Environmental principles and governance after Brexit: responses to consultation

6. Environmental governance arrangements: enforcing action

6.1 Chapter 6 presents an analysis of responses to Questions 12 and 13 of the consultation. These focus on the last of the environmental governance arrangements outlined in the consultation paper - the enforcement of effective implementation by government of environmental law.

6.2 Currently the European Commission seeks to resolve any issues through guidance and discussion, but the CJEU can be asked to rule on an issue and, if necessary, require remedy and apply sanctions on members states if EU law has been breached.

6.3 Participants were invited to express their views on enforcement powers by responding to the following question:

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

Overall nature of response

6.4 Over four fifths of participants (83 out of 99) gave a detailed response to the question, with the remaining 16 either stating 'no comment' or leaving this question blank.

• The most common theme in responses was an anticipated negative impact. This was typically based on the loss of the deterrent of EU enforcement, the potential for lowering / weakening of environmental standards and concern that the environment is likely to suffer as a result. A number of other negative impacts were identified by smaller numbers of participants.
• Some respondents indicated there would be minimal or no impact; another felt the impact would be beneficial.
• Several participants suggested actions to mitigate the impact of the loss.

Suggested mitigating actions

6.5 Despite the focus of Question 12 on the impact of the loss of EU enforcement powers, a common theme in responses was some suggestion as to how any impact could be mitigated. That is the focus of Question 13, so those comments have been included in the analysis within that chapter.

Discussions around the governance / enforcement gap

6.6 A large number of comments related in some way to the gap in governance and enforcement that would result from the loss of EU enforcement powers. Several made general observations on reductions in scrutiny or accountability.

6.7 Some specific issues were also raised. These included:

• The deterrence effect of the EU's enforcement powers and how their absence and deferring to current domestic enforcement would lead to poorer implementation or more breaches
• Lack of penalties, for example insufficient mechanisms to penalise breaches or major breaches going without punishment
• The increased difficulty of holding the government to account
• Concerns about greater non-compliance, or that breaches of EU law will increase
• Poorer enforcement generally
• General comments about the creation of a governance gap
• Concerns that breaches in environmental protection/law are less likely to be identified / addressed / challenged.

Lowering / weakening of environmental standards

6.8 Several participants highlighted the potential impact of a lowering / weakening of environmental standards.

Environmental damage

6.9 The loss of EU enforcement powers was noted as a direct risk to the environment. Comments on this theme included brief acknowledgements of potential harm to the environment or mention of areas which could be impacted, such as endangered species, human health, biodiversity, society, the marine environment.

Other negative impacts

6.10 Several respondents identified other negative impacts which they thought might result from the loss of EU enforcement powers. These included increased potential for business and/or lobbyists to challenge or over-ride environmental protections and a decline in future trade due to lack of regulatory alignment or falling standards.

Fines and penalties

6.11 Fines were also mentioned by some respondents. These discussions included the value of fines (or the threat of fines) as a deterrent and in pushing organisations and governments to adhere to environmental obligations or to conclude legal disputes within the UK.

No impact or positive impact

6.12 Some respondents indicated they believed the loss of EU enforcement powers would have either a positive or no/limited impact.

6.13 As noted above, one respondent claimed there would be a positive impact, stating it would be 'beneficial'.

6.14 A small number of respondents explicitly said there would be no impact / loss, with two elaborating that Scotland can create its own enforcement powers. A few indicated there would hopefully be no change if the Scottish Government and public authorities follow policies and act in line with their commitments. Others commented that the impact would appear to be minimal, given the small number of relevant cases currently.

Other comments provided by respondents

6.15 Respondents provided examples as part of their comments which are presented in Appendix 14. Some highlighted the potential for the de-prioritising of environmental protection (for short term economic or political benefits) and a small number commented on the loss of diplomacy: for example that there would be a reduction in expertise and sharing of information, or how the EU's 'soft powers' such as taking part in negotiations, mediation and dispute resolution, gained through expertise and knowing what member states are doing) can be replicated post EU exit.

6.16 A small number of respondents made very specific detailed points which, given space limitations in this report, have been signposted to the Scottish Government for further review. These included comments on the issue of public access to justice the ability of courts to operate in a way in which decisions involve assessing scientific and technical evidence.

6.17 Of those who indicated there would be a negative impact there were comments that Scotland needs to emphasise that environmental harms are unacceptable and protection comes before development, and a general point that, in spite of the small number of EU enforcement actions, there needs to be greater resourcing of enforcement being carried out across Scotland.

Responses to Question 13: Ways to address the loss of EU enforcement powers

6.18 The consultation paper notes that it will not be possible to replace the supranational role played by the European institutions and states that a view has yet to be reached on whether additional measures are needed or whether greater use of existing domestic mechanisms would be sufficient. It suggests that one option is a new body with the power to refer the Scottish Government or a public authority to a Scottish court.

6.19 Respondents were invited to express their views on ways to mitigate the loss of EU enforcement powers by answering the following question:

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.

Overall nature of response

6.20 Over four fifths of participants (81 out of 99) gave a detailed response to the question, with the remaining 18 either stating 'no comment' or leaving this question blank. As noted in the previous chapter, elements of responses given at Question 12 which suggested actions to mitigate the impact of the loss of EU enforcement powers have been included in the analysis of Question 13 detailed here.

• The most frequent theme in responses was specific suggestions about what could be done to address the loss of EU enforcement. By far the most common was the creation of an independent body / watchdog, with respondents suggesting a range of functions / powers being given to such a body. Several respondents also suggested the creation of an Environmental Court.
• There were a number of other 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.
• Several respondents made general comments in response to the question. These are included where relevant in the analysis below, but the most common theme was the need to ensure domestic enforcement processes and powers are put in place.

An independent body or 'watchdog' and its powers

6.21 As noted in earlier sections, many respondents called for the creation of a new independent body or watchdog to take on some or all elements of the EU's current governance role. The standard wording of the campaign response also called for 'an independent and well-resourced watchdog to enforce environmental protections', created by a Scottish Environment Act.

6.22 There was considerable overlap in the detail of comments about a new independent body. This section of the report provides an overview of all views given on the role and powers of a new body - regardless of whether this was in relation to scrutiny, complaints or enforcement, but referencing these areas where relevant.

6.23 Although some respondents had specific, individual views on such a body, a number of common themes were identified in the reasons for creating such a body, and suggestions for its role and powers.

6.24 Some respondents did not go into specific detail but nevertheless provided general comments around the functioning of a new body. These included:

• repeated mentions of the need to be independent of government or existing government bodies; and
• a few respondents' general comments relating to a role in monitoring compliance and enforcing standards or legislation.

6.25 In terms of roles as a scrutiny body, the most prevalent theme was to scrutinise, investigate and enforce the implementation of environmental law, and the application of the EU principles by the Scottish Government and its agencies. Respondents also shared the suggestion that the body should hold government or its agencies to account.

6.26 In terms of roles as a complaints body or mechanism, a range of suggestions were shared.

• Most mentions discussed the need to deal with complaints or resolve disputes, including receiving or acting on those from citizens
• Accessibility and enabling members of the public and organisations such as charities to easily submit complaints
• To appropriately investigate, evaluate and remedy complaints with a suitable penalty
• Promote transparency by publishing a complaints procedure making clear the types of complaints it is likely to investigate
• Encourage positive environmental outcomes and focus on social implications such as access to environmental information and public engagement
• A few respondents noted it would be a poor use of resources for the new body to have an obligation to respond to all complaints.

6.27 Suggested powers to be given to the body in relation to enforcement varied. The most commonly mentioned power was to instigate court action or judicial review. The second most common theme was the need for a suitable range of enforcement powers, including both legal and 'softer' powers, so appropriate actions can be taken on a case-by-case basis. This was often cited as part of an escalating enforcement process, leaving court action as a last resort. The most frequent point in this discussion was that Scotland needs to introduce its own enforcement powers (with a change in legislation to reflect this) with many stating these powers should replicate those currently held by the EU. Some identified a need to embed EU principles in domestic law whilst a few argued for the continuation of the Aarhus principles. Other powers mentioned included:

• To suggest or impose remedial action
• Impose fines, penalties or sanctions in cases of non-compliance
• A few respondents mentioned inspection and evidence collection, and the ability to impose interim measures to ensure no further harm is done during consideration of issues.

6.28 Other points for consideration in the creation and management of a new body included:

• repeated mentions of the need for adequate resourcing and an independent budget;
• the need for a new body to have the necessary capacity, scientific and technical expertise; and
• a few respondents reiterated that the body should have the same level of scrutiny or assessment that is currently in place under the EU.

An environmental court or tribunal and its functions

6.29 When discussing alternative models, several respondents suggested the creation of an environmental court or tribunal to replace the CJEU. Some referenced previous debates on the creation of an environmental court and argued that this should be re-opened. Reasons for creating such a body, and suggestions for its powers, included:

• to deal with the complex and technical questions of environmental law;
• to take remedial actions e.g. quash decisions, order legal or administrative actions and compel remedial action and restoration; and
• be fully Aarhus compliant i.e. not prohibitively expensive to the complainer and able to consider the merits of the case.

Possible limitations of approaches

6.30 Many participants reflected on the challenges inherent in different approaches. These focussed primarily on the limitations of resorting to judicial review, and of empowering an existing body with enforcement powers.

6.31 Potential limitations of the use of judicial review included comments that the scope and processes of judicial review in Scotland are not designed to meet the needs of environmental cases. A few highlighted that giving a new body the right to refer an issue to judicial review would not replicate the current EU mechanisms. A small number noted that review of the domestic judicial system is likely to be costly, bureaucratic and would not necessarily result in any significantly better outcomes.

6.32 Discussion of the limitations of empowering an existing body included views from a small number of respondents that this would be ineffective, that they are not placed to do this due to their position or expertise, that those currently regulating need to be overhauled to work effectively or that this implies a low-cost / under-powered approach.

6.33 A small number of respondents felt that powers to apply financial sanctions need to be carefully considered to ensure that resources are not taken away from other environmental issues.

6.34 There were also a small number of comments that the proposed Environmental Commissioner is lacking in powers, including a view that any replacement to the EU fine levying mechanisms such as a proposed Commissioner needs sanction powers to ensure compliance.

Other suggested models or arrangements

6.35 Other less frequent suggestions in addition to those already discussed included creating a panel or commission of experts or using the UK Supreme Court.

Intra-UK considerations

6.36 A small number of comments were made at Question 12 and Question 13 about the need for continued co-operation across the UK to ensure consistency in approach and to deal with cross-border matters. The small number of singular comments provided at Questions 12 and 13 are detailed in Chapter 4.

6.37 Across the consultation, respondents expressed different views about the formation of a new body. Some suggested a new body for Scotland should act as a counterpart of the proposed Office of Environmental Protection (OEP) in England, have a collaborative relationship with the OEP, or that it should take a pan-UK perspective on environmental trends.

6.38 Others argued for the OEP to be extended to Scotland, with one oversight body for the whole of the UK (co-designed and developed by all administrations) or that there should be a federal approach with devolved OEPs in the home nations and a UK steering group. One argument for these more coordinated approaches was that they would provide more effective environmental protection through adequate resourcing. Two respondents provided comments on potential constitutional or devolution related problems arising from the OEP not covering Scotland.

Other comments

6.39 A small number of respondents commented on the need to set clear targets for environmental protection along with adequate funding,

6.40 A few called for greater sanctions to be used, including a comprehensive range of fines for non-compliance and a call for the establishment of a law of ecocide. Conversely, one argued that: 'appropriate emphasis is placed on incentivising appropriate environmental outcomes to minimise the potentially enormous costs of infraction.'

Workshops

6.41 When discussing the options for an enforcement function, workshop participants were uncertain as to what would be most effective. As with complaints, final recourse to the courts was stressed as necessary. Some discussed the limitations of financial penalties and a number also highlighted that further consideration of the interaction between new functions and existing routes of accountability was needed.

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

"The UK's withdrawal from the EU means that the Commission and the CJEU will have no role in enforcing compliance by the Scottish Government with environmental law. Unless suitable alternative arrangements are developed, there is a risk that a visible weakening of enforcement powers will reduce deterrence. (Royal Society of Edinburgh)"

"Lack of effective enforcement mechanisms, as a general rule, increases the likelihood that standards will slip, making the widening of a gap between rhetoric and reality more likely. (Chartered Institute for Archaeologists)"

"The great advantage of Europe is that they provide an overarching legal judgement which prevents national governments sacrificing wildlife and landscapes in response to lobbying by big industry. (Sealife Adventures)"

"Enshrine the environmental principles in law and include Scottish law and policy within the remit of a new UK-wide environmental governance watchdog which is afforded the appropriate powers to hold government and other public bodies with authority over environmental management fully to account through a suite of escalating enforcement powers. (Chartered Institution of Water and Environmental Management)"

"There is a need for a new independent 'watchdog' body, with powers of last resort to refer alleged non-compliance to a Court. However, giving a new body the right to refer an issue to a Sheriff Court or the Court of Session would not sufficiently replicate the current EU compliance mechanisms. A new Environmental Court is therefore required. (Anonymous)"