How good are Scotland’s new draft environment laws?

13 Jul 2020

Kingfisher ©Sandra Graham

If you believe your local environment is being harmed due to the failure of a public body to meet environmental standards, you can raise an official complaint and request an investigation. Well, you can until the end of December 2020, that is, when the Brexit transition period ends.

A major benefit of EU membership is that it allows individuals and organisations to complain to the European Commission, bringing specific, local cases of environmental damage to light. Often, the judgements in such cases have set important precedents in environmental law.

Scotland’s environment charities, alarmed by the risk posed to our unique wildlife and landscapes by the loss of EU protections, have been calling since 2018 for new Scottish laws to maintain and build upon these crucial safeguards. The Fight for Scotland’s Nature campaign has gathered support from almost one hundred organisations across Scottish society, and from more than 22,000 individuals who wrote to Nicola Sturgeon to call for new legislation.

Green recovery

In 2020, the coronavirus pandemic and the resulting lockdown have brought a heightened awareness of the importance of our natural environment for our health and wellbeing, and of the inequalities in access to nature. As we emerge from the crisis, maintaining and building upon high environmental standards will be essential in achieving a green economic recovery by ensuring our natural habitats and wildlife are protected.

Buttercup meadow ©Sandra Graham

Campaigners were pleased, therefore, when in June the Scottish Government published its long-awaited EU Continuity Bill, outlining how it plans to fill the major gaps that will be left in Scotland’s environmental protections.

So, are the Scottish Government’s plans up to scratch?

They’re certainly a very welcome step in the right direction. But we believe the new law will need to be much stronger if it is to maintain the level of protection that EU membership has brought to Scotland’s world class natural environment.

First, the good news

The Continuity Bill meets a key demand of our campaign by embedding four key environmental legal principles, applied until now by the EU, into Scots law. These include the principle that where there is reasonable concern that an activity could be harmful, it should not be carried out unless it can be proved to be safe. In Scotland, this has underpinned action against fracking, neonicotinoids and genetically modified crops. They also include the principle that polluters should pay for the environmental damage they cause, which has helped drive up the quality of Scotland’s drinking water and beaches.


Also on the plus side, the bill sets up a new watchdog, to be called Environment Standards Scotland, to monitor and investigate public bodies’ compliance with environmental law. The need for a watchdog to replace the oversight and enforcement roles of the European Commission, European Court of Justice and other EU bodies is another key demand of our campaign. The new organisation outlined in the bill goes some way towards meeting this.

A watchdog that won’t listen?

Now for the bad news. Unfortunately, the new watchdog has two major weaknesses.

While it will be able to investigate complaints, it will only be able to take enforcement action on those relating to broad deficiencies in government policy or strategy. This means that specific complaints of the kind dealt with by the EU system won’t be addressed. We believe this deprives citizens of an essential means of making their voices heard and getting justice on environmental matters.

The watchdog set out in the bill also lacks teeth. Scottish Government ministers will appoint its senior officials, with little oversight from parliament, which could seriously compromise its ability to impartially investigate complaints and force public bodies to up their game. The strength of the EU institutions lies in their independence, and the new Scottish body is not sufficiently independent from government.

No going back

Aside from the weaknesses of the proposed watchdog, environment charities are disappointed with the extent to which the bill provides for ‘keeping pace’ with EU law after the Brexit transition period ends. Scottish environment secretary Roseanna Cunningham said in 2019 that the Scottish Government had committed to maintain or exceed current EU environment standards. But there’s nothing in the bill to explicitly prevent standards being rolled back. And while the bill enables Scottish government ministers to align with improvements in environmental standards at EU level, it doesn’t require them to do so. We think it should. Otherwise, we risk becoming once again the ‘dirty man of Europe’ of the 1970s.

Here’s how the bill can be strengthened

We want the Scottish Parliament to amend the Continuity Bill so that it:

  • empowers the new watchdog to take enforcement action on complaints about specific decisions affecting people’s environment
  • strengthens the watchdog’s independence to ensure it has teeth to enforce environmental protections
  • requires Ministers to maintain or exceed EU environmental standards.

The bill is at the very beginning of its passage through parliament, and with your continued support we’re hopeful that public pressure and parliamentary scrutiny will result in new laws with the strength to protect Scotland’s iconic natural environment.

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