Environmental principles and governance after Brexit: responses to consultation

Appendix 12: Chapter 5, Q10

Mitigating actions

Singular comments on actions which would mitigate the loss of the EU complaints mechanism are listed below.

• A suggestion that citizens and organisations have an important role in environmental protection and decision making, and so could benefit from an accessible domestic forum to achieve this same level of contribution
• A suggestion that the SG should consider the establishment of a specialist environmental court or tribunal as the best way to address environmental governance in relation to loss of EU mechanisms and compliance with the Aarhus Convention
• For a Scottish Ombudsman for Ecosystem Health to be empowered to investigate complaints by citizens, acting on behalf of aspects of nature, or possibly whole ecosystems, where there is deemed to be injustice, damage or hardship as a consequence of maladministration
• For domestic complaints to be successful, there must be penalties for non-compliance to incentivise authorities to comply
• That consideration be given to the Arhus convention, in relation to expenses rules as currently they do not ensure that relevant private law claims can be covered by Protective Expenses Orders and therefore potential litigants do not have the required certainty nor the guarantee against prohibitive expense.

General discussion

Comments which did not align with the other responses, but formed part of a general discussion on the question included:

• a discussion around lack of access to information and justice in general, and that the loss of complaint mechanisms would contribute to this;
• a view that there will be no impact of the loss of EU mechanisms, indicating that the current arrangements do not benefit the environment; and
• the obligations on the UK as party to the Aarhus convention, and that this stipulates the right to access justice in environmental matters and public participation in that, and that this might mitigate the impacts of loss of EU mechanisms.

Examples

Eleven respondents shared specific examples for the SG to consider in relation to impacts of the loss of EU complaint mechanisms. These included reflections on recent cases considered by the EU complains mechanism, or participants' direct experiences of engaging with complaints processes.

Other

Comments in response to the question which did not align with other themes are listed below.

• That Scotland would be capable of handling complaints without EU mechanisms
• To view the situation as an opportunity to ensure projects critical to the climate change agenda, such as achieving net zero carbon emissions by 2045, are supported through any new mechanisms.