18/19, P. Branigan, ‘Applying the Sustainable Development Principle: Should Scotland Adopt The Wales Act?’

Author: Philip Branigan

 

Scotland should adopt legislation similar to the Well-being of Future Generations (Wales) Act of 2015 (hereinafter “Wales Act”) to promote a sustainable future for the people of Scotland. It would place a duty on public bodies defined in section 6 of the Wales Act, such as local authorities and public organisations, to take actions to further the sustainable development principle. The Wales Act defines the sustainable development principle in section 5(1) as “ensuring that the needs of the present are met without compromising the ability of future generations to meet their own needs”. The sustainable development principle is important because it protects future generations from the possibility of an environment ill-suited for habitation and depleted of resources. The Wales Act further explains the meaning of sustainable development in sections 2 as “the process of improving the economic, social, environmental and cultural well-being of Wales by taking action, in accordance with the sustainable development principle . . . aimed at achieving the well-being goals.” Thus, the Wales Act seeks to balance the economic interests of the business sector in Wales, whilst preserving environmental interests and maintaining Wales’ capability of sustaining the needs of future generations. The Wales Act links duties on sustainable development to public sector reform and concepts of collaboration, involvement, integration, long-term thinking, and prevention.[1] This is beneficial because it provides a mechanism for public bodies to be held accountable to serve the well-being goals mentioned within the Wales Act.

Under section 3(2) of the Wales Act, public bodies must set and publish “well-being objectives” that are designed to maximise their contributions to achieve those goals and take all reasonable steps in exercising its functions to meet those objectives. Overall, there are seven well-being goals that public bodies must meet: (1) a prosperous Wales; (2) a resilient Wales; (3) a healthier Wales; (4) a more equal Wales; (5) a Wales of cohesive communities; (6) a Wales of vibrant culture and thriving Welsh language; and (7) a globally responsible Wales.[2] Section 4 of the Wales Act also describes the well-being goals and provides guidance for how these goals may be served. The Wales Act places equal weight on all aspects of the well-being goals.[3] In the implementation and enforcement of the Wales Act, a strong culture of performance management for public services has arisen.[4] This culture is beneficial because it encourages the enforcement of environmental policy in the public services industry. There are also requirements within the Wales Act to keep the scheme under annual review, to remake or revise it when a new government is formed, and to carry out an effectiveness review of the scheme at the end of each government term.[5]

The primary criticism of the sustainable development principle is that although it is a generally accepted principle, it does not have a clear real-world application.[6] Critics of the sustainable development principle argue that it is vague and difficult to enforce.[7] However, the Wales Act helps to ameliorate this criticism by defining the sustainable development principle and providing a framework for its application in Wales. If the people of Scotland want to provide a mechanism for the sustainable development principle to apply in Scotland the Scottish Parliament should consider adopting the Wales Act and possibly modifying it to serve the particular challenges the people of Scotland faceAccording to the United Kingdom Department for Environment, Food & Rural Affairs, Scotland faces the challenges of promoting sustainable use of resources and preventing air pollution from agriculture, domestic burning stoves, and open fires.[8] Air pollution in the form of carbon emissions contributes to the greenhouse effect and global warming.[9] The Wales Act addresses these challenges by providing the people of Wales with a legal tool to hold public bodies accountable to prevent excessive amounts of air pollution.[10]

Adopting a similar version of the Wales Act in Scotland would help to preserve the environment and ensure the sustainability of Scotland for future generations by requiring public bodies to serve the sustainable development principle. Preserving the environment is important for future generations because future generations would be severely disadvantaged if natural resources are depleted and pollution creates an environment ill-suited for human life. According to The World Wide Fund for Nature (WWF), by the 1980s, humanity’s ecological footprint exceeded the Earth’s ecological limits, and now we are exceeding the planet’s regenerative capacity by about 30%.[11] Passing environmental laws is central to the management of the environment, and adopting a similar version of the Wales Act in Scotland would address the environmental challenges Scotland faces by placing a duty on public bodies to take actions to preserve the environment.

If Scotland adopts legislation similar to the Wales Act, litigation may arise in Scotland similar to how it has arisen in Wales. The Welsh Courts have taken the requirements of the Wales Act into consideration. For example, in James v Monmouthshire CC [2018],[12] the Planning Inspector indirectly considered whether the Welsh Ministers served the well-being objective of supporting safe, cohesive, and resilient communities.[13] The main issue in this case was “whether a mobile home to serve as a temporary dwelling in association with a rural enterprise was justified”.[14] The Planning Inspector reasoned that it would serve as temporary living accommodation for the appellant and her son to enable them to develop a bull calf rearing business for young beef production which is operated from the site.[15] The Planning Inspector held in favor of the appellant.[16] This ruling will enable rural enterprise workers to live at, or close to, their place of work.[17] Additionally, the Planning Inspector’s holding in James v. Monmouthshire promotes the efficient use of living accommodation in the calf-rearing business, but this holding may also be used as persuasive authority in subsequent cases to promote the efficient use of living accommodation in other industries. Efficient use of living accommodation furthers the well-being objective of supporting safe, cohesive, and resilient communities.

A Court in Scotland may decide the issue presented in James v. Monmouthshire similarly and choose to promote the well-being interests mentioned within the legislation that may be passed by the Scottish Parliament. On the same issue, the Scottish Ministers or a reporter appointed by the Ministers would decide the appeal, and only if that outcome were appealed again would the Courts hear such a case.[18] Another reason for Scotland to pass legislation similar to the Wales Acts is that Wales and Scotland share the same well-being interests of supporting safe, cohesive, and reliant communities. By passing legislation similar to the Wales Act, Scotland would provide the people of Scotland with a legal tool that can be used to promote safer and stronger communities.

In sum, Wales and Scotland are both constituents of the United Kingdom and share similar public interests, such as building a strong economy, protecting the public health, and ensuring ‘safer and stronger communities’.[19] These interests can be served if the Scottish Parliament passes legislation similar to the Wales Act. Because the Wales act provides a framework for preserving the environment and ensuring the sustainability of Wales for future generations, the Scottish Parliament should adopt legislation similar to the Wales Act that serves the sustainable development principle.

 

[1] Wallace J., Wellbeing and Devolution: Reframing the Role of Government in Scotland, Wales and Northern Ireland (Wellbeing in Politics and Policy, 2019), 73.

[2] Well-being of Future Generations (Wales) Act 2015, s 4.

[3] Wallace, Wellbeing and Devolution: Reframing the Role of Government in Scotland, Wales and Northern Ireland, 73.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Gov. UK, Clean Air Strategy, 2019 [https://www.gov.uk/government/publications/clean-air-strategy-2019/clean-air-strategy-2019-executive-summary, accessed 6 February 2019].

[9] Katarzyna B. Tokarska & Nathan P. Gillett, ‘Cumulative carbon emissions budgets consistent with 1.5 °C global warming’ 2018 Nature Climate Change’ 296.

[10] Well-being of Future Generations (Wales) Act 2015, s 4.

[11]World Wide Fund for Nature, Ecological Footprint, 2017 [https://wwf.panda.org/know ledge_hub/all_ publications/ecological_footprint2/, accessed 6 February 2019].

[12] James v Monmouthshire CC 2018 P.A.D. 436.

[13]The Planning Inspector did not directly consider whether the Welsh Ministers had met the well-being objectives; merely the PI took this obligation into account when determining whether planning permission ought to be granted on appeal. The PI considered that its decision was ‘in accordance with the sustainable development principle’ as it ‘contributed towards the well-being objective’. James v Monmouthshire CC 2018 P.A.D. 436.

[14] James v Monmouthshire CC 2018 P.A.D. 437.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Mygov.scot, Planning permission appeals, 2018 [https://www.mygov.scot/planning-permission-appeals/, accessed 2 February 2019].

[19] Budget (Scotland) Act 2018 asp 6 (Scottish Act), ss 2, 3, and 5, respectively.

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