We need a new watchdog to guard Scotland’s environment after Brexit

24 Jul 2019

If our natural environment is being harmed, and our government fails in its duty to protect it, who can we turn to?

In 2012, conservation group WWF complained to the European Commission that the UK government hadn’t set up any protected areas for the harbour porpoise. With its chunky body, triangular fin and slow rolling motion through the water, the harbour porpoise is found throughout Scotland’s coastal waters. But chemical and noise pollution both pose significant threats to our smallest cetacean. And in British seas as a whole, more than 1,500 porpoises are estimated to die each year through entanglement in fishing gear.

The harbour porpoise is protected under the EU Habitats Directive, which means the UK is legally obliged to set aside areas of sea where it will be allowed to thrive. Following the WWF complaint, the UK and Scottish governments have together proposed six new special areas for the porpoise, including one in Scotland, in the Inner Hebrides and Minches.

Environmental protections are only as strong as the institutions that uphold them. On leaving the EU, Scotland and the rest of the UK will lose the oversight and enforcement roles of the European Commission, European Court of Justice and other EU bodies. These institutions have played an invaluable role in giving the public a voice and holding governments to account on environmental matters. As well as monitoring and reporting on the state of the environment and investigating potential breaches of environmental laws, together they can ensure enforcement and apply sanctions on governments that don’t comply. Their power stems from the fact that they are independent of national governments.

The Scottish Government has acknowledged that losing the oversight of these EU bodies will create a large hole in the defences with which we can protect Scotland’s environment. But so far it has said little about how that hole might be filled.

A growing campaign led by a coalition of environmental charities is calling for a Scottish Environment Act to ensure that any exit from the EU does not unravel the protections we rely on. One of the key things we want an Act to do is establish a new watchdog to monitor Scotland’s natural environment and hold government to account in looking after it. Crucially, a watchdog must have what no existing body in Scotland has: the power, resources and independence to effectively police the government on environmental matters.

The Fight for Scotland’s Nature campaign also wants an Environment Act to embed internationally renowned EU environmental principles in Scots law, and to set clear, legally binding targets for the protection and recovery of Scotland’s nature – as well as making the funds available to ensure targets can be met. A Scottish Environment Act would help underpin the transformative action required to tackle the joint emergencies of biodiversity loss and climate breakdown.

Scotland’s people, as well as wildlife like the harbour porpoise, need strong, effective environmental protections. The quality of the air we breathe is one of the most obvious examples of a standard we need governments to uphold. But levels of nitrogen dioxide, mostly from diesel vehicles, have been illegally high in many UK cities and towns for almost a decade. Edinburgh, Glasgow and Dundee all have streets that break legal limits. It’s estimated that air pollution causes 2,500 early deaths in the Scotland every year.

Last year, following action by environmental lawyers Client Earth, Friends of the Earth Scotland and other organisations, the UK government was referred to the European Court of Justice for repeatedly failing to tackle air pollution. It could face substantial fines if it fails to comply.

At present, our air quality laws come from the EU. But after Brexit, in line with devolution, setting and implementing air quality laws would be the responsibility of the Scottish Government – making an environmental watchdog that is specific to Scotland all the more necessary.

Air quality is not alone. Most of our domestic environmental protections stem from EU laws, meaning that currently there is broad scope for citizens and charities to submit complaints to the European Commission where they see a failure to meet environmental standards. And unlike a UK court case, this complaints process is affordable. Another major advantage is that it allows cases to be judged on merit, whereas an appeal in UK courts can only look at procedural errors.

The EU has played an overwhelmingly positive role in safeguarding Scotland’s natural environment. But whatever our future relationship with the EU, Scotland can retain and build upon current protections through a Scottish Environment Act that sets us on a clear path to a sustainable future. An independent watchdog that holds government to account and gives citizens recourse to justice must be a central component of such an Act.

by Miriam Ross, Fight for Scotland’s Nature campaign co-ordinator at Scottish Environment LINK.

This blog was published as a Scotsman article on 24 July 2019.

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