In this blog from our "Twenty Years of Devolution" series, Colin Reid, Professor of Environmental Law at University of Dundee, notes that while the role of EU law in environmental matters has so far constrained the extent to which devolution has led to divergence within the UK, current developments suggest that the future may bring greater differentiation.
There has been no lack of environmental legislation in Scotland in the last two decades. Under the devolution settlement, the environment is one of the areas where wide powers are passed to the Scottish Parliament and Government. Yet in looking at the exercise of these powers over the past 20 years it is hard to discern a markedly distinct Scottish approach. This is not least because so much of modern environmental law has been shaped by the EU. Accordingly, the impending changes to the relationship with the EU mean that it may be only in the coming years that the potential created by devolution will be truly realised.
The very first Scottish Statutory Instrument to be made by the Scottish Executive (as it then was) was the Environmental Impact Assessment (Scotland) Regulations 1999, but tellingly that was a measure to implement an EU Directive. Other early legislation included the National Parks (Scotland) Act 2000. Like so much of what was to follow, whether or not based on EU law, it was not fundamentally different from provisions in the rest of the UK (albeit in this case half a century later) but did have its own flavour on some points (in this case directly elected Board members).
Although the EU dimension has continued to be the major spur to action, in some cases the opportunity has been taken to go further than formally required. Thus the Environmental Assessment (Scotland) Act 2005 has applied Strategic Environmental Assessment much more widely than the EU law requires and the need to respond to specific EU measures led to the complete (and again long overdue) overhaul of legislation on water resources in the Water Environment and Water Services (Scotland) Act 2003.
In general, where there are differences from the rest of the UK, the Scottish position has been for (slightly) stronger environmental protection. This is shown in the climate change legislation, where Scotland has been taking a stronger line, especially in promoting renewable energy and in slightly more demanding emission reduction targets, but the overall result does not leave Scotland in a radically different place. This is in contrast to the position in Wales, where although the substance on matters such as climate change has not diverged, devolution has given rise to a distinctive structure of environmental governance through the Well-Being of Future Generations (Wales) Act 2015 and the Environment (Wales) Act 2016.
Now, though, the likely loss of the EU dimension which has shaped so much environmental law and policy seems to be opening a new era of greater divergence. A new structure for environmental governance has to be developed to make up for what is being lost. Particular attention has been paid to the legal status of environmental principles and the enforcement of environmental obligations, especially ensuring that the government can be effectively called to account.
On such issues Scotland, England and Wales have been very much going their own ways (in the absence of a working government, Northern Ireland may follow England). Across the UK this may mean different sets of principles being given different forms of legal recognition and quite different mechanisms for ensuring that environmental law is enforced. Although for England there are specific well-developed proposals, including the new Office for Environmental Protection, the relevant Scottish consultation which closed in May was more open-ended (the same is true in Wales). Indeed it contains a tantalising reference to the possibility of rights with respect to the environment being included in a new Human Rights Framework for Scotland, something which would transform the legal background.
The prospect then is for a much more distinct Scottish approach to environmental matters to emerge. Politically it remains to be seen how far any Scottish Government is committed to strongly environmental policies which challenge “business as usual”, rather than just nudging the country towards a more sustainable society. Legally there remain challenges in delivering any such ambition in the face of continuing constraints on how far distinct laws can be introduced. Some of these are imposed by the reach of existing reserved matters (e.g. on some aspects of energy regulation). Meanwhile constraints under current under EU law will not wholly evaporate on Brexit but will be replaced by those arising from the powers retained in London on their return from Brussels and from any international agreements (with the EU and others) made by the UK government.
Nevertheless, greater divergence within the UK seems inevitable and it is likely that we are only now at the beginning of seeing how far devolution can and will make a real difference on environmental matters.