Guiding principles on the environment: draft statutory guidance

2. Background

2.1 The guiding principles form a part of our strategic approach to environmental policy, supporting our objective to maintain and improve environmental standards, contributing to Scotland's response to the twin crises in climate and nature and keeping aligned as far as possible with EU standards. The guiding principles sit alongside Scotland's arrangements for environmental governance through Environmental Standards Scotland and our Environment Strategy. The Environment Strategy published in 2020 set out our vision that by restoring nature and ending Scotland's contribution to climate change, our country is transformed for the better. It sets out how policies and programmes from across government join to enable the transformation needed in response to the twin crises of the global climate emergency and biodiversity loss, helping us to secure the wellbeing of our people and planet for generations to come.

2.2 Following the Consultation on Environmental Principles and Governance in Scotland in 2019^[3], there was clear and strong support for the four core EU environmental principles to be replicated in Scots law, alongside the principle of integration. The section 13(1) guiding principles reflect this: section 13(2) provides that the principles are derived from the equivalent principles provided for in Article 11 of Title II and Article 191(2) of Title XX of the Treaty on the Functioning of the European Union. The UK Withdrawal from the European Union (Continuity) (Scotland) Bill was granted Royal Assent in January 2021, becoming the Continuity Act.

2.3 Section 14 of the Continuity Act places duties on Scottish Ministers and, when acting in relation to Scotland, Ministers of the Crown to have "due regard" to the five guiding principles on the environment when developing polices (including proposals for legislation)^[4]. The same duty is imposed by section 15 on other public authorities who are subject to the Environmental Assessment (Scotland) Act 2005 ("the 2005 Act"), when doing anything in respect of which an environmental assessment is required under section 1 of that Act.

2.4 A duty to have "due regard" means that the duty-holder is required to give the regard that is appropriate in all the circumstances. The duty must be performed with a substantial, rigorous and open-minded approach. The duty must be given appropriate weight while taking into account other considerations, such as other duties in legislation or other policies.

2.5 Further detail on the section 14 and 15 duties is provided below.

Who should read this guidance?

2.6 This guidance is aimed at supporting decision-making by Ministers and other public authorities. We expect it will be mainly used by government officials, officers of public authorities and advisers working with public authorities.

2.7 This guidance will also be of interest to the general public and to civic society groups with an interest in decisions that could impact on the environment.

Duty to have regard to the guidance

2.8 Under section 17(3) of the Continuity Act, those subject to a duty to have due regard to the guiding principles on the environment must, when doing anything in respect of which the duty applies, have regard to this guidance.

2.9 The requirement to "have regard" to something is a requirement to consider it. It does not require duty holders to follow, or comply with, the guidance, nor does it make the guidance the duty holder's only or top priority. What is required of duty holders is that they give consideration to the guidance.

What does the guidance cover?

2.10 This document seeks to provide guidance on the interpretation of the principles, how they relate to each other, how the duties in sections 14, 15 as read with section 16 of the Continuity Act relate to other duties concerning the environment including the duties in the 2005 Act, and how compliance can be achieved and clearly demonstrated.

2.11 Annex A provides further information about how these new duties relate to existing duties under the 2005 Act, whilst Annex B provides detailed information regarding the development of environmental principles in international and EU law.

2.12 The case studies and examples included at section 5 of this guidance below provide illustrations of how the principles can be seen to be relevant in the context of existing decisions and policies. In some cases, they show how interactions between the principles can be considered. These examples are not intended to provide an exhaustive consideration of the application of the guiding principles, but instead provide helpful examples of how the guiding principles could be considered in future decision-making processes.