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

1. Introduction

1.1 Background

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^[2]. The principles are set out at section 13(1) of the Continuity Act:

• the principle that protecting the environment should be integrated into the making of policies,
• the precautionary principle as it relates to the environment,
• the principle that preventative action should be taken to avert environmental damage,
• the principle that environmental damage should as a priority be rectified at source,
• the 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 practice in the EU where policy development is guided by environmental principles, 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.

Draft statutory guidance was prepared by the Scottish Government, in consultation 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 in line with section 18. The Scottish Government intends to bring the new duties into force once the guidance is published.

1.2 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.

The 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. A summary of these workshop sessions is provided in Annex A.

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 Ministers of the Crown and the devolved administrations.

Prior to this, discussions took place with a wide range of internal and external stakeholders to develop the draft guidance that was presented for consultation.

1.3 Next steps

A copy of the final guidance must be laid before the Scottish Parliament for a minimum of 40 days prior to publication. The guidance must be accompanied by details of the consultation undertaken under section 18(3) of the Continuity Act, a summary of the views expressed in response to the consultation and either;

(i) details of how those views (if any) have been taken into account in preparing the guidance that is laid before the Parliament; or

(ii) a statement that no views were expressed in response to the consultation or that no account has been taken of views expressed.

This consultation summary report provides an overview of the views expressed on the draft guidance and how those views have been taken into account.

Once Parliamentary approval has been received, the final version of the statutory guidance will be prepared for publication.

A further set of commencement regulations are being prepared to commence the relevant provisions of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, which will bring the new duties and statutory guidance into force – to coincide with the publication of the final version of the statutory guidance.

In addition, the Scottish Government will publish a supplementary note to the Strategic Environmental Assessment guidance once the final statutory guidance has been approved – to ensure consistency and accuracy.

1.4 Process for updates and revisions

The Scottish Ministers must, from time to time, review the guidance. Scottish Ministers may also revise the guidance and publish revised guidance.

Furthermore, the Continuity Act provides that the Scottish Ministers may, by regulations, modify section 13 of the Continuity Act to add or remove guiding principles on the environment, or amend any of the guiding principles currently listed at section 13(1). These regulations may remove, amend or further define a guiding principle but only so far as is necessary to reflect the removal of or an amendment to the equivalent principle in accordance with EU law, or to otherwise ensure that the guiding principle reflects the guiding principle as it has effect in EU law from time to time.

In addition, Scottish Ministers must, in preparing the statutory guidance on the guiding principles, have regard to the interpretation of those equivalent principles by the European Court from time to time.

The Scottish Government will monitor developments in EU practice and the effectiveness of the implementation of the new duties in Scotland. We do not anticipate an early revision to the statutory guidance.