Environmental governance in Scotland after Brexit: report

Annex 1

Scoping Paper from SG, December 2017

Future Options for Environmental Governance in Scotland – Request for advice from the Roundtable on Environment and Climate Change

Background

On leaving the EU, it is the UK Government's intention to no longer be subject to the European Court of Justice ( CJEU). The UK will also no longer be subject to the oversight, monitoring and reporting functions of the European Commission.

In terms of environmental oversight, the functions of these bodies have played an important role in ensuring the effective and consistent implementation of environmental legislation and the maintenance of environmental standards across the EU.

The Scottish Government is committed to maintaining and where appropriate enhancing current environmental standards and protection. Regulatory structures necessary to implement and enforce environmental standards in Scotland are already in place and working well. Requirements are currently being met either by Scottish institutions (for example the Scottish Environment Protection Agency) or through the current UK regulatory regime (for example the Health and Safety Executive). Regardless of the UK's future relationship with Europe, the Scottish Government and its agencies will continue to monitor and enforce environmental legislation, as we currently do under existing domestic powers.

Purpose

It is important that the public can feel confident that environmental legislation will continue to be effectively and consistently implemented and that environmental standards will continue to being upheld. It is also important that the public are confident that they can access accurate information on the level of achievement of such implementation and standards. Such information is also likely to be necessary to demonstrate our contribution to the fulfilment of international obligations through treaties and agreements.

As part of the process of preparing for the UK's possible exit from the EU, the Scottish Government is carefully considering whether any gaps could arise in existing domestic monitoring and enforcement powers that would need to be addressed to ensure Scotland maintains high standards of environmental protection.

Any new arrangements, if needed, should be designed to fit Scottish circumstances and current processes for monitoring, reporting and lines of accountability within Scotland and at the international level. Within Scotland, these should include existing statutory duties and current and potential future levels of parliamentary scrutiny (including the public petitions procedures) and the judicial process (such as access to judicial review) and should take account of existing functions such as those of the Public Sector Ombudsman, Audit Scotland and the Information Commissioner.

Recommendations should take account of both marine and terrestrial environments and any differences in governance regimes between the two.

The ask

The Roundtable are, therefore, asked to consider and provide advice in response to the following questions:

1. What potential gaps may arise, if any, in existing powers to monitor and enforce environmental standards in Scotland, should the UK exit the EU on terms which result in the loss of oversight of the CJEU and the European Commission?
2. Where gaps are identified, what options are there for providing appropriate levels of scrutiny, reporting and accountability in Scotland on environmental matters?

For each option proposed, please identify:

a. The international comparators that have been considered in developing the option;
b. Any adjustments that would be required to the powers and functions of existing bodies to address identified gaps;
c. If any options have been identified that cannot be implemented through changes to the powers and functions of existing bodies and a new body is proposed, please set out clearly its proposed scope and powers; and
d. The way in which arrangements within the option proposed at a Scottish level might relate to the fulfilment of international commitments.

Outputs and timescales

The Round Table are asked to provide a written report on these matters by 17 March. This report will initially be treated as advice to Ministers but the Round Table should expect that it will be published when Ministers have had the opportunity to consider it and agree a way forward.

The Round Table may be asked for oral updates and are welcome to provide interim comments or advice at any stage.

Arrangements

The Round Table may choose to progress this work through establishing a sub-group and may wish to consider co-opting individuals to provide additional expertise. The names of any individuals proposed for co-option should be discussed and agreed with Scottish Government. Ian Jardine will act as the main contact point within Scottish Government and would be happy to attend any meetings of the Round Table (or a subgroup).