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.


1. Members of the Round Table who form the subgroup are Lloyd Austin, Dr. Antonio Cardesa-Salzmann, Prof. Campbell Gemmell (Ch.), Jonny Hughes and Dr. Annalisa Savaresi. The subgroup co-opted Professor Colin Reid as a member. Additional support was provided by Bridget Marshall ( SEPA), and Dr. Ian Jardine, Kate Thomson-McDermott and Keith Evans from Scottish Government as well as Isobel Mercer from RSPB and Professor Elisa Morgera.

2. The work was carried out largely in February and March. Editing and updating was undertaken in May. The Defra Environmental Governance consultation - https://consult.defra.gov.uk/eu/environmental-principles-and-governance/ - emerged as the final document was being produced.

3. Study to assess the benefits delivered through the enforcement of EU environmental legislation - http://ec.europa.eu/environment/pubs/pdf/Final_report_study_benefits_enforcement.pdf
The number of formal infringement cases involving the UK are detailed at https://ec.europa.eu/info/sites/info/files/file_import/national_factsheet_united-kingdom_2016_en_0.pdf and the number of environmental complaints across the EU is shown at the link – see p.24 of http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=SWD%3A2017%3A259%3AFIN&from=EN

4. The following UKELA reports were considered:

  • Enforcement and Accountability Issues – July 2017
  • Exit from the Euratom Treaty and its Environmental Implications – July 2017
  • Brexit, Henry VIII Clauses and Environmental Law – September 2017
  • The UK and International Environmental Law after Brexit – September 2017, including the so-called Scottish Annex (unpublished)
  • The UK and European Co-operation Bodies – January 2018
  • Environmental Standard Setting after Brexit – February 2018

5. Scottish Universities Legal Network on Europe, The Implications of Brexit for Environmental Law in Scotland (2016): https://sulne.files.wordpress.com/2016/12/environment-paper-sulne-20161214.pdf

6. Greener UK's report on 'The Governance Gap': http://greeneruk.org/resources/Greener_UK_Governance_Gap.pdf

7. https://www.coe.int/en/web/bern-convention/emerald-network

8. http://ec.europa.eu/environment/legal/law/pdf/statistics_sector_from_2007_to_2016.pdf

9. JNCC Catalogue of case law relating to articles of the EU Birds and Habitats Directives (2016 version), available at: http://jncc.defra.gov.uk/page-6780

10. Annalisa Savaresi, Evidence to the ECCLR Committee, Scottish Parliament (2018) available at: http://www.parliament.scot/S5_Environment/Inquiries/Annalisa_Savaresi_written_submission.pdf and Annalisa Savaresi, Evidence submitted to the Environmental Audit Committee, UK Parliament (2017) available at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/fgases/written/74991.html

11. House of Commons Environmental Audit Committee, UK Progress on Reducing F-gases Emissions, 2018. https://publications.parliament.uk/pa/cm201719/cmselect/cmenvaud/469/469.pdf

12. https://www.unece.org/fileadmin/DAM/env/pp/mop6/in-session_docs/ECE_MP.PP_2017_CRP.6_E_United_Kingdom.pdf

13. https://www.unece.org/fileadmin/DAM/env/pp/compliance/C2018-156/Communication_UK_RSPB_07.12.2017.pdf

14. The sub-group would note that following a consultation last year, the Scottish Civil Justice Council ( SCJC) have established a working group to consider the policy issues emerging from the SCJC's consultation on draft rules for Protective Expenses Orders and make recommendations to the Council for revised procedural rules to strengthen that protective system.

15. NORM is generated in the form of mildly radioactive, low level waste as muds and solid deposits from drilling and pipework handling processes in the oil and gas industry, including decommissioning and requires dedicated waste management. http://www.gov.scot/Topics/Environment/waste-and-pollution/Waste-1/16293/NORM

16. Permitting of IPPC/ IED processes makes detailed use of BREFs. There are currently 34 Best Available Techniques Reference Documents produced by the EU Industrial Pollution Prevention and Control Bureau, with extensive annexes. These are made under an exchange model for information gathering and assessment under the IED.

17. ref UKELA paper - https://www.ukela.org/content/doclib/320.pdf

18. Savaresi A, 'The Impact of Brexit on Environmental Protection in Scotland: Some Early Reflections' (2017) 22 Edinburgh Law Review 115

19. ref UKELA report - https://www.ukela.org/content/doclib/326.pdf

20. https://www.instituteforgovernment.org.uk/sites/default/files/publications/cost-of-brexit-what-whitehall-spending-insight-final-vb_1.pdf

21. Non-Departmental Public Bodies

22. See http://www.parliament.scot/abouttheparliament/27110.aspx for details of the parliamentary commissioners and equivalents

23. As with all forms of scrutiny, one form of "savings" that will arise is that it will cause implementation/decisions subject to that scrutiny to be become/remain of a high standard – and thus prevent costly appeals/challenges/compensation/restoration. It is therefore possible to view this as "preventative spend" – a short-term cost, but preventing longer term, larger increases in costs.

24. Scottish Public Services Ombudsman

25. Such a court might be either a new court or an expansion of the Land Court.

26. There are also issues which could be considered around compensation. There is not space to address this in detail. However, Brexit will entail the loss of "Francovitch" type damages claims, whereby an individual can receive compensation when their individual rights have been infringed and they have suffered loss as a result of a failure to implement EU law. There have been Scots law private actions on losses 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. Francovitch damages have not been claimed often in the environmental area because of the need for the rule infringed to be intended to confer rights on individuals and the need for a direct causal link between the breach of the obligation resting with the member state and the damage sustained.

27. See UKELA paper - https://www.ukela.org/content/doclib/317.pdf


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