Welcome improvements to Scotland’s EU exit laws, but bill must go further for nature

MSPs received more than 17,000 emails calling for a strong, independent Scottish environment watchdog. On 24th and 25th November, MSPs voted to make important improvements to the Scottish government’s EU Continuity Bill, including strengthening the independence of the new watchdog. But as it stands, the watchdog still won’t be able to take action on individual complaints raised by citizens about environmental damage. The Fight for Scotland’s Nature campaign is pushing for this change ahead of MSPs’ final vote on the bill in December.

Find out more about the Fight for Scotland’s Nature campaign

The following is a report from Fight for Scotland’s Nature, 25 November 2020

Scottish Environment, a coalition of Scotland’s leading environmental charities, welcomed initial improvements to the Scottish Government’s EU Continuity Bill, which delivers crucial post-Brexit environmental protections, including an environment watchdog.

From 1 January 2021, the EU’s world-renowned environmental protections will no longer apply to Scotland. The Scottish Government’s EU Continuity Bill seeks to establish a new environment watchdog to protect Scotland’s nature going forward, but campaigners have warned that major omissions mean the Bill must urgently be strengthened.

MSPs voted for several key amendments to the Bill last week (Tuesday 24 November and Wednesday 25 November) to increase the independence of Scotland’s new environment watchdog, Environmental Standards Scotland (ESS). The legislation now requires members of the watchdog’s board to have environmental expertise and Ministers have also agreed to discuss further changes that ensure that ESS has sufficient funding, and that this sufficiency is subject to parliamentary scrutiny ahead of the final vote on legislation in December. These changes will increase the watchdog’s independence from Scottish Ministers, heeding the concerns raised by thousands of supporters of the Fight for Scotland’s Nature campaign.

MSPs also secured commitments from the Scottish Government to discuss and seek to agree new measures in December to ensure Scotland’s process of maintaining alignment with the EU (the so-called ‘keeping pace’ power) secures high environmental standards. The Fight for Scotland’s Nature campaign has said that these new measures will be vital for ensuring that Scotland can be a progressive leader on the environment in the future and that there will be no backsliding in protections for nature.

However, Scottish Environment LINK has expressed concern that vital amendments to empower the watchdog to take enforcement action on individual complaints about environmental damage raised by citizens have not received government support. Without these changes to the draft legislation, people in Scotland are at risk of losing access to environmental justice once the UK leaves the EU at the end of 2020.

Vhairi Tollan, Advocacy Manager at Scottish Environment LINK, said:
As part of our EU membership, Scottish citizens have enjoyed rights to raise complaints about cases of environmental damage and have the EU watchdog investigate and take steps to enforce changes. However, similar powers are not included in the Scottish Government’s proposal for a new Scottish watchdog. Environmental Standards Scotland would be unable to take enforcement action on individual complaints, raising concern that we will lose this crucial means of accessing environmental justice at the end of 2020. At a time when 1 in 9 Scottish species is at risk of extinction in Scotland, key changes to the Continuity Bill must be made ahead of MSPs’ final vote in December to ensure Scotland’s new watchdog is a credible and robust enforcer of environmental protections.

In an earlier report, the coordinator of the Fight for Scotland’s Nature , Miriam Ross, campaign explained:

When a local beauty spot – a beach, a wood, a hillside – comes under threat, local people are very often its most passionate defenders. Meetings are held, alliances formed, knowledge rapidly acquired and shared, and politicians lobbied in a quest to save a much-loved piece of nature. Instinctively, we know we have both the right to enjoy a healthy environment where we live, and the responsibility to ensure it remains so. For many, the sense of connection to local nature has increased during the pandemic.
It seems extraordinary, therefore, to propose that a new institution being set up to defend Scotland’s natural environment will not be able to act in response to people’s efforts to protect a specific place or environment from harm.

But the new watchdog, as set out in the bill, contains a major omission which would leave Scotland’s people without real recourse to justice on the environment. The new body won’t be able to take action in response to complaints from people who believe that their local environment is at risk due to the failure of the responsible authorities to uphold the law designed to protect it.
In other words, if a local person, a community group or a charity makes a complaint about a decision to pollute a beach, chop down a wood or bulldoze a hillside, Environmental Standards Scotland won’t be able to do anything about it.

Complaints such as these make up the bulk of the European Commission’s environmental work, and so their exclusion belies the Scottish government’s stated intention to ‘replace the system of environmental governance provided by the institutions of the European Union’.

The European system of addressing individual complaints has real value, not least because judgements have often set legal precedents, helping to protect places far beyond the one referred to in the original complaint. And, because the Commission has the power to enforce its judgements, it holds weight with governments: often just the suggestion of a complaint to Europe is enough to persuade the relevant public authority to up its game.

For people in Scotland, the ability to complain to a watchdog that can actually enforce the law becomes even more apparent when you consider the lack of affordable alternatives. The cost of seeking a judicial review is beyond the reach of most citizens, and judicial review can only look at procedural errors rather than examining the merits of the case.

The Scottish parliament is scrutinising the EU Continuity Bill over the next few weeks. The strength or weakness of the new institution it creates is likely to have profound implications far into the future. MSPs have the opportunity to amend the bill to establish a watchdog with the power and independence to defend Scotland’s people and nature, at a time when the challenges we face have never been greater. Now is the time to get it right.

Scotland needs an environment watchdog that provides citizens with genuine recourse to justice. Take action! Tell your MSPs to vote to strengthen @ScotGov’s proposed watchdog to give it the power and independence to do the job.