Environmental governance arrangements: report

2. Overview of environmental governance in Scotland following exit from the EU

The provisions of section 41 of the Continuity Act are primarily concerned with the environmental governance arrangements put in place by that Act, as well as wider issues concerning access to justice on environmental matters. Environmental governance is a term that can be interpreted broadly to include consideration of the administrative, regulatory and judicial structures that contribute to protection of the environment and promotion of sustainable development. In this wider sense, environmental governance includes the design of arrangements for communities and individuals to participate in decision making, and to make representations and seek routes to redress. In this chapter we shall briefly set out the Scottish Government's position on this broader interpretation of environmental governance, before turning to the specific considerations listed in section 41.

2.1 Environmental Governance following Brexit

In February 2019, the Scottish Government published a consultation paper on the design of environmental principles and governance after Brexit^[4]. The purpose of that consultation was to seek wider views to help the development of a strong, proportionate and effective system to ensure the protection of Scotland's environment. As stated in that paper, Scotland did not choose to leave the EU, and the Scottish Government was determined to protect environmental standards threatened as a result of Brexit.

The paper made clear that it was the Scottish Government's position that the Scottish Parliament holds government to account for meeting its ambitions and complying with internationally set standards. The paper also set out that Scottish courts have a well-understood role to ensure compliance with the law and protection of individual rights. The consultation considered whether further functions or capabilities were needed once the UK left the EU.

The 2019 consultation paper set out that the Scottish Government believed that it was essential that the environmental governance arrangements that were then under consideration would:

• 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.

These requirements remain at the heart of our approach, and were reflected in the provisions of the Continuity Act that established ESS and set out its powers and functions.

The most visible aspects of environmental governance within the EU are the system of infractions for non-compliance with EU law and the reviews of policy effectiveness by the EU Commission. However, there are other significant losses to environmental law in Scotland from leaving the EU. We have lost the EU as a direct source of new legislative provisions and policies, and the coordinating role of the European Environmental Agency and other agencies and forums that supported effective implementation and monitoring of environmental law and standards.

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters^[5] ("the Aarhus Convention") is an important international agreement for environmental rights in Scotland. As reflected in its title, the convention covers three important pillars of environmental rights. The rights of access to information are reflected in the Environmental Information Regulations (Scotland) 2004^[6] and in our regulatory agencies' proactive approach to making information available on environmental quality in Scotland^[7]. The rights to public participation in decision-making are reflected in our commitment to consultation at all levels, and our regulatory agencies' approaches to community involvement in decision making ^{[8] [9]}. The final pillar, that of access to justice in environmental matters, is considered in detail in this report.

2.2 Environment Governance and Strategic Environmental Policy

Consideration of environmental governance has to reflect the seriousness of the twin global crises in climate and nature. The imperative to combat these crises reinforces the importance of effective environmental law and policy. Environmental governance must be fit for a situation where we are driving transformative change across our economy and society in response to the twin crises. The Continuity Act established a statutory framework for the Scottish Government's Environment Strategy, where we are developing policies to support the transformative change that is needed.

The Scottish Government published the Vision and Outcomes for our Environment Strategy in 2020^[10]. This set a vision that, by 2045: By restoring nature and ending Scotland's contribution to climate change, our country is transformed for the better – helping to secure the wellbeing of our people and planet for generations to come. The Strategy is an overarching framework for environmental policy, and promotes a whole of government approach to tackling the crises in climate and nature while promoting the sustainable prosperity of Scotland. The Continuity Act introduced a requirement for reports to Parliament as the strategy is developed^{[11] [12]}, and a duty on Ministers to have due regard to a strategy once adopted. Work is continuing on the development of the strategy, considering in detail the outcomes for the economy, society and our global footprint that support the vision, and setting out pathways of policy design to guide policy across government.

We are aiming at holistic, system-wide solutions to environmental problems, which must be reflected in the structures and mechanisms for environmental policy. ESS provides critical assurance about environmental law being effective and fully applied, in the context where we are aiming at cross-government transformation in economic and social policies in face of twin crises. As we progress with this transformation, it becomes more and more important that environmental policies are fully integrated with other areas of policy. There are already examples of how this is happening:

• Climate Change Planning is a process that reaches into every corner of our economy. Our new National Planning Framework (NPF4) places climate and nature at the centre of our planning system, and is a significant step forward to achieving a net zero Scotland.
• Our Marine Planning Framework balances the need to increase off-shore wind generating capacity, protect and enhance the marine environment and promotion of sustainable fisheries.
• The National Strategy for Economic Transformation considers natural capital alongside the other classes of capital that support our prosperity.
• Our Infrastructure Investment Plan (2021-22 to 2025-26) sets a new definition for infrastructure, including the natural environment. We believe this gives Scotland one of the widest definitions of infrastructure internationally, and ensures that natural infrastructure is considered equally alongside social and economic infrastructure when we make out public capital investment decisions. The IIP focuses on three core themes for Government investment over this time period, and of those is "enabling the transition to net-zero emissions and environmental sustainability" – again ensuring investment is prioritised for this outcome.

2.3 Environmental Principles and Effective Decision Making for the Environment

As environmental policy becomes more integrated into the delivery of policies across government, it is important that there are structures and systems to promote good decision making, taking account of the full impact of decisions considered. The Continuity Act introduced the guiding principles on the environment, to support good decision making and preserve these important principles from the EU policy making structures.

The Continuity Act introduced duties on Ministers and on public authorities that, once commenced, will require due consideration of the guiding principles in policy making. For Ministers^[13], this applies to all policy making^[14], for other public authorities it applies to policies, strategies and plans that are subject to Strategic Environmental Assessment. The duties will ensure that the five environmental principles - preventative, precautionary, rectification at source, integration and polluter pays – will be considered for all decisions that could affect the environment. This will support good policy making, in particular promoting thinking about how damage can be prevented, minimised or contained before it happens.

Many decisions across government have important impacts on climate, nature and environmental quality. Our ability as a country to address the twin crises in climate and nature and promote sustainable development will depend on policy actions across government. This potentially brings a wide range of decisions into the scope of a full understanding of environmental governance, but this has to be balanced with the fact that these are decisions aimed at balancing a range of policy goals and factors. We need to support decision making with proportional measures that ensure due consideration of environmental opportunities and consequences, while allowing the decision maker to focus on the specific objectives of the policy or programme. We need to ensure that the environmental impacts of decisions are considered proportionately, particularly where this have been duly considered in the design of the regulations, guidance and policies guiding the individual case decision.

It is this need to balance the different objectives and goals of policy that means that the environmental governance system put in place by the Continuity Act has a key role for the Parliament. The Parliament makes laws and holds the Scottish Government to account for delivery, and it is the Parliament that has the democratic legitimacy to balance the competing objectives to ensure that environmental law and policy is effective.

Administrative decision making, backed by democratic accountability, has an important role in planning and consenting regimes. Stable and effective planning and consenting regimes are important to our economy, allowing predictability in decision making and confidence that decisions once made will not be overturned without good reason. The Judiciary has a vital role in ensuring that public authorities act in accordance with the law, and as regards environmental law this is complemented by the role of ESS. However, we are not convinced that there is a case for the Judiciary to have an expanded role in taking decisions that are currently taken by administrative authorities, normally involving assessment by appropriately trained professionals, including such decisions that are taken on review by the Scottish Ministers having initially been determined by another public authority. As part of the development of the Human Rights Bill, we will be exploring approaches to ensuring effective oversight of public decision-making and ensuring duty-bearers under the Bill are acting in compliance with the right to a healthy environment.

Courts currently can review decisions on the basis of whether they have been taken in line with the law. There have been arguments made by some stakeholders that courts should have the ability to review individual planning and consenting decisions on their merits. This, by itself, would lead to significant delay and uncertainty through to the end of the planning or consenting process, and could prevent development which is needed in the public interest. Some stakeholders argue further that a court should be able to take wider considerations of environmental law and targets into account in reviewing individual planning or consenting decisions, and potentially in reviewing the substantive content of government policies and strategies. This could potentially lead to substantial changes to the operation of policy through decisions on individual cases, that would lead to additional uncertainty and complexity, and the link to democratic accountability would be unclear. We will carefully consider these aspects as part of the development of the Human Rights Bill, including the potential role of the courts in ensuring effective oversight of public decision-making, and the impact on and interaction with the current systems in place.

We do not see the case for an expanded role for ESS in considering the merits of individual planning and consenting decisions. In chapter 3 we discuss the early operational experience of the restriction on ESS considering individual cases, and the ways in which the identification of systematic issues from individual cases can be effectively managed. We are convinced that any friction in the system from the restriction on ESS considering individual cases is manageable, and considerably less disruptive than ESS becoming a de facto appeal body for a range of planning and other consenting regimes.

Our regulatory agencies, including in particular SEPA and NatureScot, have important independent regulatory functions that they discharge. They are accountable, through Ministers, to the Parliament for the effectiveness of their role as regulators, and also as expert consultees in planning and other consenting regimes. We are a small country, and therefore our regulatory agencies are necessarily also the source of expertise and advice to government and, where requested, by the Parliament, as well as carrying out their important independent regulatory functions. This has to be managed correctly to ensure that neither role is compromised. Our regulatory agencies are respected internationally and contribute to international networks such as the Heads of European Environmental Protection. Domestically they are important leaders for innovation and sharing of good practice as members of the Scottish Environment and Economy Leaders Group, and actively seek opportunities to support other UK regulators on shared priorities.

2.4 Access to Justice

Access to justice on environmental matters is important, and the Scottish Government is committed to ensuring compliance with the terms of the Aarhus Convention (as set out in chapter 4 below). We must, however, understand that access to justice does not, and cannot mean that all parties can achieve the outcomes that they desire in each individual decision. Our responsibilities under the Aarhus Convention include providing environmental information, and consulting communities and wider society about decisions and about proposals to revise legislation and policy. We believe that there should be an appropriate balance between proper consultation and consideration of rights and impacts when developing the law and guidance, and effective administration of regulatory schemes with appropriate involvement of communities ahead of individual licensing and planning decisions. However, different views of what law and policy should be are not best addressed through challenges to individual decisions properly reached within the parameters of the law. This balance is clearly reflected in the powers of ESS, to take direct action if a public authority is acting outwith the law, and to report to the Parliament if it is the law itself that is seen as ineffective in protecting the environment.

The Scottish Government has committed to bringing forward a Human Rights Bill in this parliamentary session, which will recognise and include the human right to a healthy environment. The right will be guided by the underpinning international framework including the UN Framework Principles on Human Rights and the Environment and the Aarhus Convention. Recognition of the right in Scots law will aim to ensure that Scottish Government and other public authorities exercising devolved public functions demonstrate that they are protecting, respecting and fulfilling the right in their policies and regulatory schemes. Ensuring effective access to justice for rights holders in relation to the rights and duties contained in the Bill is a critical policy objective. Policy development in this area is at an early stage and could involve strengthening and development of both non-judicial and judicial routes to seek redress.

2.5 Concluding comments of the overview

This overview chapter has considered the wider context of environmental governance across our governmental and legal systems. We have set out the importance of democratically accountable decision making, and of legislation being a matter for the Parliament, alongside the role of the courts in upholding the law and the particular role of ESS in holding public bodies to account with respect to their compliance with environmental law. There is a pressing need for ambitious, transformative policies in the face of the twin crises in climate and nature. This will require a greater integration of environmental policies across government. The integrity of environmental law, and high environmental standards, must be protected. However, the mechanisms to achieve this protection must recognise the integration of environmental policies with other policy objectives, and support and promote effective decision making to protect the environment, promote sustainability and achieve the wide range of policy goals across government.

The recognition and inclusion of the right to a healthy environment as a part of the rights framework in the forthcoming Human Rights Bill is intended to give added protection to the environmental quality enjoyed by individuals.

The Scottish Government recognises the strengths in the current balance of parliamentary, administrative and judicial roles in decision making on environmental matters, and does not see any strong argument for the creation of a specialist court. Our objective must be to protect environmental standards and rights without individuals and communities having to go to court, a process that can be daunting and stressful. Court action is expensive in time and in money, whether the costs fall on the individuals or are met by government. It is also clear that any major change to permitting and consenting systems at this time would be disruptive and could significantly delay the infrastructure we need for the transition to Net Zero. As we will explain in detail in the following chapter, we are content that the provisions establishing ESS have satisfactorily filled the major gap in environmental governance created by Brexit. However, we accept that there is a need to consider improvements to access to justice which we set out in chapter 4.