Environmental principles and governance after Brexit: consultation

Introduction

1. The purpose of this consultation paper is to consider how we maintain effective environmental governance following an exit from the European Union. We will seek views on:

• Maintaining the role of environmental principles in developing future Scottish environmental policy and legislation; and 

• Maintaining effective, appropriate and proportionate environmental governance in Scotland. 

2. The Scottish Parliament holds government to account for meeting its ambitions and complying with internationally set standards. Scottish courts ensure compliance with the law and protection of individual rights. This paper considers further functions or capabilities that may be needed once the UK has left the EU.

Background to consultation

3. Scotland did not vote for the UK to leave the EU, but the Scottish Government must play its part in dealing with the consequences. We have made a commitment to maintaining Scotland’s distinctive approach to environmental protection and to maintaining or exceeding existing environmental standards.

The Roundtable on Environment and Climate Change (‘the Roundtable’) was a panel of experts from different areas of academia and environmental organisations. 

In December 2017, the Cabinet Secretary for the Environment, Climate Change and Land Reform asked the Roundtable to consider potential gaps in environmental governance that may arise should the UK exit the EU; and to set out potential options to address any gaps identified.

The Roundtable’s report^[1] was published in June 2018. Options set out in the report address potential gaps in three key areas

(i) monitoring, measuring and reporting on environmental data and performance,
(ii) scrutiny, assessment and investigation of environmental matters and
(iii) mechanisms for making complaints, challenging performance and enforcing action in environmental areas. A short preliminary study was undertaken to identify the possible issues relating to future environmental governance in Scotland should the UK leave the EU. The report considers a wide range of potential options. The expert group compiling the report focused on maintaining Scotland’s global position as a leader in environmental governance and performance.

5. This paper responds to the intent expressed in the Scottish Continuity Bill^[2] to ensure that there continues to be effective and appropriate governance relating to the environment following the withdrawal of the UK from the EU (see box for details).

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill 2018 (‘the Scottish Continuity Bill’) included provisions for Scottish Ministers to consult on:

how regard is to be had to the four EU guiding principles on the environment

– (a) by the Scottish Ministers in developing policies (including proposals for legislation), and in determining how to exercise any of their functions, and (b) by any other Scottish public authority in determining how to exercise any of its functions.
– how to ensure that there continues to be effective and appropriate governance relating to the environment following the withdrawal of the United Kingdom from the EU.

The Bill defined “governance”, in relation to the environment, as meaning appropriate arrangements for the purposes of ensuring compliance with the law relating to the environment, and effective implementation of policy relating to the environment. “Appropriate arrangements” was defined to include functions equivalent to those carried out before exit day by the European Commission, the European Court and any other EU institution for the purposes mentioned in that subsection.

6. The Programme for Government 2018/19, ‘Delivering for Today, Investing for Tomorrow’^[3] commits us to developing an Environment Strategy for Scotland, to set out an overarching vision for Scotland’s environmental ambitions and to guide future activity across our environment policies. We will develop this strategy alongside future arrangements for governance and principles, in light of the strong interactions between these areas.

7. We have benefited from the close cooperation and dialogue between the UK and the EU. We will take steps to maintain collaboration with others across the continent and with the other governments in the UK on shared environmental challenges and solutions. We will also continue to work towards delivery of international agreements, including commitments on biodiversity and nature conservation and taking action in line with the Paris Agreement on climate change. 

8. Our ambition is to maintain and improve Scotland’s place in the world as a country willing to lead global action to address current and future environmental challenges. We want to continue to be a country which shows leadership and commitment on environmental protection. 

9. We believe that it is essential that future environmental governance arrangements: 

• Help Scotland to maintain or exceed existing environmental standards and to comply with international environmental obligations.
• Fit Scottish circumstances and established methods of accountability.
• Are fair, open and transparent.
• Respect the devolution settlement. 
• Are effective and proportionate in delivering strong environmental protection. 

10. In line with the approach we are taking to develop a future environment strategy for Scotland,^[4] we want to develop future environmental governance arrangements based on a careful and systematic exploration of the issues and evidence. To do this, we want to ensure we have correctly identified the potential governance gaps for Scotland created by the UK’s exit from the EU.

Environmental governance requirements during and after a transition period

11. This consultation is primarily concerned with the governance gaps left by the UK’s exit from the EU, after a transition period. There remains considerable uncertainty about the nature and duration of any transition period, including the design of possible backstop arrangements. It is likely that for a majority of any transition period, arrangements analogous to membership would continue to apply. This means there are unlikely to be any immediate, significant governance gaps over this time. We would expect the future relationship between the UK and the EU to include extensive obligations with respect to environmental governance, with provisions in the draft Withdrawal Agreement going beyond any existing free trade agreements signed by the EU.^[5]

12. Following this consultation, we shall continue to develop our policy for future environmental governance in Scotland. We shall put in place the legislative and institutional arrangements that will be required after any transition period. If arrangements are needed during a transition period, or under an exit without a withdrawal agreement, we shall design interim arrangements that reflect our policy established through this consultation.

13. The consultation paper is in two sections:

Section 1: Environmental principles 

Section 2: Environmental governance arrangements