Environmental governance in Scotland after Brexit: report

5 Potential Solutions and Options

5.1 The current European arrangements that provide supranational oversight for compliance with environmental legislation have been important to secure and to demonstrate compliance by Member States. In Scotland there are well-established systems and procedures for holding public bodies to account for their performance and to provide challenge in the event that there is a perceived breach of legal powers and duties or a failure of performance. However, these are not as well developed nor as extensive as those that apply at EU level.

5.2 There is therefore a valid case to consider additional measures to increase the levels of scrutiny and challenge that are available after leaving the EU (should that proceed). The arguments for this are essentially to ensure that levels of compliance and performance are not reduced if the levels of scrutiny and the availability of sanctions is reduced or removed. Maintaining environmental quality and standards is of significance to the entire population and therefore not the prerogative of any sector of society. There is therefore a valid case to argue that the public sector should provide a means to demonstrate transparently what standards are being achieved and to allow these to be examined and questioned effectively.

5.3 There are options to do so within the current structures of accountability and responsibility in Scotland, but also an argument for adding to these structures to provide an additional level of independent expertise. In general we have taken the view that without the EU level, the effective 'ceiling' for issues around achievement of policy commitments and the effectiveness of actions is the Scottish Parliament and these are matters on which Parliament holds Government to account, and the issue is about what Parliament would need to be able to do so effectively. Where issues arise that are about implementation and compliance with law, these are primarily issues for courts. While we note that a number of international agreements have their own mechanisms for reporting on compliance, we also note that these are limited in their scope and effectiveness compared with that provided by the EU.

5.4 In the Table appended at Annex 3 we set out in general terms what some of the options are. In essence however for issues of monitoring and reporting we have not identified a strong argument for a new body, but propose that clear commitments about what public bodies will continue to monitor, and what information will be published, would help to allay concerns. At a future date a review of environmental reporting and monitoring may help to rationalise current programmes.

5.5 For functions of scrutiny, investigation, consideration of complaints and seeking resolution of concerns, we present several options should it be concluded that these gaps require to be reduced or closed. Some of these are based on expanding the role of existing bodies. Where those are existing government environmental bodies there are questions of independence and objectivity. Where these are existing scrutiny bodies with independence from Government there are questions of expertise and whether such new duties would imbalance their existing functions. The question therefore arises about the need for a new independent scrutiny body in relation to the environment. Here too there is a wide range of possibilities in terms of the scope and remit of such a body that we have not attempted to elucidate at this point. While it is possible to envisage that these functions (scrutiny of reports, initiation of reports, receipt and investigation of complaints, seeking resolution, publication and transmission of findings) could be given to different bodies, there is also a logic in terms of developing expertise and capability of seeing them as a coherent set of responsibilities.

5.6 There are also options in terms of how much expertise any body would require itself or whether it would have powers to draw on the expertise of others, and commission reports and analyses from other bodies in order to do its work. At one extreme the body could be an expert panel referring all detailed work of investigation and compilation of reports to others but acting as the guarantor of quality control and of independence. Otherwise there is a range of options that involves establishing a new statutory body or bodies with the appropriate functions.

5.7 We also consider the functions that would be more appropriate for a court and again there are options to give roles to an existing court or to establish a new more specialist court or tribunal dealing with environment matters. We have not investigated these options in detail but highlight that to replicate the current EU functions it would be necessary to review current rules regarding the procedures for judicial review, in particular the capacity of courts to consider the merits of an argument and not just matters of procedure, rationality or legal interpretation.

5.8 The imposition of fines or sanction, which is a power – if rarely used – of the CJEU, is often cited as the crucial backstop or incentive to ensure compliance. In the absence of a supranational authority it will be challenging to reproduce such a function at a Scottish level. The option would be to give the Scottish courts powers to impose sanctions on public authorities in situations where a failure to comply with legal environmental duties has been proved. The nature of those sanctions and required remedial actions has not been explored – but ideally the remedies available should focus on righting the environmental wrong.

Short term / long term

5.9 We have briefly considered the timescales for providing solutions should these be agreed. At present, when the nature of any transition period for leaving the EU is unclear we are unable to offer clear advice. However, we foresee that there may be a need for interim measures should a policy decision be taken to establish a new body given the likely lead in time to establishment. An interim position based on an expanded role for existing bodies perhaps supported by an independent supervisory panel would seem the most pragmatic.

Engagement with European Institutions

5.10 Throughout our examination of the wide range of environmental functions currently governed by EU law and procedures we have noted repeatedly the significant role of expert European bodies in helping to ensure not just that standards are met but that the justification of these standards, the means of achieving them and the sharing of best practice and benchmarking information are based on best available data and knowledge. Scotland has contributed to, and benefited from, this expertise and we recommend an urgent assessment of options for continuing to draw on this knowledge and expertise after EU withdrawal.

UK dimension

5.11 The policy and political context for environmental governance at the UK and EU level has been somewhat fluid during the preparation of this report. The Report was initially provided to a deadline in mid March. We have endeavoured to reflect or at least note major developments between that time and the Report's completion. We are now (18 May) aware that the Secretary of State for Environment, Food and Rural Affairs has announced an intention to consult on a proposal for a new statutory body to undertake some of the functions outlined above. At this point we understand the proposal is that the body should have authority over England and reserved UK matters. This could be problematic.

5.12 While the negotiation of international agreements is a reserved matter their implementation, where it relates to the exercise of devolved powers, is not. Should questions arise about the UK's implementation of an international agreement, whilst not explicitly Brexit related, it may very well require consideration of both reserved and devolved functions. The position of the four administrations is not equivalent, with the UK Government responsible for otherwise devolved matters in England and with a separate legal system in Scotland, unlike Wales.

5.13 To some extent, the EU (which often is a co-signatory with member states to international agreements) has to date provided an element of commonality across the four UK jurisdictions. To address this, post-Brexit, there has been much debate about possible "common frameworks" (of a variety of forms: legislative and non-legislative, jointly developed or otherwise, etc.). One governance gap that will exist, post withdrawal (and subject to any agreement on 'alignment' within the withdrawal agreement) is how to effect, where needed ( e.g. in relation to international agreements or cross-border matters), the commonalities previously provided by the EU. One model may be the Marine Policy Statement (see paragraph 3.4.1, above) which commits all jurisdictions to the high level policy goals of the OSPAR agreement and the Marine Strategy Framework Directive – but with each jurisdiction responsible for implementation in their areas of responsibility.

5.14 The systems of accountability should also follow the agreed allocation of responsibility and therefore, where authority is devolved, the devolved procedures for accountability, including in Scotland's case the Scottish Parliament and separate Scottish legal system are the appropriate basis to pursue issues of compliance and performance.

5.15 Nevertheless some issues may cut across national boundaries within the UK or cut across the reserved / devolved boundaries and therefore involve more than one, or indeed all four administrations. For example studies of compliance with international standards may be better undertaken on a UK basis for reasons of both effectiveness and efficiency.

5.16 This does not imply by any means that the only solution would be a UK body. Indeed 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, we suggest that consideration be given to how arrangements might best work across the UK to allow collaboration, comparisons, efficient use of expertise and promotion of best practice.

5.17 If all four administrations conclude that a new statutory public body is the best solution, this could be achieved by several different routes, including:

• a single UK legal body but with strongly devolved elements accountable separately in the four administrations.
• four separate national bodies that are required to co-operate and work jointly on some aspects
• four separate bodies that between them establish a co-owned unit or function to consider UK wide aspects of compliance

5.18 Finding the best solution will require all four administrations to work jointly to secure the best balance, respecting the devolution settlement and allocation of authority.