Environment - guiding principles consultation: statutory guidance – Parliamentary statement and analysis report

Statement required under Section 18 (4) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (“the Continuity Act”)

1. Introduction

The UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 ("the Continuity Act") introduces new duties on Ministers and other public authorities to have due regard to five guiding principles on the environment^[1].

The principles are set out at section 13(1) of the Continuity Act, and are as follows;

• principle that protecting the environment should be integrated into the making of policies;
• precautionary principle as it relates to the environment;
• principle that preventative action should be taken to avert environmental damage;
• principle that environmental damage should as a priority be rectified at source; and
• principle that the polluter should pay.

These duties will ensure that consideration of protection and improvement of our environment is embedded in decision-making across different policies and sectors. In effect, this will keep Scotland aligned with the practice of consideration of environmental principles in policy development in the EU, and will contribute to sustainable development.

Section 17 of the Continuity Act requires Scottish Ministers to publish guidance on the guiding principles and the duties introduced by sections 14 and 15, as read with section 16. The purpose of the statutory guidance is to serve as a practical guide to support public authorities and Ministers to implement their legislative duties. As set out in section 17(3) of the Continuity Act, anyone subject to the duties must have regard to the statutory guidance. The final version of the guidance, once approved by Parliament, will promote a common understanding and interpretation of the guiding principles and how they should be considered and applied when developing future policy and legislation.

Section 18 of the Continuity Act sets out the procedure for the publication of the guidance. One of the requirements is for Scottish Ministers to lay before parliament a Statement in support of the Guidance on the guiding principles on the environment.

Draft statutory guidance was prepared by the Scottish Government following discussions with a range of internal and external stakeholders, and has been subject to public consultation. A final version of the statutory guidance will now be laid before Parliament for final approval, before the new duties are brought into force.

There has been a delay in the commencement of the duties, during which time the Scottish Government has taken steps to prepare for the implementation of the duties. Officials have worked to promote consideration of the principles in policy development across government ahead of the commencement of duties, and have prepared for the coordination of the duties and Strategic Environmental Assessment. We do not believe that there has been any material changes since we consulted on the guidance that would affect our ability to reflect the results of the consultation in the final guidance.

2. The consultation process

Section 18(3) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 requires Scottish Ministers to consult with a Minister of the Crown, each responsible authority who is subject to the duty under section 15 of the Continuity Act and such as other persons as they consider appropriate, before the guidance can be laid before Parliament for approval.

Consultation on the draft statutory guidance on the guiding principles commenced on 26 November 2021 and ran for a period of 12 weeks until 8 February 2022.

The draft statutory guidance was made available online on the Scottish Government consultation website and was supported by a series of three online workshop sessions held during January 2022. The analysis report and full consultation responses have been published and the full detailed report is attached in the Annex.

Details of the consultation was circulated to a wide range of stakeholders, from a range of sectors, including local authorities, civic society organisations, membership organisations, environmental non-government organisations, public bodies, regulators and regulated sectors, as well as the UK Government and the devolved administrations.

3. Response Summary

There was a wide range of views expressed in response to the consultation, with reasonable support for the length and scope of the guidance. The Scottish Government is grateful for all the suggestions for improvements to the draft guidance made by respondents. In responding to the consultation views, the Scottish Government has sought to make the guidance clearer and more accurate, so that it will support duty holders and officials in complying with the new duties. In line with a number of helpful suggestions, we have taken further opportunities to highlight the purpose of the duties, and how the principles and the guidance will support good decision making in the interests of environmental quality and sustainability.

The analysis report describes 27 specific recommendations for improvements to the draft guidance. We have been able to make changes to the text to reflect 21 of these recommendations. Significant changes to the document were made to improve clarity, add value and insight where necessary and are detailed in the analysis report below. The report also details why certain respondent suggestions have not been acted on as they were judged to be out of scope of the document or inconsistent with the statutory provisions. A summary of the changes made to the document have been summarised below;

• The environmental purpose of the guiding principles is reflected more clearly in the revised title for the guidance.
• Greater emphasis on the purpose of 'protecting and improving the environment and contributing to sustainable development' has been added, providing greater clarity on what the guiding principles will bring.
• Further guidance for consultation authorities has been detailed, alongside further information regarding demonstration of compliance and routes of enforcement.
• Information has been provided explaining the relationship of the guiding principles to national planning guidance.
• Further information has been provided on 'weighing up and balancing' environmental policy decisions, acknowledging that the requirement is placed on duty holders to make these detailed decisions and ensure the duties are fully considered, this aims to prevent the process becoming tick box in nature, with decisions being made 'in the round'.
• Two further Information boxes have been added, alongside additional and updated case studies that have been reframed as Illustrative and indicative examples, to enhance understanding and application of the duties. .

4. Conclusion

This guidance has been developed over the last 18 months with thorough formal and informal engagement. Scottish Ministers value the contributions received from across all sectors through formal and informal engagement routes. The Scottish Government has aimed for transparency throughout this process, and we will be publishing consultation responses, where the respondent has given permission, and the analysis report.

Consultation circles has been at the very core of ensuring that this guidance is clear, practical and informative for the end user. Through this collaborative approach, the guidance has been improved and considered by a wide range of interests. We can be confident that the guidance will help to promote better environmental decision making to protect and improve the environment and contribute to sustainable development.