Environmental principles and governance after Brexit: consultation

Section 1: Environmental principles

14. A range of environmental principles has been established in international agreements, including the core treaties of the European Union, and used to guide and shape modern environmental law.

15. EU environmental law is informed by four environmental principles. The purpose of this section is to set out proposals to ensure the continued application of the four EU environmental principles to Scottish policy and law.

What currently happens?

16. Around 80%^[6] of domestic environmental law in Scotland is derived from EU law and policy. EU law and policy also has a significant influence over policy and legislation in Scotland in other areas.

17. The objective of the European Union is to “work for sustainable development of Europe based on balanced economic growth and price stability … and a high level of protection and improvement of the quality of the environment”.^[7] Several articles in the Treaty on the European Union (TEU) are dedicated to environmental issues and the achievement of this objective. These include articles which refer to the establishment of the single market, which require a high level of environmental protection to be established. In addition, Article 11 of the Treaty on the Functioning of the European Union (TFEU) has a general application and requires the integration of environmental protection requirements into the definition and implementation of EU policies, with a view to promoting sustainable development. 

18. Four specific environmental principles are enshrined in Article 191(2) of TFEU.^[8] These four principles underpin the development of EU environmental policy, and are commonly defined as:

• Precautionary principle. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

• Polluter Pays principle. The polluter should bear the cost of pollution control and remediation. 

• Prevention principle. Preventative action should be taken to avoid environmental damage.

19. EU environmental principles have to be read and implemented in the context of wider principles of EU law, including the fundamental rights of individuals, proportionality and legal certainty. For example, the principle of proportionality is important in interpreting how the environmental principles interact with economic and social objectives. 

20. The development of EU environmental policy and legislation is also informed by principles in international conventions and agreements, such as the UN Convention on Biological Diversity. These principles are also reflected in law and policy developed in Scotland.

21. A non-exhaustive list of environmental principles that influence environmental policy at the EU and Scottish levels includes:

• The UN Rio Declaration on Environment and Development 1992^[9] established 27 principles to guide sustainable development, including the integration principle^[10] (as well as the precautionary and polluter pays principles).

• The principle of sustainable use^[11] and the ecosystem approach^[12] are enshrined in the UN Convention on Biological Diversity 1992.^[13]

• The UN Aarhus Convention 1998^[14] established a number of principles in relation to rights of the public with regard to the environment, including access to environmental information, public participation in environmental decision-making and access to justice.

• The principle agreed within the Convention on Biological Diversity that environmental management should be undertaken at appropriate spatial and temporal scales.^[15] 

The principle of non-regression^[16] Any changes in law or policy should maintain or increase the level of environmental protection, and not allow any deterioration.› has more recently gained international recognition and is ingrained in the Paris Agreement on climate change.^[17]

What will we continue to have and what might be lost? 

22. The Scottish Government is committed to ensuring that the EU environmental principles established by the Treaty of the Functioning of the European Union (TFEU) continue to sit at the heart of environmental policy and law in Scotland. In establishing our approach, we wish to build on the work of the Scottish Parliament’s inquiry into environmental principles^[18] and good practice in other countries, and to take into account the recommendations from the First Minister’s Advisory Group on Human Rights Leadership. 

23. Scotland already has a distinctive approach to policy making, and to sustainable development. This is reflected in our National Performance Framework, which provides an outcomes framework through which the Scottish Government and its partners in all sectors of society can work in integrated ways to achieve national outcomes and contribute to our purpose and the achievement of the UN’s Sustainable Development Goals (see Figure 1).

24. The Framework reflects our values as a nation and the aspirations we hold for our future, including for our environment alongside our social and economic well-being. It also measures and reports on the progress of government in Scotland; providing a mechanism through which the Scottish Government and public bodies can be held to account for their contribution towards achieving our purpose and national outcomes.

25. Scotland’s National Planning Framework,^[19] Land Use Strategy,^[20] Climate Change Plan^[21] and National Marine Plan,^[22] and a number of other important strategies and plans provide additional mechanisms and frameworks to promote sustainable development through integrated decision-making in relation to our land and marine resources. 

26. The four EU environmental principles already underpin the majority of Scottish environmental law and policy. For example, the Precautionary principle informs the handbook on environmental impact assessment produced by Scottish Natural Heritage^[23] and is also implicit in the Scottish regulators’ strategic code of practice,^[24] with its emphasis on risk-based and proportionate responses. The Polluter Pays principle underpins the Scottish Environment Protection Agency’s charging system.^[25]

27. If the UK leaves the EU, retained EU law will continue to apply, as will domestic Regulations made to transpose EU Directives. The four environmental principles will continue to underpin this legislation and inform regulatory practice. The Scottish Government is committed to maintaining or exceeding existing environmental standards which will retain the influence of the four EU environmental principles. 

28. However, without action, the EU environmental principles will cease to have legal force over the development of policy and law in Scotland. 

Figure 1: Scotland’s National Performance Framework

Proposed position

29. The Scottish Government proposes to address the loss of legal force for the EU environmental principles through a new legal duty on Scottish Ministers to have regard to the four EU environmental principles in the development of policies and legislation. This most closely matches the current effect of the principles on Scottish environmental policy and law. 

30. In coming to this preferred position, we considered three main aspects for the design of this duty.

a) Application: should a duty apply only to the formation of policy and draft legislation by the Scottish Government, or should it also apply to the exercise of powers and functions by the Scottish Government and other public authorities?

b) Scope: should a duty include only the four EU environmental principles or extend to a wider list of principles, including those drawn from international agreements and programmes?

c) Implementation: should there be an associated requirement for the duty to be accompanied by a policy statement to guide its interpretation and application?

Application of environmental principles duty

31. It is possible to consider extending a duty to have regard to the principles to the exercise of other powers and functions by Scottish Ministers and public authorities in Scotland, including local authorities. This would extend a duty to actions such as individual funding decisions and regulatory permissions. An explicit duty of this type would go beyond the current application of the EU environmental principles, which generally impact at the level of policy and the design of legislation. The effect of this would be to ensure that the principles were considered in individual decisions that could have significant environmental consequences, and could be called upon by communities resisting proposals which they believe are environmentally harmful. 

32. There are instances, as discussed in the previous section, where one or more of the EU environmental principles are built into the operation of policies and regulatory systems. This will be unaffected, and Ministers can continue to develop regulations and policies that bring particular environmental principles into specific decision-making processes.

33. However, a general application of the four EU principles across all powers and functions would lead to complex interactions with the many requirements and duties already placed on public bodies in Scotland. ^[26] It would be difficult to ensure that these duties were complementary and did not contradict each other. These different factors can be balanced in the development of policies and legislation in a way that is transparent and subject to consultation, and ultimately government is held accountable for policies. It would be very difficult in practice to balance all of these duties in the exercise of individual functions.

35. For these reasons, and in order to follow a model which is closest to the current EU framework, the Scottish Government’s preferred option is for the duty to apply only to Scottish Ministers during the development of policy, including proposals for legislation. 

Question 1: Do you agree with the introduction of a duty to have regard to the four EU environmental principles in the formation of policy, including proposals for legislation, by Scottish Ministers?

Question 2: Do you agree that the duty should not extend to other functions exercised by Scottish Ministers and public authorities in Scotland?

Scope of environmental principles to be covered by the duty

• Precautionary principle
• Polluter Pays principle
• Prevention principle
• Rectification at Source principle

37. The duty could potentially include other environmental principles enshrined in international conventions and agreements, including – but not limited to – those principles listed in the Background on page 9.

38. Extending the scope of the duty in this way would give prominence to a wider range of environmental considerations and priorities and might offer opportunities to strengthen our approach to environmental policy-making and implementation in Scotland. However, there are potential issues which need to be considered. 

39. It would be important to be clear that any additional principles continued to operate alongside existing principles in a coherent and effective way. Many of the principles from international agreements have already influenced the development of environmental policy and law in the EU, which will continue to apply in Scotland. As the UK is a party to all the key international environmental agreements, the principles they enshrine will also continue to guide policy and legislative developments in Scotland. The selection of any subset of principles from international agreements could reduce the emphasis on other elements of the agreements. 

41. There are many opportunities in the development of a new Human Rights Framework. The design of operational human rights related to the environment will be complex, and the effect of these rights could be far-reaching. To leave the way clear for these developments, our preferred approach at this time is to focus a new duty on Ministers to have regard to the four EU environmental principles.

Question 3: Do you agree that a new duty should be focused on the four EU environmental principles? If not, which other principles should be included and why?

Implementation

42. The duty to have regard to the principles could be accompanied by a duty to produce a policy statement to guide its interpretation and application.

44. At present, the application of the EU environmental principles at EU level is informed by extensive case law. This helps to shape the interpretation of the principles, including how they relate to each other and to wider factors influencing decision-making. An important function of a policy statement would be to capture the key considerations that need to be taken into account to ensure that the principles are not considered in isolation or out of context. 

45. Our preferred approach is for a duty to have regard to environmental principles to be accompanied by a requirement to produce a policy statement to guide its interpretation and application. It is also our intention that courts would be able to take account of the duty and its application as a relevant consideration in proceedings. This would help to mirror current arrangements and support continuity and consistency.

Question 4: Do you agree there should be an associated requirement for a policy statement which would guide the interpretation and application of a duty, were one to be created?