Environmental principles and governance after Brexit: responses to consultation

Appendix 6: Chapter 6, Q4

Development of the policy statement

Other comments in relation to the development of the policy statement are listed below.

• Singular comments included:
  • a suggestion it should be drawn up by a panel of independent experts;
  • that it could be developed with reference to European case law and good practice;
  • the need to consider consistency with the UK when developing the statement; and
  • a suggestion it should be issued in draft first.
• There was a suggestion that the Scottish Government may wish to consider what 'implementation actions' it will need to take when the statement is approved and becomes operable - this might include publication and promotion, workshops for key staff and relevant stakeholders, etc.
• In relation to the development of a policy statement, three respondents gave examples which could be used as models to imitate when developing the statement: The National Planning Framework, the Scottish Outdoor Access Code and the National Marine Plan.
• One respondent made a further comment about the value of the statement, highlighting the role of the statement in particular if Scotland decides to implement additional principles. Another made a general comment on the usefulness of the statement.

Content of the policy statement

Singular suggestions were made about the content, which often related to participant's individual views and areas of expertise.

• For the policy statement to detail any divergence between Scotland and the rest of the UK/EU
• To provide guidance at a local and national level (if the duty applies to local and public authorities)
• To set out how organisations and members of the public can raise concerns or complaints in relation to the legislation
• To build on existing interpretations but reflect a Scottish context
• For transparency to show how the principles have been considered e.g. what information was taken into account, perhaps in reports to an oversight body
• For the policy statement to reference the historic environment
• That the guidance could be tailored to different public sector organisations and their specific contexts.

Other potential roles for the policy statement (not directly related to providing guidance and interpretation)

• Singular views included:
  • a suggestion the policy statement can link the policy objectives with the principles (which will assist in interpretation);
  • for the guidance to provide clarification on the reasonableness of applicability;
  • to view the statement as an opportunity to put in place a framework for environmental governance in Scotland which sets out how the targets and objectives in legislation will be met; and
  • for the policy statement to be a place where government articulates Scotland's distinctive approach to environmental protection.
• One respondent believed it will prevent misuse of funds; another suggested that it would contribute to capacity building of decision makers, including local authorities.

Other responses to the policy statement

Comments that did not align with the other themes in response to Question 4 are listed below.

• A suggestion that consideration could be given to embedding the approach in the National Performance Framework, either in the outcomes, the indicators or in both
• An observation that the four principles could be reflected in other key documents, such as the Scottish Regulators' Strategic Code of Practice, as a means of ensuring that regulators fully embrace them
• A very detailed response elaborating on the legal frameworks which will need to be in place across the UK
• A comment that the public should be made aware of the statement
• A detailed example which can be considered by the Scottish Government, illustrating experience of the misapplication or lack of understanding of principles, whilst another respondent named agencies who they felt should not be given powers due to their perceived current environmental performance.

The interplay between the policy statement, courts and case law

Singular suggestions about courts and case law are listed below.

• A request for clarification on whether it is intended for courts to take account of the statement (even if the text does not carry legal force)
• An observation that even if case law develops over time, the early framing of the law in a policy statement is valuable
• One respondent commented that the statement should include an explanation of case law so that those implementing the principles understand how the courts have interpreted them.