Scotland has four months left to Brexit-proof its environment laws. Will we make it?
Scotland’s nature, our unique wildlife, stunning landscapes and natural resources like water and soil, are central to our identity, our economy and, as the months of lockdown have starkly demonstrated, our wellbeing.
As we strive to achieve a green recovery from the coronavirus pandemic, and to tackle the emergencies of climate breakdown and rapid decline of nature, strong laws protecting our natural environment will be more crucial than ever.
Unfortunately, with 80 per cent of our environmental protections coming from EU membership, Brexit leaves Scotland at risk of losing crucial safeguards at the time we need them most. When the transition period ends on 31 December, EU law will no longer apply.
Since 2018 the Fight for Scotland’s Nature campaign, run by Scottish Environment LINK and more than 35 of its member charities, has been calling for new Scottish laws to replace and build upon EU protections.
So, we were pleased when in June the Scottish Government published its EU Continuity Bill, outlining how it plans to fill the gaps that the UK’s departure from the EU will leave in Scotland’s environmental laws.
But the truth is that this bill, as it stands, does not fully replace EU protections. As the Scottish Parliament scrutinises its proposals between now and December, environment charities are calling on MSPs to strengthen the bill to create laws fit to meet the huge challenges we face.
On the plus side, the Continuity Bill embeds key environmental legal principles, applied until now by the EU, into Scots law. These principles have shaped Scotland’s environment, from action on genetically modified crops and fracking to the introduction of a deposit return scheme and measures to tackle climate change. Embedding them in Scots law will help governments (including local councils) and public bodies (organisations such as Transport Scotland, Scottish Water, or Scottish Forestry, for example) make decisions that respect and protect Scotland’s world-class natural environment.
Significantly, the bill also sets up a new watchdog, to be called Environmental Standards Scotland, to enforce environmental protections. At present, the European Commission, European Court of Justice and other EU institutions play a crucial role in monitoring and investigating public bodies’ compliance with environmental law, and campaigners have been united in calling for new Scottish institutions to replace the EU’s role. In a poll commissioned last year by the National Trust for Scotland, an overwhelming majority of people – 81 per cent – agreed that a new watchdog was needed.
The creation of Environmental Standards Scotland is good news. But the new organisation set out in the bill has two major weaknesses which, if unaddressed, will leave Scotland’s environment at risk.
First, unlike the European Commission, the new watchdog won’t be able to take enforcement action on complaints from citizens who believe their local environment is being harmed due to the action (or inaction) of a public body. The Commission’s ability to investigate such cases has allowed individuals, communities and charities to make their voices heard in defence of the environment. Judgements on specific, local cases have not only resulted in improvements for the local environment in question, but have often set legal precedents leading to environmental improvements in other areas.
Second, the proposed watchdog lacks real independence from government. Scottish Government ministers will appoint its board members, with little oversight from parliament.
Independence from national governments has been key to the strength of the EU institutions in enforcing standards, and the new watchdog will need greater independence to genuinely defend Scotland’s environment.
A third weakness in the bill relates not to the watchdog but to proposals for “keeping pace” with EU law. Environment Secretary Roseanna Cunningham wrote in this newspaper in 2019: “The Scottish Government has committed to maintain or exceed current EU environment standards.” But while the bill enables Scottish government ministers to follow improvements in EU environmental standards, it doesn’t require them to do so. Indeed, there’s nothing in the bill to prevent future Scottish governments rolling back standards and allowing, for example, greater levels of pollution in our rivers, our seas and the air we breathe.
The scale of the challenges facing our natural environment has never been greater. Nor has the strength of public support for government action to protect it. Now is the time to make Scotland’s environmental protections as strong as they can possibly be, rather than leaving them weaker. Parliament has four months left to make these new laws work for nature.
Miriam Ross is coordinator of the Fight for Scotland’s Nature campaign at Scottish Environment LINK.