Environmental principles and governance after Brexit: responses to consultation

Appendix 9: Chapter 4, Q7

Loss of legal oversight

Discussion about a loss of legal oversight included:

• the importance of the European Commission in upholding environmental law, and that this will be lost as a result of EU exit;
• the issue of legal oversight providing incentive to take duties seriously; and
• loss of external policing bodies and mechanisms resulting in implementation failures and delays.

Loss of supranational oversight

Comments expressing concern about the loss of supranational oversight highlighted:

• spatial planning, and that the loss supranational oversight may provide an opportunity to bring the Scottish spatial planning system within the remit of a new body;
• the loss of supranational oversight could present initial problems, continued engagement with the EEA could alleviate some of the issues; and
• a suggestion that the loss of supranational oversight may result in the UK Government pushing for less control.

Other

Comments that did not align with other themes in response to this question are listed below.

• A suggestion the UK Government may impose a framework that is less robust and therefore open to interpretation
• Discussion about the importance of genuinely independent and accountable reporting to meet the accepted principles
• A view that the importance of the creation of an independent body is recognised already by the UK Government in the draft Environmental Principles and Governance Bill, and that Scotland should align
• The need for the involvement of specialist staff outside of the suggested agencies in order to deal with environmental complaints.

Intra-UK considerations

Other singular comments provided in relation to intra-UK considerations are listed below.

• A suggestion that the same level of scrutiny should exist post EU exit, especially if there is any divergence between Scotland and the rest of the UK
• That the crossover between EU and Scots law has the potential to minimise any issues
• A discussion of Scotland's devolution settlement and its autonomous nature in relation to the environment - suggested political relations between the SG and the UKG may have adverse effects on the wider devolution settlement
• A request for alternative arrangements to continue to engage with the EU
• Consideration of how the implications of how powers being returned from the EU are managed
• Discussion of matters of post EU exit governance which are not addressed in the consultation and consideration of the roles of different levels of government in the UK.

Examples

Nine respondents shared specific examples in their comments.

• Two discussed the impact of the loss of EU oversight by giving an example of the UK breaching air quality standards on three occasions, and the ECJ ruling that the UKG failed to protect foraging and breeding areas for the harbour porpoise.
• There was a reflection from one respondent on aquaculture companies in Scotland that are operated by bodies outside the EU: 'an importation from Norway of salmon ova from stock that was very recently infected with anaemia, see Scottish Government FOI/18/03773. Without the involvement of the EU's Directorate General for Health and Food Safety there would have been no safeguard.'
• One respondent said they did expect there to be significant issues and gave the example of a hare surveillance project that was not up to standard.
• There was a discussion from one respondent about the chance that a loss of scrutiny may result in a deregulation of pollution. This respondent shared an example of the farming community having low environmental standards, large landowners tolerating environmental degradation and public authorities causing pollution in towns and cities.
• One reflected on the potential role of a new watchdog and its potential to hold the UKG to account, giving the example of the 2005 ruling that the UK Government had failed to apply the Habitats Directive to plan making in all UK jurisdictions.
• An experience of fishing management within EU special areas of conservation was described by one respondent - this detailed response has been signposted to the SG for consideration.
• One suggested the SG should consider reviewing the Strategic Research Programme (2016-2021) as it contains expertise and could be helpful for arranging alternative arrangements for independent scrutiny and assessment.
• There was a discussion about loss of scrutiny and the major role the EU has played, giving an example of the implementation of the Birds and Habitats Directives. This respondent also gave the example that the EU has required the UK to implement site-specific conservation priorities and measures for all SACs, as a means to better manage these sites.

Positive impact

Discussion of potential positive impacts included:

• natural capital indicators as an asset, that may place Scotland ahead of less well-developed performance monitoring information sources available through the EEA or EU; and
• a view that the replacement for EU scrutiny should have no impact, and that if alternative arrangements are implemented by the SG, it could place projects and businesses at a disadvantage.

Other comments

Comments that did not align with other themes are summarised below.

• A suggestion that the volume of cases presented to the EU Commission is not significant, therefore it may not justify the creation of a whole new body
• An explanation that a loss of scrutiny and assessment could result in a loss of momentum if it does not maintain alignment with EU protections, and reiterating the importance of adopting the environmental principles
• A reflection on EU exit negotiations and indication that EU environmental principles could be maintained if a withdrawal agreement is reached
• One respondent discussed the Aarhus Convention, noting the UK will continue to be subject to the relevant requirements of the United Nations Economic Commission for Europe (UNECE), and its Compliance Committee.