–5.

12 Spanish Constitution, Art 2 of the Transitional Provisions.

13 Spanish Constitution, s 143; ultimately only ten of the seventeen Communities followed this procedure.

14 Ibid, s 151; in practice ad hoc arrangements were also made for some regions.

15 These were established between 1979 and 1983.

16 Spanish Constitution, s 45: ‘(1) Everyone has the right to enjoy an environment suitable for the development of the person, as well as the duty to preserve it. (2) The public authorities shall watch over a rational use of all natural resources with a view to protecting and improving the quality of life and preserving and restoring the environment, by relying on an indispensable collective solidarity. (3) For those who break the provisions contained in the foregoing paragraph, criminal or, where applicable, administrative sanctions shall be imposed, under the terms established by the law, and they shall be obliged to repair the damage caused.’ The translation of the Constitution is taken from the web pages of the Spanish Senate at <http://www.senado.es/info_g/index_i.html>.

17 Ch 3 of Part I of the Constitution.

18 Spanish Constitution, s 130 ‘(1) The public authorities shall promote the modernization and development of all economic sectors and, in particular, of agriculture, livestock raising, fishing and handicrafts, in order to bring the standard of living of all Spaniards up to the same level. (2) For the same purpose, special treatment shall be given to mountain areas.’

19 Ibid, ss 33 and 38

20 Statute of Autonomy of Andalucia (ley organica 6/81, de 30 de Diciembre) Art 12(3).

21 Spanish Constitution s 149(1) (xiii), (xvi), (xviii), (xix), (xxi), (xxii), (xxiv), and (xxv).

22 Ibid, s 148(iii), (iv), (v), (vii), (viii), (x), (xiii), and (xxi).

23 Eg, in the Statutes of Autonomy of Andaluci'a (above), Art 15; Catalonia (llei organica 4/1979, de 18 de desembre), Art 10; and Valencia (ley organica 4/1991, de 13 de marzo, Art 32.

24 Eg, in the Statutes of Autonomy of the Canaries (ley organica) 10/1982, de 10 de agosto), Art 33; and Extremadura (ley organica 9–6–82, as amended), Art 12.

25 Eg, in the Statute of Autonomy of the Balearic Islands (ley organica 2/1983, de 25 de ferero), Art 10.

26 Eg, in the Statute of Autonomy of Asturias (ley organica 7/81 de 20 de diciembre), Art 11.

27 Statute of Autonomy of Castilla-La Mancha (ley organica 9/1982, de 10 de agosto), Art 32.

28 Statute of Autonomy for the Basque Country (ley organica 3/79 de 18 de diciembre), Art 11.

29 Eg, Statute of Autonomy of Navarre (ley organica 13/1982 de 10 de agosto), Art 58.

30 This aspect of the Communities' powers was confirmed by the Constitutional Court in STC 170/1989.

31 STC 69/1982, concerning Law 2/1982 of the Catalan Parliament.

32 Statute of Autonomy of Catalonia (above), Art 10.

33 A further issue is the extent to which regulations made by the State government are given precedence over primary legislation made by the Parliaments of the Autonomous Communities, a reversal of the standard hierarchy of legal sources; see JL Beltran Aguirre, ‘La Distribution de Competencias entre el Estado y las Comunidades Autonomas en materia de Medio Ambiente’ 41 Revista Vasca de Administration Publica 549.

34 STC 170/89.

35 STC 170/1989, challenging Law 11.1990 from the Canaries as failing to meet the standards set by Royal Legislative Decree 1302/1986.

36 STC 16/1997, challenging Law 1/1989 from Asturias. See also STC 156/1995 and 196/1996.

37 STC 156/1995, concerning Law 5/1989 of the Basque Parliament.

38 Law 22/1988.

39 Spanish Constitution ss 132(2), 149(1) (iv), (xiii), (xx), (xxi), and (xxiv).

40 STC 102/1995, considering Law 4/1989.

41 See n 33, above.

42 See generally Macrory, R, ‘The Environment and Constitutional’, in Hazell, R (ed), Constitutional Futures: A History of the Next 10 Years (Oxford: Oxford University Press, 1999).Google Scholar

43 Scotland Act 1998, s 28.

44 This is known as the ‘retaining model’ of devolution, as opposed to the ‘transferring model’ which operates by conferring on the devolved authorities only those powers specifically listed, as adopted in the in the abortive Scotland Act 1978 and in the Government of Wales Act 1998.

45 Scotland's Parliament (Cm 3658, 1997), 10.

46 Scotland Act 1998, s 29; see below. Legislation that affects reserved matters is permitted where this effect is an incidental consequence of measures that are essentially concerned with devolved matters; Scotland Act 1998, s 29.

47 Litigation so far has centred on issues of compatibility with rights under the European Convention on Human Rights, almost exclusively in the area of criminal procedure.

48 Scotland Act 1998, ss 53–4.

49 Ibid, s 63.

50 Scotland Act 1998, Sched 5, Part II Sections D2 and D4.

51 Pipe-lines Act 1962, s 1; a ‘cross-country pipe-line’ is one over 16.093 km long (ibid, s 66(1)).

52 Nuclear Installations Act 1965, s 2.

53 Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 1999, SI 1999 No 1750, Sched 1.

54 Scotland Act 1998, s 56.

55 Electricity provides an example of this. The generation and supply of electricity is a reserved matter (Scotland Act 1998, Sched 5 Part II Section Dl), but the power to grant consents for generating stations and overhead lines in Scotland has been transferred to Scottish Ministers by means of executive devolution (Scotland Act (Transfer of Functions to the Scottish Ministers etc) Order 1999, SI 1999 No 1750, Art 2 and Sched 1), powers to require certain statistical information are exercisable concurrently (ibid, Art 3 and Sched 2), while the major power to license suppliers of electricity remains with the Secretary of State but can be exercised only after consultation with Scottish Ministers (ibid, Art 4 and Sched 3).

56 Scotland Act 1998, ss 88–90. See Scotland Act 1998 (Cross-Border Public Authorities) (Specification) Order 1999, SI 1999 No 1319; Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions) Order 1999, SI 1999 No 1747.

57 There have been many amendments to the Forestry Act 1967 to give effect to the transfer of responsibilities to the Scottish Ministers; Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions) Order 1999, SI 1999 No 1747, Sched 12.

58 Scotland Act 1998, s 28(7)

59 The subordinate nature of the Parliament and the role of the courts in enforcing the statutory provisions that created it were emphasised in Whaley v Watson 2000 SC 125.

60 Eg, A v Scottish Ministers 2001 SC 1.

61 Scotland Act 1998, s 35.

62 Ibid, s 58.

63 In Wales, the National Assembly is required to produce a scheme ‘setting out how it proposes, in the exercise of its functions, to promote sustainable development’ (Government of Wales Act 1998, s 121). In London, the Mayor must prepare an environmental report and a biodiversity plan, but the legislative provisions suggest, rather than actually require, that these promote biodiversity and good environmental quality (Greater London Authority Act 1998, ss 351–2).

64 Eg, Scotland's Parliament (Cm 3658, 1997), 6.

65 This reference and the ones following are to the Sections within Part II of Sched 5 to the Scotland Act 1998, which set out the specific reservations.

66 Finance Act 1996, s 53; see Brisson, I and Powell, J, ‘The UK Landfill Tax’ in Helm, D. (ed), Environmental Policy: Objectives Instruments and Implementation (Oxford: Oxford University Press, 2000).Google Scholar

67 The matter was raised in the Transport and Environment Committee of the Parliament (Second Meeting of 1999, 8 Sept 1999, cols 35–6).

68 In all cases the subject matter of Part I of the Environmental Protection Act 1990 is excluded from the reservation and thus is within the competence of the Scottish Parliament and Executive.

69 Scotland Act 1998 (Transfer of Functions to Scottish Ministers etc) Order 1999, SI 1999 No 1750, Art 2 and Sched 1.

70 This reservation also illustrates the complexity of working with the reservations. The actual reservation is of ‘The subject matter of the Energy Act 1976, other than section 9’, yet the content of section 9 (the use and liquidation of offshore gas) is actually covered by another reservation (D2, covering oil and gas). The exception for energy efficiency matters permits the Scottish authorities to undertake the ‘encouragement of energy efficiency other than by prohibition or regulation’, yet certain additional mechanisms, such as taxes, controls on advertising or product labelling are beyond their powers because of other reservations (A1, C7, and C8 respectively).

71 Including the transport of radioactive material and the carriage of dangerous goods.

72 See generally: Rawlings, R, ‘Concordats of the Constitution’ (2000) 116 LQR 257Google Scholar; Scott, A, ‘The Role of Concordats in the New Britain—Taking Subsidiarity Seriously?’ (2001) 5 Ed LR 21Google Scholar; Poirier, J, ‘The Functions of Inter-governmental Agreements: Post-Devolution Concordats in a Comparative Perspective’ [2001] PL 134.Google Scholar

73 The Memorandum of Understanding was published in 1999 as Cm 4444 and reissued in 2000 as Cm 4806, extended to include Northern Ireland; a further reissue in December 2001 as Cm 5240 includes a number of minor changes. The Memorandum and the sectoral agreements affecting Scotland are conveniently found at <http://www.scotland.gov.uk/concordats/>.

74 Memorandum of Understanding, para 1.

75 Slightly different wording is used. The Memorandum of Understanding describes itself as ‘a statement of political intent’ that ‘should not be interpreted as a binding agreement’ and ‘does not create legal obligations between the parties’ (para 2). The Concordat between the Department of the Environment, Transport and the Regions and the Scottish Executive (hereafter ‘the Environment Concordat’) describes itself as a ‘voluntary arrangement’ that is ‘not a binding agreement or contract’ and ‘does not create any … right to be consulted or prevent consultation beyond that required by statute’ (para 4).

76 Agreement on the Joint Ministerial Committee, one of the Supplementary Agreements to the Memorandum of Understanding.

77 The agreements were not openly negotiated and there is no openness in the workings of the Joint Ministerial Council, while many of the detailed arrangements emphasise the need for confidentiality; see A Scott, op cit, 33–9.

78 Since the Concordat was agreed, a governmental reorganisation in 2001 led to the abolition of the Department of the Environment, Transport and the Regions, with its functions now exercised by the Department for Environment, Food and Rural Affairs and the Department for Transport, Local Government and the Regions.

79 Environment Concordat, para 1.

80 Ibid, Annex 1 para 1.11.2.

81 Ibid, Annex 4, para 4.2.2.

82 Ibid, para 4.2.3.

83 Ibid, para 4.2.4.

84 Ibid, paras 9–10; Memorandum of Understanding para 11.

85 This continues to be the case despite the trend towards ‘sub-national mobilisation’ in the past decade; for an overview of this trend and its effect, see C Jeffrey, ‘Sub-national Mobilisation and European Integration’ (2000) 38 J of Common Market Studies 1.

86 Commission v Belgium (Cases 227–230/85) [1988] ECR 1; Commission v Italy (C–33/90) [1991] ECR I-5987, Commission v Spain (C-274/98) [2000] ECR 1–2823.

87 Kottman, J, ‘Europe and the Regions: sub-national entity representation at Community level’ (2001) 26 ELRev 159.Google Scholar

88 EC Treaty, Art 230 (formerly 173); Regione Toscana v Commission (C-180/97) [1997] ECR 1–5245; Comunidad Autonoma de Cantabria v Council (T-238/97) [1998] ECR 11–2271. Regional bodies are, however, legal persons in their own right and may qualify for standing, on the same basis as other legal persons, if they are directly affected by the contested measure; Vlaamse Gewest v Commission (T-214/95) [1998] ECR II-95.

89 EC Treaty Arts 263–5 (formerly 198a–198c).

90 See Kottman (above); Tremps, P Perez (ed), La Participation Europea y la action exterior de las Comunidades Autonomas (Madrid: Marcial Pons, 1998), 206Google Scholar; Cygan, A, ‘Scotland's Parliament and European Affairs: some lessons from Germany’ (1999) 24 ELRev 483.Google Scholar

91 One of the Supplementary Agreements to the Memorandum of Understanding, see n 73 above.

92 Conference for Matters Related with the European Communities; see Law 2/1997 of 13 Mar 1997 and the Conference's Agreement of 30 Nov 1994 on participation of the Autonomous Communities in European Community Matters through the Sectoral Conference (Boletin Oficial del Estado, 22 Mar 1995).

93 Sectoral Conferences.

94 Scotland Act 1998, s 57(1), referring to ministerial powers under s 2(2) of the European Communities Act 1972.

95 Ibid., s 106(5).

96 Concordat on Co-ordination of European Union Policy Issues (above), para B4.25.

97 Ibid, para B 1.3.

98 Ibid, para B4.7.

99 Memorandum of Understanding, para 19; Concordat on Co-ordination of European Union Policy Issues (above), para 4.14.

100 Concordat on Co-ordination of European Union Policy Issues (above), paras B4.12–15.

101 Ibid, paras B4.18, B4.24

102 Concordat on Co-ordination of European Union Policy Issues (above), para B4.3.

103 Spanish Constitution, s 149.

104 STC 58/1982, 252/1988.

105 Spanish Constitution, s 155.

106 Ibid, s 149(3).

107 Royo, J Pérez, ‘Reflexiones sobre la contribución de la jurisprudencia constitucional a la construcctión del Estado Autonomico’, Revista de Estudios Politicos, No 491 (1986), 7.Google Scholar

108 Spanish Constitution, s 149(3).

109 STC 103/1989, 147/1991.

110 STC 79/1992; Ruiz, F Ruiz, ‘La Funcíon de garantia del cumplimentiento autonómico del derecho comunitario europeo’, Revista Española de Derecho Constitucional, No 51 (1977), 179.Google Scholar

111 STC 80/1985, 76/1991, 115/1991.

112 Eg, State Law 47/85, Basque Law 4/86 and Catalan Law 2/86.

113 Government of Wales Act 1998, s 22; National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999 No 672.

114 Government of Wales Act 1998, s 121.

115 Eg, deciding appeals under the town and country planning system.

116 OJ 1993 C 138/1, para 33.