In 2018 we posted about the future of environmental law in the UK and Scotland after Brexit. At that stage the Scottish Government had recently published a report on Environmental Governance in Scotland after Brexit which set out various different proposals.
A Bill was introduced to the Scottish Parliament on 18 June 2020 that seeks to bring some of those ideas into law.
The UK Withdrawal from the European Union (Continuity) (Scotland) Bill  aims to ensure that Scots law can continue to align with EU law after the end of the transition period on 31 December 2020. It provides for three key developments:
1 EU law alignment
The Bill includes a power allowing the Scottish Ministers to keep Scots law in devolved areas in line with EU law following ‘IP completion day’. ‘IP completion day’ refers to the end of the transition (or implementation) period.
We intend to cover how the provisions on EU law alignment work in more detail in a separate post.
2 Guiding principles
There are four core guiding principles underpinning EU environmental law:
- the precautionary principle: where there is a threat of serious or irreversible damage to the environment, cost-effective measures should be taken to prevent the damage even if the measures are not fully scientifically proven;
- the prevention principle: action should be taken to prevent environmental damage;
- the rectification at source principle: environmental damage should be prevented at its source, rather than attempting to address the effects; and
- the polluter pays principle: a party responsible for pollution should be the one to pay for it to be controlled and for any remedial work to be carried out.
The Bill brings these guiding principles directly into Scots law. Once it is enacted, the Scottish Ministers and other public bodies will be required to 'have regard to' the four guiding principles when, amongst other things, developing policies and plans, including proposals for legislation.
3 Environmental Standards Scotland
In our last post we described Scottish Government proposals to establish an independent Scottish environmental body with a "thorough understanding of Scottish law, procedures and system" and that would be "more focused on the issues that are most significant in a Scottish context."
The Bill establishes a new organisation called Environmental Standards Scotland (ESS). ESS will monitor and secure compliance by public authorities in Scotland with environmental law and the effectiveness of environmental law.
One of ESS's other functions will be to investigate any question of whether a public authority is failing, or has previously failed, to comply with environmental law. It will also have the power to investigate whether the law is effectively applied and implemented.
ESS will have the wide-ranging power to take appropriate action to secure public authorities' compliance with environmental law and to secure improvement in the effectiveness of environmental law and its implementation and application.
ESS will also have the ability to petition for judicial review if it considers that a public authority's conduct constitutes a serious failure to comply with environmental law and it is necessary to make the application to prevent or mitigate serious environmental harm. The explanatory notes to the Bill state that it is expected that this power will only be used rarely.
The Bill also places on obligation on public authorities to co-operate with ESS.
The Bill is in its very early stages and so is still subject to change. However, it is a clear indication of the Scottish Government's plans and an insight into the future of environmental regulation in Scotland.