Environmental Governance post-Brexit: response to Scottish Government consultation

Today I submitted a response to the Scottish Government consultation on Environmental Principles and Governance1, seeking to secure effective environmental protection post-Brexit. The text of my response follows, although you might need to look at the consultation paper to make most sense of it.  As usual, responses were invited to a series of specific (if rather open) questions addressing each of its main sections, which perhaps makes for a rather disjointed read. But I hope my preference for a new body with sufficient powers and resources is clear enough.

1. Do you agree with the introduction of a duty to have regard to the four EU environmental principles in the formation of policy, including proposals for legislation, by Scottish Ministers?

Yes – These principles underpin environmental policy across the EU and beyond.  A post-Brexit Scotland should commit to matching, or exceeding, these standards.

2. Do you agree that the duty should not extend to other functions exercised by Scottish Ministers and public authorities in Scotland?

No – The duty cannot operate successfully in isolation. The consultation paper invites the answer yes, but the text fails to explain how the environmental duty bears on other duties. Compliance should not be optional. I agree there are complex interactions, but now is the time to address these.  The aim should be to simplify the multiple (sometimes cross-cutting) obligations and responsibilities of Scottish Ministers and public bodies, so as to reduce the scope for confusion and dispute. The consultation paper implies (paras 33 and 34) that there may be circumstances in which the environmental principles would be put to one side.  At face value, that simply devalues any apparent commitment to them.

3. Do you agree that a new duty should be focused on the four EU environmental principles?

No – The principles are devalued in isolation, so alignment of these principles with other responsibilities is essential.  For example, how and when will the December 2018 human rights proposals (including the creation of rights with respect to the environment) be taken forward?  Is there a commitment to seek appropriate legislation before the next Scottish Parliamentary elections?

Alignment of new environmental governance with the Aarhus convention is important.  There is a case to restate the Aarhus principles of access to environmental information alongside these principles.

There’s a growing need to establish a framework for reaching a considered view on how the wider public interest is best expressed in decision making, showing how the environmental principles are realised in practice.

4. Do you agree there should be an associated requirement for a policy statement which would guide the interpretation and application of a duty, were one to be created?

Yes – The duty to have regard to the environmental principles must be clearly understood and enforceable, so clear guidance on their interpretation should be published, covering the scope of discretion which can be exercised, and the basis on which the principles are to be balanced with other factors, such as human rights.

5. What do you think will be the impact of the loss of engagement with the EU on monitoring, measuring and reporting?

It is important to maintain alignment with monitoring, measuring and reporting protocols across the EU and beyond. Without this, there is a potentially serious loss of understanding of how a post-Brexit Scotland, and UK, perform in tackling environmental degradation. Many environmental challenges are unavoidably cross-boundary in nature, for example air quality or annual bird migration. I agree with the Round Table assessment summarised at para 55 of the consultation paper, including:

• Our future ability to use EU systems to facilitate reporting and contribute to developing methodologies.

• The ability to aggregate data at European level and assess UK progress on a comparative basis.

• Access to wider expertise, systems, and data and knowledge holdings.

• Potential loss of requirements for data to be published..

6. What key issues would you wish a review of reporting and monitoring requirements to cover?

I agree with the Roundtable’s suggestion that a review of environmental reporting and monitoring could help to rationalise current programmes. Transparency and common standards are essential.

7. Do you think any significant governance issues will arise as a result of the loss of EU scrutiny and assessment of performance?

Yes – Post-Brexit, there is an essential requirement for informed, evidence-based and demonstrably independent scrutiny of the performance of Scottish Ministers and public authorities. A coherent replacement covering scrutiny, compliance and enforcement is required. The track record of the UK’s approach to the devolved administrations is unsatisfactory, so I agree with the Round Table statement2 that: “…having a Scottish body with a thorough understanding of Scottish law, procedures and systems would be more focused on the issues that are most significant in a Scottish context. Scotland is of a scale at which we can envisage a separate body being justifiable and effective.” However, I also agree with the Round Table that UK arrangements to allow collaboration, comparisons, efficient use of expertise and promotion of best practice would be advantageous – if there is an appetite for appropriate cooperation at the UK level.

8. How should we meet the requirements for effective scrutiny of government performance in environmental policy and delivery in Scotland?

A new body is required which has sufficient resources and powers to provide oversight and to hold government to account. This body has a valuable role as arbiter of the wider public interest in respect of environmental protection. Simply amending the role of a current body, or appointing a ‘Commissioner’, does not seem to meet the need, implying a low-cost and hence under-powered approach. I agree with the Round Table assessment that: “to be effective and achieve public confidence, any such body must have independence from government and the regulatory bodies, must have the expertise and capacity to do its work, must have a guarantee of the resources necessary for its role and must have the powers required to fulfil its tasks“.  See: https://mowle.net/2018/09/05/dog-days/  for my recent exploration of the terms of ‘independence’ for such a body.  None of the existing bodies are well-placed, for reasons of position or expertise, to meet this requirement.

9. Which policy areas should be included within the scope of any scrutiny arrangements?

I agree with a scope including the policy areas summarised at para 72 of the consultation paper, namely:

• nature conservation and biodiversity;

• air pollution emissions and transboundary pollution issues;

• environmental impact, access to environmental information and environmental justice;

• marine environment;

• radioactive substances;

• waste and circular economy;

• water environment and flooding;

• chemicals, biocides and pesticides

• climate change mitigation and adaptation obligations;

• soils and contaminated land..

10. What do you think will be the impact in Scotland of the loss of EU complaint mechanisms?

I agree with the Round Table assessment of key issues summarised at para 80 of the consultation paper, including:

• Who can bring a case with respect to harm to the environment.

• The loss of the Commission’s role as an essential means of ensuring Member States take their duties seriously – it acts

as an incentive for Member States to deal with concerns and complaints before they reach the Commission.

• The loss of the Commission’s role in resolving concerns and problems without formal procedures.

11. Will a new function be required to replace the current role of the European Commission in receiving complaints from individuals and organisations about compliance with environmental law?

Yes – Post-Brexit, there will be a loss of coherence in the recourse available to complainants.

12. What do you think the impact will be in Scotland of the loss of EU enforcement powers?

I agree with the Round Table assessment of key issues summarised at para 91 of the consultation paper, including:

• The loss of the Commission’s power to refer a member state to court for failure to properly implement EU environmental law.

• The fact that judicial review proceedings are traditionally used to consider powers, process and procedure rather than substantive environmental outcomes. The nature of many EU measures is to impose obligations on Member States to

achieve specific outcomes (e.g. a target for air or water quality or for recycling rates).

• The CJEU’s powers to impose fines on Member States which do not comply with its rulings..

13. What do you think should be done to address the loss of EU enforcement powers? Please explain why you think any changes are needed?

A new body is required to exercise these powers along with the scrutiny role (question 8 above).  This scrutiny and enforcement body has a valuable role to play as arbiter of the wider public interest in respect of environmental protection. Similarly, this body must have sufficient resources and powers to provide oversight and to hold government to account. Again, simply amending the role of a current body, or appointing a ‘Commissioner’, does not seem to meet the need, implying a low-cost and hence under-powered approach. I agree with the Round Table assessment that: “to be effective and achieve public confidence, any such body must have independence from government and the regulatory bodies, must have the expertise and capacity to do its work, must have a guarantee of the resources necessary for its role and must have the powers required to fulfil its tasks“.  See: https://mowle.net/2018/09/05/dog-days/ for my recent exploration of the terms of ‘independence’ for such a body.  None of the existing bodies are well-placed, for reasons of position or expertise, to meet this requirement, analogous to that of Audit Scotland, hence responsible directly to the Scottish Parliament and funded via the Scottish Parliament Corporate Body.

  1. see: https://consult.gov.scot/environment-forestry/environmental-principles-and-governance/
  2. see para 5.16 of https://www.gov.scot/publications/report-roundtable-environment-climate-change-environmental-governance-scotland-uks-withdrawal/

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