The Implementation of EU Environmental Law in Scotland

Pages224-251
AuthorAndrea Ross,Colin T Reid,Hazel Nash
Date01 May 2009
DOI10.3366/E1364980909001371
Published date01 May 2009
INTRODUCTION

Scotland's constitutional future is once again on the political agenda. In August 2007, Alex Salmond, the First Minister, launched a consultation document entitled Choosing Scotland's Future – A National Conversation,1

Scottish Executive, Choosing Scotland's Future – A National Conversation: Independence and Responsibility in the Modern World (2007, available at http://www.scotland.gov.uk/Resource/Doc/194791/0052321.pdf).

which sets the groundwork for the case for independence or, alternatively, more devolved powers.2

The Calman Commission has also been set up by the Scottish Parliament to review the provisions of the Scotland Act 1998 and recommend changes to the present constitutional arrangements. See http://www.commissiononscottishdevolution.org.uk/.

In the foreword Mr Salmond writes

It is now ten years since the referendum to establish the Scottish Parliament. We have seen its potential to respond to the wishes and needs of the people of this country. But we have also seen the limitations of its current responsibilities. I believe it is now time for us, the people of Scotland, to consider and choose our own future in the modern world.

Any informed decisions about Scotland's future governance need to be preceded by research into the operation of the existing constitutional arrangements and their impact on the relationships of Scottish institutions with the institutions of the UK and European Union. Although the role of Scotland in the making of EU law has attracted considerable attention,3

S Bulmer et al, British Devolution and European Policy-Making: transforming Britain to multi-level governance (2002); S Bulmer and M Burch, “The Europeanization of UK government: from quiet revolution to explicit step-change?” (2005) 83 Public Administration 861 at 869; S Bulmer et al, “UK devolution and the European Union: a tale of cooperative asymmetry?” (2006) 36 Publius 75; European and External Relations Committee, Report on an inquiry into the scrutiny of European legislation (SP Paper 783: 2007; available at http://www.scottish.parliament.uk/business/committees/europe/reports-07/eur07-02.htm); European and External Relations Committee, Report on an inquiry into the transposition of EU directives (SP Paper 89: 2008; available at http://www.scottish.parliament.uk/s3/committees/europe/reports-08/eur08-01.htm); Scottish Executive, Choosing Scotland's Future – A National Conversation (n 1) para 2.42.

surprisingly little attention has been paid to Scotland's role in the transposition of EU law. Yet the powers retained at Whitehall in relation to the implementation of EU law have the potential to erase the boundary between reserved and devolved matters and to override the powers of the Scottish institutions.4

See C T Reid, “The limits of devolved legislative power: subordinate legislation in Scotland” (2003) 24 Statute L Rev 187; A Ross and M Salvador-Crespo, “The effect of devolution on the implementation of European Community law in Spain and the United Kingdom” (2003) Eur L Rev 210; C M G Himsworth, “Devolution and its jurisdictional asymmetries” (2007) 70 MLR 31 at 32.

This article seeks to provide this missing analysis in the context of EU environmental law. It examines the extent to which the formal and informal processes which have evolved, post-devolution, in relation to the implementation of EU environmental legislation have operated to ensure the representation of Scottish interests. More specifically, it examines how far Scotland has legislated on its own behalf in environmental matters, as opposed to opting into a GB/UK-wide solution, and the extent to which Scottish and UK-wide legislation contains specific provisions to meet uniquely Scottish circumstances. The article is based on the findings of a project, funded by the Arts and Humanities Research Council, which examined the means used by Scotland, Wales and England to implement those European Community environmental directives under Title XIX (“Environment”) which were either enacted or required transposition between 1 March 1999 and 31 December 2006.5

This research does not extend to Northern Ireland, where the suspension of devolution arrangements resulted in an unusual pattern of legislation and the need to clear a backlog of non-implemented Community environmental measures. For discussion, see S Turner, “Transforming environmental governance in Northern Ireland. Part one: the process of policy renewal” (2006) 18 J Envtl L 55; S Turner, “Transforming environmental governance in Northern Ireland. Part two: the case of environmental regulation” (2006) 18 J Envtl L 245.

It draws on the findings both of a legislative review and also of a series of semi-structured interviews with key civil servants, policy officials, lawyers and regulators from Scotland, England and Wales.6

The methodology for the empirical phase of this research is set out briefly in an appendix to this article. Any unattributed statements or quotes used in the article refer to the findings of the empirical study and one or more interview transcripts.

Section B of the article explores Scotland's involvement in the development of EU environmental law. Section C examines the power-sharing arrangements in relation to implementing EU law in Scotland under the Scotland Act 1998. The presumptions and processes which influence the decision as to who should legislate are examined in section D and the consequences of these decisions in relation to legislative form and content are revealed in sections E and F. The findings are explained in the context of constitutional reform and several recommendations are made.

SCOTLAND'S INVOLVEMENT IN EU ENVIRONMENTAL LAW

Any investigation into the implementation of EU law by the devolved administrations must begin with the role of these administrations in the development of the EU law itself. Bulmer and Burch note that member states which participate actively in the development of EU law have an easier adjustment in implementing it.7

Bulmer & Burch (n 3) at 869. Also, more generally, after 1997 the UK moved from taking a passive role in the development of EU law to being much more involved in the negotiation of EU policy.

The same can be argued for sub-national governments. Once an EU measure is adopted it is too late to introduce regional concerns. The European and External Relations Committee of the Scottish Parliament (“EER Committee”) has concluded that there is a need for “the Scottish Government to ensure that Scottish interests are accounted for ‘upstream’ at both the policy development stage and within the formal legislative process”. The Committee emphasises “the importance of ‘early engagement’ and its direct correlation with effective implementation”.8

European and External Relations Committee, Report on an inquiry into the transposition of EU directives (n 3) para 131.

In written evidence to the EER Committee, the Scottish Trades Union Congress recognised that early engagement with stakeholders generally leads to improved outcomes and that “early and robust consultation can provide opportunities for innovative solutions”.9

European and External Relations Committee, Inquiry into the transposition of EU directives: written evidence (available at http://www.scottish.parliament.uk/s3/committees/europe/inquiries/euDirectives/documents/Inquirywrittenevidence-290108.pdf) 17.

With a view to strengthening Scottish involvement in European law-making, the Committee's report into the transposition of EU directives in Scotland recommends that “the Scottish Government should consider the development of durable social partnerships in order to facilitate stakeholder engagement throughout the EU legislative process”.10

European and External Relations Committee, Report on an inquiry into the transposition of EU directives (n 3) recommendation 56.

Scotland has no legal obligation or constitutional right to participate in the development of EU environmental law. While there are opportunities at EU level for the sub-national governments of member states to work together to influence the development of EU policy, such as the Committee of Regions11

The Committee of Regions was established to enable local- or regional-level representatives to be incorporated into the development of new EU laws thereby bringing EU obligations closer to the public. See Treaty Establishing the European Community (consolidated version 2002) OJ 2002 C325/284, art 263; Rules of procedure of the Committee of the Regions OJ 2004 L 175/1, rules 2-12.

and the standing group of European Regions with Legislative Powers,12

See M Burch et al, “Devolution, change and European Union policy-making in the UK” (2005) 39 Regional Studies 465.

Burch et al argue that “both before and after devolution, it is the channel of access running throughout the national government to the EU that matters”.13

Bulmer et al (2006) (n 3) at 76.

The opportunities for such involvement in the UK post-devolution are set out in the 2001 Memorandum of Understanding between the UK Government, Scottish Ministers, the National Assembly for Wales and the Northern Ireland Executive Committee. This provides that:14

Devolution: Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee (Cm 5240: 2001; available at http://www.dca.gov.uk/constitution/devolution/pubs/odpm_dev_600629.pdf) para 19.

The UK Government will involve the devolved administrations as fully as possible in discussions about the formulation of the UK's policy position on all EU and international issues which touch on devolved matters.

The key institution for co-ordinating intra-state involvement is the UK Permanent Representation in Brussels (“UKRep”), which represents the UK within the EU. Under the Concordat on Co-ordination of European Union Policy Issues (2001),15

Concordat on...

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