Add your voice to LINK’s petition and the growing calls for strong protections for nature after Brexit.
Signing, is a helpful and practical thing you can do to protect nature. With 1 in 9 species in Scotland at risk of extinction, Scotland’s nature is now in even greater peril. We know many people have Brexit fatigue, but we’re still Brexiting, and the transition period ends on 31 December! LINK’s petition has all the information and it takes 30 seconds to complete.
For ERCS’s take on it, read on …
What’s the petition about?
It’s about a body called Environmental Standards Scotland (ESS) which is being set up to plug a hole caused by Brexit concerning the environment. The plug isn’t watertight yet, so this petition is to urge the Brexit Secretary Michael Russell MSP to make it more fit for purpose.
You know that Brexit endangers the environment, but how?
You may already have heard that Brexit poses a threat to the environment because 80% of our environmental laws (that we helped to forge during our membership) came from Europe. But there’s more to it than that: membership of the European Union also gave us access to the Court of Justice of the European Union (CJEU) and the European Commission, who make sure these environmental laws are followed.
Member states or EU bodies can take other member states or EU bodies to the CJEU for failure to implement and for breaking European law. [1] Domestic courts can refer legal questions to the CJEU to help them interpret European law.[2]
The Commission, despite its faults, can also take Member States to the CJEU for failure to implement and for breaking European law.[3]
In this way, and because so much of environmental law is European law, the Commission effectively acts as the EU’s environmental watchdog, protecting nature. And sometimes, all the watchdog needs to do is to bark – often the threat of legal action from the Commission is enough to pressure Member States into following environmental laws.
So how will Scotland cope with the loss of these environmental protections?
The Continuity (Scotland) Bill seeks to keep pace with European laws and fill the governance gap that has been created by Brexit. In terms of keeping pace with European law, we’ve lost our seat at the table but we want to maintain and exceed the environmental laws that came from Europe.
In terms of the loss of the CJEU, Scotland of course has its own long-established legal system, but there are problems with our courts’ ability to handle environmental issues, which ERCS seeks to highlight and address.
The loss of the Commission as an environmental watchdog, on the other hand, is what Environmental Standards Scotland is meant to tackle.
Is Environmental Standards Scotland, as proposed, up to the task?
The establishment of ESS is definitely a step in the right direction. However, ESS hasn’t been set up to be independent from the Scottish Government. The chair and some of its members are to be appointed by Scottish Ministers, members’ appointments can be terminated by Scottish Ministers (although this is subject to parliament’s approval) and remuneration and the ESS’ budget are subject to the Scottish Ministers’ approval. This doesn’t look very independent at all!
There are other problems with ESS relating to what it’s allowed to review and how it works, which are detailed in two excellent blogs by ERCS trustees: one on LINK’s website by Lloyd Austin here; and one by Ben Christman on the UK Human Rights Blog website here.
And what has ESS’s lack of independence got to do with nature and the environment?
Everything!
Imagine a part of the Scottish Government breaks the law on nature. If the body which has been specifically set up to enforce environmental law is a part of the Scottish Government, it makes it a lot harder for it to speak out against it and make sure it protects nature as it’s supposed to. A watchdog would not wisely bite its owner. The independence of ESS has everything to do with all environmental issues, from nature, to air pollution to climate change, and our human right to a healthy environment.
We know that in some areas the Scottish Government has a strong environmental track record, and we don’t want to presume that it would break its own environmental laws. That said, it cannot be denied that there are areas where it has broken and continues to break European environmental laws (e.g. on air pollution).
But more fundamentally, no matter what the current Scottish Government might promise on the environment, governments change. There’s a design flaw with ESS that needs fixing to make it futureproof for nature, for the long-haul. This is about separating out powers within our government to ensure a functioning rule of law.
The environment is a public good and shouldn’t belong solely to the government of the day, as much as it shouldn’t belong to a powerful corporation or any one individual. Our new watchdog needs to be able to protect the environment on behalf of every citizen in Scotland with an equal hand (or “bite”!). Without fear or favour, this could be an important step towards the Scottish Government’s proposed human right to a healthy environment.
Emilia Hanna
Advocacy Officer, ERCS
[1] Articles 259, 263 and 265 of the Treaty on the Functioning of the European Union
[2] Article 267 of the Treaty on the Functioning of the European Union
[3] Article 258 of the Treaty on the Functioning of the European Union
