Continuity, Convergence and Change in Environmental Law and Governance in Scotland – an Assessment of Recent Developments and Future Directions

An important question arising after the 2016 Brexit referendum was the impact that leaving the European Union (EU) would have on environmental law in the United Kingdom (UK). There was a concern that Brexit could lead to a lowering of environmental standards, in part driven by a belief that EU institutions “played a key role in driving improvements to the UK's environment during the UK's membership of the EU”¹ and an accompanying fear that the UK would once again become the “dirty man of Europe”.² A key factor underpinning this narrative was the anticipated disappearance of independent institutions to routinely monitor the application of environmental law in the UK.³ In particular, the powers of the European Commission to bring legal action against recalcitrant Member States was seen as a major loss in the field of environmental protection, potentially leaving a significant gap in environmental governance.⁴ These debates were even more prominent in Scotland given that the Scottish Government itself opposed Brexit.⁵

It was recognised in these debates that the existence or scale of governance gaps would depend upon any agreement reached between the UK and the EU concerning their future relationship, as well as arrangements to replace those aspects of EU law that would be lost as a result of Brexit. In this respect, it is only recently that the emerging picture of post-Brexit environmental governance in Scotland has been revealed, allowing a preliminary study of the future for environmental standards in the jurisdiction. This article aims to provide an overview and analysis of the changes that have recently been introduced by the UK-EU Trade and Cooperation Agreement (TCA) and new UK and Scottish legislation aiming to fill the gaps in environmental governance caused by Brexit. It considers the impact that these new arrangements will have on the development of Scottish environmental law and in particular the implications for Scottish institutions in deciding whether to promote ongoing continuity with EU law, promote convergence with other parts of the UK, or strike out on their own path of environmental law reform. The article concludes that the new arrangements may well have set the frame for future discussions of environmental law in Scotland, but much will still depend on how new powers are exercised in practice. To this end, it identifies key factors and outstanding questions concerning future developments in Scottish environmental law.

There is no doubt that Brexit has had profound implications for law and governance in the UK, many of which are still being discovered and discussed. In particular, the departure of the UK from the EU has put significant pressure on relations between the UK government and the devolved administrations, not only because of political differences concerning Brexit,⁶ but also because membership of the EU, and the common standards that it entailed, had underpinned the devolution settlement.⁷ Brexit therefore has profound ramifications for the devolved institutions and the exercise of their powers.⁸

In the environmental sphere, Scottish institutions had exercised significant autonomy in determining how EU law was implemented from the beginning of devolution, with the result that there are important differences between environmental law in Scotland and the rest of the UK. Examples include the adoption of broader rules relating to strategic environmental assessment in the Environmental Assessment (Scotland) Act 2005 and the more stringent application of certain elements of the Habitats and Birds Directives through the progressive development of the Conservation (Nature Habitats, &c) Regulations 1994.⁹ This division of competence will not fundamentally change following Brexit and most environmental matters will continue to fall within the remit of the Scottish institutions, provided that they do not impinge upon reserved matters.¹⁰ Indeed, the powers of the Scottish institutions are arguably broader as a result of the European Union (Withdrawal) Act 2018, because Acts of the Scottish Parliament no longer need to be consistent with EU law.¹¹ It follows that there is in theory more leeway for the development of environmental law in Scotland in the future. Yet, the extent to which this greater flexibility is utilised will partly be determined by other features of the legal framework, discussed throughout this article.

One possible constraint on the use of these powers is the ability of the UK Government to temporarily constrain the devolved competence of the Scottish Parliament in areas previously covered by EU law through the adoption of regulations under section 30A of the Scotland Act 1998. This power has been described as “a transitional arrangement where decisions are taken on where common policy approaches are needed or not”.¹² This power exists only until two years after exit day, i.e. 31 January 2022, and no such action has been taken to date. Nor has there been any suggestion that it should. Yet, it has been recognised that there are certain matters on which it is preferable for the constituent parts of the UK to develop common frameworks to ensure a degree of consistency in regulation across the country. A common framework has been defined as “a consensus between a Minister of the Crown and one or more devolved administrations as to how devolved or transferred matters previously governed by EU law are to regulated after IP completion day”.¹³ This definition suggests that not all common frameworks will necessarily involve all devolved administrations. Furthermore, it does not speak to the form or content of a common framework, which may be statutory or non-statutory and “may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued”.¹⁴ In other words, not all common frameworks will necessarily impose the same standards across all of the UK and a common framework could equally recognise the value in regulatory divergence subject to a set of common objectives. In principle, common frameworks should be agreed by the devolved administrations. On this point, both the Finance and Constitution Committee of the Scottish Parliament¹⁵ and the Scottish Government has taken the view that common frameworks cannot be imposed,¹⁶ although such an outcome cannot be ruled out as a matter of law in light of the continuing power of the UK Parliament to legislate on behalf of Scotland.¹⁷

The protection of the environment is one area where a number of common frameworks are expected to emerge.¹⁸ To date, key examples include the Fisheries Act 2020, the Greenhouse Gas Emissions Trading Scheme Order 2020, the Hazardous Substances and Packaging (Legislative Functions and Amendment) (EU Exit) Regulations 2020, and the Fluorinated Greenhouse Gases (Amendment) (EU Exit) Regulations 2021. Insofar as common frameworks are applied with the agreement of the relevant administrations, they will not necessarily constrain future law-making and innovation in the environmental field by the Scottish institutions, who retain significant freedom of action.¹⁹ However, it has been suggested that there is a need for robust inter-governmental institutions if common frameworks are to be developed and applied in a fair and transparent manner,²⁰ including “clear and trusted mechanism[s] to resolve disagreements”.²¹ Moreover, MSPs have expressed frustration about their ability to scrutinise common frameworks in the absence of clear and timely information²², a view reiterated by the House of Lords Common Frameworks Scrutiny Committee, which also pointed to the lack of transparency and stakeholder engagement in the development of common frameworks.²³ These concerns point to the need for further changes to overall constitutional structures of the UK, a vital subject, but one which goes beyond the scope of this article.²⁴

Another new piece of the UK constitutional puzzle is the United Kingdom Internal Market Act 2020, the main provisions of which came into force on 31 December 2020. This legislation introduces the non-discrimination principle and the mutual recognition principle into UK law,²⁵ both of which sound innocuous, but were described by one parliamentarian as taking “a wrecking ball to the devolution settlement”.²⁶ The rationale for these principles as explained by the UK Government was to provide “businesses regulatory clarity and certainty and ensure that the cost of doing business in the UK stays as low as possible … without damaging and costly regulatory barriers emerging between the nations of the UK”.²⁷ In other words, the aim is to promote free movement of goods around the UK “by providing a baseline level of regulatory coherence”.²⁸ This is a legitimate objective and one that was previously pursued by EU law, but the 2020 Act promotes it in a very different manner. Whilst EU law did impose limitations on the ability of Member States to restrict the free movement of goods within the single market, it also recognised a broad range of circumstances in which restrictions could be applied,²⁹ in line with the overarching principle of subsidiarity.³⁰ In contrast, the principles enshrined in the 2020 Act would seem to go much further in limiting the regulatory space of the four nations of the UK.³¹

Of the two internal market principles, it is the mutual recognition principle which is the most restrictive as it allows goods that are produced or imported into one part of the UK to be sold in other parts of the UK “free from any relevant requirements that would otherwise apply to the sale”.³² Any such restrictions which fall within the scope of this principle simply “do not apply in relation to the sale”.³³ The strict application of the principle is, however, tempered by a number of exceptions. Firstly, it does...