1.    Continuity

The UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 ("the Continuity Act") is part of the Scottish Government's response to Brexit and could be seen as both a challenge to the UK Government and the Retained EU Law (Revocation and Reform) Act 2023 ("REUL Act"), and an opportunity to ensure that Scots environmental law remains largely aligned with EU environmental law. We do not intend to cover the impact of the REUL Act in detail in this blog. 

The effect of the Continuity Act is to reaffirm the Scottish Government's commitment to the European Union ("EU") and its desire to keep pace with certain EU legislative and policy developments notwithstanding the UK's decision to leave the EU. Section 1(1) confers a power on Scottish Ministers to make subordinate legislation so as to keep devolved Scots law aligned with developing EU law. This provision is known as the "keeping pace" power.  

Section 6 of the Continuity Act requires the Scottish Ministers to publish a policy statement on the approach, the factors to be considered and the process to be followed when considering whether to use the "keeping pace" power. In summary, the current policy statement dated 10 May 2022 states: 

• Maintaining alignment with EU law is a priority of Scottish Ministers and will be achieved in a range of different ways, both legislative and non-legislative. 
• While Scottish Ministers' default position will be to align with EU law, there will be cases where the Scottish government will not align with EU law (e.g. Scottish Ministers may not seek to adopt technical provisions only relevant to EU members states or in circumstances where its devolved powers are constrained by the United Kingdom Internal Market Act 2020). 

The fact that the Scottish Government's policy position as currently stated does allow for some divergence presents both an opportunity, as it allows Scotland to match the high environmental standards adopted by the EU, but also poses a challenge because the Scottish Government will need to first identify the EU laws that it wants to keep pace with. Interestingly, to date, the Scottish Government has used its "keeping pace" power once to enact regulations aligning Scottish water quality standards with those set out in the EU's Drinking Water Directive 2020/2184. 

The task of considering the relevant EU laws to keep pace with is now arguably even more complicated in light of the recently enacted REUL Act. 

While the UK government has abandoned its controversial sunset clause (which would have automatically repealed any retained EU law unless it was specifically saved), a significant number of environmental laws as set out in Schedule 1 to the REUL Act will be repealed. 

One example of the debate over the laws selected for repeal includes the Commission Implementing Decision (EU) 2018/1522 and regulations 9 and 10 of the National Emission Ceilings Regulations (S.I. 2018/129) which lays down a common format for national air pollution control programmes. While the UK Government has justified repealing this decision on the basis that it is either superseded by UK legislation or a duplicate of existing domestic legislation and is no longer required, the Scottish Government have expressed concerns with its repeal. Before the REUL Bill received royal assent, the Scottish Government published its views as to why these instruments should not be revoked and called for greater clarity as to the future of the Air Quality: Revised UK National Air Pollution Control Programme and assurance that there would be no legislative gaps. 

2.    Consistency

Following Brexit, the Continuity Act established a new independent environmental regulator – Environmental Standards Scotland ("ESS"). ESS is tasked with ensuring the adherence to environmental laws and standards and preventing enforcement gaps given the EU is no longer scrutinising and enforcing this. 

ESS's vision is to ensure that Scotland's people and nature benefit from a high-quality environment and are protected from harm through consistent application of effective environmental laws. 

Under the Continuity Act, ESS has been given a broad range of powers including: 

(1)    information notices – ESS may issue a notice requiring a public authority to provide information. 
(2)    improvement reports – ESS may prepare an improvement report if a public authority has relevantly failed to comply with or implement environmental law and may recommend measures that the Scottish Ministers or other public authority should take to either comply with, or improve the effectiveness of, environmental law.
(3)    compliance notices – ESS may issue a compliance notice to a public authority if ESS relevantly considers that it has failed to comply with environmental law. 

A potential challenge with the effectiveness of ESS is that it is largely reliant on voluntary compliance with its measures. This may not be such an issue given the ESS is regulating public authorities, though that remains to be seen. 

Another challenge is that ESS has no enforcement powers against private companies. The ultimate remedy for ESS is judicial review where it considers a public authority has failed to comply with environmental law. While the number of investigations currently completed by ESS to date is objectively low, it is in its infancy and will be interesting to see how it implements its 2022-2025 Strategic Plan.

3.    Court reform

Following ongoing calls to establish a specialist environmental court or tribunal in Scotland, the Scottish Government continues to consult with interested stakeholders on the issue of how environmental disputes should be adjudicated in Scotland. 

This is not a new issue and has been in consideration by the government for some time now post Brexit. In September 2017 the Scottish Government published a report that found it was not appropriate to set up a specialised environmental court or tribunal given the variety of views on what sort of cases an environmental court or tribunal should hear, combined with the uncertainty of the environmental justice landscape caused by Brexit.

While bodies like the Environmental Rights Centre for Scotland have long pushed for Scotland to have a Scottish environmental court because of predicted benefits such as, reduced costs and increased expertise, accessibility, effectiveness and efficiency, there are no current plans to create a specialist environmental court or tribunal. 

Future outlook

Since Brexit, Scottish environmental law has largely remained aligned to EU law. The REUL Act allows significant scope for change between the EU and UK which we anticipate will increase the divergence in regulatory regimes between the EU and the UK in the future. Scotland's Continuity Act potentially adds further complexities to the UK's environmental regulatory regime if Scotland begins to use its powers under section 1 of the Act more frequently. Public authorities must also consider the impact of a new regulator and the scope for ESS' role and monitoring approach to change in time. 

Niall McLean is a Partner at Brodies LLP. Rebecca Morrison is a Senior Solicitor (qualified in Australia) at Brodies LLP.

This blog post is based on the content of a talk given by Niall McLean on 20 April 2023 at the Environmental Law Blog’s 2nd Anniversary Seminar. For other talks given at the 2nd Anniversary Seminar see here and here.