Environmental governance in Scotland after Brexit: report

4 Issues of Commonality Arising

4.1 Introduction

4.1.1 From the analysis of issues undertaken in 3, section by section, the group sought to identify where we found the same types of potential constraint. One significant factor will be future policy choices, influenced by the future relationship with the EU. As EU law develops, should Scotland commit to remaining in step with EU law in this area, and if so, how? Or, should Scotland weaken (or strengthen, or restructure) the provisions if, for instance, other parts of the UK do so? The wider context will also be important in determining how cross-border issues will be addressed.

4.1.2 On withdrawal from the EU, the UK will no longer be bound by EU law but will still be subject to many international law obligations relating to the environment. Indeed many EU measures were introduced to implement the EU's international obligations and/or to jointly implement those of its Member States. The EU is party to numerous international environmental treaties alongside, and sometimes in lieu of, its member states. As a matter of international law, the UK will remain a party to all environmental treaties it has ratified prior to Brexit, whether or not the EU is a party to those treaties as well. ^[17] Conversely, the UK will not be a party to treaties the EU alone has ratified. EU environmental law often builds on and scales up obligations embedded in international environmental agreements, providing more ambitious levels of protection. EU law obligations are furthermore supported by an enforcement machinery which is much more vigorous than that supporting international law obligations. Unplugging from EU law will entail that, in most areas, the UK will be subjected both to lesser and less enforceable international environmental obligations. So while after Brexit, the UK's international obligations will continue to require the monitoring of environmental problems, as well as the reporting and implementation of measures to remedy these, such obligations will be less precise, subjected to lesser scrutiny, and devoid of the enforcement procedures which are typical of EU law. ^[18]

4.2 Monitoring, Measuring and Reporting

4.2.1 EU membership has provided the framework, drivers and opportunities, not least through legislative requirements and also through relationships, for the sharing of information between jurisdictions and the membership of groups and processes. These have provided access to data and opportunities for Scotland and the UK to input to processes.

4.2.2 One aspect of EU membership that has emerged frequently in our considerations has been Scotland's current engagement with a wide range of European environmental networks and bodies with which we share data and knowledge. EU bodies such as the EEA and the ECHA provide firstly a source of data that assists environmental bodies across the EU in carrying out their tasks and in assessing comparative performance, and secondly a forum for sharing expertise and good practice at various levels. These also allow benchmarking against EU and other international performance. After withdrawal, Scottish bodies may be able to maintain membership of some of these EU bodies, but for others special arrangements will have to be made to enable at least some continuing involvement, and access to databases and other sources of information. The position varies according to the constitution of each EU body, in some cases requiring rule changes to enable participation by countries outside the EU or EEA. ^[19]

4.2.3 Our review identified capacity as a cross-cutting issue. At present, EU bodies provide capacity as well as access to data, best practices, etc. In addition, Brexit preparation is already placing significant strain on the capacity of government and others to develop appropriate responses. This demand will continue and grow. We note a recent report outlining the resources made available for Brexit-related work in Whitehall ^[20] , including 1200 new " EU exit roles" in DEFRA. How this work is undertaken in Scotland will be a policy decision, but capacity to address the governance gaps identified in this report will be needed.

Reporting about the environment: environmental data

4.2.4 Gathering and comparing robust environmental data are essential to support evidence based policy making. On leaving the EU, the UK will still need to fulfil a wide range of international commitments to provide information and data, which are used to create international datasets in order to assess compliance and progress under international treaties and agreements. In some cases data are aggregated at EU level before transmission to wider international bodies such as the Secretariats of international treaty bodies. When the UK is outside the EU, all reports will be made directly to the relevant international body. However there are additional EU reporting requirements where the information provided is for use by the EU itself. It would provide clarity if a policy commitment were given to the effect that this range of data gathering and reporting for various purposes and to various other bodies would continue, even when there is no longer a requirement to report to the EU.

4.2.5 Usually data are firstly aggregated at UK level before transmission, as it is the UK, as party or Member State, which has the duty to report. Again it would be helpful to clarify which data will be aggregated at UK level to allow for comparisons and benchmarking after Brexit.

4.2.6 Data to fulfill the UK's reporting commitments in relation to environment and climate change are currently gathered through a wide range of specialist organisations. The actual gathering and preparation of these data, in that this is currently undertaken by existing bodies at Scottish or UK level through NDPBs ^[21] , research institutions and other parts of government, would not require new governance arrangements to be in place.

4.2.7 However at present the European Union, often through agencies such as the European Environment Agency, provides a capacity to quality check and analyse data, and to provide benchmarking information, which adds value and applies pressure on Member States to complete reports and to improve the quality of these reports. This capacity will be lost unless agreement is reached to maintain a relationship with these bodies. Loss of access to comparative information across Europe and loss of access to expertise and databases at European level is a common concern across the areas we have considered.

4.2.8 Future information gathering and presentation at a Scottish or UK level can continue to be performed by the organisations that already perform this function. We do not see a need for a new body or functions to perform this role.

Reporting about the environment: Reporting on the application of environmental laws

4.2.9 Reporting on the actions taken to comply with international treaties and protocols can be part of a country's commitments and where this is needed we assume it will continue, based on current arrangements within the UK. However the requirements in terms of reporting on the application of EU law and its effect are usually more stringent.

4.2.10 We gave some consideration to the role performed by EU, UK and Scots law. Some sources of EU law set out what can or must be done (powers and duties) and others, including some key EU Directives are somewhat more focused on setting out what outcomes are required to be achieved. Reporting on whether legislation is meeting its purpose as well as whether it is in place and being implemented are both important to understanding the state of, and prospects for, the environment. Reporting to the EU often covers not just the transmission of factual data but assessments of the state of implementation, compliance and progress, for example on the progress towards the favourable conservation status of species protected under the EU Habitats Directive.

4.2.11 While it is assumed that reporting requirements contained in EU Directives will become part of retained EU law, they will become ownerless in the sense that reporting will no longer be to the European Commission. It would be useful to clarify the intentions as to the recipients of such reports in the future but we assume that in the first instance such reports as they relate to Scotland would be for Scottish Ministers to publish them and make them available to the Parliament and the public.

4.2.12 Such reports can continue to be prepared as at present by the responsible public body to ensure this information is still publicly available and we do not see a need for any new structure. There may however be a need to clarify the procedures for publishing these reports in the future and a policy commitment to doing so would be reassuring. In the longer term, a review of reporting duties and procedures could help to streamline and clarify their purpose. If duties apply to retained EU law but not, or not equally, to domestic law the situation will become confused over time as legislation is amended.

4.2.13 An important advantage of reporting in a consistent way across the EU is that data are (more likely to be) comparable and we can use systems and databases developed by specialist organisations at the European level. This provides useful comparators to assess our own performance and also wider access to data, knowledge and expertise. It has also created opportunities for Scottish and UK experts to increase their knowledge and influence in the creation of these procedures. While we expect that international collaboration is certain to continue, we consider that options for continued engagement with and, where possible under their constitutions, membership of European expert bodies such as the European Environment Agency (which already includes non- EU members) should be actively pursued. The work of many EU agencies and bodies is recognised world-wide and the benefits of continued participation are not limited to the European continent.

4.3 Scrutiny and Investigation

Scrutiny of reports, independent assessment, examining compliance and progress

4.3.1 The UK is currently subject to EU mechanisms scrutinising the transposition and proper implementation of EU law. When the European Commission receives reports from Member States it has the power, access to expertise and capacity to assess these and ensure that Member States are compliant with requirements, and it can measure progress against objectives and propose actions where needed. This capacity is independent of the Member States and will be lost on leaving the EU. When operating well these processes help to ensure Member States strive to fulfill their commitments but also provide them with valid comparators with other EU nations and validate the actions of those Member States that have a good record of implementation. The loss of this independent scrutiny of performance at a supranational level is one of the issues of highest concern to environmental NGOs in the UK, who have also canvassed public opinion on the issue.

4.3.2 On leaving the EU there will be no comparable body or bodies performing these functions for Scotland. Ministerial and Parliamentary scrutiny and accountability become the 'ceiling' when the EU level is removed. Whether there should be an independent scrutiny function is a policy decision and the arguments for it are essentially about openness and transparency and the right for citizens to be well informed about an issue of high public interest, to be able to access reliable information about the state of their environment and the performance of public bodies in relation to it and, where appropriate, to have their concerns addressed.

4.3.3 Several international treaties have expert bodies tasked to analyse reports and provide comment on compliance and progress in the implementation of State obligations. However, these arrangements vary greatly from one treaty to the other, and generally do not provide significant powers to sanction instances of lack of compliance.

4.3.4 It can be argued that there is a number of bodies in civil society such as academic institutions, non-governmental charitable bodies, professional and expert institutions who will, no matter what else is in place, undertake the scrutiny and analysis of environmental reports and publish their conclusions. Their reports could be used by Parliamentary Committees to challenge or question Ministers and public bodies on performance. In terms of public interest the main advantage of this option is it is inexpensive for the public purse. However it will depend on these non-governmental bodies' decisions on what they think is worth examining. Also, some of these bodies will have policy objectives in terms of influencing public opinion and public policy, and their analyses may be viewed, by some, as part of "an agenda". It is therefore important that this analysis and scrutiny function is undertaken by a fully independent body.

4.3.5 The functions of existing publicly funded bodies such as SEPA, ZWS and SNH could be expanded to give them a larger role in compiling, analysing and presenting reports and assessing performance and compliance. This is again relatively straightforward in building on existing structures but will have a cost in terms of increasing the capacity of these organisations. More significantly however, arguably, these bodies will not be seen as genuinely independent of government given their financial and strategic policy dependence on Ministers and current governance arrangements, if there is no higher oversight body or mechanism. Indeed, they would on occasions have direct regulatory responsibility for the areas on which they are reporting, creating a potential conflict of interest – or an appearance of "marking their own homework", even if their boards serve as mechanisms designed to secure a measure of independence.

4.3.6 There are of course bodies within the public sector that are more clearly genuinely independent of government and have functions to examine and report on compliance and performance. These include roles such as those of the Information Commissioner, the Public Appointments Commissioner, the Children and Young People's Commissioner, the Scottish Human Rights Commission and Audit Scotland ^[22] . While some of these bodies have powers to look across government their functions are designed for quite specific purposes and thus while Audit Scotland has quite wide powers and scope its focus remains on the effective and efficient use of public money rather than on the achievement of policy objectives in themselves. Thus while expanding the role of an existing body might be simpler in some respects it is likely to distort the current balance of duties and require the recruitment of new expertise. Specialist sectoral bodies with duties to provide independent expert assessment in specific policy areas already exist, such as HM Inspectorates, the Health Improvement Service etc.

4.3.7 The remaining option we have considered therefore is the establishment of a new function in a body which might be called the 'office of environmental scrutiny and audit'. This would be an independent public body, able to draw on the expertise and knowledge of other bodies both public and private. It could have a core staff with sufficient expertise to quality control its findings and reports and provide expert judgement, but be able to commission, or access additional information, from other public bodies.

4.3.8 We have not at this stage attempted to work out a detailed scope or remit for such a body, but besides being independent of government it would need powers of scrutiny and investigation and, of course, resources. The advantage of this solution is that it meets the concerns that have been voiced by environmental interest and provides potentially the most comprehensive solution to the likely governance gap in relation to scrutiny. The disadvantages are clearly that it would take time to establish and would be an additional cost with no obvious offsetting savings (other than time currently taken to respond to European Commission reports and requests). ^[23] Were this to be seen as a preferred option a short term solution should also be considered based on existing bodies, perhaps augmented by a fixed term 'expert panel' to consider any reports produced, until any new body was operational.

Initiation of studies and reports

4.3.9 The European Commission has the capacity not just to receive and assess reports but also to initiate ad hoc studies and reports often by commissioning research consultancies or bodies such as the European Environment Agency, the European Topic Centres, or through mechanisms such as Fitness Checks of specific pieces of legislation. These studies may have a pre-investigative fact-finding purpose as a precursor to more explicit investigation. Such a power to commission reports may need to be replicated after Brexit.

4.3.10 The Scottish Government can also of course commission any studies or research it considers necessary to help the effective and efficient implementation of its environmental policies and to assess progress. However if the value of independent scrutiny is accepted it would seem logical that whichever solution is adopted to provide this, there are also appropriate powers to initiate as well as receive reports. This will necessitate powers to request information from other bodies, and if necessary to compel a response. Once more there are resource implications.

4.4 Considering Complaints

4.4.1 EU law currently empowers citizens to report to the European Commission instances of lack of compliance with EU law. The Commission has discretion to act upon the information received, which can ultimately lead to infringement proceedings before the CJEU. After EU withdrawal, this function will no longer exist. This is seen by environmental NGOs and experts (including some regulators) as having been an essential means of ensuring Member States take their duties seriously and acting as an incentive for the Member State authorities to deal with concerns and complaints before they reach the Commission, or before they escalate to more formal stages. The number of cases raised in this manner has been pointed to as an indication of both the value and necessity of such mechanisms. Interestingly however the number of complaints received by the Commission regarding environmental law has been declining in recent years (348 in 2016) which is hopefully an indication that Member States are more familiar with what is required in order to comply or more effective in responding to concerns at a national level.

4.4.2 At a domestic level, citizens have a range of options to pursue concerns, through the complaints procedures on public bodies, through their elected representatives, through the Scottish Public Sector Ombudsman or directly to Parliament through the Petitions procedures. Again, the remit and powers of existing bodies could be reviewed to provide additional capacity to receive and investigate complaints about lack of compliance. The potential weaknesses are the same as for other aspects: perceived lack of independence ( NDPBs); current limitations on scope ( SPSO ^[24] ); or lack of specific expertise and knowledge of environmental issues. One of the concerns identified in our investigations is that any examination of complaints should be able to consider the merits of a case and not just the legality and procedural propriety, which would require an understanding not just of environmental law but of environmental science and policy.

4.4.3 Were a new body to be established to provide scrutiny functions as discussed above, it should also have powers to consider and investigate complaints. The body should be able to exercise discretion in the exercise of this power to ensure the use of its resources is prioritised to the most significant concerns.

4.4.4 It is also worth considering where the European Commission has a role in scrutinising and commenting on some proposals before the Members state acts, for instance in approving lists of sites intended for designation under the EU Habitats Directive or approving proposals to allow developments adversely affecting protected sites containing priority species or habitats for reasons of over-riding public interest. This also extends to approving programmes under EU funding mechanisms such as Structure Funds or the Common Agriculture Policy (Rural Development Programmes). We have assumed these decisions will be devolved matters and there will be no supranational decision-making body. Decisions in these kinds of area will therefore receive less independent scrutiny than at present and can be expected to be a focus of concern and potential challenge. Publication of clear procedures and responsibilities in these areas, possibly including the new body as a statutory consultee in the development of such proposals, will help to ensure transparency and accountability.

4.5 Mechanisms to seek solutions

4.5.1 One of the valuable functions that the European Commission performs at present is to engage with Member States in order to seek resolution of concerns and problems. At one level it seeks to avoid problems arising by preparing guidance based on experience. The Commission also supports reports of best practice and a range of professional and expert bodies and networks that can assist the responsible authorities in each Member State to address challenges and improve implementation. There are several sector specific procedures such as the Common Implementation Strategy for the Water Framework Directive that set standards and expectations and reduce disagreement.

4.5.2 Beyond this, the Commission will normally engage directly in discussion with a Member State where it believes there may be a valid complaint and seek a resolution. This usually begins informally but there is also a series of formal steps (such as the exchanges of letters and investigations, pursuant to the procedure under Article 258 of the Treaty on the Functioning of the European Union) before any complaints are elevated to the level of the CJEU.

4.5.3 Were a new body to be established it would be valuable to give it a role in terms of supporting best practice and in seeking and negotiating solutions to any valid concerns on implementation to avoid undue pressure on courts (assuming legal challenges will be an option – see following sections). In the absence of a new body it would be for the relevant public body under the supervision of Government and/or Parliament to decide if it wished to change its approach in response to complaints and taking account of the risk of subsequent legal challenge if it failed to do so.

4.6 Powers to refer a Public body to a court

4.6.1 At present, once the European Commission has exhausted the procedures to seek an agreed solution over questions of compliance with EU law, it can refer a case to the CJEU for judgement. These judgements are binding on the Member States and if not acted upon financial penalties can be imposed.

4.6.2 The main current mechanism to challenge lack of or poor implementation of EU law in the domestic courts is judicial review, as well exemplified by recent litigation brought by Client Earth concerning air pollution levels in the UK. At present a judicial review can be brought by any legal entity with appropriate standing. There is not a public body charged with referring other public bodies to a court for their failure to properly implement environmental law. The current arrangements for judicial review have been questioned by environmental NGOs on the grounds both of their scope and affordability (and therefore their compliance with the Aarhus Convention); we note this is an area of current disagreement.

4.6.3 The nature of many EU measures is to impose obligations on the government to achieve specific outcomes ( e.g. a target for air or water quality or for recycling rates). Traditionally judicial review proceedings concentrated on process and procedure. In the face of targets, such as those imposed by EU law, after Brexit, UK (and Scottish) courts will be called on to consider substantive outcomes in a way that has not been required in the past and which may present challenges for existing courts and their procedures. If a policy decision were to be made to seek to replicate the role of the CJEU in domestic courts (either on reference from a scrutiny body or by direct application from a citizen or community), there may need to be a parallel review to consider the need to replicate any of the structures and procedures of those courts within the domestic system. This review could consider the merits, or otherwise, of revising judicial review rules, the creation of an Environmental Court ^[25] , or other measures – to ensure both full compliance with the Aarhus Convention and the need, as expressed above, to address outcome, scope and affordability issues.

4.6.4 Were a new body created it could have powers to refer cases to a court as the European Commission does at present; or it could simply report its findings to Parliament. In the latter instance, Parliamentary condemnation and criticism may be regarded as entailing sufficient sanction. Alternatively, third parties may be empowered to initiate legal proceedings based on the findings of the public body. Such third parties would however face challenges in establishing title to sue and cost and difficulty in establishing a substantive remedy that ensures environmental remediation. If new procedures to register and investigate complaints in the environmental sector were introduced, then judicial procedures would have to be co-ordinated with these. At this point we have not considered the implications in detail.

4.7 Powers to order interim measures

4.7.1 Although rarely seen in practice, the CJEU can require interim measures, for example to halt developments, until a final ruling is made. Such powers are replicated in domestic courts, but similarly rarely invoked, not least because the party winning an interim remedy is liable for the losses suffered by the other party if at the full hearing it is determined that the action interdicted was in fact legitimate. Such powers are potentially important and should be retained, and indeed reviewed to ensure an effective means of preventing serious harm.

4.7.2 Some public bodies, such as local authorities, and NDPBs, such as SNH, can impose or seek temporary restrictions on developments and activities, usually until such time as a full assessment is made and / or subject to appeal. While powers could be given to a new body to halt developments, which are of concern, it would perhaps be more consistent if such powers remain with a court. Should a new body be created then it should be clear that it is empowered to seek such action by a court where it believes it to be essential.

4.7.3 In addition, there may be a need for a Court to be empowered, on application, to make an order preventing the Government or a public body from implementing (or not implementing) a decision – if that decision is subject to challenge/review. In practice, most Governments/public bodies voluntarily refrain from implementation when subjected to existing appeal/review decisions, but it is possible that circumstances may arise where a petitioner for review (or the scrutiny body) may wish to seek such an order.

4.8 Powers to require Ministers or a public body to comply and to impose sanctions

4.8.1 The CJEU, as a supranational authority, has powers to order Member States to remedy failures in their application of European environmental law and, if this does not occur, to impose financial penalties. At the end of 2017 the CJEU had 48 cases open where a Member State had failed to comply with a judgment on EU environmental law and where fines could be considered. Four of these were UK cases. These financial penalties to remedy failures in the implementation of environmental law do not exist in UK law, and environmental interests cannot always be directly compensated.

4.8.2 We envisage that political accountability through Parliament or legal accountability through the courts would remain the routes to hold public decisions takers to account. However, Parliament and the Courts need to have appropriate remedies available to perform this well – it may be that, in some circumstances, the remedies available to the courts need to reviewed/widened to address issues of restoration and/or the requirement for Government to take specific (or any) action to deliver an outcome.

4.8.3 Powers already exist to require restoration of environmental damage where specific unlawful activity has taken place (although different regimes contain inconsistent provisions). This does not cover damage caused by a regulator taking an improper decision. Further, such measures apply on a site specific or geographical basis. Failures that result in non-compliance on a wider scale, such as failure to ensure compliance with air quality standards, are harder to remedy. In the latter connection, the requirement to take the necessary action to meet the standard or target may involve government securing a response from many different actors. Where the law specifies remedial steps (such as the action plans under the air quality legislation that has featured in recent cases in England taken by ClientEarth), the initial steps to be ordered by the court are clear, but in other cases it may be difficult for a court to identify specific steps to be taken.

4.8.4 The power of the CJEU to effectively tell national Governments what they must do and ultimately to impose fines has often been presented as an effective deterrent and the key 'threat' that secures compliance at earlier stages even if little used in practice.

4.8.5 There are several issues for potential consideration around the nature of sanctions and remedies, their visible use for appropriate ends and the corporate and personal dimensions of addressing failure and remedy, especially where it involves the use of public funds ^[26] . We are sceptical that a system by which public bodies, including Ministers, can be fined and the money recycled back into another part of the public purse would be seen as a good use of these funds. Nor would removing resources from environmental authorities help to improve their performance. Nevertheless a range of sanctions on public bodies found to have breached environmental duties or legal requirements could be considered. In other jurisdictions sanctions such as loss of public office are used. We believe the key issues concern first the impact value of the sanction, penalty or remedy as a deterrent or "punishment", and secondly, the ability of a devised remedy to address the environmental problem identified as the cause of complaint. The focus therefore should be on requiring the public body affected or the Government to take the remedial action that is needed and the primary issue is therefore environmental, even if there is a necessary public or political consequence in addition.

4.9 Unique components and major flags of concern

4.9.1 In general we found similar governance concerns arise across the topic areas considered. Two categories however are mentioned as potentially requiring an urgent resolution at UK level:

• the need to review the UK's membership of international agreements which have been signed by the EU but not separately by the UK, such as the 2013 Minamata Convention on Mercury.
• the need to agree how existing governance arrangements which operate on the basis of EU quota schemes, such as the EU ETS or the F-gases registry, will operate in future and we encourage the Scottish Government to continue to press the UK Government on this issue.