Today MSPs at Holyrood voted to pass the EU Continuity Bill, setting out how Scotland will protect its natural environment from 1 January 2021, when the crucial environmental safeguards that come with EU membership cease to apply.
The Fight for Scotland’s Nature campaign has called since 2018 for strong new laws to protect and restore our amazing nature, and many thousands of people have added their voices to the campaign.
We’re really pleased that the bill embeds key EU environment principles in Scots law. These have underpinned Scotland’s ambitious climate change targets, and action against fracking and genetically modified crops. It’s a great achievement that they’ll continue to guide environmental policy.
The bill also sets up a new Scottish environment watchdog, Environmental Standards Scotland. Pressure from members of the public has helped give the watchdog greater independence, strengthening its ability to hold government to account.
But we’re disappointed that despite thousands of us writing to our MSPs on the issue, the new watchdog won’t be able to take enforcement action when people raise complaints about individual cases of harm to their environment. This deprives Scotland’s people of a vital means of seeking justice on environmental matters. And it means that determined campaigning by people and communities will be more important than ever in defending Scotland’s unique nature.
Scottish Environment LINK will continue to raise this issue with the Scottish government, pushing for the watchdog to have the power to act on citizens’ concerns.
Next, Fight for Scotland’s Nature is calling on the Scottish government to set clear, legally binding targets to halt and reverse the loss of our species and habitats. Look out for more on that in the new year.
A huge thank you goes to everyone who has supported the campaign so far.
Scottish Environment LINK, a coalition of Scotland’s leading environmental charities, has warned Scotland’s natural environment and wildlife remain at grave risk unless major gaps in new Scottish nature laws are closed before Brexit.
The warning comes just days ahead of a crunch vote on the EU Continuity Bill in the Scottish Parliament next week (22 December), which embeds a new set of legislation to replace those Scotland will lose once it leaves the EU on 1 January 2021.
The coalition is calling on the Scottish government to commit to strong laws that don’t water down the very EU legislations that have protected Scotland’s nature for decades. It has also stressed that failure to do so would undo decades of progress that could seriously set back Scotland’s environment and economy as the nation battles with the impact of climate change, Brexit and the coronavirus – bringing home the very real dangers Scotland is facing.
Scottish Environment LINK went on to raise concerns about plans for the new Scottish environment watchdog, Environmental Standards Scotland, also created under the Scottish government’s EU Continuity Bill. Unlike the EU watchdog, the proposed environment watchdog for Scotland will not be fully independent of government, risking its ability to hold ministers to account.
Furthermore, unlike the rights enjoyed as EU citizens, the new watchdog will not have the power to enforce action on specific cases relating to people’s concerns about their local environment in Scotland. An example of this includes the case brought forward by marine biologist, David Ainsley who in 2007 won a landmark ruling at European Court of Justice to halt the damaging practice of scallop dredging in the Firth of Lorn. The coalition points out that the new environment watchdog will be excluded from taking enforcement action on cases such as these whether the complaint is made by an individual, a charity, a community group or indeed whoever.
It has stressed that the watchdog will in effect be ‘toothless’ unless MSPs step up to the plate and use a crucial vote next week to give it the power to protect Scotland’s people and nature.
Marine biologist David Ainsley, who was part of the group which won the case at an EU level to protect the Firth of Lorn from scallop dredging, said:
Unless MSPs vote to amend the EU Continuity Bill to give the new watchdog powers and duties to address citizens’ complaints, it will be nigh on impossible to persuade a future government to enforce legislation protecting Scotland’s wildlife.
In 2007, after a long campaign to stop the damaging practice of scallop dredging, we won our case at an EU level and dredging in the Firth of Lorn Special Area of Conservation (SAC) was ruled as illegal. It’s amazing the difference this had made. Wildlife in and around the Firth of Lorn has recovered and is thriving. A healthier natural environment has also helped to support local businesses and create more jobs than when dredging was allowed. The recovery came about because as EU citizens we could raise concerns about damaging environmental practices and have an independent watchdog investigate it and enforce action against it.
As the Scottish government’s EU Continuity Bill stands, this will no longer be possible. This is tragic and comes at a time when one in nine species in Scotland is at risk of extinction. This in itself should be a ‘wake up call’ for the Scottish government to do more and not less for the health and wellbeing of its people and natural environment.
Vhairi Tollan, Advocacy Manager, Scottish Environment LINK said:
Without enforcement powers for individual cases, when citizens make official complaints about harm to a local coastline or greenspace, for example, the new watchdog won’t be able to do anything about it. This will deprive Scotland’s people of an important means of seeking justice on environmental matters – and a right we’ve enjoyed for decades as members of the European Union.
The Scottish government has promised to maintain or exceed environmental standards after Brexit – but by leaving this hole in the new Scottish system, it manifestly fails to do so. We urge MSPs to give the new watchdog the power it needs when they vote on 22 December, just nine days before EU protections cease to apply in Scotland.
We also urge the people of Scotland to contact their MSPs ahead of next week’s vote to ensure Scotland’s environment and its people are not let down at this critical time in our history.”
Scottish Environment LINK, a coalition of Scotland’s leading environmental charities, has today welcomed initial improvements to the Scottish Government’s EU Continuity Bill, which delivers crucial post-Brexit environmental protections, including an environment watchdog.
From 1 January 2021, the EU’s world-renowned environmental protections will no longer apply to Scotland. The Scottish Government’s EU Continuity Bill seeks to establish a new environment watchdog to protect Scotland’s nature going forward, but campaigners have warned that major omissions mean the Bill must urgently be strengthened.
MSPs voted for several key amendments to the Bill this week (Tuesday 24 November and Wednesday 25 November) to increase the independence of Scotland’s new environment watchdog, Environmental Standards Scotland (ESS). The legislation now requires members of the watchdog’s board to have environmental expertise and Ministers have also agreed to discuss further changes that ensure that ESS has sufficient funding, and that this sufficiency is subject to parliamentary scrutiny ahead of the final vote on legislation in December. These changes will increase the watchdog’s independence from Scottish Ministers, heeding the concerns raised by thousands of supporters of the Fight for Scotland’s Nature campaign.
MSPs also secured commitments from the Scottish Government to discuss and seek to agree new measures in December to ensure Scotland’s process of maintaining alignment with the EU (the so-called ‘keeping pace’ power) secures high environmental standards. The Fight for Scotland’s Nature campaign has said that these new measures will be vital for ensuring that Scotland can be a progressive leader on the environment in the future and that there will be no backsliding in protections for nature.
However, Scottish Environment LINK has expressed concern that vital amendments to empower the watchdog to take enforcement action on individual complaints about environmental damage raised by citizens have not received government support. Without these changes to the draft legislation, people in Scotland are at risk of losing access to environmental justice once the UK leaves the EU at the end of 2020.
Vhairi Tollan, Advocacy Manager at Scottish Environment LINK, said:
As part of our EU membership, Scottish citizens have enjoyed rights to raise complaints about cases of environmental damage and have the EU watchdog investigate and take steps to enforce changes. However, similar powers are not included in the Scottish Government’s proposal for a new Scottish watchdog. Environmental Standards Scotland would be unable to take enforcement action on individual complaints, raising concern that we will lose this crucial means of accessing environmental justice at the end of 2020. At a time when 1 in 9 Scottish species is at risk of extinction in Scotland, key changes to the Continuity Bill must be made ahead of MSPs’ final vote in December to ensure Scotland’s new watchdog is a credible and robust enforcer of environmental protections.
Environmental Standards Scotland should act on local concerns, argues Miriam Ross, coordinator of the Fight for Scotland’s Nature campaign.
When a local beauty spot – a beach, a wood, a hillside – comes under threat, local people are very often its most passionate defenders. Meetings are held, alliances formed, knowledge rapidly acquired and shared, and politicians lobbied in a quest to save a much-loved piece of nature. Instinctively, we know we have both the right to enjoy a healthy environment where we live, and the responsibility to ensure it remains so. For many, the sense of connection to local nature has increased during the pandemic.
It seems extraordinary, therefore, to propose that a new institution being set up to defend Scotland’s natural environment will not be able to act in response to people’s efforts to protect a specific place or environment from harm.
But the Scottish government has done just that, in a bill currently before parliament.
The bill is the EU Continuity Bill, and the institution Environmental Standards Scotland, the new environment watchdog proposed in the bill to replace the crucial role the EU has played in monitoring and enforcing environmental standards.
There is much to welcome in the bill, including the incorporation of key European environmental legal principles into Scots law. And the creation of a new watchdog to fill the gap that would otherwise be left after Brexit is a very positive step, indicating an understanding that governments must be held to account on their compliance with environmental law.
But the new watchdog, as set out in the bill, contains a major omission which would leave Scotland’s people without real recourse to justice on the environment. The new body won’t be able to take action in response to complaints from people who believe that their local environment is at risk due to the failure of the responsible authorities to uphold the law designed to protect it.
In other words, if a local person, a community group or a charity makes a complaint about a decision to pollute a beach, chop down a wood or bulldoze a hillside, Environmental Standards Scotland won’t be able to do anything about it.
Complaints such as these make up the bulk of the European Commission’s environmental work, and so their exclusion belies the Scottish government’s stated intention to ‘replace the system of environmental governance provided by the institutions of the European Union’.
The European system of addressing individual complaints has real value, not least because judgements have often set legal precedents, helping to protect places far beyond the one referred to in the original complaint. And, because the Commission has the power to enforce its judgements, it holds weight with governments: often just the suggestion of a complaint to Europe is enough to persuade the relevant public authority to up its game.
The insufficient degree of independence the new Scottish watchdog is also concerning. The Scottish government is proposing that its own ministers should appoint the senior officials at Environmental Standards Scotland, with little oversight from parliament, calling into question how effectively it will hold that same government to account.
For people in Scotland, the ability to complain to a watchdog that can actually enforce the law becomes even more apparent when you consider the lack of affordable alternatives. The cost of seeking a judicial review is beyond the reach of most citizens, and judicial review can only look at procedural errors rather than examining the merits of the case.
The Scottish parliament is scrutinising the EU Continuity Bill over the next few weeks. The strength or weakness of the new institution it creates is likely to have profound implications far into the future. MSPs have the opportunity to amend the bill to establish a watchdog with the power and independence to defend Scotland’s people and nature, at a time when the challenges we face have never been greater. Now is the time to get it right.
The first test of this commitment is facing the Scottish Parliament. In less than three months, Scotland, and the rest of the UK, will lose the oversight of the European Commission and the European Court of Justice. These institutions have played an invaluable role in ensuring nature is strongly protected, by giving a voice to the public on environmental matters and holding governments to account. It is vital that Scots do not lose the ability to speak up and request that action is taken to protect their environment.
The Continuity Bill, currently going through the Scottish Parliament, is designed to ensure laws in Scotland continue without any interruption as we leave the EU. As part of the Bill, the Scottish Parliament must replace functions of these EU institutions by creating an independent watchdog to oversee and enforce the implementation of environmental laws. This will ensure that the places for nature, species and habitats we love best will continue to be strongly protected in Scotland.
Ensure that environmental protections are being implemented and enforced correctly
Receive public complaints about failures to apply environmental law
Investigate potential breaches of environment law, and refer serious cases to the courts
While the Continuity Bill does include provision for a watchdog, it doesn’t go far enough. It needs to be made more independent of government and it needs stronger teeth so that it can take action when environment laws are not being applied properly.
The ability to take action on specific complaints is a key strength of the EU system and has allowed people to challenge decisions affecting their environment, on land and at sea. But it’s missing from the proposed Scottish watchdog. The bill must be amended to include this power – and to make the watchdog truly independent of government.
Furthermore, the watchdog is not guaranteed adequate or ringfenced funding meaning that they might not be able to properly investigate potential breaches of environmental law, ensuring enforcement and applying sanctions in cases of noncompliance. It also means the watchdog is left vulnerable to future public sector cuts.
The Scottish Government has declared itself to be a global leader on the environment. In order to truly demonstrate leadership, it must not take backward steps upon leaving the EU. The Continuity Bill must be more than just a symbolic gesture; it must maintain the protections already in place and leave the door wide open to strengthening our nature laws so that we can deliver transformative change for nature, climate and people.
Scottish Environment LINK, a coalition of Scotland’s leading environment charities, has warned the UK government that its plan to create a UK internal market could seriously harm Scotland’s natural environment by dragging down standards.
The plan unveiled by the UK government last month appears to be aimed at both removing regulation and forcing all four nations of the UK to adopt the same standards irrespective of each nation’s environmental context or needs, say members of Scottish Environment LINK. They believe the plan could create a race to the bottom, forcing Scotland to revoke or water down legislation protecting its environment to mirror any lowering of standards in the rest of the UK.
Internationally prized and iconic wildlife including otters, bottlenose dolphins, puffins, bats, Golden eagles and osprey could be at risk along with Scotland’s drinking water, beaches and food standards. At present 80 percent of Scotland’s environmental protections come from EU membership, but the UK will no longer be bound by EU law after 31 December 2020 when the Brexit transition period ends. In response, Scottish Environment LINK launched a campaign, Fight for Scotland’s Nature to help prevent environmental protections for Scotland’s nature from being weakened post-Brexit.
The Scottish government has since committed to ‘maintain or exceed’ current EU environment standards, and published an EU Continuity Bill in June setting out how it plans to replace EU protections.
Scottish Environment LINK is urging the Scottish Parliament to strengthen the Continuity Bill to give greater powers and independence to Scotland’s new environment watchdog, and to enshrine in law the commitment to maintain or exceed standards, requiring Scottish Ministers to keep pace with developments in EU environmental law.
But the charities fear that the UK government’s internal market proposals could instead force Scotland to follow the lowest common denominator, especially where countries negotiating bilateral trade deals with the UK demand lower standards, seriously undermining efforts to combat climate change and biodiversity decline.
Charles Dundas, chair of Scottish Environment LINK, said today:
Scotland’s world-renowned natural environment is central to all our lives, and we must not allow arrangements for a UK internal market to put it in jeopardy by dragging standards down. At the same time, the Scottish government’s commitment to maintain or exceed present EU standards should be enshrined in law and is something we have been pushing for.
High standards of environmental protection are essential if we are to achieve a green recovery from the coronavirus pandemic and tackle the joint crises of alarming nature loss and climate breakdown, the greatest challenges of our time.”
Notes to Editors
Scottish Environment LINK is the forum for Scotland’s voluntary environment community, with 39 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society.
Environmental Standards Scotland: a Scottish Environment LINK perspective
Since the EU referendum, Scottish Environment LINK has been calling for a new environmental ‘watchdog’ to be established in Scotland to replace the oversight and enforcement functions previously carried out by the EU institutions. The Scottish Government’s new ‘Continuity Bill’, introduced to Parliament last month, proposes just such a body – to be called Environmental Standards Scotland. This is a very welcome step forward.
But how fully does the proposed watchdog replace those EU functions? Will it have the independence, powers and resources required to hold government to account on environmental matters? In this ‘long read’, Lloyd Austin examines these questions and suggests how the bill might be improved by Parliament to ensure Environmental Standards Scotland is an effective watchdog.
Nature has become increasingly important to many people during the covid-19 pandemic. But long before the virus struck, we were facing two linked existential crises – climate change and biodiversity loss. These human-induced emergencies, both requiring urgent action, would be difficult to address even without the constitutional turmoil of Brexit. With 80% of Scotland’s environment law derived from EU law, the UK’s departure from the EU makes these crises even more challenging.
Scottish Environment LINK and its members have engaged with the environmental implications of Brexit since it was announced, seeking to influence the debate in Scotland and engaging in discussions at both UK and EU levels along with partners in Greener UK and the European Environmental Bureau.
Governance gap
A major concern identified by environmental NGOs, and acknowledged by governments across the UK, is the environmental ‘governance gap’ resulting from the UK’s departure from the EU. Regardless of other arguments for or against Brexit, the role of the EU treaties and institutions in protecting the environment is widely recognised.
Court of Justice of the EU. The institutions of the European Union have played a positive role in protecting the environment. Image by Marc Schneider from Pixabay
Our Fight for Scotland’s Nature campaign has been a public expression of this work, calling for legislation to:
Embed key EU environmental principles in Scots law;
Create an independent and well–resourced watchdog to enforce environmental protections; and
Set clear targets for environmental protection alongside adequate financial resources.
The Continuity Bill
Last month, LINK therefore warmly welcomed the introduction of the ‘UK Withdrawal from the European Union (Continuity) (Scotland) Bill’ to Parliament. This bill, which will be considered in detail by MSPs over the late summer and autumn, purports to address the first two of the above issues. On its publication, Michael Russell MSP, the Scottish Government’s ‘Brexit’ Secretary, said:
The Bill’s proposals on environmental principles and governance will also help us to maintain high standards, in line with the EU, in Scotland. … It proposes the creation of a new governance body – Environmental Standards Scotland – which will be able to investigate whether public authorities are failing to comply with environmental law, to take steps to ensure public authorities remedy any failure to comply with environmental law, as well as to investigate the effectiveness and delivery of environmental law by public authorities.
The bill is, therefore, a very welcome and big step forward. It parallels the proposed Environment Bill, currently proceeding through the UK Parliament, which will cover England and (subject to agreement by the devolved Executive) Northern Ireland. Similar measures are under consideration in Wales, although no detailed legislation has yet emerged.
The bill includes three main proposals: a so-called ‘keeping pace’ power, the incorporation of the EU environmental principles into Scots law and the creation of a new governance body, to be called ‘Environmental Standards Scotland’ (ESS). A previous blog provided an overview of the bill, and some immediate thoughts on the proposals for ESS. This more in-depth analysis tests the provisions against the need for new governance, as identified by LINK, including in research commissioned from Professor Campbell Gemmell. Future blogs will look at issues such as the ‘keeping pace’ powers.
When the Scottish Government announced its plan to set up a new watchdog, LINK’s Chair, Charles Dundas, welcomed the proposal but added, summarising the nature of an effective watchdog:
We need a watchdog with teeth: real independence, the power to enforce protections, and the people, expertise and funds to do the job.
These three themes of independence, powers and resources will be used to examine the detail of the proposals in the bill.
Independent, unless it isn’t
In order to ‘replace’ the oversight functions of the European Commission and Court, LINK has consistently argued that any new watchdog(s) must be “truly independent of government” and that, for Scotland, this means ‘it will have to be appointed by and accountable to the Scottish Parliament.’ This view was supported by Professor Gemmell’s research which, based on international examples of environmental governance arrangements, proposed an independent Parliamentary Commissioner for the Environment. Our colleagues at Greener UK have sought similar independence for the UK Government’s proposed watchdog, which will deal with England, probably Northern Ireland, and any reserved matters.
The Fight for Scotland’s Nature campaign has been pushing for an independent, well-resourced watchdog.
However, despite these proposals, neither the UK Government’s proposed “Office for Environmental Protection” (OEP) or the Scottish Government’s proposed ESS are truly independent. When the UK Government’s proposals for the OEP were first published, the Scottish Government was understood to be sceptical at the time– suggesting that a ‘non-departmental public body’ (NDPB) model provided insufficient independence. Yet, this is exactly what is now proposed for the ESS. Both governments have sought to include some reassurances about the independence of what are, otherwise, standard NDPBs – with members appointed by the relevant Ministers and with their budgets decided by those Ministers.
In Scotland, one supposed reassurance of independence provided in the legislation is that ‘Environmental Standards Scotland is not subject to the direction or control of any member of the Scottish Government.’ Yet, this provision is accompanied by an exception that it ‘is subject to any contrary provision in this or any other enactment.’ In other words, it is independent unless it isn’t! This exception should either be deleted or circumstances for its use clearly defined.
Rubber stamping?
The other alleged reassurance is that appointments to the board of ESS must be approved by the Scottish Parliament. This is welcome, but is at risk of being, or becoming, a ‘rubber stamping’ exercise. The bill itself should proscribe greater Parliamentary involvement in the selection process. This might, for instance, include provision for the relevant committee to specify role profiles for board members, or areas of expertise that must be represented. A committee might also nominate ‘rapporteurs’ to be involved in the recruitment/selection process.
LINK is calling for greater parliamentary involvement in the selection process for the ESS board. Image by Waldo Miguez from Pixabay
Future budgets for ESS will significantly define its future effectiveness. Yet, this is purely a matter for Ministers, as part of the normal, annual budget process for the Scottish Government and its agencies. This should be improved to ensure multi-annual, ring-fenced funding that cannot be ‘threatened’ by Ministers. In relation to the OEP, funding was recognised as crucial part of its independence, and UK Ministers have now made additional commitments, such as in their response to pre-legislative scrutiny of Environment Bill. Similar commitments are needed in Scotland.
The UK Environment Bill also requires the OEP to include, in its annual reports, an assessment of whether it has been provided ‘sufficient funds to carry out its purposes’. This allows more transparent scrutiny of ministerial decisions on funding, and such a provision should be added to the Scottish bill.
To address these issues and ensure that ESS is genuinely as independent as possible, the bill should be amended, or Ministers asked, to:
Delete the proposed exception to the prohibition on control or direction (Schedule 2, para 1(2)).
Enhance parliamentary oversight of appointments.
Consider multi-annual, ring-fenced funding arrangements with parliamentary scrutiny separate from the annual budget for the government.
Add a requirement for ESS to report on the adequacy of its funding.
International obligations
The general functions of the ESS are wide-ranging and, in principle, very welcome. Its high-level functions are:
to monitor compliance with environmental law,
to investigate if a public authority is failing (or has failed) to comply with environmental law, and
to take the steps to secure compliance with environmental law.
To carry out these broad functions the body then has a range of general and specific powers. The general powers are very wide-ranging and include matters such as ‘carry out or commission research’, ‘seek advice’, ‘review data’ and ‘make recommendations’. It is particularly welcome that they also include:
keep under review the implementation of international obligations related to the environment,
have regard to developments in international environmental law, and
collaborate with other environmental governance body in the UK, including the OEP.
These general powers are all welcome and will, if adequately resourced, make a significant contribution to replacing some roles of the EU institutions. However, if the Scottish Government is serious about ‘keeping pace’ with, and maintaining or exceeding EU standards, the power on developments in international law should specifically require regular reports on, and recommendations in relation to, how this might be achieved. In addition, reviewing ‘international obligations’ will also need to include work and advice on targets (e.g. the Aichi targets and their successors) as well as advice and recommendations to Scottish Ministers on how such targets should be set in Scotland.
These general powers are also accompanied by a variety of specific powers in relation to its investigation and enforcement functions, such as on information collection, improvement, compliance, and the ability to seek Judicial Review. These are also welcome – but, as the bill is currently drafted, they are unnecessarily restricted and will limit their effectiveness.
No individual decisions
First, ESS cannot use its powers related to ‘improvement’ and ‘compliance’ in relation to ‘any decision taken by a public authority in the exercise of its regulatory functions in relation to a particular person or case’. This is an extraordinary limitation of its role, with individual decisions, including casework, excluded from its remit. The Scottish Government attempts to justify this exclusion with a suggestion that that the ESS should focus on strategic issues, and not be overwhelmed by trivial matters. This argument neglects to take account of two factors. First, under current EU arrangements, by failures with individual decisions – and ESS’ internal operating processes could determine that a case, or cases, that raise issues of strategic importance are prioritised or accorded enhanced action. Secondly, these internal processes could also include a system to ensure that genuinely vexatious or trivial cases are not entertained.
It has also been suggested that this provision is because of a wish to ensure that the ESS does not, in effect, become an additional layer of appeal. However, this argument is disingenuous – as there is no doubt that the functions of the European Commission (EC) and the Court of Justice of the EU (CJEU) are (or were), in effect, an additional layer of appeal! If this argument is deployed, it undermines the Scottish Government’s claim to be replacing the functions of the EC/CJEU.
Indeed, casework – arising from complaints submitted by citizens, communities, and NGOs, made up most of the European Commission’s work (although the Commission was selective in choosing cases of strategic importance to pursue through all the stages, or to refer to the CJEU). To anyone from Scotland submitting such complaints, this extra European ‘layer of appeal’ is (or was) of great importance – because opportunities to appeal domestically are limited by poor provisions in relation to access to justice (e.g. Judicial Review in the UK is either prohibitively expensive or inappropriate because of its inability to address the ‘merits’ of the case).
The new watchdog proposed in the Continuity Bill will not be able to investigate complaints about specific, local breaches of environmental standards.
Finally, it should be noted that the proposed OEP will not be so constrained – and, indeed, has a specific ‘complaints’ provision (s.29 of Environment Bill). In Scotland, the ESS’ strategy has to address how it will ‘provide for persons (including members of the public, non-government organisations and other bodies) to make representations to it’ about issues of (alleged) failures to comply with environmental law. However, this seems less clear and specific than the proposed OEP complaints procedure – and there is no duty to investigate such representations (just to indicate how they will be ‘handled’).
Defining environmental law
The second serious limitation on the powers of ESS arises from the definition of ‘environmental law’, which is the legal term used to define all its enforcement powers (although not its research, monitoring and reporting functions). The definition in the Scottish bill is identical to that used in the UK bill and raises the same concerns – the ESS’ general powers in relation to international law are considerably better (see above) but the definition issue is the same.
The Scottish Government has a very welcome policy ‘to maintain or exceed EU standards’ and retain alignment with European and wider international environment law – a commitment the UK Government is unwilling to make (due to its underlying desire to ‘take back control’). Nevertheless, it is unclear whether ‘environmental law’, in this bill, includes such EU/international law that is not (or will not be) binding in domestic law. If not, ESS will be unable to use its specific enforcement powers to take improvement action against the Scottish Government if it fails to live up to its own aspirations. This issue should be clarified, or the bill amended to ensure that it is explicitly within the powers of ESS.
People, expertise, and funds
Any effective watchdog needs the resources to do its job. These include people, expertise, and funds. The bill itself makes no provision, positive or negative, in relation to resources; these will be a matter for the Scottish Government’s annual budget process as well as the decisions of the new body itself. However, the financial memorandum suggests the new body would require ‘funding of around £1.5 million a year, based on the budgets of similar bodies, such as the Office of the Informational (sic) Commissioner and the Scottish Fiscal Commission’. It further suggests that ‘a staff complement of around 20 is envisioned for the new body’.
This may or may not be sufficient funding to enable ESS to do its work – whether or not it is will depend on the number of complaints it receives and/or the number of issues of (alleged) non-compliance it investigates as well as how many of these prove to require enforcement action. At this stage, LINK will press Ministers to provide reassurance that, as these factors become known, resources are made available as required. This process will made more open and transparent if ESS is (as with the OEP) required to report on such matters and the sufficiency of its funding.
Interim arrangements
The UK is expected to leave the EU completely on 31 December 2020, at the end of the current transition period. Ideally, therefore, it would be best if the replacement governance mechanisms were in place and operational from 1 January 2021. While this bill may have been passed by that date, it is unlikely that implementation will be complete – including the establishment and operation of ESS.
There is, therefore, a need for some form of interim arrangements and it is welcome that the bill makes some provision for this. The bill refers to a ‘non-statutory Environmental Standards body’ and permits the members of such a body to become the initial members of ESS. It can thus be assumed that Scottish Ministers will establish this non-statutory body and enable it to begin appointing staff, developing strategy and procedures etc; indeed, recruitment for a chair and board members is now underway.
Such an interim, transitional arrangement is welcome – to limit any ‘governance gap’. However, it is also important (especially as the interim board will become the first formal board) that appointments are carried out adopting as much transparency and parliamentary engagement (see above) as possible. Ministers should also confirm that the interim body will be able to accept and investigate complaints from the public – and that, although formal enforcement action may not be possible until the body is legally vested, that such action will still be valid for issues arising during the interim period.
Delivering a genuine replacement
The Scottish Government is committed ‘to maintain or exceed EU environmental standards.’ Such standards should include the establishment and operation of appropriate governance mechanisms. It is therefore welcome that a new governance body, Environmental Standards Scotland, is being proposed. Cabinet Secretary, Michael Russell MSP, has said that this is being ‘established to replace the system of environmental governance provided by the institutions of the European Union which will be lost at the end of the transition’. It is notable that Mr Russell uses the word ‘replace’, suggesting that ESS should be able to carry out the full range of governance functions of the EU institutions – and to be able to do so as independently as those can at present. To fulfil this pledge and deliver a genuine replacement, the bill should be improved to address issues of independence and breadth of powers. Ministers should also provide reassurance regarding the adequacy of funding – and require ESS to report on its sufficiency.
Lloyd Austin is an honorary fellow of Scottish Environment LINK, and convenes its governance group.
If you believe your local environment is being harmed due to the failure of a public body to meet environmental standards, you can raise an official complaint and request an investigation. Well, you can until the end of December 2020, that is, when the Brexit transition period ends.
A major benefit of EU membership is that it allows individuals and organisations to complain to the European Commission, bringing specific, local cases of environmental damage to light. Often, the judgements in such cases have set important precedents in environmental law.
Scotland’s environment charities, alarmed by the risk posed to our unique wildlife and landscapes by the loss of EU protections, have been calling since 2018 for new Scottish laws to maintain and build upon these crucial safeguards. The Fight for Scotland’s Nature campaign has gathered support from almost one hundred organisations across Scottish society, and from more than 22,000 individuals who wrote to Nicola Sturgeon to call for new legislation.
Green recovery
In 2020, the coronavirus pandemic and the resulting lockdown have brought a heightened awareness of the importance of our natural environment for our health and wellbeing, and of the inequalities in access to nature. As we emerge from the crisis, maintaining and building upon high environmental standards will be essential in achieving a green economic recovery by ensuring our natural habitats and wildlife are protected.
Campaigners were pleased, therefore, when in June the Scottish Government published its long-awaited EU Continuity Bill, outlining how it plans to fill the major gaps that will be left in Scotland’s environmental protections.
So, are the Scottish Government’s plans up to scratch?
They’re certainly a very welcome step in the right direction. But we believe the new law will need to be much stronger if it is to maintain the level of protection that EU membership has brought to Scotland’s world class natural environment.
First, the good news
The Continuity Bill meets a key demand of our campaign by embedding four key environmental legal principles, applied until now by the EU, into Scots law. These include the principle that where there is reasonable concern that an activity could be harmful, it should not be carried out unless it can be proved to be safe. In Scotland, this has underpinned action against fracking, neonicotinoids and genetically modified crops. They also include the principle that polluters should pay for the environmental damage they cause, which has helped drive up the quality of Scotland’s drinking water and beaches.
Barra
Also on the plus side, the bill sets up a new watchdog, to be called Environment Standards Scotland, to monitor and investigate public bodies’ compliance with environmental law. The need for a watchdog to replace the oversight and enforcement roles of the European Commission, European Court of Justice and other EU bodies is another key demand of our campaign. The new organisation outlined in the bill goes some way towards meeting this.
A watchdog that won’t listen?
Now for the bad news. Unfortunately, the new watchdog has two major weaknesses.
While it will be able to investigate complaints, it will only be able to take enforcement action on those relating to broad deficiencies in government policy or strategy. This means that specific complaints of the kind dealt with by the EU system won’t be addressed. We believe this deprives citizens of an essential means of making their voices heard and getting justice on environmental matters.
The watchdog set out in the bill also lacks teeth. Scottish Government ministers will appoint its senior officials, with little oversight from parliament, which could seriously compromise its ability to impartially investigate complaints and force public bodies to up their game. The strength of the EU institutions lies in their independence, and the new Scottish body is not sufficiently independent from government.
No going back
Aside from the weaknesses of the proposed watchdog, environment charities are disappointed with the extent to which the bill provides for ‘keeping pace’ with EU law after the Brexit transition period ends. Scottish environment secretary Roseanna Cunningham said in 2019 that the Scottish Government had committed to maintain or exceed current EU environment standards. But there’s nothing in the bill to explicitly prevent standards being rolled back. And while the bill enables Scottish government ministers to align with improvements in environmental standards at EU level, it doesn’t require them to do so. We think it should. Otherwise, we risk becoming once again the ‘dirty man of Europe’ of the 1970s.
Here’s how the bill can be strengthened
We want the Scottish Parliament to amend the Continuity Bill so that it:
empowers the new watchdog to take enforcement action on complaints about specific decisions affecting people’s environment
strengthens the watchdog’s independence to ensure it has teeth to enforce environmental protections
requires Ministers to maintain or exceed EU environmental standards.
The bill is at the very beginning of its passage through parliament, and with your continued support we’re hopeful that public pressure and parliamentary scrutiny will result in new laws with the strength to protect Scotland’s iconic natural environment.
The Fight for Scotland’s Nature campaign has been pushing for an independent, well-resourced watchdog.
New EU Continuity Bill a welcome step forward, say charities.
Scottish Environment LINK, a coalition of Scotland’s leading charities has today welcomed the Scottish government’s announcement of a new EU Continuity Bill to safeguard vital environmental protections that would otherwise be lost in December this year, at the end of the Brexit transition period.
The coalition has also warned that the draft law must be significantly strengthened in a number of areas in order to ensure Scotland’s natural environment doesn’t lose out from weakened protection once we leave the EU.
Deborah Long, Chief Officer of Scottish Environment LINK, said:
“We welcome the arrival of this crucial piece of legislation to secure key environmental protections in Scotland post-Brexit. This is an important step to keep Scotland’s high environmental standards in place for the years ahead, however, we know that with a Bill of this complexity the devil will be in the detail.
“We will be examining the Scottish government’s proposals in detail to ensure the new watchdog is fully independent and well-resourced, backed up by strong environmental principles. Whilst we support the direction of travel in the Bill, a first glance shows that some work will be needed to ensure the Principles and Governance requirements meet the standards needed to safeguard Scotland’s amazing nature long into the future.”
Following the Scottish government’s recent announcement that refusal to extend the Brexit transition would have a damaging impact on Scotland’s recovery from the Covid-19 crisis [1], Scottish Environment LINK (LINK), a coalition of Scotland’s leading environmental charities has warned that the accompanying loss of EU environmental protections for Scotland would also put at risk ambitions for a post COVID-19 green recovery.
Currently 1 in 9 wildlife species in Scotland is facing extinction [2]. LINK has warned of this threat and has urged for urgent measures to help prevent a further decline of Scotland’s nature and to avoid undermining a green recovery for Scotland.
Since 2018, more than 35 organisations joined forces under the coalition LINK to launch the campaign, Fight for Scotland’s Nature, to push for legally binding targets for the protection of Scotland’s nature and an action plan for delivery. This included calling for a new and independent watchdog to enforce environmental protections after Brexit.
As much as, 80% of Scotland’s environmental protection stem from EU legislation [3].The charities now fear that Scotland’s natural environment will be put at further risk if time runs out to negotiate a comprehensive deal on the EU exit by the end of the year. Both the UK and Scottish governments need to ensure that measures are established to protect Scotland’s world-renowned natural assets before we leave the EU. Together, the charities also warn that much work needs to be done to put in place strong and lasting environmental protections and to have legislation that is meaningful and adequate.
Proposals for a Scottish environmental watchdog had been due to be set out in the Scottish government’s Continuity Bill this past spring. With the legislation delayed as the government responds to the pandemic, time is now running out to ensure key protections for the environment are developed and in place by the end of 2020, when the transition period to leave the EU ends.
Deborah Long, Chief Officer of Scottish Environment LINK said,
“The unprecedented health and economic challenges of the Covid-19 pandemic have posed challenges to governments at all levels. Despite this, there remains the huge and vital challenge of tackling the continued loss of nature and climate change, reversing the declines of habitats and species. We need a new environmental watchdog with the powers to independently safeguard our natural assets and enforce their protection so that they are not eroded and undermine Scotland’s green recovery. Many of us have relied on nature for our wellbeing during the lockdown; it’s now time for us to fight for Scotland’s nature.”
Media enquiries to:
Azra Wyart on 07788437819/mediaandeventsscotland@gmail.com
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