Environmental governance arrangements: report

1. Background to the review

The UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 ('the Continuity Act') contains a range of provisions to protect Scottish law and society from the effects of leaving the EU.

Part 1 of the Continuity Act provides Scottish Ministers with regulation making powers to help meet the Scottish Government's commitment to align with future developments in EU law, where appropriate. The Scottish Government has issued a Policy Statement on the use of these powers^[1].

Part 2 of the Continuity Act^[2] introduced a number of new measures to protect environmental standards in Scotland and to maintain alignment with key elements of the structure of environmental law in the EU. The three measures in Part 2 comprised the creation of Environmental Standards Scotland (ESS) with functions and powers to provide environmental governance, a statutory framework for our Environment Strategy, and the introduction of new duties on Scottish Ministers and others, to have due regard to the guiding principles on the environment.

These measures support the Scottish Government's response to the twin global crises in climate and nature, and help to ensure that we remain closely aligned to the structure of environmental law in the EU. ESS was established as a new public body, independent of Scottish Government, and accountable to the Scottish Parliament. The powers and duties given to ESS have the aim of ensuring public authorities in Scotland comply with environmental laws and that those laws are effective, replacing in a manner appropriate in domestic law the EU institutions' scrutiny and enforcement roles.

1.1 Section 41 - Duty to consult on effectiveness of governance arrangements

Section 41^[3] of the Continuity Act placed a requirement on the Scottish Ministers to consult on the effectiveness of the governance arrangements introduced by the Act. The section requires Scottish Ministers to review and prepare this report on:

• whether the provisions of this Chapter have ensured that there continues to be effective and appropriate governance relating to the environment following the withdrawal of the United Kingdom from the EU,
• whether the law in Scotland on access to justice on environmental matters is effective and sufficient, and
• whether and, if so, how the establishment of an environmental court could enhance the governance arrangements.

The section also requires us to publish this report and launch a consultation on the report within six months of ESS publishing their strategic plan, which was published on the 1st of December. The strategic plan sets out ESS's approach to its role, including its approach to investigations, as required by Schedule 2 of the Continuity Act. The consultation document has been published and laid in Parliament alongside this report.

The content of this report has been informed by a series of evidence gathering sessions with a broad range of stakeholders. These sessions helped play a role in gathering evidence on the different elements listed under section 41 of the Continuity Act.