Scotland’s nature is amazing. Long famed for its breathtaking landscapes, from sweeping Caledonian pine forests to pristine freshwater habitats and wetlands. All of which support a vast variety of wildlife. It’s unthinkable that this could be at risk of being lost. Yet, a recent report estimates that 1 in 11 of Scotland’s species face extinction unless we take action.
We can’t let this happen. We must press the Scottish Government to take action to protect it.
Scotland’s natural world is truly iconic
Mighty ancient Scots pine forests are home to red squirrels, Scottish wildcats and capercaillie. Carbon-rich deep peat moorland hosts an abundance of butterflies and insects. Temperate Atlantic rainforests teem with more than 500 species of mosses, ferns, lichens and liverworts. And that’s just three of Scotland’s many important habitats.
But our ancient woodland is in trouble
Our native woodlands are home to many of Scotland’s valuable species. But they have been severely reduced by deforestation over the years. Now, only 1% of Scotland is covered by ancient woodland – rich, complex ecosystems that have developed over centuries.
This tiny proportion is now threatened even more by over-grazing, and choking from fast-spreading plants like rhododendron. Ancient woodland is irreplaceable. It needs better protection.
Reverse the environmental decline
Scotland’s environment underpins much of the country’s business and the communities that it supports. 14% of jobs in Scotland depend on the natural environment.
In common with most other countries, many of Scotland’s natural sites are in a state of decline. For us, this is due to:
unsustainable land management practices
pollution
failure to integrate various land uses.
We don’t just need to halt this decline. We need to reverse it.
Working together to fight for Scotland’s nature
2020 is a critical year for the culmination of global efforts to halt biodiversity loss. To better protect our species and habitats from the threats they face,we have joined 34 other environmental charities from across Scotland to launch the Fight for Scotland’s Nature campaign.
A Scottish Environment Act
We believe that the best way to safeguard the future of Scotland’s nature is for the Scottish Government to pass a new Environment Act. It must have real ambition for our environmental policy, and set us onto a clear path towards a more sustainable future.
We need strong legislation to ensure our environment is healthy, thriving, and can keep providing for our wellbeing. We need to lock in existing EU environmental protections and make sure we don’t fall behind the EU and our global partners in the coming years.
Scotland’s nature is already in decline. If we don’t act now, that lost protection will mean more species and habitat loss. We need our environment to support our businesses, our communities and our lives. We must look after it properly.
Stand up for Scotland’s nature – respond to the consultation
Right now, the Scottish Government is seeking views on the future of environmental protections in Scotland. We need to tell the Government that we need a Scottish Environment Act to protect and enhance our precious nature – now and for the future.
It’s important our voices are heard, this is a huge opportunity to make a difference and better protect Scotland’s natural world. The consultation closes on 11 May.
“Who will guard the guards themselves?” is the literal translation of the ancient rhetorical question “Quis custodiet ipsos custodes?”. Governments make decisions on behalf of the people, but what if they are poor decisions or the people disagree? This is a key concern with our departure from the European Union, where currently the European Commission provides an excellent opportunity to hold power to account. Anybody can complain to the Commission about poor or non-delivery of EU legal requirements by Member State governments at no cost; if a complaint is upheld, Member States must deliver or risk infraction.
Once out of the EU, that opportunity is lost to the people of Scotland. As one of 35 environmental charities from across Scotland, we have come together to “Fight for Scotland’s Nature” and gather support for a new Scottish Environment Act to:
Embed much needed EU environmental law principles in Scots law
Create an independent and well–resourced watchdog to enforce environmental protections
Set clear targets for environmental protection alongside adequate financial resources.
I have spent a good chunk of my time at the Marine Conservation Society working closely with conservation partners to help secure the Marine (Scotland) Act in 2010, along with ensuring effective implementation of marine protected areas and marine planning to help boost the health of Scotland’s considerable stretch of seas. On the northwest edge of Europe, jutting into the Atlantic, Scotland has a sea area almost six times greater than that of the land, comprising 61% of UK waters, 13% of all European seas and an 18,000km coastline – enough to stretch from here to Australia. As marine conservation is devolved, fully within 12 nautical miles and executively beyond 12nm, Scotland therefore has considerable responsibility for ensuring a great wedge of the northeast Atlantic is in good health. These waters are globally important for sealife large and small, from basking sharks, seals and seabird colonies, to coldwater corals, flameshells and maerl beds. Great strides in marine conservation have been taken by the Scottish Government in recent years, but marine species and habitats continue to struggle.
Some 80% of Scottish environmental protections stem from the EU, including legislation to protect vulnerable marine habitats, improve coastal water quality, phase out non-recyclable single-use plastic and ensure our seas are overall in “Good Environmental Status”. EU protections have unquestionably played an overwhelmingly positive role in protecting and enhancing our natural environment by setting clear objectives for legislation, providing funding mechanisms and a variety of routes to ensure implementation.
Through EU membership, Scotland has been able to better protect our natural environment and develop world-leading policies setting the bar across Europe and beyond.
The Habitats Directive required that some of the most internationally important places in our seas, including for living reefs, rocky reefs and many sea lochs, bays and Firths, were properly protected as Special Areas of Conservation (SACs) to ensure they were in “Favourable Conservation Status”. At the Marine Conservation Society, we were deeply concerned this was not the case for many sites across the UK. Following a successful complaint made to the EC by community campaigners in Argyll to exclude scallop dredging from the Firth of Lorn SAC in 2007, MCS and Client Earth wrote to Defra that same year highlighting that the UK Government was not meeting legal commitments to properly protect SACs in England, a concern we then shared with the Scottish Government in 2009.
The prospect of a formal complaint to the European Commission merited serious consideration and a new process was instigated for England to protect SACs for the most vulnerable features from damaging trawling and dredging. In Scotland, fisheries protection measures were consulted on for the most vulnerable nature conservation Marine Protected Areas designated (arising from the hard-won Marine (Scotland) Act 2010) and marine SACs in 2014. To have most confidence in meeting EU requirements, and mindful of over 4,700 responses to the MCS-led #donttaketheP campaign, the Scottish Government excluded trawling and dredging from the most vulnerable SACs, including St Kilda, East Mingulay, Treshnish Isles and Lochs Duich, Long and Alsh. Without the driver of EU legislation, and the relative ease of potential access to justice through the European Commission, who knows whether such a positive outcome for vulnerable seabed habitats, and the livelihoods that rely upon them being healthy, would have been possible?
Enjoyment of cleaner seas has been possible thanks to the EU Bathing Water Directive, which MCS successfully campaigned to toughen up using our independent Good Beach Guide. Without the prospect of EU infraction, it is unlikely that investment to improve sewage treatment works throughout Scotland and the UK would have been at the level and rate it has. It also spurred the Scottish Environment Protection Agency to develop world-leading electronic bathing water quality prediction telemetry and signs. Billions of pounds-worth of upgrades resulted in cleaner seas to swim and paddle in, though with particular challenges of wetter summers, system overflows and run-off from coastal livestock, there is still room for improvement.
Legislation and appeal mechanisms enshrined by the EU have clearly benefited Scotland’s environment and people. An EU exit with no mechanisms for independent oversight and appeal in place threatens to unravel critical environmental protections at a time when one in eleven species in Scotland is at risk of extinction. We cannot afford to be left behind EU and global partners. This is why we need a Scottish Environment Act to set clear ambitions for our own environmental policy, put in place an independent environmental watchdog and set a clear trajectory towards a truly sustainable future. This is all the more important as we approach 2020, a “super year” which will be critical for the culmination of global efforts to halt biodiversity loss, including existing European commitments for our seas to be in “Good Environmental Status”. It will also be Scotland’s “Year of Coasts and Seas” for which a newly established independent guardian for the health of our marine, freshwater and terrestrial environments would be a most fitting legacy.
If you want to help the Fight for Thriving Seas, click here
Over 25 million biological records have been collected in Scotland, describing the location of 5,866 species. And behind each of these records is a biological recorder whose expertise has helped document our natural world.
Together, these thousands of recorders, often volunteers who generously donate their time, stand on the shoulders of many generations of Scottish naturalists, all fascinated in understanding and recording our natural world. Their curiosity has made Scotland one of the most comprehensively surveyed countries on Earth.
Yet despite this vast wealth of information and knowledge, Scotland’s biodiversity continues to be threatened, or subject to poor decision making.
Indeed, it is fair to say that these millions of records are an incomplete account, temporally, taxonomically and spatially. And the records we have are not being worked hard enough to protect our natural world, as the organisations involved with the collection, management and sharing of biodiversity data are vastly under-resourced.
Joining together
The willingness to collaborate to protect our natural world, however, has never been stronger. During 2017, over 120 organisations, many of whom are also behind the Fight for Scotland’s Nature campaign, came together through the Scottish Biodiversity Information Forum (SBIF) Review of the Biological Recording Infrastructure in Scotland to consider how we can fix these problems to improve our access to knowledge of Scotland’s biodiversity.
The SBIF Review explored how we currently collect, manage and use wildlife data. In particular, how we can transform Scotland’s biological recording infrastructure – covering both land, freshwaters and seas – to make all of Scotland’s biodiversity information publicly available. The SBIF Review culminated in 24 recommendations and funding proposals, aimed at increasing the sustainability of the biodiversity sector, improving geographical and taxonomic data coverage, and ensuring that information is sufficiently up-to-date and accessible to inform action for the people and wildlife of Scotland.
Linking it all up
If we are to truly understand and protect our natural world for future generations, we need proper monitoring of and reporting on the state of the environment, and adequate resources to support the organisations and volunteers involved in collecting, managing and growing our invaluable trove of environmental data. This is why SBIF are supporting Fight for Scotland’s Nature’s call for a Scottish Environment Act.
A Scottish Environment Act must set clear and ambitious targets for environmental protection, with well-informed, responsive decision making based on sound evidence. Access to robust biodiversity data, together with transparent analysis and interpretation, is key to the effective protection of our environment.
We must join together, linking those individuals volunteering their time and expertise to monitor Scotland’s biodiversity with organisations who are able to implement strategic, long term protection for Scotland’s wildlife.
A sustainably funded, integrated biological recording network, embedded in the heart of an Environment Act for Scotland will place Scotland as a global leader for environmental protection.
What are your views on the future of environmental protections in Scotland? Join us in calling for a Scottish Environment Act – send an email to the Scottish Government.
“I will fight any attempt to ‘turn back the clock’ on standards of environmental protection”, pledged Environment Secretary Roseanna Cunningham in the aftermath of the EU referendum. Environmental charities from across Scotland stand with her on this commitment.
This is why the Scottish Wildlife Trust, alongside 34 other members of Scottish Environment LINK, is calling on the Scottish Government to turn this commitment into reality by bringing forward a Scottish Environment Act.
In its consultation on post-Brexit environmental protections, the Government reconfirmed its ambition to ‘maintain and enhance’ EU environmental protections. We believe that to do this the Government needs to embed the principle of non-regression in Scots law. This would ensure there is no roll-back of environmental protections – not now and not in the future.
What is non-regression?
Non-regression is a well-established principle in international law, probably most commonly associated with human rights. However, it is increasingly acknowledged as a key parameter in environmental decision-making as reflected by its inclusion in the proposed United Nations (UN) Global Pact for the Environment.
In terms of the environment it means the rules, standards and practices that are already adopted by states can’t be changed if this means that environmental standards will be weakened. This is an important safeguard for virtually all aspects of environmental protection, from clean air and water to ensuring ambitious action on climate change and nature protection.
In common with the EU, Scotland’s First Minister shown a strong commitment to human rights issues. So much so that in 2017 she set up a special group to make recommendations on ways in which the country could lead by example in economic, social, cultural and environmental rights.
At the end of 2018 this group recommended that people in Scotland should be given the right to a healthy environment through an Act of Parliament. It would include the right to “benefit from healthy ecosystems which sustain human well-being as well the rights of access to information, participation in decision-making and access to justice.”
Many of the environmental protections that would preserve this right are derived from overarching European legislation and agreements. And with the prospect of the UK’s exit from the EU, Scotland’s environmental charities would like to see Scotland retain and build on EU law. Essentially this would mean, at a minimum, retaining the rules, regulations and enforcement mechanisms that protect everything from our nature and wildlife, to our water and air quality.
Ambition and action are two very different things. We need to see the Scottish Government’s ambitions put into law. We believe that this can only be done through a Scottish Environment Act.
Bruce Wilson
The Scottish Government seems to agree, and all environmental NGOs in Scotland have welcomed its ambition to carry through not just the letter of EU environmental law, but also the underlying principles that demand high standards.
We agree with the Government’s position that not adopting these principles risks Scotland falling behind other European nations, and harms the ability to meet international commitments, notably the UN’s Sustainable Development Goals.
Why do we need an Environment Act?
Of course, ambition and action are two very different things. We need to see the Scottish Government’s ambitions put into law. We believe that this can only be done through a Scottish Environment Act.
This is why we have joined Fight for Scotland’s Nature campaign, alongside other leading environmental organisations in Scotland, to call on the Scottish Government to commit to an Environment Act that achieves the following:
embeds much needed EU and international environmental law principles in Scots law
creates an independent and well-resourced watchdog to enforce environmental protections
set clear targets for environmental protection alongside adequate financial resources
If the Scottish Government is serious about maintaining existing EU protections, it should commit to enshrining the non-regression principle in Scots law. Embedded in legislation, the principle of non-regression would ensure that future legislation for the environment builds on existing protections rather than dilutes them.
If we don’t maintain and seek to keep up with the EU’s standards, we run the risk of seriously undermining the strong environmental foundations that we depend on for our fundamental human rights.
Failing to adopt non-regression as an environmental principle would also have clear implications for Scotland’s economy. The EU deeply values this principle and has made it clear it is considered essential for any future trade negations or for any “Brexit deal”. If we fail to keep pace with EU environmental standards, Scotland’s food and drink industry could lose an important, and lucrative, export market.
Environmental protections have been referenced a lot in the context of Brexit. And with good reason: overall, joint action across the EU has been a good thing, enabling us to tackle environmental issues such as pollution and climate change in a coordinated way across 28 different countries. Environmental policy has been an EU competence for decades with the first EU – European Economic Community back then – environmental piece of legislation to protect wild birds adopted in 1979. This was 40 years ago.
As such the prospect of EU exit poses a number of significant risks for our environment and our ability to hold governments to account when it comes to enforcing important legislation, from air quality and climate change to the protection of our species and habitats.
While many ENGOs suggested ahead of the 2016 referendum vote that on the basis of environmental grounds, it would be safer for the UK to remain in the EU, since then ENGOs in Scotland and across the UK have been trying to find ways to ensure our environment does not suffer as a result of Brexit, if and when this happens.
Under any Brexit deal, it is commonly acknowledged that governments across the UK would need to agree on additional measures to safeguard our environment. Indeed, even with a deal the timeframes are tight: if a deal similar to the one being negotiated by the UK Prime Minister and the EU comes to pass, this allows for a transition of up to two years which unless extended would mean the UK and Scotland would need to ensure effective environmental protection and governance mechanisms are in place as of January 2021. So, already there is little time to put together firm legislative and policy proposals to make that happen.
Important proposals have been put forward, particularly the prospect of legislation to replicate important protections, such as the introduction of a Scottish Environment Act as supported by the joint Scottish Environment LINK campaign Fight for Scotland’s Nature. This would see important EU and international environmental principles embedded in Scots law, the creation of an independent watchdog to ensure legislation is implemented and enforced, and ambitious future targets for environmental protection.
But all this does not mitigate against the very real, very imminent and very considerable risks of a No Deal Brexit on 29 March.
1. A No Deal Brexit means that the full spectrum of existing environmental protections will not be fully operational on 29 March
The prospect of EU exit led to the need for existing EU laws to be transposed to domestic law in a way that ensures that this legislation can operate post-Brexit. This has led to civil servants in the UK and Scottish Governments reviewing each piece of EU legislation, including environmental legislation, to amend it so it can continue to function as of 29 March.
This arduous process will not be finished by the end of March. Indeed, even for legislation that has already gone through this process, it is anticipated that a further review will be needed to catch any errors. This was to be expected given the enormity of the task and the resources required to support it. But the risk of a No Deal means that the UK Government commitment to have a fully functioning statute book by exit day will not be met.
In addition, environmental NGOs including members of Scottish Environment LINK have expressed concerns about whether the way that EU law is being transposed in domestic law fully retains the spectrum of environmental protections we currently enjoy. This is partly because this process is not replicating the important EU governance mechanisms which ensure that legislation is effectively implemented, as explained below.
2. A No Deal Brexit means Scotland will not have access to EU enforcement mechanisms
A No Deal Brexit means Scotland will no longer be able to have recourse to important EU mechanisms which ensured that environmental legislation was effectively monitored, reported on and enforced.
Of particular concern are the key functions of the European Commission and European Court of Justice in terms of investigating and addressing cases where environmental law was not enforced. The European Commission’s complaints procedure has led to positive results of our environment. It is therefore key that these functions are replicated, if and when Brexit happens.
To address this, Scottish Environment LINK members have called for the creation of an independent and well-resourced watchdog. However, the Scottish Government launched a consultation on this matter only in mid-February and will not have begun serious deliberations on solutions to this issue before mid-May.
What is more, the Scottish Government has not publicised any views about the measures it will take under a No Deal scenario. In other words, there is no publicly available information that provides reassurances about what interim measures the Government is proposing to take forward in the case of No Deal.
This means that on 29 March, in practice, legislation for the environment in Scotland may not only be incomplete, but it will also be less enforceable compared to today.
3. A No Deal Brexit means Scotland’s environment will lose access to EU environmental principles
While the Scottish Government is proposing a duty for Ministers to have regard to the EU’s environmental principles, this will not be in legislation before 29 March. This is because this proposal is being consulted on at the moment, alongside the potential governance concerns and solutions highlighted earlier.
Under a No Deal Brexit, we will lose the overarching framework for policy-development provided by the EU and underpinned by these principles. Even more worryingly, in that scenario we will have nothing similar to fall back to. Scotland, in contrast to countries such as Wales, France or Switzerland, has not embedded environmental principles in domestic law.
Environmental charities from across the UK strongly believe that a No Deal Brexit needs to be averted at all costs. If Brexit is to go ahead, this cannot come at a cost to our environment. We simply cannot afford to unpick environmental protections at a time of global ecological crisis.
Brexit has kicked off a debate across the UK about Environmental Governance, but what do we actually mean by this and how could it affect our iconic wildlife here in Scotland?
Environmental Governance is essentially about environmental protections being turned into action. So, it covers how effective laws and standards are in actually delivering positive outcomes for nature; who has a role in ensuring laws are correctly implemented and enforced; and who has a voice in both environmental decision-making and scrutiny.
Environmental protections are only as strong as the institutions that uphold them.
A country can have the best possible legal protections for nature, but if there are no effective ways of monitoring and applying those laws, or taking action if they are not complied with, then they will be hollow and meaningless. The oversight of EU institutions has been instrumental in safeguarding nature here in Scotland, performing different roles to ensure that environmental laws and standards are really put into practice.
If Scotland exits the EU then we will lose the scrutiny of these institutions, and our ability to hold the Scottish Government and its agencies to account on commitments they have made to protect nature will be significantly compromised. This is what has been called ‘the governance gap’ and it risks leaving our much-loved and important species and habitats without any meaningful protection.
This gap has been identified and explored by a sub-group of the Scottish Government’s Round Table on Environment and Climate Change, who provided a report to the Cabinet Secretary last year.
Exiting the EU will open a governance gap across all of the UK countries, not just in Scotland. Nature crosses borders, and the governments in the UK need to establish how they will work together and ensure that governments can be held to account on transboundary issues like migratory birds, cross-border protected areas, rivers, seas and the spread of invasive non-native species, or on any common environmental standards that are shared across the UK.
Giving nature a voice
One of the most pressing problems if the UK exits the EU will be the loss of a freely accessible complaints mechanism. At the moment, anyone – from an individual, civil society organisation, business or government – can lodge a complaint at the European Commission if they believe an environmental law has been breached. We have no equivalent complaints process anywhere in the UK. The loss of this avenue will be most heavily felt by ordinary citizens and civil society organisations, who face significant barriers to taking action in other ways.
Just how important this process is for safeguarding nature was demonstrated just last year when the Court of Justice of the EU ruled that the UK Government had failed to fulfil its obligations to protect the foraging and breeding areas of the harbour porpoise, the UK’s smallest cetacean. This process was kicked off when a formal complaint was made to the EC in 2012 that no protected areas had been designated for the species in UK waters. As a result of intervention by the EU, the UK government and Scottish Government have collectively proposed 6 new protected areas for harbour porpoise, that hopefully will be formally classified soon.
The Scottish Government is now consulting on what it should do about governance issues, if Scotland does leave the EU. As part of the response to this debate, a coalition of 35 environmental charities has set up Fight For Scotland’s Nature, which is calling for an independent and well-resourced watchdogto enforce environmental protections. We are calling for this watchdog to be created through a new Scottish Environment Act, to make it as strong and as durable as possible.
Take our e-action to make your voice heard and tell the Scottish Government what they need to do to protect nature, now and in the future.
It is only logical that those who produce pollution should bear the costs of managing it. This helps prevent damage to human health and the environment.
The principle of polluter pays is so well-accepted that it has been part of the international environmental debate for over 55 years. It has featured in EU law for over 30 years. But it is still relevant today, and therefore included in the Draft Global Pact for the Environment, presented to the United Nations in September 2017.
The polluter pays principle in Scotland
EU Treaties specify that EU environmental law will be developed in line with a set of environmental principles, including the polluter pays principle.
Some of our most progressive policies, such as the introduction of a deposit return scheme, are based on the polluter pays principle. A deposit return scheme embodies this principle as it makes the producer pay costs related with a product’s end of life, such as littering.
What does Brexit mean?
Given how important this principle is, you might be forgiven for thinking that regardless of Brexit, this will not change.
Unfortunately, that is not the case.
Upon EU exit, we will lose the overarching framework for policy-development provided by the EU and underpinned by these principles. Even more worryingly, in that scenario we will have nothing similar to fall back to. Scotland, in contrast to countries such as Wales, France or Switzerland, has not embeded environmental principles in domestic law.
The loss of these principles has implications for policy-making but also in terms of how we interpret and enforce legislation. For example, so far Scottish Courts have been able to refer to EU principles in their rulings. In 2013, the Court of Session applied the polluter pays principle in an open cast coal ruling. This meant that the liquidators of Scottish Coal had to ensure no further environmental damage occurred. It also ensured that the costs were not passed on to Local Authorities or Scottish Government.
Environmental principles, such as the polluter pays principle, must continue to form the basis of Scotland’s environment policy. To do that they need to be legally binding. In other words, we need Scottish Government to embed these principles in domestic law.
Our campaign, Fight for Scotland’s Nature, is calling on Scottish Government to introduce a Scottish Environment Act. First and foremost the Act must embed EU and internationally recognised principles of environmental law in Scots law. One of these principles is the ‘precautionary principle’.
You may have not heard of the precautionary principle before, but we are all living under its influence – and for good reason!
What is the precautionary principle?
From everyday life to major public policy decisions, we are regularly confronted with the same basic dilemma: do we go ahead with something and is it worth the risks? In our daily life, we rely on how certain or uncertain we are of the benefits or potential consequences of a decision. For example, if you know you are allergic to almonds, you are unlikely to want to try pecan pie. Since pecans and almonds are both nuts, eating pecan pie is likely to elicit an allergic reaction.
The precautionary principle gives us a framework for evaluating and managing the same kind of decisions in public policy. It allows us to trigger policy intervention in circumstances where there are reasonable grounds for concern but where there is uncertainty about the probability of the risk and the degree of harm.
In other words, it provides a fundamental policy basis to anticipate, avoid and mitigate threats to the environment.
The precautionary principle is among the most widely referenced environmental law principles in global agreements, such as climate change and biodiversity. At the EU level, the EU Treaties reference it as one of the key principles upon which Union law on the environment should be based.
Neonicotinoids: a precautionary ban
A clear example of the application of the precautionary principle is the EU restriction of neonicotinoid pesticides. In 2013, the European Commission placed a restriction on these chemicals because of evidence that they were impacting bee populations. Then, the European Food Safety Authority (EFSA) launched a scientific assessment to identify the precise risks. Producers of these pesticides challenged the restriction in the European Court of Justice, but the Court concluded that the Commission was right to make use of the precautionary principle and take measures.
Even though there was scientific uncertainty about the degree of risk to the environment, under the precautionary principle the Commission did not have to wait until it was clear that harm had been caused before taking action. In 2018, EFSA concluded that most uses of neonicotinoid pesticides were a risk to wild bees and honeybees and the restrictions were updated accordingly.
But the prospect of the UK’s exit from the EU compromises this.
What is more, we risk losing the protection of these critically important principles at a time when major global discussions are happening under the United Nations to bring about a Global Pact for the Environment dedicated to the same environmental principles. Scotland cannot afford to be left behind European and international partners.
Environmental principles, such as the precautionary principle, must continue to form the basis of Scotland’s environment policy. To do that they need to be legally binding. In other words, we need Scottish Government to embed these principles in domestic law.
Last November, the Royal Society of Edinburgh (RSE) published an advice paper examining the implications of Brexit for Scotland’s environment. It noted that withdrawal from the EU poses significant challenges to the maintenance and improvement of the quality of Scotland’s environment unless current EU arrangements are adopted in UK and Scots law. While both the UK and Scottish Governments have stated that there should be no dilution in the implementation and enforcement of environmental regulations, it is so far unclear how this is to be achieved.
EU Directives and Regulations have been influential in shaping environmental policy in the UK. Their implementation has been accompanied by a considerable improvement in the quality of the natural environment, particularly protecting species and habitats, improving water and air quality and reducing waste. The EU has also provided the environmental principles of precaution, preventative action, prioritising the rectifying of environmental damage at source and ensuring that the polluter pays.
Many possibilities for enforcement procedures post-Brexit have been mooted, from using existing legal processes, procedures and existing government bodies, to entirely new arrangements which seek to mimic those within the EU. Having explored the options, the RSE working group recommended the establishment of a new, independent environmental scrutiny and enforcement body for Scotland to address the challenges of maintaining and improving our natural environment following the UK’s withdrawal from the EU. It is worth noting that while working independently, both Scottish Environment LINK and the RSE have reached a very similar conclusion.
EU derived legislation has tended to be implemented in a piecemeal manner. An example of this is the difficulty of reconciling the risk-based Water Framework Directive with nature protection legislation which accepts no risk to protection of some habitats and species. The RSE is of the view that both the UK and Scottish Governments should take this opportunity to develop a more integrated approach to the implementation of environment law and policy.
To action these recommendations, the RSE asked the Scottish Government and the Scottish Parliament to consider introducing a new Scottish Environment Act which would incorporate key EU environmental principles and instruments in to Scottish law to safeguard Scotland’s natural assets. The development and agreement of common frameworks between the UK and Scottish Governments is critical to this process.
It was also recognised that Brexit provides an opportunity to develop a new approach for supporting food production in Scotland that takes greater account of environmental stewardship while continuing to ensure a productive and profitable agricultural sector. Of course, the nature of the UK internal market post-Brexit, the scope for policy divergence in the devolved nations, coupled with cross cutting issues, including future trade policy; will influence farm and forest profitability and, potentially, standards which will consequently drive environmental change.
The RSE advice paper encourages both the UK and Scottish Governments to explore with EU counterparts how the UK and Scotland can maintain access to key European agencies for the environment, including the European Environment Agency, whose membership extends beyond EU Member States.
Given the strength of Scotland’s research base, particularly in the environmental field, the RSE has been clear on the importance of securing the UK’s continued direct participation in EU Framework Programmes for research, including Horizon 2020 and its successor, Horizon Europe.
From fracking to GMOs and from the introduction of a deposit return system to ambitious action on climate change, our natural environment has relied on the application of EU environmental principles. At the same time, European institutions have also provided effective oversight of compliance with EU environmental law. Just think of the ongoing legal case on air quality laws where the UK was referred to the European Court of Justice for repeatedly failing to tackle illegal levels of air pollution.
So it is very important, as the Cabinet Secretary rightly points out in the consultation document, that “we have robust arrangements for a future where there is no longer oversight from Europe” and “prepare to fulfil any new obligations to demonstrate compliance with environmental standards”.
Indeed, this consultation is the Government’s first effort to prepare Scotland’s environment for a post-Brexit reality, if and when this happens. However, it also represents part of the Government’s wider efforts to ‘develop future environmental governance arrangements based on a careful and systematic exploration at the issues and evidence’.
But if this is such a critically important exercise that will determine the very foundation of our future environmental protections, what is the Scottish Government actually proposing?
Unfortunately, the consultation does not reveal much beyond already stated commitments. As welcome as those commitments to maintain and enhance our environment as well as retain the EU environmental principles were in 2016 and 2017, today we need to know what these commitments means in practice.
So, while the consultation itself is welcome, at this point it is a set of open-ended questions. Even on gaps regarding environmental governance where the Government’s own expert roundtable concluded that there are no equivalent domestic arrangements to replicate important EU functions, the Government is not putting forward any concrete proposals.
This makes the stakes so much higher. And it makes the work of the environmental sector and all those who want to see a clean and healthy environment more important.
We need to send a strong message to Scottish Government that to achieve their stated ambition for maintaining and enhancing Scotland’s environment, we need a Scottish Environment Act which:
embeds EU and international environmental principles in Scots law so that they can underpin all environmental decision-making;
creates an independent and well-resourced watchdog to enforce environmental protections in the same way that the European Commission and Court of Justice do today; and
sets clear and ambitious targets for environmental protection alongside adequate financial resources.
Join us to make sure Scotland’s environment is protected now and in the future. You can make your voice heard by signing our petition here.
By continuing to use the site, you agree to the use of cookies. more information
The cookie settings on this website are set to "allow cookies" to give you the best browsing experience possible. If you continue to use this website without changing your cookie settings or you click "Accept" below then you are consenting to this.
