23 December 2020

As an EU member state, the UK has implemented EU policies and legislation in adherence to the EU’s environmental standards. However, after the transition period ends next week, on 31 December 2020 (“IP completion day”), the UK will no longer be bound by EU legislation.

Since the environment is a devolved area of governance to Scotland, it is essential for public bodies, environmental professionals, and businesses, to have a clear idea of the practical implications of this change.

UK Withdrawal from the European Union (Continuity)(Scotland) Bill

On 22 December 2020, a mere 9 days before IP completion day, the Scottish Parliament passed the UK Withdrawal from the European Union (Continuity)(Scotland) Bill (the “Continuity Bill”). The Continuity Bill enables Scottish Ministers to implement and amend EU law, where appropriate, in areas that are devolved to Scotland. These discretionary powers come as no surprise as the Scottish Government has been clear that the EU “will continue to be of fundamental importance to Scotland”.

The Environment

Part 2 of the Continuity Bill focuses on the environment and environmental governance. It outlines the guiding principles that Ministers, and other public authorities, must have regard to when developing policies on the environment. This includes the principle that “preventative action should be taken to avert environmental damage”. These guiding principles have been put in place to ‘protect and improve the environment and contribute to sustainable development’. In essence, they are the domestic equivalent of the EU’s core environmental principles established under EU law.

Environmental Standards Scotland

The Continuity Bill also establishes a new governance body called ‘Environmental Standards Scotland’. This organisation will oversee the application and effect of environmental laws and standards. It has powers to investigate public authorities’ compliance with environmental law and take steps to enforce this, e.g. the issuance of a compliance notice. Where a public authority fails to comply with environmental law or notices issued, Environmental Standards Scotland can raise legal proceedings in the Court of Session. In effect, Environmental Standards Scotland will replace the body and function of the European Commission in relation to environmental law in Scotland.

In summary, the Continuity Bill will allow Scottish law to “keep pace” with future developments in EU law. While the outcome of current negotiations between the UK and EU remains uncertain, what is clear, is that the Scottish Government is taking steps to place Scotland in a position where it can remain aligned with the EU after IP completion day.

Contacts

Jeremy Glen, Partner jsg@bto.co.uk / 0141 221 8012

Ibinabo David-West, Trainee Solicitor ida@bto.co.uk / 0141 221 8012