Transforming environmental governance in Northern Ireland. Part one: The process of policy renewal

Journal of Environmental Law

Volumn 18, Issue 1, 2006, Pages 55-87

  Turner, Sharon ^a  

^a QUEEN'S UNIVERSITY BELFAST   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL POLICY; LEGISLATION; SUSTAINABLE DEVELOPMENT;

EURASIA; EUROPE; NORTHERN IRELAND; UNITED KINGDOM; WESTERN EUROPE;

EID: 33644970284     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqi052     Document Type: Review

References (134)

1. Control over 'Imperial' matters was retained by Westminster. For further discussion see Royal Commission on the Constitution 1969-1973 (1973), Cmnd. 5460, para 170.
2. B. Hadfield, 'Northern Ireland, Politics and the Constitution', (Buckingham: Open University Press, 1992) at p 2
3. C. Palley, 'The Evolution, Disintegration and Possible Reconstruction of the Northern Ireland Constitution', (Bournemouth: Institute of Irish Studies, 1972) at p 389.
4. For a discussion of the legislative and administrative arrangements government direct rule, see B. Hadfield, 'The Northern Ireland Constitution' in B. Hadfield, (ed.) supra n 2 at 1
5. Loughlin, 'Administering Policy in Northern Ireland' in B. Hadfield, (ed.), supra n 2 at 5
6. P. Carmichael and R. Osborne, 'The Northern Ireland Civil service under Direct Rule and Devolution', International Review of Administrative Sciences 69 (2003) at 205.
7. K. Morrow and S. Turner, 'The More Things Change, the More they Stay the Same? Environmental Law, Policy and Funding in Northern Ireland', JEL 10 (1) (1998) at 42-48.
8. House of Commons Environment Committee, Environmental Issues in Northern Ireland HC 39 Session 1990-91 (London: HMSO).
9. Para 31.
10. Para 31.
11. Para 1.
12. Para 4.
13. Para 32.
14. Particularly in the context of planning controls in the countryside (para 103) and in relation to energy and the environment (para 95).
15. K. Morrow and S. Turner, supra n 4 at pp 48-52.
16. Most notably the requirement for waste licensing under the Waste Framework Directive and the Air Framework Directive.
17. S. Turner (ed.), 'The Implementation of EC Environmental Law in Northern Ireland' (Belfast: SLS Legal Publications, 2002).
18. OJ 1975 L194/47 as amended.
19. OJ 1996 L257/26.
20. OJ 1996 L296/55.
21. OJ 1998 L330/32.
22. OJ 2000 L332/91.
23. OJ 1999 L182/1.
24. OJ 2000 L 269/34.
25. OJ 2003 L 37/24.
26. Under Article 228EC. See more generally L. Kramer, EC Environmental Law (Sweet and Maxwell, 1999)
27. S. Bell and D. McGillivray, Environmental Law (London: Blackstone Press, 2000) at pp 137-8
28. J. Jans, European Environmental Law (Amsterdam: Europa Law Publishing, 2000) at p 168.
29. Commission v UK Case C-39/01, 7 March 2002, [2002] I-2513
30. Commission v UK Case C-35/00, 24 January 2002, [2002] ECR I-53
31. Commission v UK Case C-63/02, 16 January 2003, [2003] ECR I-821.
32. Article 228EC proceedings may be taken by the Commission where a Member State fails to comply with the terms of a European Court ruling under Article 226EC in which the Court identifies a breach of EU obligations. Whereas Article 226EC proceedings can result in judgment against a Member State, the European Court has the power to impose financial sanction on Member States were subsequent successful proceedings are taken by the Commission under Article 228EC.
33. Commission v Ireland Case C-494/01, unreported ECJ, 26 April 2005 and Commission v Spain Case C-446/01 [2003] ECR I-6053
34. Commission v Greece Case 240/86 [1988] ECR 1835
35. Commission v Italy Case 7/61 [1961] ECR 317.
36. See also, P. Craig and G. deBurca, EU Law: Text, Cases and Materials (Oxford: Oxford University Press, 1998) at pp 390-2.
37. S. Bell and D. McGillivray, supra n 23 at p 138.
38. See also the guidelines published by the EU Commission concerning the interpretation of Article 228EC at [1996] OJ C242/6 and [1997] OJ C63/2.
39. Schedule 2, para 3 of the Northern Ireland Act 1998.
40. Memorandum of Understanding, (2001) Cm 5240 at para 20.
41. Ibid, and the Concordat on the Co-ordination of European Union Policy Issues (2001) Cm 5240.
42. In this regard, see the guidelines published by the EU Commission concerning the interpretation of Article 228EC, supra n 27 and the ruling of the European Court in Commission v Greece Case C-387/97 [2000] ECR I-5047 which emphasised that the duration of the breach, its degree of seriousness and the ability of the Member State to pay would also be taken into account when setting the quantum of fines (para 92).
43. At this point, only against Greece see Commission v Greece, ibid.
44. In this case, the European Court imposed a daily fine of €20,000.
45. See more generally, D. Horowitz, 'The Northern Ireland Agreement: consociationalist, maximalist and risky' in J. McGarry (ed.), Northern Ireland and the Divided World (Oxford, 2001)
46. R. Wilford and R Wilson, 'A Democratic Design? The Political Style of the Northern Ireland Assembly' (2001) Democratic Dialogue, available online at http://www.democraticdialogue.org/audit_ooo.htm.
47. In this regard, see also Carmichael and Osborne, supra n 3.
48. Ten statutory committees were established in the Assembly, each tasked to shadow the relevant devolved Department - of which environment was one. For an analysis of the powers and functioning of these committees, see R. Wilford and R. Wilson, ibid, at pp 12-16.
49. See infra for a further discussion of this issue. The general climate of distrust between the Department and the Assembly in this regard is generally reflected in the Minutes of the Environment Committee's consideration of the draft, Pollution, Prevention and Control Bill and its report to the Assembly; NIA 19/01, (Session 2002-03). It is also reflected in the second reading of the Bill, which is discussed in more detail infra. These documents are available online at 'http://www.niassembly.gov.uk/environment/' and 'http://www.niassembly.gov.uk/environment/reports/report1-02r.htm'.
50. For an outline of the history of the Bill see the Environment Committee's Report, ibid at paras 1-45.
51. Letter from Dermot Nesbitt to the Environment Committee, 10 October 2001, Annex 3 of the Report of the Environment Committee, ibid.
52. Ibid.
53. Report of the Environment Committee, ibid at para 10.
54. Ibid, paras 13-25.
55. Commission v Italy Case 28/81 [1981] ECR 2577
56. Commission v France Case C-144/97 [1998] ECR I-613
57. Commission v Spain Case C-274/98 [2000] ECR I-2823.
58. Letter of 22 May 2002 from the DOE (NI) Minister to the Assembly Committee, contained in Annex 10 to the Report of the Committee, supra n 37.
59. For a general discussion of the accelerated passage procedure and its use during devolution, see R. Wilford and R. Wilson, supra n 34, at pp 32-3.
60. Supra n 44.
61. Report of the Environment Committee, para 49, supra n 37.
62. Commission v Greece Case C-387/97 [2000] ECR I-5047.
63. Hansard Report, 25 June 2002. Also contained in Annex 18 to the Report of the Environment Committee, supra n 37.
64. Report of the Environment Committee, paras 22-43, supra n 37.
65. The Environment (NI) Order 2002 and the Pollution Prevention and Control Regulations (NI) 2003.
66. The numbers of generalist policy staff increased from approximately 30 in 2001 to 112 by mid 2005.
67. DOE(NI)'s impressive record in this regard is referred to by the Northern Ireland Audit Office Report, Northern Ireland's Waste Management Strategy, HC 88, Session 2004-05 at p 11.
68. Ibid at p 6.
69. See also DOE (NI), Environmental Policy Division Business Plan (2003-04).
70. A more detailed breakdown of the Department's legislative activity during this period is provided in the Environmental Policy Division's Business Plan (2003-04).
71. DOE (NI)'s Environment and Heritage Service (EHS).
72. Namely, the North/South Ministerial Council, the cross-border implementation bodies and was included amongst the (initial) six areas identified for cooperation between existing government structures, North and South.
73. In this regard, see the Inquiry into the Approach of the Northern Ireland Assembly and the Devolved Government on European Union Issues, Assembly Committee of the Centre, 20 March 2002. Available online at http://www.niassembly.gov.uk/centre/reports/report2-01r.htm.
74. Ibid.
75. The Committee of the Centre was a Standing Committee of the Assembly tasked to monitor a range of the functions of the Office of the First Minister and Deputy First Minister. See R. Wilford and R. Wilson, supra n 34 for a discussion of its role.
76. Supra n 58 at paras 51, 94-96.
77. In this regard, the Committee emphasised the evidence submitted to the enquiry by an official representing the Office of the First Minister and Deputy First Minister, 5 December 2001, Minutes of Evidence, Appendix 1.
78. Supra n 58 at para 30.
79. Supra n 58 at para 63.
80. Supra n 58 at paras 66-67.
81. Supra n 58 at para 121.
82. Although the Environment Committee directed this comment at all departments, it particularly emphasised the need for organisational change within the DOE (NI).
83. However, DOE(NI) did seek to engage proactively in the revision of the Bathing Water Directive and negotiation of the End-Of-Life Directive during this period.
84. The Protection of Water Against Agricultural Nitrate Pollution Regulation (NI) 2004, SR 2004/219.
85. More specifically, NI proposed to introduce controls on the use of chemical fertilisers containing Phosphorus, which must be limited to a demonstrable crop requirement. See Nitrates Directive Consultation Paper: Proposed Action programme measures for the protection of Northern Ireland's waters [2005, DOE(NI) and the Department of Agriculture and Rural Development].
86. Ibid at paras 2.13-2.22.
87. Final regulations are anticipated in January 2006.
88. In 2001, described in evidence to the Assembly's Public Accounts Committee as 'unique and intimate' by DOE(NI)'s then Permanent Secretary, Stephen Quinn; Report on the Control of River Pollution in Northern Ireland, Third Report of the Northern Ireland Assembly Public Accounts Committee, 3/00/R, 6 February 2001, at para 303.
89. This is a phrase commonly used by DEFRA and Whitehall generally to describe the UK's concern to avoid taking action beyond that which is strictly required by EU measures.
90. Recommendation concerning the implementation of Integrated Coastal Zone Management in Europe, OJ 2002 L148/24.
91. In the lead up to and following the European Court's ruling in the Commission v UK Case C6/04, 20 October 2005, in which the Court ruled that the UK had failed in several respects to properly implement the terms of the Habitats Directive 92/43/EEC OJ 1992 L206/7.
92. Memorandum of Understanding, supra n 29 at paras 17-19.
93. In this regard, it should be noted that an official within DOE(NI)'s policy core chaired one of the Phase One Common Implementation Strategy projects, but is also a scientist with a specialisation in the aquatic environment.
94. As explained at the outset of this paper.
95. Although devolution and the policy surge required to respond to spiralling EU infraction initially revealed the lack of specialist skills within DOE(NI)'s policy core (discussed supra), in 2005 the Northern Ireland Audit Office noted that DOE(NI) would be dependent on external expertise on the ongoing basis to assist in the implementation of legislation in the future - supra n 53 at para 1.8. Although the Audit Office comments were made specifically in the context of waste management, this situation is replicated across the Department's policy portfolio and particularly in relation to legal, scientific and economic skills.
96. In October 2004, the Department had reached the point of publishing a discussion document setting out the options for establishing National Parks and managing other outstanding landscapes in Northern Ireland; available at http://www.doeni.gov.uk/epd/consultation_docs/ details.asp?docid=2312.
97. Discussed in detail in Part Two of this paper, forthcoming in JEL (2006), forthcoming.
98. As reflected in the New Targeting Social Need agenda and the statutory obligation imposed on policy makers by section 75 of the Northern Ireland Act 1998 to subject policy proposals to prior equality impact assessment. More generally see New TSN - The Way Forward, Consultation Document Phase 2 (2005, OFM-DFM) at http://www.newtsnni.gov.uk;
99. E. McLaughlin and N. Faris, Section 75 Equality Duty: An Operational Review (Volume 1 and 2), (NIO, 2004).
100. P. Hillyard et al, Bare Necessities: Poverty and Social Exclusion in Northern Ireland: Key Findings (Belfast: Democratic Dialogue, 2003). It is impossible in the current confines to set out in more detail the nature of the social justice issues arising in relation to the environment in Northern Ireland. Suffice it to say that serious issues in this regard arise in the region due to a weak emphasis on participatory rights in the context of development control (discussed in more detail infra), chronic under-investment in public transport, very high car dependency, high energy prices, unusually permissive planning controls on the building of single dwellings in the countryside (also discussed infra) and the proposed introduction of water charges based on property prices. These issues are the subject of current research by the author.
101. E. McLaughlin and N. Faris, ibid, volume 2.
102. Discussed in more detail infra at pp 26-28.
103. In this regard, see the discussion of the role of independent advisory bodies in the development of environmental policy making in R. Macrory, Transparency and Trust: Reshaping Environmental Governance in Northern Ireland (Centre for Law and the Environment, University College London, 2004), Chapter 9 and Figure 6 (p 45) which sets out the range of independent advisory bodies across the Member States of the EU.
104. Council for Nature Conservation and the Countryside, Historic Monuments Council and the Historic Buildings Council.
105. Under the Water Act (NI) 1972, now replaced by the Water (NI) Order 1999 and Water and Sewerage Services (NI) Order 1973.
106. Following the transfer of responsibility for the region's water and sewage services from DOE(NI) to the Department of Regional Development and the transfer of certain functions concerning the recreational use of inland waterways to DCAL.
107. Those listed in supra n 83.
108. Review of Public Administration, Further Consultation Paper (March 2005) available at http://www.rpani.gov.uk/consultdocu.pdf.
109. R. Macrory, supra n 82.
110. Supra n 53 and 76.
111. Supra n 87 at Appendix 7.
112. Ibid, at p 193.
113. This comment is made in relation to the three councils tasked to DOE(NI), CNCC, Historic Monument Council and History Buildings Council.
114. Supra n 5 at para 4.
115. The terms of reference for the Review are set out in Appendix 1 of the Further Consultation Paper; supra n 87. More specifically, the Review is designed to provide Northern Ireland with a system of public administration that meets the following criteria: Democratic accountability, community responsiveness and partnership working, cross-community concerns, equality and human rights, subsidiarity, quality of services, co-ordination and integration of services, scope of public sector, efficiency and effectiveness, innovation and business organisation.
116. This proposal was made by the Macrory Report, supra n 82 at para 9.21.
117. 91/27/EEC, OJ 1991 L135/40.
118. Commission Press Release, 12 January 2005. It should be noted that enforcement action is being taken against the UK as a whole in relation to secondary treatment provision; however, NI is being additionally challenged in relation to the permitting of development in areas with inadequate sewage treatment.
119. Article 33, non-determination appeal by Boland Reilly Homes Ltd concerning an application for development consent for 24 dwellings: Reference 2004/A279, March 2005
120. 14 September 2005.
121. Waste Management Strategy in Northern Ireland, (Session 2004-05) HC 349-I.
122. Northern Ireland's Waste Management Strategy, (Session 2005-06) HC 88.
123. Waste Management Advisory Board for NI, Northern Ireland Waste Management Strategy Review Report [DOE(NI), 2004].
124. Northern Ireland Audit Office, Northern Ireland's Waste Management Strategy, HC 88 (Session 2005-06) at p 25
125. House of Commons NI Affairs Committee, Waste Management Strategy in Northern Ireland, HC 39 (Session 1990-91) at Chapter 2
126. and the report of the Waste Management Advisory Board, Northern Ireland Waste Management Strategy Review Board [DOE (NI), 2004] at para 2.3.
127. NIAO Report, ibid at paras 2.16-2.17
128. HC Committee, ibid at paras 20-23
129. WMAB, ibid at para 2.2.
130. An Executive Agency within the Department of Regional Development.
131. Royal Commission on Environmental Pollution, Twenty-third Report on Environmental Planning (2002) Cm 5459.
132. PPS 14, Sustainable Development in the Countryside: Issues Paper, (Department of Regional Development) at p 4. Available online at http://www.planningni.gov.uk/AreaPlans_Policy/PPS/pps14/issues_paper.pdf.
133. A Planning Strategy for Rural Northern Ireland [1993, DOE(NI)]. Available online at http://www.planningni.gov.uk/AreaPlans_Policy/ Strategies/Strategy.htm.
134. National Trust Planning Commission, A Sense of Place: Planning for the Future in Northern Ireland (2004), at p 24 para 3.5.2. Available online at http://www.nationaltrust.org.uk/main/ w-ni-sense_of_place-summary.pdf