Environmental principles and governance after Brexit: responses to consultation

An analysis report on responses recieved as part of the Consultation on Environmental Principles and Governance in Scoltand, which ran from the 16 February to 11 May 2019.

Executive Summary

i. The national consultation on Environmental Principles and Governance in Scotland is part of a range of activities undertaken by the Scottish Government (SG) to establish and prepare for the risks associated with European Union (EU) withdrawal. The consultation received 99 direct responses from a range of individuals and organisations. In addition to this the consultation received 12,051 e-action responses as part of the campaign led by Scottish Environment LINK entitled, 'Fight for Scotland's Nature'.

Question 1: Do you agree with the introduction of a duty to have regard to the four EU environmental principles in the formation of policy, including proposals for legislation, by Scottish Ministers?

ii. Over two thirds (70%) of respondents selected 'yes', 5% selected 'no', 1% selected 'don't know' and 24% did not answer the question. Expressions of support for the duty were prevalent in comments.

iii. Respondents also mentioned specific concerns to be addressed. Key issues included the proposed wording of the duty and a belief that the language could be strengthened.

iv. Others commented on the potential to be more ambitious and to incorporate additional principles in the duty, and on linking the duty to a wider environment strategy. A few respondents did not support the proposal, primarily because they wanted to see something more ambitious or different to the current EU approach.

Question 2: Do you agree that the duty should not extend to other functions exercised by Scottish Ministers and public authorities in Scotland?

v. The second consultation question was the least popular of the proposals put to respondents; one fifth (21%) selected 'yes', 38% selected 'no', 14% selected 'don't know' and 26% did not answer the question.

vi. Across the detailed responses to this question there were a number of different perspectives on where the duty should extend and why. Expressions of disagreement dominated the comments. In many cases this was due to a belief that the duty should be extended, either to all functions exercised by Scottish Ministers and public authorities or to specific named organisations. Some respondents described their support for the proposal.

vii. Many highlighted the potential for confusion or conflict with other duties or responsibilities if the duty was extended beyond the remit proposed in the consultation.

Question 3: Do you agree that a new duty should be focused on the four EU environmental principles? If not, which other principles should be included and why?

viii. Just under half (41%) selected 'yes', 28% selected 'no', 3% selected 'don't know' and 27% did not respond.

ix. Across the detailed responses to this question there were a range of perspectives which varied depending on the interpretation of the question. Roughly half indicated agreement with the inclusion of the four principles but most of these respondents indicated that other principles should also be included; in particular, sustainable development, integration, non-regression and keeping pace.

x. Just under half of respondents indicated they did not support the proposal. Again, this was due to a belief that additional principles should be included. A large number mentioned human rights in their comments.

xi. Some respondents discussed the need to consider actions taken by the UK (particularly in relation to the UK Government's Draft Environmental Bill) or other devolved governments, to ensure consistency where possible in the principles being referred to. Alternatives to the approach outlined in the consultation document were also identified in responses.

Question 4: Do you agree there should be an associated requirement for a policy statement which would guide the interpretation and application of a duty, were one to be created?

xii. Over two thirds (69%) selected 'yes', 2% selected 'no', 4% selected 'don't know' and 25% did not answer the question.

xiii. Expressions of agreement were most prevalent across the comments. Another key strand in the discussion was other areas for consideration. These included the process of developing the statement, the interplay between the statement and the duty and legislation, and suggested content of the statement.

xiv. A small number of respondents did not support the proposal, for individual reasons.

Question 5[1]: What do you think will be the impact of the loss of engagement with the EU on monitoring, measuring and reporting?

xv. The dominant theme in comments was reflection on the value of current EU monitoring, measuring and reporting arrangements. Many respondents called for current arrangements and requirements to continue post EU exit.

xvi. Second most common was concern that the loss of engagement with the EU on monitoring, measuring and reporting will result in generally lower standards. Another reoccurring theme was a reflection that loss of engagement with the EU could impact negatively on Scotland's ability to participate in networks and/or collaborative working.

xvii. Loss of data aggregation and comparison was highlighted by many as a negative impact of the loss of engagement on monitoring, measuring and reporting. Several respondents also expressed concern at a loss of transparency as a result of withdrawal from the EU. Fears about loss of funding as a result of disengagement from the EU were also identified in comments.

Question 6: What key issues would you wish a review of reporting and monitoring requirements to cover?

xviii. The most prevalent theme in comments was for the review to cover issues around transparency. There were suggestions that the review is also an opportunity for change. Many felt that all the topics currently covered in existing EU reporting and monitoring requirements should be retained.

xix. Data interpreting and reporting were also noted as issues to review and several respondents discussed data gaps to address in any review of monitoring and reporting requirements. Current issues and/or problems with current reporting and monitoring requirements were also noted as issues to consider in the review.

xx. Many highlighted a specific issue to include in any review of reporting and monitoring requirements.

Question 7: Do you think any significant governance issues will arise as a result of the loss of EU scrutiny and assessment of performance?

xxi. Over half (57%) selected 'yes', 7% selected 'no', 8% selected 'don't know' and 28% did not answer the question.

xxii. The dominant theme in comments was a concern that governance issues will arise. Roughly half suggested the impact of a loss of scrutiny will be significant; the remainder identified governance issues but did not reference any magnitude of impact.

xxiii. Key concerns included loss of legal or independent oversight, loss of supranational oversight and lower standards. Mitigating actions were described in many of these responses.

Question 8: How should we meet the requirements for effective scrutiny of government performance in environmental policy and delivery in Scotland?

xxiv. Many respondents expressed specific support for one or more options in the consultation paper. In comments they shared suggestions and reflections on the requirement for a new body or expanded roles of existing bodies.

xxv. Another frequently shared view was of general support for the options, with discussion around how the government might meet the requirements; but no mention of a preferred option.

xxvi. There was also general discussion on the skills and expertise required for effective scrutiny.

Question 9: Which policy areas should be included within the scope of any scrutiny arrangements?

xxvii. Many respondents agreed with the policy suggestions included in the consultation document. Almost all noted other specific policies for inclusion or made a general call for the inclusion of any or all policy areas relevant to the environment.

xxviii. A few shared comments of a general nature, not specifying which policy areas they think should be included within the scope of scrutiny arrangements.

Question 10: What do you think will be the impact in Scotland of the loss of EU complaint mechanisms?

xxix. Most comments contained examples or discussion of the negative impacts respondents believe are likely to occur due to the loss of EU complaint mechanisms; some identified multiple impacts. A very small number of respondents suggested the impact will be positive.

xxx. Many discussed replacement or new arrangements or mechanisms to mitigate impacts from the loss of EU mechanisms.

Question 11: Will a new function be required to replace the current role of the European Commission in receiving complaints from individuals and organisations about compliance with environmental law?

xxxi. Over half (62%) selected 'yes', 2% selected 'no', 7% selected 'don't know' and 29% did not answer the question.

xxxii. The most common theme in these responses was that a new function would be required to replace the current role of the European Commission. There was repeat discussion about the creation of a new function and suggestions as to the model of this function. A small number of respondents said they do not support the creation of a new function.

Question 12: What do you think the impact will be in Scotland of the loss of EU enforcement powers?

xxxiii. Most respondents anticipated a negative impact from the loss of enforcement powers. This was typically based on the loss of the deterrent effect of EU enforcement, the potential for lowering or weakening of environmental standards and a view that the environment is likely to suffer as a result. Other negative impacts were identified by smaller numbers of participants. Several actions to mitigate the impact of the loss were suggested.

xxxiv. Some respondents indicated there would be minimal or no impact; one felt the impact would be beneficial.

Question 13: What do you think should be done to address the loss of EU Enforcement powers? Please explain why you think any changes are needed.

xxxv. The prevalent theme in responses was specific suggestions about what could be done to address the loss of EU enforcement. In this discussion there was frequent mention of the creation of an independent body or watchdog, with respondents suggesting a range of functions or powers being given to such a body.

xxxvi. Several respondents suggested that an Environmental Court be established. There was also a number of general comments about new enforcement powers, and some comments and concerns raised around the need to work both with the rest of the UK and internationally.


xxxvii. A range of informed stakeholders took part in the consultation. They were typically highly-engaged and knowledgeable about relevant matters, including legal issues, management of Scotland's resources, planning and delivering services, environmental matters, the development of policy and monitoring environmental change.

xxxviii. Most of the Scottish Government's proposals were endorsed by respondents. However, given the breadth of views amongst respondents about priorities, areas of focus, the scope of the legal framework, calls for more detail, and the range of appetite in terms of ambition, it may be a challenge to develop a legislative solution that satisfies all interested audiences.


Email: fiona.eddy@gov.scot

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