Environmental principles and governance after Brexit: responses to consultation

Appendix 15: Chapter 5, Q13

An independent body or 'watchdog' and its powers

In terms of roles as a scrutiny body, the following suggestions, which did not align with the main discussions under this theme, were shared by a small number of respondents.

• Scrutinise the Government's allocation of resources across environmental functions in the public sector
• Report to Audit Scotland and the Public Audit Post Legislative Scrutiny Committee (PAPLS)
• To work across SG divisions as a multi-parliament body that also engages across UK jurisdictions
• Provide oversight to measure progress
• To develop policy
• To establish a set environmental goals, targets and standards, linked to clear timeframes
• The need to oversee the workings of current regulators
• Publish reports
• The need to have sufficient reach to act as a deterrent.

Other points for consideration in the creation and management of a new body discussed across the consultation included:

• the need for a new body to have the necessary capacity and (scientific and technical) expertise; and
• a suggestion that any new arrangement should not duplicate the roles of local authorities or other expositing public bodies.

One respondent argued for the creation of two bodies - one dealing with policy/regulatory matters and guidance and another dealing with enforcement.

An environmental court or tribunal and its functions

Other singular reasons given for the creation of an environmental court included:

• signalling the importance which the Scottish Government places on the issue; and
• being appropriately detached or independent from public bodies, government and parliament.

Singular suggested functions or powers for the court included:

• being guided by the four principles (and any others including access to environmental justice); and
• judges / panel being relevant experts where possible, across a range of areas such as ecology, climate change and land use.

One respondent made a specific point that the court could be created by extending the remit of the Scottish Land Court whichalready has many of the strengths of Environmental Courts in other jurisdictions (including lay experts, lower costs to litigants, an inquisitorial approach and the use of written submissions to focus court time and resources on the most important legal points) and noted that it already acts as a de facto Environmental Court in certain appeals.

Other suggestions for models / arrangements

Suggestions for models or arrangements included continuing with the current domestic system, expanding the proposed Office of Environmental Protection in England to Scotland in some capacity, and co-ordination of existing agency resources across the UK.

Other comments included:

• a suggestion that agencies such as Scottish Natural Heritage and Scottish Environment will have important roles in monitoring, ensuring compliance and reporting; and
• that there is a need to have a mechanism where the Scottish Government and public bodies can be questioned and that an efficient domestic monitoring and enforcement system needs to be established.

Possible limitations of approaches

When discussing potential approaches, a number of singular comments were provided which did not fit with the other themes of limitations provided in response to this question. These are listed below.

• That a review of the domestic judicial system is likely to be costly, bureaucratic and would not necessarily result in any significantly better outcomes
• That judicial review is not always a satisfactory solution
• A suggestion of a potential role for the UK Supreme Court but that this 'may be a sledgehammer to crack a nut'
• The limitations of extending the proposed OEP to Scotland given the unique characteristics of Scotland's environment, infrastructure and legal system
• The proposed OEP for England falls short of replicating the current EU structures and that Scotland would need to go further than this
• The potential role of Parliament in holding government to account but that there is a danger of the Parliament being unduly deferential to the government
• That any new independent body should have the authority to refer to a cross-national council and suggesting the model of an environmental court
• That at a UK level the Joint Nature Conservation Committee presently decides on disputes but there may be a case for a specialist environmental dispute resolution mechanism to provide sufficient expertise.

New enforcement powers

Singular comments given in relation to enforcement powers are listed below.

• The need for a 'credible final stage of enforcement' including the ability to impose interim measures and seek remedy and restoration
• A request that the same breadth of policy areas is subject to scrutiny as is currently the case with the EU
• The need for 'properly administered environmental laws by a competent and knowledgeable judiciary'
• The need for appropriate deterrents / penalties to reduce non-compliance
• The need to fill the enforcement gap, but in a proportionate way
• A specific point that: 'Any new enforcement approach should aim to discourage environmental damage or loss in the first place, allow maximum opportunity for restoration where this is practical (rather than simply imposing financial penalties) and represent an effective deterrent to similar cases occurring in the future.'

Other comments

A number of respondents made general comments which did not align with the other themes highlighted in response to this question. These are listed below.

• A call that: 'appropriate emphasis is placed on incentivising appropriate environmental outcomes to minimise the potentially enormous costs of infraction.'
• The need to ensure that existing rights are not being diminished: 'It must be made clear that the public and civil society are not prevented from pursuing enforcement action just because related matters are currently being considered by the new body.'
• For consideration to be given to how there could be personal accountability for those in charge of public authorities where there are clear failings to meet environmental obligations
• Given that environmental law has its basis in international agreements, there may be value in incorporating monitoring and scrutiny arrangements for those into domestic law
• A suggestion that legislation needs to have binding long-term objectives to protect and recover biodiversity, prevent water pollution and improve quality and tackle air pollution
• A specific request to the Scottish Government to consider and tackle current obstacles to access to justice for the public, including environmental NGOs, to strengthen private enforcement of enforcement law and its underlying principles - the same respondent noted their research on this topic and its potential to contribute to the Scottish Government's work
• The view that: 'enforcement is a far greater issue which demands national, and supra-national action, with independent oversight'
• A comment that people in Scotland should be employed to do the job
• A comment that it will be 'liberating' to be out of an arena where there are competing national interests.