Scotland’s people are on the brink of losing an important recourse to environmental justice, argues Miriam Ross – unless the new Scottish environment watchdog is given the power and independence to hold government to account.
IS THERE a beauty spot or green space near where you live, that’s precious to your local community? Perhaps a river, a woodland, or a loch? Has this place become even more important to local people during the coronavirus pandemic?
Now, imagine that the authorities responsible for looking after this piece of nature have decided, at the request of some corporation or other, to let the loch be drained, or the river polluted, or the wood cut down, in breach of the law designed to protect it.
What could you do to stop this happening? The first course of action would be to appeal to the authority in question to reverse its decision. But what if your pleas fell on deaf ears – whom could you turn to then?
For decades, people facing such threats to their environment have had the right to make an official complaint, and to request an investigation which, if the complaint is upheld, can result in the authority being forced to back down.
But the people of Scotland are on the brink of losing this important recourse to justice. For until now, the European Commission has received, investigated and enforced action on citizens’ complaints about specific, local cases of environmental harm. Often, just the suggestion of a complaint to the Commission has been enough to jolt a public body to respect the law.
When the Brexit transition period ends on 31 December, we will no longer be able to bring complaints about breaches of environmental law to Europe.
Alarmed by the risks posed to Scotland’s people and its unique natural environment by the loss of EU protections, a coalition of leading environment charities has been calling since 2018, through the Fight for Scotland’s Nature campaign, for new Scottish laws to maintain and build upon the environmental safeguards that come with EU membership.
The Scottish Government has responded to these concerns though the EU Continuity Bill, currently before parliament. The bill goes some way towards filling the gap. It embeds key EU environmental principles, applied until now by the EU, into Scots law. And very importantly, it establishes a new environment watchdog, to be called Environmental Standards Scotland, intended to replace the EU institutions’ role in monitoring and enforcing compliance with environmental law.
But the new watchdog set out in the bill has two major weaknesses.
Firstly, while it will be able to investigate complaints, it will only be able to take enforcement action on those relating to broad deficiencies in government policy or strategy. This means that if you make a complaint about the plan to pollute your local river, drain your local loch or chop down your local woodland, the watchdog won’t be able to do anything about it.
This isn’t a theoretical loss. individual complaints made by citizens, communities and charities make up most of the European Commission’s environmental work. Often, judgements in such cases have set precedents in environmental law, leading to better protection not just for the environment in question, but also for other similar places.
For people in Scotland, the need for a watchdog that can actually enforce the law becomes even more apparent when you consider the lack of alternative routes to access justice. A judicial review is prohibitively expensive, and in any event can only look at procedural errors rather than examining the merits of the case.
Secondly, the watchdog set out in the bill is not sufficiently independent of government. The European Commission’s independence from national governments is key to its ability to hold them to account. Yet the Scottish Government is proposing that its own ministers will appoint the senior officials at Environmental Standards Scotland, with little oversight from parliament. There’s a risk that, as a result, the government could end up marking its own homework.
Together, these two major omissions mean that Scotland’s environmental safeguards will be left weaker following our departure from the EU, despite the Scottish Government’s explicitly stated intentions to ‘maintain or exceed’ environmental standards and to replace the system of environmental governance provided by EU institutions.
But as it scrutinises the bill between now and December, the Scottish Parliament has the opportunity to strengthen the new watchdog, giving it the teeth it needs to defend Scotland’s people and environment.
The Fight for Scotland’s Nature campaign has launched a petition calling for a watchdog with the power and independence to enforce environmental protections, and hopes to gather thousands of signatures ahead of the first parliamentary debate on the bill on 29 October.
As we face the monumental challenges of climate breakdown and rapid nature loss, and as we strive to achieve a just and green recovery from the pandemic, Scotland needs strong laws protecting people and environment.
Miriam Ross works for Scottish Environment LINK, where she coordinates the Fight for Scotland’s Nature campaign.
Picture courtesy of Sandra Graham ©