6. Recording compliance with the duties
6.1 This section considers the appropriate recording of compliance with the duties in sections 14 and 15 of the Continuity Act. It is important that duty holders are able to demonstrate that, where those sections apply, they have had due regard to the guiding principles. There are two situations to consider:
- where Ministers or any other responsible authority are doing anything in respect of which the duty to undertake environmental assessment under section 1 of the 2005 Act applies.
- where Ministers are developing policy in circumstances in which the duty to undertake environmental assessment under section 1 of the 2005 Act does not apply.
Where proposals require environmental assessment
6.2 Section 15 of the Continuity Act 2021 places a duty on public authorities (other than Ministers) to have due regard to the guiding principles on the environment when doing anything in respect of which the duty to undertake environmental assessment under section 1 of 2005 Act applies. The section 14 duties on Ministers to have due regard to the guiding principles are more general and therefore include policy making processes where an environmental assessment is required.
6.3 The process of environmental assessment, including in particular preparation of an environmental report, should be used for recording compliance with the duty.
6.4 Within the process of environmental assessment, consideration of the duties to have due regard to the guiding principles will form additional considerations as a part of the assessment and should be documented in the Environmental Report.
6.5 As a part of the SEA process, environmental assessment offers greater protection of the environment by ensuring public bodies, ministers and parties preparing plans of a 'public character' consider and address the likely significant environmental effects. This process can help achieve better environmental outcomes, better plans, exploration of reasonable alternatives and potential smoother delivery, amongst other benefits.
6.6 For further information about the preparation of environmental assessments, please see the Scottish Government SEA Guidance (2013).
Where proposals do not require environmental assessment
6.7 Ministers' duties under section 14 of the Continuity Act apply when making all policies, and are not, as in the case of other responsible authorities subject to the duty under section 15 of the Continuity Act, limited to where environmental assessment is required under section 1 of the 2005 Act. Thus, where Ministers' proposals (for policy and legislation) are not subject to environmental assessment under section 1 of the 2005 Act, they will need to consider the most appropriate means of recording compliance with the duty.
6.8 Compliance with the duties can generally be recorded through the pre-screening and screening stages of the SEA process (where applicable), which establish if an environmental assessment under section 1 of the 2005 Act is required for a particular decision. The Scottish Government will update the SEA pre-screening and screening templates in order to support consideration of the guiding principles at these stages of the process.
6.9 However, in the instances where SEA pre-screening or screening is not applicable, there will need to be an appropriate and proportionate record of the consideration of the duties, through the records of the decision making process or through a published document. This might be done, for example, as part of a consultation exercise, possibly within the consultation document or other documentation e.g. policy note/memorandum, or policy strategy document. There is no obligation to prepare a standalone document such as an impact assessment. It will be best practice to ensure that there is an appropriate record that Ministers have had due regard to the guiding principles with respect to a policy and, the impacts of that due regard consideration in the policy making process (including, where relevant, the reasons for concluding that in a particular instance there are no relevant impacts on the policy). Best practice would also include making such information publicly available.
Figure 14: Info Box 2 – SEA and the role of consultation authorities in relation to the guiding principles, including compliance and enforcement.
Info Box 2: SEA and the Role of Consultation Authorities in Relation to the Guiding Principles
SEA Consultation Authorities (NatureScot, HES and SEPA) will receive additional information regarding the consideration of the guiding principles as part of SEA documents submitted to them. Responsible authorities will commence the process of recording their consideration of the principles within the pre-screening and screening templates, with further evidence to be provided within the final Environmental Report submitted for consultation.
Having due regard to the principles will improve decision making and the presentation of environmental considerations. This additional information and analysis provided regarding consideration of the principles should support consultation authorities in assessing the overall quality of the information presented to them on environmental impacts. The Continuity Act does not add to or alter the duties placed on consultation authorities by the Environmental Assessment (Scotland) Act 2005.
The duties placed on Scottish Ministers and responsible authorities to have due regard to the guiding principles now form part of Scotland's environmental law. If there were to be concerns that these duties have not been met, this could be considered for investigation by Environmental Standards Scotland.
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