Environmental principles and governance after Brexit: responses to consultation

5. Environmental governance arrangements: considering complaints

5.1 Chapter 5 presents an analysis of responses to Questions 10 and 11 of the consultation. These focus on the third area of environmental governance arrangements outlined in the consultation paper, which is a mechanism to consider complaints by the public or civic organisations which can lead to enforcement action. These complaints can be about either government or public authorities in relation to their compliance with environmental law. This includes access to expert and independent advice.

5.2 At present, people can report any instances of a failure to comply to the European Commission, which can ultimately lead to proceedings before the Court of Justice of the EU (CJEU). This will cease to be the case following the UK's withdrawal, though existing Scottish mechanisms to bring complaints will continue.

5.3 Participants were invited to express their views by responding to the following question:

Question 10: What do you think will be the impact in Scotland of the loss of EU complaint mechanisms?

Overall nature of response

5.4 Within the 82 responses the overall theme was that the impact for Scotland will be negative.

• Most respondents indicated that they believe the impact in Scotland of the loss of EU complaint mechanisms will be negative.
• Some respondents made comments of a general nature, without reflecting on any impact. A small number suggested that there will be no impact in Scotland of the loss of EU complaint mechanisms; a few indicated that they are not sure what the impact will be.
• Conversely, two respondents suggested the impact will be positive. These comments were brief; one simply wrote the word 'beneficial' as their response to the question, the other described the loss as an opportunity in terms of removing bureaucracy.

5.5 Many of the responses to this question echoed the comments made in response to Question 5, which asked participants for views on the impact of the loss of engagement with the EU on monitoring, measuring and reporting.

Range of negative impacts

5.6 The most prevalent theme in comments was examples of the negative impacts believed to be likely to occur due to the loss of EU complaint mechanisms; some identified multiple impacts. These are set out in the table overleaf.

Specific Impact	Frequency of mentions
Loss of enforcement	24
Lack of accessibility of complaint mechanisms	21
Loss of supra-national oversight	8
Harm to the environment	6
Fewer resources	6
Loss of legal oversight from EU institutions	4
Loss of ability to resolve concerns informally	2
Lack of consistency	1
Loss of the right to petition the European parliament/European Ombudsman/Address EU institutions	1
Loss of protection	1
The removal of an arbitration function	1

Mitigating actions

5.7 Many respondents discussed replacement with new arrangements or mechanisms to mitigate the impacts of the loss of EU mechanisms. In this discussion there were suggestions that legal mechanisms should be reproduced domestically via a new or existing body. Detail from comments which discussed the creation of a new independent body can be found in Chapter 6 where this is covered more extensively.

5.8 A small number discussed the difficulty of recreating similar mechanisms domestically, as the EU benefits from scale and multiplicity, and reiterated the importance of separating policy roles from enforcement roles post EU exit.

5.9 The Aarhus Convention was also mentioned in a few responses which noted that any new function would need to be in accordance with those of the AC.

General discussion

5.10 Another theme in comments was around impacts in general, without reference to a specific issue. Within this group, many reflected that at present there is no domestic complaints process equivalent to that within the EU. Other points in these responses included: general comments on the importance of EU complaints mechanisms to date and concern surrounding maintenance of environmental standards post EU exit.

Examples

5.11 Several 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

5.12 A small number of respondents provided comments that did not align with other themes identified in response to Question 10. These included reflections on the Roundtable's assessment of key issues and an observation that Scotland would be capable of handling complaints without EU mechanisms. One highlighted the 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.

Workshops

5.13 At the workshops almost all agreed that the scope of the type of complaints that could be heard would need to be clear. Many noted that this should not duplicate existing routes for making complaints. Some were also concerned that any new procedure might be used as an additional level of complaint or appeal, causing delay in if there was a disagreement at the level of decision making in individual cases. There was strong support for a focus on prevention, mediation and rectification, but a number of participants stressed the need for ultimate recourse to the courts as necessary to ensure the effective functioning of any future approach.

Responses to Question 11: Replacing the role of the European Commission in receiving complaints

5.14 The consultation document noted the Roundtable conclusion that replacing functions of the European Commission would involve either expanding the role of existing agencies and independent bodies, or providing powers to a new body. A new body, if created, would likely oversee the different parts of environmental governance - complaints being one - in a single institutional arrangement.

5.15 Respondents were invited to express their opinions on the need for a new function in relation to complaints by answering the following question:

Question 11: Will a new function be required to replace the current role of the European Commission in receiving complaints from individuals and organisations about compliance with environmental law?

5.16 In response to Question 11; 62% selected 'yes', 2% selected 'no', 7% selected 'don't know', 29% did not answer the question.

Overall nature of response

• There were 75 comments in response to Question 11.
• Three gave a response to the effect of 'no comment', leaving 72 substantive responses for analysis.
• The most common theme in these responses was that a new function would be required to replace the current role of the European Commission.
• A small number said they do not support the creation of a new function.

The form of a new body

5.17 The prevalent theme in responses to this question was discussion of the creation of a new function and suggestions as to the model of this function.

5.18 The most common suggestion as to the model was for the formation of an independent body. This appeared frequently as 'independent body', 'independent environmental body', 'independent body of experts' and 'independent regulator'. The second most common suggestion was the creation of an 'independent watchdog'.

5.19 Comments related to an independent body or watchdog can be found in Chapter 6 where they are summarised in the discussion of the role and powers of such a function. This chapter focuses on any alternative functions suggested in response to Question 11.

5.20 Other suggestions included:

• The creation of an Environmental Ombudsman
• Extending existing mechanisms such as the Petitions Committee, SEPA and SPSO to deal with environmental complaints
• Development of a panel
• Developing a function comparable to the European Commission
• Establishing an Environmental Court or creating a specialist section of judiciary
• Creation of one overall UK body for handling complaints
• Greater use of judicial review.

The functions of any new model or body

5.21 Several respondents described the desired functions of any replacement model or body. The majority of this discussion is covered in Chapter 6 as noted above.

5.22 A small number of respondents suggested that an 'environmental court' should comply with the Aarhus convention and should operate according to its principles.

General reflections

5.23 Some respondents offered general reflections about a potential new function, model or body. These included opportunities, challenges and examples for the SG to consider. A small number suggested that the loss of an EU complaints mechanism presents an opportunity for Scotland to create a more relevant function as a replacement. It was also noted that there is no one straightforward route to the implementation of any new body.

Resources

5.24 The resource implications of the creation of any new function, model or body were also discussed. Themes in these comments included the need for adequate resourcing including expertise, knowledge and funding. The campaign response also highlighted the need to ensure adequate financial resources were available for protection.

Reference to the Roundtable

5.25 A small number of respondents explicitly mentioned the Roundtable, offering support and agreement with the suggestions and recommendations from the Roundtable report.

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

"It will be significant – a major loss. While used relatively infrequently, it provides an essential and affordable legal recourse for individuals and organisations concerned about public authorities' implementation of environmental legislation to seek an investigation/redress. As with any ultimate legal recourse, the power of this mechanism is less its use or application, but rather its availability. (SE LINK)"

"We believe that to ensure legal certainty similar complaints and legal redress mechanisms to those of the EU should be reproduced domestically. While we can count on the autonomy of the Courts to handle such cases, the crucial issue will be to ensure that supervision, complaints and enforcement powers are kept separate from those of the government of the day. (COSLA)"

"The watchdog/independent scrutiny body should be able to determine its own structure and procedures and how it will organise the 'sifting' of complaints or investigate under its own initiative. The process of choosing the members of the watchdog should then be subject to parliamentary scrutiny – parliament should draw up a list of those with scientific, legal, ecological, social, cultural expertise, sourced from practice and academia. (Individual)"