Scotland’s environment post-Brexit: assessing the success of the EU Continuity Bill

26 Jan 2021

By Vhairi Tollan, advocacy manager at Scottish Environment LINK

snowy fields Karen

Scotland’s EU Continuity Bill was passed by MSPs on 22 December 2020. This bill is an important one for Scotland’s natural environment, as it aims to ensure that the environmental safeguards that came with EU membership remain in place now that the UK has left the EU. It also sets up arrangements for Scots law to remain aligned with EU law on the environment and other matters in the future.

Following the publication of the bill last June, we campaigned hard for the Scottish government to strengthen it to ensure no gaps were created in environmental protections following Brexit. Thousands of people lobbied their MSPs to encourage them to vote for stronger measures. So how good is the final bill?

The bill secures some crucial protections for Scotland’s environment…

The bill embeds key EU environmental principles into Scots law and stipulates that Scottish ministers and policy makers must have regard to these when developing new policies or legislation. This follows two years of pressure from Fight for Scotland’s Nature supporters, who can chalk it up as a great victory. The principles include the precautionary principle, which requires that preventative policies must be put in place where there is concern that an activity is causing or could lead to environmental harm. In Scotland the precautionary principle has previously informed decisions not to allow fracking, genetically modified organisms or the use of harmful pesticides.

Redwing © Sandra Graham

Significantly, an additional ‘integration principle’ was added to the bill, stating that consideration of the environment must be embedded across all areas of government.

The bill also grants Scottish government ministers new powers to keep pace with developments in EU law. Use of these powers in the future must be to advance environmental standards and social rights. This allows the Scottish government to uphold its commitment to ‘maintain or exceed’ European environmental standards in the future.

Campaign supporters will also be aware that the bill establishes a new Scottish environmental watchdog, Environmental Standards Scotland. This is itself an achievement, as it provides a mechanism by which Scotland’s environmental laws can be enforced now that we will no longer have the oversight of the EU Commission.

… but a vital gap remains in ensuring the watchdog can take action on public complaints of environmental damage

Throughout the second half of 2020, the Fight for Scotland’s Nature campaign pushed for the law setting out the new watchdog’s remit to be strengthened. Very disappointingly, the legislation prevents the watchdog from taking any enforcement action on individual complaints of environmental damage or breaches of environmental law. This could include an individual making a complaint about a specific incident of environmental damage in their local area. At EU level, action to rectify individual cases has been effective, and has set new precedents in environmental legislation, preventing problems from reoccurring elsewhere.

The Firth of Lorn is protected from scallop dredging thanks to the EU Commission’s ability to take enforcement action on individual cases. ©Calum Duncan

Instead, the new Scottish watchdog has been designed to only take enforcement action when a public body fails to comply with environmental law when the matter is deemed to be of ‘strategic significance.’ This could be, for example, significant breaches in air quality levels across the country or a failing in law to protect a particular wildlife species or habitat type.

Unfortunately, despite the many emails that were sent to MSPs on this issue, and the backing of Labour, Scottish Green and Liberal Democrat MSPs, we were not able to make progress on this vital issue. Amendments to the bill to empower the watchdog to act on individual cases were opposed by SNP and most Scottish Conservative MSPs, with opponents claiming that such a change could cause regulatory confusion and that the watchdog’s enforcement powers are expected to be used only on rare occasions. We’re disappointed that MSPs took this view, as in our experience strong enforcement powers can act as a deterrent and help to rectify issues early on.

However, this is not the end of the road for strengthening the arrangements of the watchdog. Scottish Environment LINK pushed for the bill to include a commitment for the Scottish government to hold a future consultation to assess the effectiveness of post-Brexit environmental protections, including to seek views on the need for a Scottish environmental court. MSPs agreed to add a requirement for this consultation into the bill and we can expect public views to be sought after the Holyrood election.

The organisations behind the Fight for Scotland’s Nature campaign, members of Scottish Environment LINK, will continue to make the case for the watchdog to be given more teeth to fully investigate and take action following individual complaints from the public.

The Fight for Scotland’s Nature campaign will continue to call on the Scottish government to take steps to protect Scotland’s wildlife and habitats. We will be making the case for the Scottish government to set clear, legally binding targets to halt the decline of our species and habitats and restore nature for future generations.

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