Environmental principles and governance after Brexit: responses to consultation

Appendix 3: Chapter 3. Q1

Issue with current wording / alternative wording suggestion

Examples of other suggested wording identified in the responses are listed below.

• A comment suggesting the use of the wording 'sustainable development' instead of 'sustainable economic growth'

• A specific comment about the use of the phrase 'rectification at source' and highlighting the need for more detailed consideration of the relevant connected components, given this can be interpreted as excluding downstream and consequential effects

• A comment requesting an expansion of the terminology used throughout to also include the historic (and not just natural) environment
• A detailed response which has been signposted for review by Scottish Government, suggesting terminology used in relation to other duties - another individual made a similar point as part of their submission, citing some of the same duties
• A specific suggestion that the duty should require ministers to: 'i) act in accordance with the environmental principles in the development of environmental policy ii) have regard to the principles in wider policy-making'
• A general observation that the wording of the duty needs to be robust
• Contrary to these arguments, one respondent noted that 'duty to have regard' to principles has the advantage of having a clear and established meaning in Scots law and would ensure that a decision-maker turned their mind to the principles, whilst leaving it to the decision-maker to determine how to apply the principles in practice.

Why the duty has value

Other comments on the value of the duty included:

• That the duty will embed the four principles in domestic law
• Inclusion of the principles will provide a mechanism by which they could be challenged in court
• A suggestion the duty will ensure the principles play a meaningful role in the implementation of environmental policy and decision making
• That the introduction of a duty 'would obviate the complexities associated with extending the application of the principles across all powers and functions.'

Implementation and enforcement

Several respondents reflected how the duty should be implemented and enforced. Whilst this is discussed elsewhere in the consultation, the comments are included below for completeness.

• Comments on mechanisms to ensure the duty is reported on, monitored and scrutinised

• o For a regular report on the application of the principles to be presented to and scrutinised by the Scottish Parliament (committee)
• o General comments that this is required, without specifying how
• o Recognition of the need for independent oversight / regulation to scrutinise and monitor and hold Scottish Ministers accountable
• o A call to set up an independent enforcement body.
• Other comments on implementing the duty:
• o For the duty to apply to both formation and implementation of policy and that the SG must exercise its powers to ensure the duty is met
• o The need to ensure the principles are properly implemented in decision making
• o For a requirement to add a discussion about how the principles have been taken into account into environmental assessments
• o An expression of concern about agencies conforming to the duty
• o Questions about the resources available to the Scottish Government to manage the implementation of the principles and handle cases related to it.

How a duty may relate to a wider environment strategy

Other comments in relation to how a duty may relate to a wider environment strategy included:

• A call for a framework for planning and delivering environmental improvements
• A suggestion that any Act should cover the cultural/built environment as well as the natural environment
• For recognition that environmental legislation and policy is not the only legislation and policy which affects the environment
• For the duty to also include standards relating to environmental protection
• A call to be involved in the development of an environment strategy.

An opportunity for ambition

Some commented on the duty as an opportunity to show ambition, including:

• General comments supporting the introduction of the duty but indicated that something more ambitious could replace it in the future
• A need to enhance and exceed the principles
• An opportunity to overcome limitations resulting from EU membership.

Other comments in relation to the proposed duty

• Respondents discussed themes of particular interest including:
• o The historic cultural/built environment
• o European Landscape Convention
• o Legal implications of the proposed changes
• o Invasive non-native species.
• Views were expressed that Scotland would be better outside the EU / conforming to EU principles.

• An emphasis on gravity of the situation, including the threats of climate change and biodiversity loss was urged by some.

• Some stressed a need to offset environmental damage from increased tourism.