Guiding principles on the environment: draft statutory guidance

Annex A – Strategic Environmental Assessment and Duties to have Due Regard to the Guiding Principles on the Environment

Note: This Annex is intended to form a part of this guidance, and will be added to SEA guidance so that it is easily available where relevant.

Figure 11 The Guiding Principles on the Environment

The Guiding Principles on the Environment

The UK Withdrawal from the European Union (Continuity) Scotland Act 2021 ("the Continuity Act") establishes guiding principles on the environment which are derived from the equivalent principles provided for in Article 11 of Title II and Article 191(2) of Title XX of the TFEU.

The guiding principles on the environment listed in section 13(1) of the Continuity Act are:

the principle that protecting the environment should be integrated into the making of policies,

the precautionary principle as it relates to the environment,

the principle that preventative action should be taken to avert environmental damage,

the principle that environmental damage should as a priority be rectified at source, and

the principle that the polluter should pay.

The Statutory Guidance on Scotland's Guiding Principles on the Environment can be found here: The Statutory Guidance on Scotland's Guiding Principles on the Environment will be available online.

The Strategic Environmental Assessment Guidance can be found here: Strategic Environmental Assessment: guidance – gov.scot (www.gov.scot)"

Duties under section 14 and 15 of the Continuity Act

Section 15 of the Continuity Act places a duty on responsible authorities to have due regard to the guiding principles on the environment when doing anything which requires an environmental assessment under section 1 of the Environmental Assessment (Scotland) Act 2005.^[19]

Section 15 of the Continuity Act does not apply to Ministers who are instead subject to section 14 of the Continuity Act which places duties on Ministers to have due regard to the guiding principles on the environment when making any policies (including proposals for legislation). The duties placed on Ministers by section 14 of the Continuity Act are therefore more general and apply to all policy making, including policy making that requires an environmental assessment.

For both public authorities and Ministers, due regard to the guiding principles should be given and reported through the established SEA processes, including during the completion of an environmental assessment.

What do responsible authorities need to do?

Undertaking environmental assessment at the early preparation stages of a plan can bring benefits to policy makers including better environmental protection, improved plans, greater exploration of 'reasonable alternatives' alongside enhanced communication, transparency and a smoother delivery mechanism.

When developing plans, responsible authorities (including Ministers) should consider the statutory guidance on the guiding principles, and how their duties to have due regard to the guiding principles interact with the other factors considered in environmental assessment. Where the duties in sections 14 and 15 of the Continuity Act apply, environmental assessment should provide a vehicle for planners and policy makers to fulfil the duties and record compliance. As SEA is a statutory regime designed to achieve better environmental objectives while still delivering policy objectives, consideration of the guiding principles in this context makes for a more streamlined and effective approach for authorities and policy makers to follow.

Recording compliance with the duties

It is important that duty holders under sections 14 and 15 of the Continuity Act are able to demonstrate that, where those sections apply, they have had due regard to the guiding principles. There are two situations to consider:

• where Ministers or any other responsible authority are doing anything in respect of which the duty to undertake environmental assessment under section 1 of the 2005 Act applies.
• where Ministers are developing policy in circumstances in which the duty to undertake environmental assessment under section 1 of the 2005 Act does not apply,

Where proposals require environmental assessment

Section 15 of the Continuity Act 2021 places a duty on public authorities (other than Ministers) to have due regard to the guiding principles on the environment when doing anything in respect of which the duty to undertake environmental assessment under section 1 of 2005 Act applies. The section 14 duties on Ministers to have due regard to the guiding principles are more general but therefore include policy making processes where an environmental assessment is required.

The process of environmental assessment, including in particular preparation of an environmental report, is a means for recording compliance with the duty.

Where proposals do not require environmental assessment

As Ministers' duties under section 14 of the Continuity Act apply when making all policies (and are not, as in the case of other responsible authorities subject to the duty under section 15 of the Continuity Act, limited to where environmental assessment is required under section 1 of the 2005 Act), where Ministers' proposals (for policy and legislation) are not subject to environmental assessment under section 1 of the 2005 Act, they will need to consider the most appropriate means of recording compliance with the duty.

Compliance with the duties can generally be recorded through the pre-screening and screening stages of the SEA process (where applicable), which establish if an environmental assessment under section 1 of the 2005 Act is required for a particular decision. The SEA pre-screening and screening templates will be updated in order to support this. In the rare instances where SEA pre-screening or screening is not applicable, Ministers will need to decide if consideration given in fulfilment of the duty can be best reflected in the records of the decision-making process or through a published document

Figure 12 Process diagram – duties to have due regard to the guiding principles on the environment