Environmental principles and governance after Brexit: responses to consultation

4. Environmental governance arrangements: performance

4.1 Chapter 4 presents the analysis of responses to Questions 7, 8 and 9 of the consultation which focus on the scrutiny of performance as part of governance.

4.2 Scrutiny of government performance and the extent to which environmental objectives are being achieved is the second of four areas of environmental governance arrangements outlined in the consultation paper. The paper notes that once UK withdrawal from the EU is complete, the scrutiny role of the Scottish Parliament and other public bodies will continue but there will be no oversight from the European Commission or its agencies.

4.3 Respondents were asked to identify any governance issues relating to the loss of EU oversight by responding to the question:

Question 7: Do you think any significant governance issues will arise as a result of the loss of EU scrutiny and assessment of performance?

4.4 In response to Question 7; 57% selected 'yes', 7% selected 'no', 8% selected 'don't know' and 28% did not answer the question.

Overall nature of response

• Seventy-nine respondents left comments in addition to their yes/no/don't know response.
• The dominant theme in responses was of concern that governance issues will arise. Roughly half of these comments suggested the impacts will be significant; the remainder identified governance issues but did not reference any magnitude of impact. Mitigating actions were described in many of these responses.
• Some respondents made general comments but did not identify governance issues.
• One respondent indicated they expected no governance issues to arise.

Loss of legal oversight

4.5 Loss of legal oversight was the most commonly identified governance issue. Some attributed this to loss of a formal governance structure to carry out the functions of scrutiny and assessment; one highlighted the loss of in-court functions as an issue.

Loss of supranational oversight

4.6 The second most common theme was the loss of supranational oversight as a significant governance issue. Comments on this theme included: the need to hold the SG and the UKG to account, a governance gap, comparisons of performance with other nations, transferring information, and ensuring that international commitments and obligations are implemented. Loss of oversight resulting in poorer quality of monitoring and enforcement was also identified; one highlighted that no existing body in the UK could replace this oversight.

4.7 A small number of respondents mentioned loss of inter-jurisdictional comparisons. One also mentioned the loss of trans-national oversight in the European Court of Justice (ECJ) as a significant impact. There were discussions of the loss of both soft power, for example developing legislation or guidance, and hard power stemming from the ECJ. It was also suggested that loss of legal oversight could result in politicisation of environmental issues and be damaging in the longer term.

Lowering of standards/breaking of rules

4.8 Another thread in responses was concern about a general lowering of standards. Respondents felt the loss could cause environmental performance to fall, rendering the SG aim of maintaining EU standards unachievable. A few indicated that loss of EU scrutiny and assessment could result in a higher breach of rules, with one suggesting this could lead to regression in Scotland.

4.9 There were also small numbers of comments on the loss of capacity and expertise resulting in a lack of comparability and lower standards generally.

4.10 A few respondents discussed pollution and suggested that if agencies are not held to account, incidents may increase. The general weakening of environmental protection without the EU was also raised. In this discussion one respondent highlighted that Scotland is an important geographical migration location, and so planning for resilience to population management could be impacted without EU assessment and collaboration.

Loss of independent oversight

4.11 Several respondents described the loss of independent oversight as significant. Issues raised included loss of credibility and impartiality, loss of asset-management, less objectivity and fairness, loss of accountability, loss of transparency, incentivising action and environmental harm as a result of loss of protection. It was suggested that without clear independence, control of the environment could shift towards those who prioritise private and profit related interests.

Calls for an independent oversight body

4.12 Many respondents called for the formation of an independent oversight body to mitigate governance issues. Detail can be found in Chapter 6 where this is covered more extensively.

4.13 A small number of respondents expressed support for the creation of a Scottish Environment Protection duty to replace EU policy, with one adding that oversight should be provided by an empowered regulator. Some expressed concern that existing bodies in Scotland do not have the resources to replicate the role of EU scrutiny and assessment. They indicated that any new independent body must be adequately resourced.

4.14 A few respondents suggested that existing bodies (Parliament, Audit Scotland, SEPA, SPSO) should attain additional powers to fulfil the function of scrutiny and assessment. Others discussed the need to replace the various forms of EU scrutiny with different or complementary mechanisms, without specifying what form that would take.

Resource gap

4.15 Another theme in responses included the potential resource gap resulting from the loss of EU scrutiny and assessment. In this discussion some respondents reflected on lack of capacity and expertise as a cause for concern. For example, one discussed the need for more environmental expertise in order to increase the resource available in Scotland, another felt local authorities have a particular resourcing issue due to limited expertise.

4.16 A few respondents suggested existing bodies in Scotland lack the resources or capacity to carry out the functions of the EU oversight institutions.

Intra-UK considerations

4.17 Across Question 5 to Question 8 and additionally at Question 12 and Question 13, a small number of respondents discussed a need for the Scottish Government to consider intra-UK working when dealing with environmental governance. These comments often highlighted collaboration and joint working across UK administrations and borders to ensure consistent and co-ordinated approaches to the four aspects of governance outlined in the consultation paper.

4.18 There was also some discussion around the formation of a new body. Details around these comments can be found in Chapter 6.

4.19 Similar views were expressed in the workshops held by the SG. There was broad support for governance structures that fit existing routes of accountability in Scotland, and questions about how governance structures across the UK will align. Some expressed concern that there might be gaps if the structures were not coordinated. In the discussion it was suggested different administrations could work together to share resources and consider environmental issues that impact across the UK.

Positive impact

4.20 Some respondents suggested the loss of EU scrutiny and governance could be positive for Scotland. In this discussion a small number indicated that EU exit would provide Scotland with an opportunity to simplify scrutiny and assessment processes.

Responses to Question 8: How to meet requirements for effective scrutiny

4.21 The consultation paper discusses the Scottish Government's wish to support the Scottish Parliament's scrutiny role by establishing an approach which:

• helps Scotland to maintain or exceed existing environmental standards and to comply with international environmental obligations;
• fits Scottish circumstances and established methods of accountability;
• is fair, open and transparent;
• respects the devolution settlement; and
• is effective and proportionate in delivering strong environmental protection.

4.22 A number of options are suggested in the paper. These include combining existing and new mechanisms, including continuing scrutiny by civil society, expanding the role of existing public bodies, establishing an independent supervisory panel in the short to medium term and creating a new independent body in the long term. A need for future arrangements to have access to specialist expertise and skills, independence from government and adequate powers were also highlighted.

4.23 Respondents' views were sought on whether any additional functions might be required to support effective scrutiny, how these should be delivered and with what powers:

Question 8: How should we meet the requirements for effective scrutiny of government performance in environmental policy and delivery in Scotland?

Overall nature of response

• There were 87 responses to Question 8. Two respondents left comments the effect of 'no comment' or 'I cannot answer this', leaving 85 substantive responses for analysis.
• The most common theme in responses was expressions of specific support for one or more of the options detailed in the consultation paper. These frequently included suggestions as to what those might be; for example; creating a new body or expanding the roles of existing bodies.
• The second most frequently shared view was of general support for options and a discussion around how the government might meet the requirements; but no mention of a preferred option.

New body

4.24 Over half of the direct consultation responses indicated support for the creation of a new body to meet the requirements for effective scrutiny of government performance in environmental policy and delivery in Scotland. In addition, the campaign response called for 'an independent and well-resourced watchdog to enforce environmental protections in the same way that the European Commission and Court of Justice do today'.

4.25 Respondents' comments on the powers, functions, resources and form needed to fulfil a scrutiny role have been summarised in Chapter 6.

4.26 Whilst calls for a new independent body or watchdog were spread relatively representatively across consultation respondents, the majority of calls for an independent body, environmental court or tribunal came from organisations.

Expanding the role of existing bodies

4.27 The most common theme in responses concerned the possibility of expanding the role of existing bodies to meet the requirements for effective scrutiny of government performance. This was mentioned either as preferred option for the government to consider, or as part of a discussion about the possible options.

4.28 Some participants discussed why expanding remits of existing bodies would not be a sufficient method of reaching the requirements for effective scrutiny. For example, some felt that existing bodies would not be entirely independent from government; another suggested that an ombudsman cannot fulfil the requirements and one observed that bodies can be subject to funding cuts and listed potential limitations.

4.29 A small number suggested Audit Scotland's remit could be expanded, with the Public Audit and Post Legislative Committee (PAPLS) and the Scottish Parliament's remit being widened to oversee this role. These respondents went further to discuss powers, suggesting that Audit Scotland and the PAPLS Committee should be empowered to report on whether sufficient resources have been allocated to the different parts of government and its agencies for the delivery of environmental policies.

4.30 A few discussed the work being undertaken by DEFRA and the creation of the Office for Environmental Protection by the UKG; one observed that the SG could consider allowing this role to extend to Scotland. It was also noted that the new body as proposed by the UK Government may not provide adequate independence from government and that it is unlikely that a deal between the two jurisdictions would be reached in the near term.

4.31 Other discussions included expanding the role of the Information Commissioners Office as they are already involved in environmental governance through ensuring compliance with the Aarhus convention. Expanding the scope of bodies such as; SEPA, SNH, Audit Scotland, SPSO so they share the role of providing effective scrutiny was also suggested.

Skills and expertise for scrutiny

4.32 Many respondents reflected on the skills and expertise needed to meet requirements for effective scrutiny. In these discussions there were frequent suggestions that access to expertise is a high priority in carrying out effective scrutiny. For example, 'it is essential that adequate expertise is put in place to enable full independent scrutiny to be carried out'. Examples of expertise included legal matters, technical knowledge, and understanding of local issues. One respondent suggested that a new body should have the capacity to commission external expertise; another felt equipping an existing body with the adequate level of expertise would be a strain on resources.

4.33 A small number left brief general comments suggesting that any new body should have the relevant expertise; some suggested that expertise could be provided through expanding the role of an existing body but did not specify which one.

A supervisory panel

4.34 The establishment of a supervisory panel to meet the requirements for effective scrutiny was also discussed by some respondents. A small number of these explicitly suggest that parliament could not undertake this role, for example noting existing committees already have stretched resources.

Workshops

4.35 Workshop participants broadly supported an independent scrutiny function which was self-directing, open, transparent and independent from government. Many felt that the Scottish Parliament is not currently designed or structured to replace the full scope of scrutiny currently undertaken by the EU. Unlike some in the wider consultation there was little enthusiasm for an Office of Environmental Protection for Scotland, given the potential lack of independence from the UK Government.

Responses to Question 9: Policy areas for inclusion within the scope of scrutiny arrangements

4.36 The consultation paper notes the challenges in defining the scope of environmental policy, but states that it will be important to have a clear statement of the scope of any new scrutiny arrangements. It lists a number of proposed policy areas for inclusion.

4.37 Respondents were asked for their opinions on the proposed list and any other policy areas in the following question:

Question 9: Which policy areas should be included within the scope of any scrutiny arrangements?

Overall nature of response

• There were 83 responses to Question 9. Four respondents left comments to the effect of 'no comment', leaving 79 substantive responses for analysis.
• The most common theme in responses was agreement with the policy suggestions included in the consultation document.
• Almost all noted other specific policies for inclusion or made a general call for the inclusion of any or all policy areas relevant to the environment.
• A few shared comments of a general nature, not specifying which policy areas they think should be included within the scope of scrutiny arrangements.

Inclusion of all policy areas

4.38 A large number of respondents indicated that they would like all relevant policy areas included within the scope of any scrutiny arrangements. This discussion sometimes included specific issues to include; for example policies that have the potential to affect the historical environment, coastal and marine areas, natural assets and natural capital or climate change.

4.39 Several respondents submitted an almost identical response in which they suggested that all policy that has the potential to affect the environment must be considered. They also discussed the inclusion of; any factors^[6] likely to affect the elements of the environment referred to in the consultation document, measures designed to protect these elements^[7], reports on the implementation of environmental legislation, economical areas used within the framework of the measures and activities referred to in the consultation document, the state of human health and safety^[8] that are or may be affected by the elements of the environment referred to in the consultation document.

4.40 Some made more detailed comments indicating that all policy areas that currently sit under EU scrutiny should be included, covering any law, policy or decision that impacts on the environment, as set out in the Environmental Information (Scotland) Regulations 2004.

Additional policy areas

4.41 Several respondents suggested specific, singular policy areas to include within the scope of any scrutiny arrangements. These are summarised in the table in Appendix 11.

Reflections on policy

4.42 Many participants shared reflections on policy and policy development in their responses. In this discussion there was reflection that a purposive approach to scoping should be taken, including any areas of doubt, to be consistent with the current application of EU Law. One highlighted the importance of this in relation to key pressures like landownership and agricultural and housing subsidies, suggesting any new system will not succeed unless it explores drivers of environmental change and that these drivers should guide the policy areas included.

Clarity

4.43 Some respondents called for clarity about various aspects of the scope of scrutiny arrangements in their responses to Question 9. A small number suggested that 'soil and contaminated land' should be omitted as a separated policy area within the scope of scrutiny arrangements and suggested that soil falls under nature conservation and biodiversity as these are different policy areas.

A sample of illustrative quotes that typify the themes identified in this section:

"Scrutiny and performance appraisal are critical if we are to ensure that environmental decision-making is compliant and just, that public bodies are accountable for their decisions, and that our environmental performance is progressing in line with other countries. Withdrawal from the EU would leave a significant gap in this regard and could have wide-ranging implications for environmental performance. (Organisation)"

"The loss of the scrutiny function currently carried out by EU institutions will require to be replaced, to provide public confidence that environmental duties and performance are maintained at a high level and that environmental protection is at least as effective as when the UK was within the EU. (Organisation)"

"A new body is required which has sufficient resources and powers to provide oversight and to hold government to account. This body has a valuable role as arbiter of the wider public interest in respect of environmental protection. Simply amending the role of a current body, or appointing a 'Commissioner', does not seem to meet the need, implying a low-cost and hence under-powered approach. (Individual) "