Environmental principles and governance after Brexit: consultation

Section 2: Environmental governance arrangements

46. The purpose of this section is to consider the potential gaps in environmental governance arrangements following exit from the EU. 

47. Building on the Roundtable’s report, this section considers four key parts of environmental governance arrangements.

Defining environmental governance

Part 1. Monitoring, measuring and reporting activities. 

Part 2. The scrutiny of government performance and the extent to which stated environmental objectives are being achieved. 

Part 3. A mechanism to consider any complaints by members of the public or civic organisations, which can lead to enforcement action, if an issue of legal compliance were to arise. 

49. Scrutiny can refer to scrutiny of government performance (i.e. whether the government is achieving its stated environmental objectives); scrutiny of government plans and strategies (i.e. whether they are likely to improve our environment); or scrutiny of the effectiveness of Scottish legislation (i.e. whether legislation is meeting its aims). 

Figure 2. Four parts of environmental governance arrangements

Part I – Monitoring, measuring and reporting 

50. This part considers access to environmental data and information in order to:

• understand the changing state of the environment within Scotland;
• develop environmental law and policy;
• understand the impact of these policies and laws on environmental outcomes, and
• support scrutiny of the implementation of environmental law and policy. 

What currently happens?

51. EU membership has provided a framework for monitoring, measuring and reporting on environmental outcomes. It has supported the sharing of information between jurisdictions and the collation of consistent information at EU level. This has allowed progress on environmental objectives to be assessed in a structured and consistent way following agreed methodologies. 

52. Many of the reporting requirements are statutory and EU institutions provide the capacity to undertake analysis and prepare reports. Reporting is normally undertaken on behalf of the EU Member States and data are, therefore, often aggregated at UK level.^[27]

53. The Scottish Government, its agencies and non-departmental public bodies maintain working links across the European Union, and their expertise is often sought in helping to develop new guidance and to inform best practice. In turn, this allows Scotland to benefit from experience elsewhere and to establish comparisons with other European nations. One of the key environmental organisations is the European Environment Agency (EEA) (see box) which is an important source of information for those involved in developing, adopting, implementing and evaluating environmental policy. Many Scottish institutions work closely with the EEA, and the EEA supports European networks such as the European Network of the Heads of Environment Protection Agencies (EPA Network) in which the Scottish Environment Protection Agency has long played a leading role.

The European Environment Agency (EEA) is an agency of the European Union which aims to provide sound, independent information on environmental matters. For those involved in developing, adopting, implementing and evaluating environmental policy the EEA is a key source of information. The business community, academia, civil society and the public are all able to use the information provided by the EEA.

The EEA currently has 33 member countries and six other cooperating countries. Through collaborative joint working, the EEA countries are responsible for bringing together national networks involving many institutions (about 350 in all), typically comprising national environment agencies or environment ministries. 

The EEA’s mandate is:

• To help the Community and member and cooperating countries make informed decisions about improving the environment, integrating environmental considerations into economic policies and moving towards sustainability.

• To coordinate the European environment information and observation network (Eionet). 

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

54. The UK’s future relationship with the EU may shape requirements for monitoring, measuring and reporting in the longer term. Much of the information currently reported at international level, including to the EU, is also essential at Scottish level to guide and inform our policy development. After a UK exit from the EU, this information will still be gathered and reported to comply with international agreements and to meet domestic needs and requirements. Public bodies will continue to have monitoring and reporting duties. 

55. The Roundtable identified issues about:

• Our future ability to use EU systems to facilitate reporting and contribute to developing methodologies. 

• The ability to aggregate data at European level and assess UK progress on a comparative basis. 

• Potential loss of requirements for data to be published.

Question 5: What do you think will be the impact of the loss of engagement with the EU on monitoring, measuring and reporting?

How could this be addressed?

57. It will be important, once the requirements of EU membership no longer apply to the Scottish Government, that we provide clarity on the scope and purpose of environmental reporting and monitoring. We accept the Roundtable’s suggestion that a review of environmental reporting and monitoring could help to rationalise current programmes. It could build on recent progress on the efficiency of data collection, including the use of remote sensing, and on the reporting and accessibility of data and statistics in Scotland. For example, Scotland’s environment web (SEWeb)^[28] delivers a shared hub for environmental information and data. It presents environmental information and data from many agencies.

58. A review would also consider opportunities to clarify and consolidate reporting requirements. For instance, there are currently around 290 separate environmental reporting requirements on the UK listed on the EEA’s database.^[29] In 2018, the European Commission reviewed reporting arrangements^[30] and proposed a new Regulation aimed at alignment of environmental reporting obligations. Our review of reporting requirements would consider this proposal and adopt any revised procedures where this is possible. 

59. This review will be complementary to the proposed development of a monitoring framework set out in the discussion paper on ‘Developing an Environment Strategy for Scotland’.^[31] 

Question 6: What key issues would you wish a review of reporting and monitoring requirements to cover?

Part II: Scrutiny of government performance

60. This part considers the scrutiny of government performance and the extent to which stated environmental objectives are being achieved.

What currently happens?

61. The European Commission scrutinises whether the environmental objectives of the EU, as expressed in its Environmental Action Programme^[32], are being met. It does this by commissioning research and analysing data from the Member States. The Commission can also prepare and publish more general progress reports such as the Environmental Implementation Review^[33], which assesses progress with implementing the environmental acquis across the European Union.

62. In Scotland, the Scottish Parliament scrutinises the performance of the Scottish Government and holds Ministers to account for the effectiveness and implementation of policy and legislation. For environmental policy, the scrutiny role is led by the Environment, Climate Change and Land Reform Committee. 

63. Other public bodies have scrutiny roles which are independent of the Scottish Government. 

For instance: 

The Scottish Public Sector Ombudsman (SPSO) can investigate complaints by members of the public who claim to have sustained injustice or hardship in consequence of maladministration in connection with the exercise of administrative functions. 

Audit Scotland can examine the implementation of policy by public bodies in terms of both its effectiveness and efficiency. 

The Scottish Information Commissioner can issue guidance and consider complaints about the performance of public bodies in meeting requirements in terms of access to information, including the requirements of the Environmental Information Regulations.

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

64. Once UK withdrawal from the EU is complete, there will be no oversight from the European Commission or its agencies. There is likely to be a requirement in a future agreement with the EU for independent arrangements for scrutiny of compliance with environmental obligations. The scrutiny role of the Scottish Parliament and other public bodies as described above will continue.

65. However, the Roundtable identified issues relating to:

• The loss of capacity and expertise to undertake assessment and investigation that is available through the Commission and specialist agencies like the EEA.
• The loss of a level of independent scrutiny to report on performance.

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

How could this be addressed?

66. The Scottish Government wishes to establish an approach to supporting scrutiny by the Scottish Parliament which meets our essential requirements to:

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

67. Any future scrutiny arrangements will need to work well with existing governance arrangements and be flexible enough to respond to future developments. We have not reached a conclusion on the best institutional framework to support this scrutiny. The purpose of this consultation is to gather views on whether any additional functions might be required to support effective scrutiny, and how these requirements should be delivered, either through expanding the role of an existing public authority or authorities or through a new body. Any new functions would need to complement the vital role of civil society in scrutinising government performance. 

68. The Roundtable considered a set of options to support the Scottish Parliament to meet its future scrutiny requirements and to demonstrate transparency and openness. The aim of these options would be to provide both (i) an enhanced level of analysis about what is being achieved on the environment and (ii) reassurance that there is a degree of independence to this view. The options the Roundtable looked at included a combination of existing and new mechanisms:

• Continuing scrutiny by civil society of government performance.
• Expanding the role of existing public bodies to provide an enhanced level of analysis and information provision. 
• Establishing an ‘independent supervisory panel’ to provide additional scrutiny in the short to medium term. 
• Creating a new independent body to undertake scrutiny functions in the long term.

69. In order to reflect existing scrutiny and assessment functions effectively, any future arrangements must have the following key features: 

a) Access to specialist expertise and skills

Scrutiny and assessment must be supported by access to data and information required in order to reach conclusions on the achievement of environmental objectives. This reflects the Roundtable’s finding about the loss of capacity and expertise to undertake assessment that is available through the Commission and specialist agencies like the EEA.

b) Independence from government

Scrutiny and assessment must be carried out in an open and fair way that is independent of Scottish Government. Again, this feature reflects the Roundtable’s analysis of the issues arising from the UK’s withdrawal from the EU, where the independence of the Commission from member states’ governments is a distinctive asset. There are various ways in which independence could be achieved – either through extending the functions of an existing body or by establishing a new body. One option would be to establish a Commissioner, a model for which there are a number of existing examples (see box). 

Examples of Commissioners in Scotland

The Scottish Information Commissioner ^[34]

The Scottish Information Commissioner is the independent public official responsible for promoting and enforcing Scotland’s freedom of information (FOI) law. The exercise of functions by the Commissioner is not directed or controlled by the Scottish Government or Parliament.

The Commissioner’s functions include investigating appeals and issuing legally enforceable Decision Notices. The Commissioner also provides guidance to public authorities on how to meet their legal obligations, encourages public authorities to develop good FOI practice, monitors FOI practice and can intervene to remedy concerns. 

The Children and Young People’s Commissioner Scotland

Created by the Commissioner for Children and Young People (Scotland) Act 2003, the Commissioner is directly funded by the Scottish Parliament.

The Commissioner’s main task is to promote and safeguard the rights of children and young people in Scotland. The Commissioner has a number of statutory duties including a duty to review law, policy and practice relating to the rights of children and young people with a view to assessing their adequacy and effectiveness. Specific regard must also be had to any relevant provisions of the United Nations Convention on the Rights of the Child. 

The Commissioner also has a power of formal investigation where the rights of groups of children and young people may have been breached.

Other options would be to consider the establishment of a non-departmental public body, which would require legislation, or to extend the powers of an existing public body to undertake scrutiny of environmental matters. Any model would have to incorporate the requirement for independence. We have not reached a conclusion about whether a new body is needed for this and other parts of environment governance in future, in part because of continuing uncertainty about the nature of the long term relationship between the UK and the EU. 

c) Adequate powers

Finally, any effective scrutiny function would require adequate powers, including – for instance – powers to investigate and powers to require public bodies to respond to their enquiries. Should evidence of a failure to comply with environmental legislation be established, powers to refer matters to a court and powers to mediate might be required. 

70. The Roundtable identified the possible need for a body to have ‘own initiative’ powers. This means it would have powers not just to consider available information, but to instigate its own reports and require the provision of information. 

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

Scope of scrutiny arrangements

71. There is no simple way to define the scope of environmental policy, and many policy areas interact with the natural environment. In addition, the scope of scrutiny by the EU is limited by the extent of EU competence. A useful guide to the extent of EU competence is the areas which are listed by the Commission’s Directorate General for Environment as being ‘environmental policies’,^[35] set out in the table at Annex A. The level of scrutiny will vary depending on the nature of EU law in different policy areas. For comparison, the table also shows the framework approach developed by the Roundtable in order to identify areas of environmental law within which to assess governance issues.^[36] Another approach to defining environmental law is taken in the UK Government’s draft Environment (Principles and Governance) Bill.^[37] The explanatory notes provide examples of matters which would normally be considered to be the subject of environmental law, for the purposes of the Bill. 

72. It will be important to have a clear statement of the scope of any new scrutiny arrangements. We propose that the scope will include the following policy areas, based on the Roundtable’s framework: 

• nature conservation and biodiversity;
• air pollution emissions and transboundary pollution issues;
• environmental impact, access to environmental information and environmental justice;
• marine environment;
• radioactive substances;
• waste and circular economy;
• water environment and flooding;
• chemicals, biocides and pesticides
• climate change mitigation and adaptation obligations;
• soils and contaminated land.

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

Part III: Considering complaints

73. This part considers the ability of people to make a complaint about either government or public authorities in relation to their compliance with environmental law. 

74. In order to do so, we need to consider: 

• mechanisms for individuals or organisations to make complaints regarding the application of environmental law; and
• access to expert and independent advice.

What currently happens?

75. At present, people can report to the European Commission any instances where they consider there has been a failure to apply EU environmental law. The Commission has discretion to act upon the information received, which can ultimately lead to infringement proceedings before the Court of Justice of the EU (CJEU). The number of open infringement cases being considered by the Commission’s Directorate General for Environment at the end of 2017 was 325. The number of such cases has declined over the last decade. Of these cases, 15 related to the United Kingdom.^[38] 

76. Within Scotland, people may pursue concerns through the complaints procedures of public authorities; through their elected representatives; through the Scottish Public Sector Ombudsman (SPSO); or directly to Parliament through the Petitions procedures. All major public authorities in Scotland have complaint procedures through which issues of concern can be raised directly and a formal response received. These procedures include provision for appeals and escalation.

77. The SPSO can investigate complaints by anyone who claims to have sustained injustice or hardship because of maladministration in connection with the exercise of administrative functions. Individuals must have already exhausted the complaints process with the relevant body before going to the SPSO. The Ombudsman can then consider forms of redress for that individual if the complaint is upheld. The SPSO does not have a role in considering environmental issues where the impact (injustice or hardship) is on a disparate group of people, as opposed to individuals. 

78. Individual citizens have the right to petition the Scottish Parliament on any matter of concern within devolved competence. Petitions must be about matters of national policy and practice, and not about individual cases or decisions. Other people can then express support for a petition. Recent petitions about environmental policy have included the raising of concerns about the protection of mountain hares, and questioning the impact of solid fuel stoves on air quality. The Scottish Parliament’s Petitions Committee can seek written evidence from the Scottish Government, public authorities and other interested parties. It can commission analysis from the Scottish Parliament Information Centre. The Committee can consider whether the concerns highlighted in the petition point to failures in compliance with international obligations or Scottish law and policy strategies. Having investigated a petition, the Petitions Committee can decide that no further action is needed, or refer the matter on to the relevant subject Committee to add to their consideration of the wider policy issues.

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

79. Once the UK’s withdrawal from the EU is complete, the Commission and the CJEU will have no role in considering new complaints relating to matters in Scotland. It is likely that there will be a requirement in the future agreement with the EU for transparent, independent and adequately resourced complaints arrangements. The existing Scottish arrangements will continue.

80. However, the Roundtable identified issues about:

• Who can bring a case with respect to harm to the environment.
• The loss of the Commission’s role as an essential means of ensuring Member States take their duties seriously – it acts as an incentive for Member States to deal with concerns and complaints before they reach the Commission. 
• The loss of the Commission’s role in resolving concerns and problems without formal procedures. 

81. We have not reached a conclusion about whether a new body is needed for this and other parts of environment governance in future, in part because of continuing uncertainty about the nature of the long term relationship between the UK and the EU.

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

How could this be addressed?

82. The Roundtable considered that to replace the current function of the European Commission to receive and consider complaints, it would be necessary either to expand the role of existing agencies and independent bodies or to provide powers to a new body. This would require legislation.

83. If a new body were established to consider complaints then many of the considerations set out in the previous part on the models for an independent monitoring function would also apply to a complaints function. In practice, it is likely that the different parts of environmental governance would be provided for in a single institutional arrangement.

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?

Part IV: Enforcing action 

84. This part considers the enforcement of effective implementation by government of environmental law. 

What currently happens?

85. The European Commission examines whether EU legislation is being properly transposed into national legislation and implemented in a way that meets the legal requirements contained in European Directives. The Commission generally seeks first to resolve issues through guidance and discussion. The CJEU can be asked to rule on an issue through infraction proceedings and, potentially, require remedy and apply sanctions should a Member State be found to be in breach of EU law. The Scottish Government is obliged to take responsibility for infraction cases in devolved law. A recent example is the CJEU judgment in October 2018 that the UK must designate additional special areas of conservation for harbour porpoises. There is a potential for further action, and ultimately substantial fines, if the UK does not comply with this ruling.

86. Within Scotland, the main mechanism to challenge failures in the implementation of environmental law, or a decision by a public body, including the Scottish Government, is through judicial review. This involves a review of the legality of the actions of the body, including whether it was within the powers of the body and for a proper purpose and consistent with the principles of administrative law. At present, a judicial review can be brought by any person with appropriate standing. Courts can require changes to government decisions through judicial review but not impose fines. It is not within the responsibilities of any public authority to refer other public bodies to a court for their failure to implement environmental law effectively. 

Powers to order interim measures 

87. To prevent irreversible damage, the CJEU may require a member state to implement necessary interim measures, for example, to halt an activity, until a final ruling is made. The purpose of these powers is to ensure that no harm is done pending consideration of the merits of the issues and a final decision reached. 

88. In Scottish courts, interim relief may be available in relation to activities that are alleged to breach environmental laws pending consideration of the merits of the issues. For example, courts can grant interim relief so that developments or other measures are not proceeded with until a full examination of the legal issues has been carried out, and public bodies also have powers to halt harmful activities (via both Nature Conservation Orders and Land Management Orders).^[39]

89. These powers to order interim measures have rarely been used either in Scotland or at an EU level.

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

90. Once the UK’s withdrawal from the EU is complete, the Commission and the CJEU will have no role in enforcing compliance by the Scottish Government with environmental law. There may, however, be provisions in a future relationship between the UK and the EU requiring us to have measures to ensure compliance with a set of environmental standards. Political accountability through Parliament and legal accountability through judicial review will continue. In the absence of recourse to the European institutions, it is likely that judicial review will be sought as a route of redress in a wider range of circumstances.

91. In their consideration of this subject, the Roundtable identified issues about:

• The loss of the Commission’s power to refer a member state to court for failure to properly implement EU environmental law.

• The fact that judicial review proceedings are traditionally used to consider powers, process and procedure rather than substantive environmental outcomes. The nature of many EU measures is to impose obligations on Member States to achieve specific outcomes (e.g. a target for air or water quality or for recycling rates). 

• The CJEU’s powers to impose fines on Member States which do not comply with its rulings. 

Question 12: What do you think the impact will be in Scotland of the loss of EU enforcement powers?

How could this be addressed?

92. It will not be possible to replace the supranational role played by the European institutions. We have not yet reached a conclusion about whether any additional measures are needed, or whether greater use of existing domestic remedies might be sufficient. We are interested in collecting additional evidence and views on the need for any new arrangements. One option would be to create a function for a Scottish body to have the responsibility to refer the Scottish Government or a public authority to a Scottish court for failure to properly implement environmental law. 

93. It is important to bear in mind that only a very small number of cases reach the CJEU. We do, however, want to ensure that deterrents relating to compliance with environmental law are real and effective. We agree with the Roundtable’s assessment that there are difficult considerations in creating a domestic system of financial penalties for failures to comply with environmental law. It is important that there continues to be a credible final stage of enforcement, including the ability to impose effective interim measures to prevent additional harm and to seek effective remedy and restoration of any environmental damage.

Question 13: What do you think should be done to address the loss of EU enforcement powers? Please explain why you think any changes are needed?