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Environmental principles and governance after Brexit: responses to consultation

Published: 4 Oct 2019

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.

81 page PDF

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81 page PDF

923.1 kB

Contents
Environmental principles and governance after Brexit: responses to consultation
2. Environmental principles

81 page PDF

923.1 kB

2. Environmental principles

2.1 Chapter 2 presents an analysis of responses to Questions 1, 2, 3 and 4 of the consultation which relate to environmental principles.

2.2 An intention to address the loss of legal force of the EU environmental principles is described in the consultation document. The SG propose to place a new legal duty on Scottish Ministers to have regard to the four EU environmental principles in the development of policies and legislation, noting 'this most closely matches the current effect of the principles on Scottish environmental policy and law'.

2.3 For reference, the four principles are:

  • the precautionary principle, preventing serious or irreversible environmental damage;
  • the principle of preventative action to avert environmental damage;
  • the principle that environmental damage should as a priority be rectified at source; and
  • the polluter pays principle.

2.4 Participants were invited to convey whether or not they agreed with the introduction of this duty by responding to the following question:

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?

2.5 In response to Question 1; 70% of respondents selected 'yes', 5% selected 'no', 1% selected 'don't know' and 24% did not answer the question.

Overall nature of response

2.6 Three quarters of respondents (78 out of 99) provided explanatory comments alongside their yes/no/don't know answer to the consultation question.

  • The most prevalent theme was expressions of support for the duty with mentions of specific concerns to be addressed. Key issues included the proposed wording of the duty and a belief that it should be strengthened. Others commented on the potential to be more ambitious, to incorporate additional principles in the duty, and on linking the duty to a wider environment strategy.
  • Another major theme in comments was straightforward explanations of why the respondent supported the proposal, with most citing the value of the duty in protecting Scotland's environment and in maintaining continuity and consistency with the current EU principles.
  • A few respondents did not support the proposal, primarily because they wanted to see something more ambitious and / or different to the current EU approach.

Issue with current wording / alternative wording suggestion

2.7 A large number of respondents commented on the proposed wording of the duty. Most of these suggested that the phrasing to 'have regard to' the principles could be strengthened.

  • A major theme included suggestions that the wording should continue to replicate Article 191 of the Treaty on the Functioning of the European Union (TFEU) which states policy 'shall be based on' the four principles.
  • Others suggested phrasing including: 'to act in accordance with', 'ensure the application of', 'to further the principles', 'to comply with', 'acting in a way that is consistent with', 'seek to further', 'ensure the application of', 'to ensure respect for', 'be based on' the principles.
  • A small number of respondents mentioned the House of Lords Select Committee inquiry into the Natural Environment and Rural Communities Act 2006 which, when referring to England's biodiversity duty, concluded that: 'The government should consider changes to the wording of the duty, as the requirement to 'have regard' for biodiversity is weak, unenforceable and lacks clear meaning' or cited the House of Commons Environment Audit Committee which analysed the draft UK Environment Bill and called for the proposed duty to 'have regard to' various environmental principles 'not fit for purpose'.

2.8 Singular views on suggested wording are provided in Appendix 3.

Why the duty has value

2.9 Another major theme in comments was of the value of the proposed duty. A key thread in this discussion was about the importance of the duty in ensuring the continuity or consistency of standards and legislation with those currently in place to protect the environment. Singular viewpoints under this theme are presented in Appendix 3.

How a duty may relate to a wider environment strategy

2.10 Many respondents reflected on the duty in relation to Scotland's wider environment strategy. A common strand in this discussion included suggestions that consideration should be given to the introduction of primary legislation, an Environment Bill or Act, which would enshrine the principles in law. The need for a dedicated Environment Act was also a key ask in the campaign response. Within these responses there were comments on the following themes.

  • That any Bill or Act should also include a requirement to produce and update an overall Environment Strategy which sets clear objectives, targets and indicators
  • Supplementing the duty with an explicit overall commitment to achieving and maintaining a high level of environmental protection, which would highlight the overall goal and cover any gaps resulting from the application of the principles
  • Setting of clear targets for environmental protection
  • The campaign response called for 'clear and ambitious targets for environmental protection'.

2.11 Other examples of comments on the duty in relation to a wider environment strategy are set out in Appendix 3.

Reference to other principles

2.12 There were reoccurring suggestions that other principles beyond the four EU environmental principles should be included in the duty. These comments are summarised in more detail in paragraph 2.42 alongside other responses to Question 3 of the consultation, which focussed on the principles.

Implementation and enforcement

2.13 Several respondents reflected on how the duty should be implemented and enforced. Whilst this is discussed elsewhere in the consultation, the comments provided on this theme in response to Question 1 are included in Appendix 3 for completeness.

An opportunity for ambition

2.14 Within their comments some respondents highlighted the introduction of a duty as an opportunity to show ambition; the range of views is provided in Appendix 3.

Intra-UK considerations

2.15 A small number of respondents highlighted the need to consider the positions of the UK and other devolved governments, both to ensure consistency when dealing with environmental matters and due to the borderless nature of some environmental issues. Similar themes were raised in response to Question 3 which covered the potential for additional principles to be included in the duty. The UK Government's Draft Environmental Bill was mentioned repeatedly in this context, with the need for consistency of principles across jurisdictions noted by a few respondents. One noted that if consensus cannot be agreed across governments in the UK then cross-border principles may be needed.

2.16 In response to Question 4 – the requirement for a policy statement to guide the interpretation and application of a duty – a small number of respondents mentioned intra-UK considerations. A few suggested that consideration should be given to how to ensure Scotland's approach is consistent, integrated and co-ordinated with the rest of the UK. One respondent mentioned the need for the policy statement to deal with any divergence between Scotland, the UK and the EU. Another described the legal frameworks which will need to be in place across the UK.

Workshops

2.17 Themes in the discussions at SG consultation workshops echoed the points described above. Most participants agreed there should be a legal duty on Scottish Ministers in relation to the four EU principles. Many voiced a concern that the phrase 'have regard to' was not strong enough; whilst some alternatives were suggested, there was no clear preference for a specific form of words. Some called for consideration of the practical implementation of 'have regard to' or different expressions.

A sample of illustrative quotes that typify the themes identified in this section:

"Underpinning the duty in this way will ensure that Scotland retains and ideally enhances the environmental protection and standards that have been achieved from being part of Europe. (Scottish Seabird Centre)"

"In my view a duty 'to have regard to' is a very weak duty. I appreciate that there are competing concerns and obligations that have to be satisfied, but Article 191(2) provides that policy 'shall be based on' the four principles set out after that. Why should the policy of the Scottish Government be any less than that? I believe that a stronger form of wording than a 'duty to have regard to' ought to be adopted. (Individual) "

Responses to Question 2: Extending to other functions

2.18 The consultation document notes a duty could be extended 'to actions such as individual funding decisions and regulatory permissions. An explicit duty of this type would go beyond the current application of the EU environmental principles, which generally impact at the level of policy and the design of legislation'. It identifies benefits from this approach and complexities that could arise if an extension was pursued.

2.19 Participants were invited to express views on the extension of the proposed duty by responding to the following question:

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

2.20 In response to Question 2; 21% selected 'yes', 38% selected 'no', 26% selected 'don't know' and 14% did not answer the question.

Overall nature of response

2.21 Seventy-two respondents provided a substantive response that outlined the reasons for their agreement or disagreement with the consultation question.

  • Across the detailed responses to this question there were a number of different perspectives on where the duty should extend and why.
  • The dominant theme in comments was expressions of disagreement. In almost all 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, with some providing examples of where this has been the case in other situations. This group often acknowledged potential for confusion or conflict but did not consider this a justification for not extending the duty.
  • A smaller number of respondents described their support for the proposal. Most highlighted the potential for confusion or conflict with other duties or responsibilities if the duty was extended beyond the remit proposed in the consultation.

Extending the duty to all other functions exercised by Scottish Ministers and public authorities in Scotland

2.22 Prevalent themes in these discussions included a preference for the duty to be extended beyond the proposals, to all the functions exercised by Scottish Ministers and public authorities. Many stated the need for the duty to be extended to all levels of decision-making which have an impact on the environment. Some suggested that Scotland should adopt the approach which is currently in place under TFEU whereby all institutions of the EU and all their functions are included.

Potential for confusion / conflicts in decision-making

2.23 Another common theme in comments about extension of the duty included discussion of potential for confusion and conflict in decision-making. For some, this was a reason for agreeing that the duty should not be extended. Others felt this was a reason to extend it. The different viewpoints are discussed below.

2.24 Those who agreed the duty should not be extended suggested:

  • Doing so may cause complications or confusion due to overlap with other policies or duties
  • It could make decision-making more time consuming or complex
  • There would be a need to review the range of environmental duties currently in place in Scotland to ensure consistency
  • A preference for applying the principles at a high level and allowing them to cascade down as appropriate rather than applying to all functions.

2.25 Among those who believed that the duty should be extended:

  • there was acknowledgement there may be confusion or that there could potentially be conflicts of interest;
  • some suggested ways in which duties could be reviewed, or conflicts mitigated;
  • one noted that conflicts already exist under the current situation; and
  • another highlighted the need for a policy statement to determine interpretation of the duty in a way which does not cause conflicts.

Impact on local authorities

2.26 Discussion of local authorities and whether this level of decision-making should be included in any extension of the duty was a recurring theme in comments. Some of this included mention of the potential for conflict or confusion discussed above.

2.27 Arguments for extending the duty to local authorities included their role in policy development, authority on environmental matters and potential to affect the environment through planning.

2.28 As noted previously, a small number of respondents reflected on the potential for conflicts or confusion, or the additional burden that would be placed on local authorities to 'have regard to' the duty. Conversely, another argued that direct application of the duty could undermine local democracy and distinctive local considerations.

2.29 A few identified ways in which local authorities are already following some of these principles, for example the duty to conserve biodiversity. Others highlighted resource implications for local authorities and urged the SG to allocate adequate resources. One suggested that if local authorities are not required to conform then they should at least be advised not to conflict with it; another gave a more detailed response which discussed oversight and auditing processes within local councils.

Examples from elsewhere

2.30 Several respondents cited examples from elsewhere for the SG to consider. These are detailed in Appendix 4.

Extending the duty to other organisations / specific named agencies

2.31 Another theme in comments included suggestions that the duty should extend to other types of organisation or specific agencies. Some stated that it should be extended more widely than proposed but did not define this further. Specific examples included: SNH, SEPA, Scottish Water, Forestry and Land Scotland, the Water Industry Commissioner for Scotland, Courts, private developers, infrastructure providers, and contractors.

General comments on the extension of the duty

2.32 In other comments on the extension of a duty, a few respondents highlighted the need to ensure that the proposed approach ensures the current approach in Scotland is not eroded or lessened by leaving the EU. There were some general comments about the need to safeguard the environment and a small number highlighted specific areas of interest to them. One respondent made a general comment about the wider context: 'If regard for environmental principles and outcomes is properly embedded in the National Performance Framework and in relevant sectoral policies, then a wider duty may be unnecessary, and simplicity would argue for it not to be imposed.'

Other themes in responses

2.33 Issues with other elements of the wording or suggested alternatives to what is proposed were also identified in comments. A few respondents asked for clarification on the definition of 'policy' and suggested that this should include strategies and programmes; another asked for a better explanation to justify why the duty should not be extended.

2.34 A small number of respondents commented on enforcement including: calls for the duty to apply to the formation or implementation of policy or law, for compliance to be mandatory, that if local authorities are not required to conform then they should at least be advised not to conflict with it, and a suggestion that the audit process could be used to assess local authority environmental responsibilities.

2.35 There were also calls from a small number of participants for more detailed guidance: some felt the proposed policy statement should explain how to determine whether a policy or decision might impact the environment, others that there should be post-legislative guidance to inform the implementation of duties.

2.36 Other general comments made in relation to Question 2 are presented in Appendix 4.

Workshops

2.37 In the consultation workshops held by the SG there were also mixed views on the duty being extended. Most asked for further clarity on how the duty would work and there were different views on which bodies, policy and law it should apply to and discussion about the challenges this might pose for policy makers and public authorities.

A sample of illustrative quotes that typify the themes identified in this section:

"We do not agree with the consultation paper's conclusion that this would go beyond what is currently required by EU legislation, and we consider that extending these functions to all Scottish Ministers and across public authorities will mean that there is a consistent and common framework for consideration of environmental issues throughout. (Open Seas)"

"Yes. Restricting the duty to Scottish Ministers is important because, if the duty were extended to other public authorities, decision making could become increasingly complex, as a wider range of decisions had to account for the four principles. This would potentially make the regulatory landscape less predictable for businesses, which would be highly negative. (National Farmers Union Scotland)"

Responses to Question 3: The focus of a new duty

2.38 The consultation document notes an intention to include the four EU environmental principles in the proposed duty. It explains that other environmental principles could also be considered for incorporation, noting some of the potential advantages and disadvantages of this approach.

2.39 Participants were invited to express views on the intention to focus on four key principles within proposed duty by responding to the following question:

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?

2.40 In response to Question 3; 41% selected 'yes', 28% selected 'no', 3% selected 'don't know' and 27% (18 out of 99) did not answer the question.

Overall nature of response

2.41 Seventy respondents provided explanatory comments alongside their yes/no/don't know answer. Across the detailed responses to this question there were a range of perspectives which differed depending on the interpretation of the question, with around half agreeing and half disagreeing.

  • Roughly half of the respondents indicated agreement with the inclusion of the four principles but most of these indicated that other principles should also be included.
  • 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. Some suggested an alternative approach, described below.

2.42 Responses to Question 3 varied by type of respondent. Individuals were more likely to answer 'yes' (65% - 26 out of 40) than organisations (25% - 15 out of 59). Comments from local authorities and businesses tended to discuss the general point of additional principles being included, with specific principles more likely to be highlighted by third sector or campaigning organisations and membership organisations.

2.43 In addition to naming specific principles they would like to see included, many respondents also referenced those already in place or proposed, such as the EU Withdrawal Bill and the UK Environmental Bill. As both of these include rights from the Aarhus Convention (AC) the result is overlap in the discussions between principles and rights and the legislation and duties referred to. The campaign response referred to the need to embed 'EU and international principles' in Scots law but did not explicitly state which principles should be included.

Other principles

Sustainable development

2.44 The prevalent theme across comments was a suggestion that a principle related to sustainable development should be included in the duty.

2.45 In this discussion many referenced this principle being included or proposed for inclusion in other legislation. They argued inclusion of this principle in the new duty would achieve consistency. A few respondents noted that this is already contained within Scottish legislation and others observed its inclusion in other UK / devolved legislation.

2.46 A small number called for clarity on what the sustainable development principle means and how it is applied, one felt it should be included but in a legal framework such as an overarching policy aim (rather than as a principle in the duty).

Integration

2.47 Another key theme in responses was a suggestion the integration principle should be included in the duty. A few respondents referenced this principle being included or proposed for inclusion in other UK legislation (UK Government's draft Environment Bill) and therefore argued for its inclusion in this duty for consistency. One felt it should not need to be included as a principle if the same effect is achieved by having an otherwise effective duty.

Non-regression

2.48 Several cited non-regression as principle which could or should be included in the duty. Almost all of this discussion related to its potential to maintain the existing levels of protection, or that it should be included if Scotland is to be seen as a world leader. Individual views on this theme are presented in Appendix 5.

Keeping pace

2.49 Many respondents called for the principle of keeping pace with the EU; some of these also suggested the inclusion of non-regression principle noted above. Comments on why this should be considered included the need to ensure that Scotland keeps pace with changing European and international standards. A small number noted that keeping pace will make it easier for Scotland to transition back into the EU.

Additional principles

2.50 Over half of the respondents mentioned other principles which they believe merit consideration. A number of these comments related to the additional 5 principles that are included in the EU Withdrawal Act and the UK Environmental Bill. In addition to the principles mentioned above, these include the AC rights on access to justice in environmental matters, public access to environmental issues and participation in environmental decision making.

2.51 Many referred to the principles in the UK Government's Draft Environmental Bill. A few respondents referred to Section 16 of the EU Withdrawal Act 2018. Some recommend all principles listed in this should be included in the duty. A small number called for the inclusion of a duty to have 'high level of protection for the environment' or 'highest international standards' or similar. There were several general comments that more principles should be included, and that the duty should not necessarily be restricted to the four EU principles.

2.52 Comments on a range of other individual principles are presented in Appendix 5.

Human Rights

2.53 A large number mentioned human rights in their comments. Several argued for the inclusion of the 'right to a clean and healthy environment' as recommended by the First Minister's Advisory Group on Human Rights Leadership. The campaign response also referenced the recommendation of the Advisory Group

2.54 A reoccurring theme within this strand of discussion included mention of human rights in the context of the AC. Some respondents commented on the links between environmental principles and human rights and the need to clarify or include these in legislation. A few commented on the development of the Human Rights Framework for Scotland; others shared general comments on human rights and / or human rights law.

The Aarhus Convention

2.55 Several respondents explicitly mentioned the Aarhus Convention; others reflected on the rights conferred on citizens by AC but did not directly name AC in their response.

2.56 Themes in these comments included reflections on whether or not the duty should include the rights noted under the AC; or if the duty could align to these. There was also some mention that these should be seen as rights not principles; a few supported the SG in not recognising these as principles; another felt the SG should make this distinction clear.

2.57 A small number suggested that the AC is generally interpreted in Scotland as the minimum requirement for citizens to raise issues. One respondent argued that as rights they should be established in primary legislation.

Intra-UK considerations

2.58 A number of respondents discussed the need to consider actions taken by the UK (particularly in relation to the UK Government's Draft Environmental Bill) and / or other devolved governments to ensure consistency where possible in the principles being referred to. These comments have been summarised in Chapter 2.

International considerations

2.59 A few respondents commented on international considerations, with a range of singular responses covering the need to implement the highest standards regardless of whether they are from the EU, UK or international, and the role of international human rights law.

Other suggested approaches

2.60 Alternative approaches to that outlined in the consultation document were also identified in responses.

2.61 Among those who agreed with the question, other suggestions included:

  • The need for a legally binding overarching environmental objective
  • A duty on public and private organisations to publish an annual statement on environment and climate change impact to reinforce 'polluter pays' principle
  • A review of international environmental principles to understand how they already apply to Scotland
  • A duty to publish an environmental strategy
  • An aim to restore and enhance damaged areas as well as giving protection
  • The need to link the duty to clear goals for policy and implementation and to a performance framework which allows these to be assessed.

2.62 Among those who disagreed with the question, suggestions included:

  • To move away from EU principles and to create new, UK based principles. One respondent argued that the principles need to be designed to support agriculture and be workable in the UK, commenting on the need for balance between allowing businesses to function effectively whilst protecting the environment.
  • Another called for a mechanism in the legislation to allow additional principles in the future without the need for primary legislation.
  • One highlighted a need for a framework to establish how the wider public interest is represented in decision making in order to show how the principles are realised in practice.

Reiterating the value of the proposed approach of focussing on four principles

2.63 Some respondents emphasised the value of the duty solely focussing on the four principles. Within this, a small number highlighted that using these principles ensures continuity with those currently in EU law or consistency with other obligations. A few felt that adding further principles could add complexity and slow down the process, with another respondent also stating this has the 'virtue of simplicity'. Some highlighted the value of using these principles as they have already been subject to judicial and academic discussion; one observed that the duty signals a commitment from SG and provides clarity.

Workshops

2.64 Some workshop participants also expressed a desire for additional principles. The non-regression principle and the integration principle were mentioned most often. There were suggestions that further consideration was needed on the overlap between the various principles. How the principles sit alongside the UN's Sustainable Development Goals was also discussed. A small number of participants talked about the SG's ongoing work to develop a human rights framework. This was not discussed in detail, but some felt that this could be helpful in achieving better environmental outcomes.

A sample of illustrative quotes that typify the themes identified in this section:

"We note that the current UK Parliament draft Environment (Principles and Governance) Bill refers to 'environmental principles' as meaning the four principles set out under Q1, along with principles for sustainable development; integration of environmental protection requirements into policy and activity; public access to environmental information; public participation in environmental decision-making; access to justice in relation to environmental matters. Including these principles, as well as the principle of non-regression, would help ensure consistency of approach across the UK. (Anonymous)"

"The Scottish Government has a unique opportunity to strengthen its environmental legislation and policy beyond current the EU standards. This should involve the inclusion of more environmental principles including the ones listed in Background section. (Individual)"

Responses to Question 4: Associated requirement for a policy statement

2.65 The consultation document notes that any duty to have regard to the principles could be accompanied by a duty to produce a policy statement that sets out in detail how the principles should be used. It explains the function of policy statements and the potential advantages of this approach.

2.66 Participants were invited to convey whether or not they agreed with the proposal to supplement the principles with a policy statement by responding to the following question:

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?

2.67 In response to Question 4; 69% selected 'yes', 2% selected 'no', 4% selected 'don't know', 25% did not answer the question.

Overall nature of response

2.68 Three quarters of participants - 76 out of 99 - provided explanatory comments alongside their yes/no/don't know answer to the consultation question.

  • The dominant theme in comments was of expressions of agreement with the requirement for a policy statement.
  • Another major theme was of reflections on 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.
  • A small number of respondents did not support the proposal, for individual reasons.

The role of the policy statement in providing guidance and consistency

2.69 Over half of the respondents reflected on the role of the policy statement in providing guidance and consistency in the implementation of the duty or four principles.

  • The dominant theme in comments concerned the importance of the statement in guiding implementation and application.
  • There were several comments on the importance of the statement in interpreting the principles, duty or legislation.
  • Some reflected on the importance of the statement in ensuring consistency.
  • There were also comments on the role of the policy statement in providing courts with guidance on how the legislation / principles should be interpreted.
  • Several noted the importance of the statement in improving understanding or ensuring standards are being effectively applied and that decisions can be monitored.

Development of the policy statement

2.70 Views on how the policy statement should be developed were expressed by several respondents. Many argued for the statement to be subject to consultation in some form.

  • The most prevalent theme in these comments was a request for the statement to be drafted in a collaborative process of consultation or engagement with stakeholders.
  • A small number suggested that the wording or formulation of the policy statement should be subject to a public consultation.

2.71 Many suggested ways in which the Scottish Parliament could be involved in the process.

  • Some called for full parliamentary consultation or consideration of a final draft.
  • A few suggested the statement should be approved by the Scottish Parliament.
  • A small number highlighted the need for a requirement for Ministers to report on how they have incorporated Parliament's comments.

2.72 Several commented on the need to review the content of the statement at regular intervals; there were also suggestions that the process for developing the policy statement should be set out in statute.

2.73 Singular comments on policy statement development are provided in Appendix 6.

Content of the policy statement

2.74 Comments on the potential content of the policy statement were identified in numerous responses. These focussed mainly on how the duty and principles should be balanced alongside existing obligations, details for implementation and the potential to provide guidance on wider principles.

2.75 Discussion on how the application of the principles should be balanced alongside other areas/issues/duties included:

  • A suggestion that the environmental principles should have equal weight to social and economic principles
  • Guidance on balancing the principles where more than one applies to a decision
  • To balance the principles with human rights
  • Comments on how they should apply in the event of a conflict with existing obligations or duties
  • Identification of priorities within the guidance i.e. areas where ministers are keen to make progress, and also to 'avoid the blanket adoption of overly complex assessment processes for relatively minor impacts'.

2.76 Reflections on the details of implementation were found in in a number of responses. Examples included the requirement for an implementation plan, the extent to which discretion can be exercised when applying the principles, a statement of policy on the principles or definitions of the principles, best practice examples of implementation, and calls for clear delivery mechanisms to be outlined.

2.77 A small number commented specifically on the language in the statement. For example, one felt it should be as strong as the current arrangements; another that it be 'written in a manner that makes it readable and relevant to those with the responsibility to apply the principles in their day-to-work.'

2.78 Singular suggestions about the content, which often related to participants' individual views and areas of expertise, are provided in Appendix 6

Links between the policy statement, duty and legislation

2.79 Discussions about how the policy statement would work alongside the duty to have regard to the four principles and any associated legislation were identified in several responses.

2.80 Many of these argued that there should be a duty on Ministers or public bodies, or that they should have regard to the policy statement.

2.81 Some felt that the process for developing the statement should be set out in statute.

2.82 A few suggested that the legislation should include a requirement for Ministers to produce a policy statement. A small number argued that the guidance for the implementation of the duty should be established in statutory guidance or statute, not just in a policy statement.

2.83 There was also an infrequent suggestion that the legislation should only set out the high-level need or purpose of the policy statement, for example 'to guide interpretation and application' rather than the content of the statement, so it can be easily updated. One felt the duty to have regard to the principles should come into force immediately without necessarily waiting for the policy statement. Another suggested that the principles should be set out as specific commitments in future legislation.

The interplay between the policy statement, courts and case law

2.84 Many participants discussed how the policy statement could or should be used by the courts or how it is linked to case law.

2.85 In terms of the interplay with courts:

  • as noted earlier, several commented on the role of the policy statement in providing courts with guidance on how the legislation / principles should be interpreted; and
  • a small number commented that the statement can / should be used by courts (to ensure a consistent approach).

2.86 In relation to case law:

  • a small number of respondents shared straightforward comments on how the policy statement can supplement any existing case law, with one observing it needs to be updated as case law changes; and
  • a few commented on the influence of case law on the interpretation of principles and suggested that courts should continue to have the option to choose the extent to which they have regard to CJEU case law.

2.87 Singular suggestions about courts and case law are provided in Appendix 6

Other potential roles for the policy statement (not directly related to providing guidance and interpretation)

2.88 Several respondents observed the potential role of the policy statement beyond its intended purpose of providing guidance on the interpretation and application of a duty. These varied depending on the viewpoints of the individual respondents and included the role of the statement in being flexible enough to allow regular updates or changes over time as a result of the evolution of EU law; for example new or amended principles, international developments, or new research, evidence, or scientific knowledge.

Other reasons for agreement

2.89 In addition to the reasons summarised above, some respondents gave singular reasons as to why they agreed with the requirement for a policy statement. These included some short straightforward responses, such as it is 'logical', or 'helpful'. There were also suggestions it will help raise awareness and understanding of the duty among the public.

2.90 One commented that a policy statement is the appropriate level to tweak the operation of the duty, rather than in the legislation. Another suggested practical implementation of such a duty is vital. One felt that the public has a right to know how the money is being spent.

Other responses to the question

2.91 A small number of respondents mentioned intra-UK considerations which have been summarised in Chapter 2.

2.92 A few respondents argued for an independent body or watchdog to be set up.

2.93 Two were dismissive of the need for a policy statement: one due to it being linked to EU specifications and the other because they believe it would be irrelevant to anyone outside the civil service.

Workshops

2.94 There was strong support in the workshops for the production of a policy statement. Most felt the statement should: outline the policy outcome to be achieved from the application of the duty and, provide guidance on the interaction with existing duties and on how best to balance environmental outcomes with other policy needs.

A sample of illustrative quotes that typify the themes identified in this section:

"The policy statement should provide an explanation describing the purpose of each principle, how these are to be interpreted and applied, and some contextual 'good practice' examples of where the principles have been applied in the past, to help shape understanding amongst stakeholders. (RSPB)"

"Any such policy statement must be developed and adopted through a specified and transparent statutory process which includes meaningful consultation of and input from relevant stakeholders including civil society organisations. (Client Earth)"

"The statement should also provide guidance to courts in the interpretation of the principles and their application, should they be required to determine whether any future application has been appropriate. (WWF Scotland)"


Contact

Email: fiona.eddy@gov.scot