European Union: Environmental Law In Scotland Following The UK's Withdrawal From The EU

Last Updated: 24 July 2018
Article by Niall McLean and Hannah Frahm

We previously posted on the European Union (Withdrawal) Bill and UK Government policy on environmental law. In this second of two posts we look at the Scottish Government's environmental policy post-Brexit.

In February the Scottish Government introduced the European Union (Legal Continuity) (Scotland) Bill 2018 (the Scottish Bill). We posted in detail on the Scottish Bill in The Continuity Bill: Part 1 – What does it do? and Can the Scottish Parliament enact the Continuity Bill?.

The Scottish Bill also makes provision for the protection of environmental law by:

  • giving Scottish Ministers the powers needed to ensure that devolved law continues to operate effectively after Brexit (environmental matters are in large parts devolved);
  • retaining the Charter of Fundamental Rights which explicitly emphasises environmental protection;
  • requiring that in making regulations corresponding to EU law after exit the Scottish Ministers must have regard to the guiding principles on the environment and animal welfare; and
  • requiring that the Scottish Ministers prepare proposals on: (1) how regard is to be had to the guiding principles on the environment; and (2) how to ensure that there continues to be effective and appropriate governance relating to the environment following the withdrawal of the United Kingdom from the EU.

In April the UK Government referred the Scottish Bill to the Supreme Court in order to determine whether or not the Scottish Bill is within the powers of the Scottish Parliament. The Supreme Court will hear the case on 24 and 25 July.

Scottish Government report

On 1 June 2018 the Scottish Government published its "Report on Environmental Governance in Scotland after EU Withdrawal – Assessment and options for consideration" (the report). One of the purposes of the report was to consider potential gaps in environmental protection in Scotland post-Brexit. The report includes a summary of current EU legislation across multiple areas and EU structures, proceedings and regulatory tools.

A key question posed by the report is the future policy choices for Scotland. Including whether as EU law develops Scotland should commit to matching EU environmental law, or instead follow the rest of the UK creating a 'UK framework' of environmental law.

Proposed approaches

The report acknowledges that Scotland's existing framework for compliance with environmental legislation is not as well developed nor as extensive as that at EU level. The report observes that there is a "valid case to consider additional measures to increase the levels of scrutiny and challenge that are available after leaving the EU".

Of particular interest is what the report says about the potential role of the Scottish courts. Options discussed include giving increased powers to existing courts or to establish a new more specialist court/tribunal dealing with environmental matters. However, the report suggests that in order to replicate the existing EU functions, it would be necessary to review the current rules and procedures for judicial review, and "...in particular the capacity of courts to consider the merits of an argument and not just matters of procedure, rationality or legal interpretation." The report suggests as an alternative solution giving the Scottish courts powers to impose sanctions on public authorities where they fail to comply with legal environmental duties. A similar power currently lies with the CJEU at EU level.

We described the UK's proposal for an independent environmental body in our last post. The report considers that a body having authority over England and reserved UK matters is potentially problematic and notes that any UK body would have to take the devolution settlement into account.

As an alternative the Scottish Government suggests a Scottish body which would have a "...thorough understanding of Scottish law, procedures and system" and would be "...more focused on the issues that are most significant in a Scottish context".

Scottish Government Consultation Paper

On 29 June 2018, the Scottish Government published the "Developing an Environment Strategy for Scotland: Discussion Paper". Holyrood's intention is "to develop a strategic approach on environmental policy to protect and enhance our environment, safeguard natural capital and continue Scotland's leading role in addressing environmental challenges." Responses by 24 August 2018 will be considered in Scotland's Environment Strategy, due to be published later this year.

The future

As noted in our last post, since joining the EU the UK has continuously strengthened its commitment to strong environmental policies and laws. The Environmental Principles and Governance Bill is expected in Autumn 2018 but it does not appear that there will be any immediate divergence from existing EU standards. However, the Scottish Government is keen to stress that whatever solution is opted for in the future, it will require all four administrations "...to work jointly to secure the best balance, respecting the devolution settlement and allocation of authority."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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