Environmental governance in Scotland after Brexit: report

A study on the possible issues relating to future environmental governance in Scotland on the UK's withdrawal from the EU.

Annex 3

EU environmental oversight, scrutiny and enforcement functions

What is left after leaving the EU ?

Relevant existing arrangements if we leave the EU

Potential Gaps

Options to address any gaps

Monitoring, measuring and reporting: Reporting environmental data (State of the Environment)

The UK will still be required to report under a range of international agreements and conventions. Where this is currently done through the EU, the UK will need to do this on its own. Public bodies will continue to have a range of monitoring and reporting duties. As a matter of policy, and in some cases legal requirement, Ministers and other public authorities may wish to publish environmental information presently reported to the EU.

Where the UK provides reports directly to international bodies other than the EU, this will continue. Much of the information is already gathered and co-ordinated at UK level through NDPBs, research bodies and other parts of government.

Being able to use EU systems to facilitate reporting and be part of developing methodologies.

Ability to aggregate data at European level and assess UK progress and contribution on a comparative basis.

Access to wider expertise, systems and data and knowledge holdings.

Potential loss of requirements for data to be published (depending on EU withdrawal legislation).

Seek continued engagement with appropriate EU expert institutions (such as the European Environment Agency, EURATOM, ECHA, IMPEL etc).

Longer term, a review of monitoring and reporting duties across the sector could help to clarify, simplify and improve transparency about what is collected and published, by whom and for what purpose. (May need legislation to adjust duties).

A single body (existing or new) could be given an overarching role in assessing and reporting on data about the state of the environment.

Monitoring, measuring and reporting: Reporting on the implementation of environment law

(Is the law in place and working?)

The UK will no longer be required to report to the European Commission on the implementation and effectiveness of applying environmental laws. There are existing duties at Scottish level to report on implementation ( e.g. Section of the Regulatory Reform (Scotland) Act 2014. Continuing to publish other information currently sent to the EU will be a matter of policy and choice.

Much of this information is already gathered and co-ordinated at UK level through NDPBs, research bodies and other parts of government.

There will continue to be Parliamentary scrutiny of legislation. It is suggested it has previously been challenging for Parliamentary Committees to find time to fulfill this role fully.

As above, plus:

Loss of EU pressure to improve quality and timeliness of reporting.

Sufficient capacity and expertise to scrutinise the effectiveness of existing legislation.

Policy commitment or legal obligation to continue to prepare and publish reports on the implementation of environmental laws.

Scrutinising of reports, preparation of independent assessments and reports, examining environmental compliance and progress

The UK will no longer be subject to EU mechanisms scrutinising the transposition and proper implementation of EU law.

Without a supranational structure, scrutiny will be for civil society and the Scottish Parliament.

A number of bodies within Scotland in both the public sector and civil society have a role in scrutinising environmental performance, not least the Parliament itself usually through its committees. Bodies such as Audit Scotland produce specialist reports and assessments.

EU mechanisms provide a strong external check on a Member State's performance in fulfilling environmental obligations.

It could be left largely to civil society, through academic and research bodies, NGOs, professional and expert bodies to scrutinise and comment on performance and these could be used by Parliamentary Committees to challenge Ministers.

Ministers could establish an expert panel to provide additional and cross-cutting advice.

The powers of NDPBs, such as SEPA and SNH, could be expanded to give them a more explicit role and new duties to assess performance against environmental duties across Government, although this raises issues about who scrutinises their own regulatory performance.

Existing public bodies which already have a role in scrutinising and reporting on performance, such as Audit Scotland could be given additional duties in relation to the environment. This raises questions about expertise and the overall balance of such a body's remit.

A new independent statutory body such as an 'Office of environmental scrutiny and audit' could be established, reporting directly to Parliament.

Initiation of investigations, cross cutting studies and reports

Many bodies have powers and capacity to conduct studies and investigations as part of their wider functions in presenting and analysing information on performance and which can be used in calling the public sector to account.

Similarly the Parliament can conduct inquiries on its own initiative.

As with the last section many bodies both in the public sector, academic world and civil society can and no doubt will undertake such work.

The Parliament and bodies such as Audit Scotland can conduct inquiries into performance.

Reports arise in an ad hoc and unsystematic way. The status (and independence / objectivity) of such studies is variable and Government may not be required or obliged to respond in the way they are when the European Commission are the instigators. To fill the EU role, a body or bodies would need powers to initiate investigations, obtain information and require a response.

The task of initiating investigations, obtaining information and requiring a response, could be attributed to one of the bodies indicated above.

However, if a power to require the provision of information is needed with penalties for failing to do so – which seems likely – this could only be given to a public authority.

Mechanisms for individuals or organisations to make complaints regarding the application of (non-criminal) environmental law

Citizens will retain general rights to register a complaint and to challenge the actions of Government and public bodies.

There are mechanisms for individuals and organisations to complain about the delivery activities of environmental authorities to those authorities, through their elected representatives , including the petitioning of Parliament or to the Scottish Public Sector Ombudsman ( SPSO).

Elected representatives may require expert and independent advice in order to reach conclusions on environmental matters and in order to pursue complaints with Government.

Ombudsmen are not specifically focused on environmental issues and may not have the technical expertise for complex environmental issues.

Exiting mechanisms ( e.g. ombudsman) tend to be focused an assessing whether proper and legal process has been followed rather than on the merits of any complaint.

Additional powers could be given to an existing body to consider complaints from the public and to require compliance from public authorities.

However, none of the existing bodies possess both the expertise and independence to consider complaints as to whether intended environmental outcomes are being achieved.

A new body could be created either to report to Parliament directly or to advise a body such as SPSO with an expanded remit. This body would also require powers to require a response or remedies from public sector bodies.

Formal and informal mechanisms to seek solutions to concerns about the implementation of environmental law, through interaction with Government

Public bodies will continue to be required to have established complaints procedures which also include commitments to fully investigate and respond to complaints about their performance. This response often involved seeking a resolution.

Government itself, with the engagement of Parliament, will often seek to resolve public concerns.

Bodies such as the Parliamentary Committees have powers of investigation and to obtain information. The Ombudsman can only exercise these powers where certain conditions around the complaints are met, but does not usually seek a solution through negotiation, although it will recommend changes to procedure and practice.

There is no current body charged explicitly with seeking to resolve issues of compliance and to pursue remedies in the way the European Commission currently does.

Many issues raised with the European Commission (through monitoring or complaints) are resolved quickly and informally, but influenced by the pressure of more formal processes in the background.

This role can be added to the remit of whichever body is charged with investigating questions of compliance. See above.

Alternatively, existing bodies could be left with the monitoring roles and can receive complaints to another body to seek resolution of compliance issues.

Powers to refer a public body to a court for alleged failure to implement environmental law in order to seek a remedy

There is an existing legal framework covering judicial review, appeals and other civil action.

There are a number of Scots private law actions that deal with the situation where loss has been suffered as a result of breaches of public law powers. These include breach of statutory duties, misfeaseance in public office and commission of another recognised civil wrong such as negligence. It is also possible to attach a damages claim to a judicial review action but such claims are usually vindicatory rather than compensatory.

There are a number of public and private law actions that individuals can take where public bodies are not complying with the law, which would apply to retained EU law.

The main current mechanism is judicial review which is based only on a challenge to the legality or reasonableness of an action by a public body.

There is no body specifically charged with referring a public body to court where there is evidence that the body has failed to fulfill its duties on the environment, or failed to deliver an outcome commitment.

Existing rules on standing and costs may deter private parties and NGOs from pursuing judicial review.

Scots law remedies do not have the same scope as those provided by EU law. The nature of many EU obligations in requiring the strict achievement of standards and targets would, if replicated, require the courts to pay more attention to substantive outcomes rather than process and procedure.

It would be possible to rely on existing mechanisms of judicial review but this would mean a re-consideration of their scope.

However, a reference to court should be a final recourse when all other methods of enforcement have failed. It is hard to envisage that an existing public body such as SEPA or SNH could refer itself to a court. However, if a new public authority is created, evidence of a failure on the part of another public body could be submitted or referred to a court as an option of last resort.

The issues of whether it is appropriate for the judicial system to consider issues of outcome/merit rather than process and procedure, and whether there would be relevant expertise and capacity would need to be explored further. This could include consideration as to whether an environmental court or tribunal should be established.

Powers to order interim measures to prevent irreversible damage before judgment is handed down

Courts and public bodies have a range of interim powers to stop activities that breach environmental laws, normally subject to appeal.

Courts can grant interim interdict to halt developments until a full judgment is reached.

There is some concern that these may be rarely invoked because the party seeking this may be liable for the losses suffered by the other part if the contested action/decision which has been stopped is held at the full hearing to be lawful.

There are powers available to public bodies to halt harmful activities such as Nature Conservation Orders and Land Management Orders which are usually open to an appeal process.

Although current powers to issue interim measures will continue, this is a widely recognised area of weakness.

The CJEU has in principle provided a backstop where Member states appear to have breached EU law but in practice its powers have been rarely exercised.

The range of powers within regulatory schemes to suspend decisions/action could be reviewed, as could the procedures in the courts to ensure that there are practical and effective means of intervention pending the final resolution of cases, and of securing remedies where required.

Powers to require Government to take such action as is necessary to bring it into compliance and to impose sanctions if action is not taken (including fines)

On leaving the EU, no equivalent to the role exercised by the CJEU will apply.

Courts can quash decisions in certain circumstances and grant financial compensation where there is an identifiable loss to a private interest.

The appropriate remedies, beyond declarator, are less clear where the finding is that the government has, for example, failed to meet broader air or water quality targets.

The powers of Scottish Courts are more limited than those of CJEU and public interests such as the environment are not compensated.

Political and policy accountability through Parliament or legal accountability through the courts would remain the main routes to sanction government.

Should a body within Scotland be given powers to impose sanctions (or seek sanctions via a court), the nature of these sanctions could include financial and/or disciplinary measures affecting those responsible.

However, there is limited merit in one public body issuing financial sanctions against another, as this essentially limits resources of government or NDPBs to carrying out functions and otherwise ensuring compliance with environmental law. Thus, the sanctions available must be environmentally-focused – that is, an order to take or quash a decision, or to deliver appropriate management.


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