Environment - guiding principles: statutory guidance

4. Duties and Application

4.1 The Continuity Act establishes guiding principles on the environment, which are derived from the equivalent principles provided for in Article 11 of Title II and Article 191(2) of The TFEU.^[10] These constitute environmental protection considerations to be factored into policy making processes, including when making proposals for legislation.

4.2 The guiding principles on the environment listed in section 13(1) of the Continuity Act are the:

• 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.

4.3 Section 14(1) of the Continuity Act places a duty on Scottish Ministers to have due regard to the guiding principles on the environment in making policies (including proposals for legislation).

4.4 Section 14(2) of the Continuity Act places a duty on Ministers of the Crown, when acting in relation to Scotland, to have due regard to the guiding principles on the environment in making policies (including proposals for legislation). This duty on Ministers of the Crown is modified by the UK Environment Act 2021. Section 19 of that Act states that the policy statement on environmental principles that the UK Government will issue under that Act applies to policy considerations by Ministers of the Crown relating to Scotland that relate to reserved matters. It further states that section 14(2) of the Continuity Act does not apply to Ministers of the Crown in relation to policies extending to Scotland so far as relating to reserved matters. These provisions restrict the effect of section 14(2) of the Continuity Act to situations where Ministers of the Crown are considering decisions for Scotland that relate to areas of policy that do not relate to reserved matters. As, in general, policy making in Scotland that does not relate to reserved matters is for Scottish Ministers, there can be expected to be relatively few occasions on which the duty in the Continuity Act and this guidance is relevant to decisions by UK Ministers. Where the duties on Ministers are discussed in this guidance it is important to bear in mind the scope of the application to UK Ministers.

4.5 Section 14(3) of the Continuity Act restricts the application of the duties on Ministers from applying to any policy or proposal so far as it relates to national defence or civil emergency, or to finance or budgets. The exclusion of finance or budgets applies to processes that are purely financial, such as the consideration of the annual budget cycle. This exclusion does not prevent the duties applying to the consideration of policies or programmes that involve expenditure or costs on other parties.

4.6 In general, individual regulatory and operational decisions under an established policy will not need separate consideration of the principles. In some instances, there will be Ministerial decisions with potential significant impacts on, or risk to, the environment which should be seen as making or amending existing policy, and thus should be subject to the duties.

Figure 1: Indicative example of where duties lie in decision making hierarchy

Indicative Example: A new strategy for the development of a sector's infrastructure would be subject to SEA (see paragraph 4.9) and to the principles duty. However, day to day decisions taken under that strategy would and should not be subject to the duty, as any such decisions would be in line with the Strategy developed with an SEA. Major individual infrastructure project decisions with significant environmental effect or risks would potentially be seen as separate policy decisions in their own right (and as likely to cause significant environmental impact), and thus would be subject to the duty, and may also be subject to SEA.

Figure 2: Section 14 of the Continuity Act – Ministers' duties to have due regard to the guiding principles

Section 14 Ministers' duties to have due regard to the guiding principles

(1) The Scottish Ministers must, in making policies (including proposals for legislation), have due regard to the guiding principles on the environment.

(2) Ministers of the Crown must, in making policies (including proposals for legislation) so far as extending to Scotland, have due regard to the guiding principles on the environment. [see para 4.4 for a discussion of the modifications to this provision made by the UK Environment Act 2021.]

(3) The duties in subsections (1) and (2) do not apply in relation to any policy or proposal so far as relating to—

(a) national defence or civil emergency,

(b) finance or budgets.

(4) In this section, "legislation" includes—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) subordinate legislation.

4.7 Section 15(1) of the Continuity Act places a duty on certain public authorities (any "responsible authority") to have due regard to the guiding principles on the environment when doing anything in respect of which the duty under section 1 of the Environmental Assessment (Scotland) Act 2005 ("the 2005 Act") applies (requirement for environmental assessment). Section 15(2) of the Continuity Act states that "responsible authority" is to be construed in accordance with section 2 of the 2005 Act (but does not include the Scottish Ministers or a Minister of the Crown who are instead subject to the duties in section 14).

4.8 The duties which apply to Ministers under section 14 are more general and apply to all policy making, not only matters requiring environmental assessment within the meaning of section 1 of the 2005 Act.

4.9 Strategic Environmental Assessment (SEA) is a process for systematically considering the likely significant environmental effects of a plan, programme or strategy and to identify opportunities to avoid or reduce any adverse effects and enhance positive effects. The SEA process will be the principle route for consideration of the guiding principles in line with the duties. This will ensure that the guiding principles are considered alongside other environmental considerations, without significant additional administrative burden. Given the nature of the duties on responsible authorities in section 15 of the Continuity Act, this guidance has at times discussed separately the obligation to complete an environmental assessment, which forms a part of the overall SEA process.

4.10 Annex A contains material concerning the principles duties in sections 14 and 15 of the Continuity Act and the SEA process that both forms a part of this guidance and will be added to existing Scottish Government guidance on the SEA process^[11].

Figure 3: Section 15 of Continuity Act – Other authorities' duty to have due regard to the guiding principlesSection 15 Other authorities' duty to have due regard to the guiding principles

(1) A responsible authority must, in doing anything in respect of which the duty under section 1 of the Environmental Assessment (Scotland) Act 2005 ("the 2005 Act") applies (requirement for environmental assessment), have due regard to the guiding principles on the environment.

(2) In subsection (1), "responsible authority" is to be construed in accordance with section 2 of the 2005 Act but does not include the Scottish Ministers or a Minister of the Crown.

4.11 Section 16(1) requires Ministers and responsible authorities to exercise their duties to have due regard to the guiding principles on the environment under sections 14 and 15 with a view to protecting and improving the environment, and contributing to sustainable development.

Figure 4: Section 16(2) of Continuity Act – Definition of the environment

Definition of the environment

Section 16(2) defines "the environment" as the following;

• means all, or any, of the air, water and land (including the earth's crust), and "air" includes the air within buildings and the air within other natural or man-made structures above or below ground, and
• includes wild animal and plant life and the habitats of wild animal and plant life.
• In subsection (2)(b), "animal and plant life" includes any living organisms.

4.12 In establishing the guiding principles on the environment in Scots law and creating duties to have due regard to them, we have been mindful of the significant range of duties that already apply to government and other public authorities, and the way in which those duties are expressed.

4.13 The duties in sections 14 and 15 of the Continuity Act, to have due regard to the guiding principles on the environment, reflect the importance of those principles in all policy making, but also that in any particular context consideration of the guiding principles needs to be balanced with other duties and considerations, including the need to achieve the intended goals or outcomes of the particular policy.