Devolution and environmental law in Scotland: a reflection (original) (raw)
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The implications of Brexit for environmental law in Scotland
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This report maps the possible implications of Brexit for environmental protection in Scotland, identifying core questions as well as solutions that may be adopted, with the objective of initiating a conversation about this complex subject matter. The report has been prepared as a joint endeavour by a group of environmental law experts based at Scottish Universities. Each section was drafted by a lead author, with inputs from the rest of the group. The paper is meant for a broad audience and intentionally uses a non-technical writing style. The paper is divided in two sections. The first section addresses cross-cutting questions affecting environmental governance after Brexit, focusing on the main Brexit scenarios and their trade, competition, and law enforcement implications. This analysis identifies a series of common challenges for nvironmental law in Scotland after Brexit, which relate to: •Loss of scrutiny and enforcement powers associated with the operation of EU law and instit...
THE IMPACT OF BREXIT ON ENVIRONMENTAL PROTECTION IN SCOTLAND: SOME EARLY REFLECTIONS
Edinburgh Law Review, 2018
With much of UK and Scottish environmental law presently originating in Brussels, 1 experts have long warned of the specific challenges associated with Brexit in this sector. 2 These concern the loss of the well-established and comparatively stable regulatory, enforcement and support frameworks provided by EU law. While nobody is seriously suggesting that in future the UK and Scotland will be incapable of upholding the rule of law on environmental matters, Brexit will nevertheless entail the loss of a powerful means to scrutinise and enforce environmental protection standards. Brexit is also likely to entail the loss of access to EU funding and to cooperation programmes that, for good or ill, presently are the lifeblood of UK environmental policy tools, like farm payments, conservation and research-related initiatives. Scotland has benefitted greatly from EU funds for environmental protection and the development of new low carbon technologies, like tidal energy. It also receives a disproportionately large share of EU farm payments. Ahead of Brexit, finding replacements for these means of support will be crucial. Finally, Brexit raises sensitive questions on the allocation of repatriated EU law and policy-making powers between UK and devolved administrations. When the unifying frame of EU law is removed, existing regulatory and policy differences between Scotland and the rest of the UK – on matters such as genetically modified organisms, fracking and renewable energy – are likely to increase. Such fragmentation in standards across the UK may well threaten the maintenance of present levels of environmental protection. Even more significantly, the spat on the European Union Withdrawal Bill (EUW Bill) has shown that the UK and the Scottish Governments hold rather diverging views on who should assume the regulatory competences presently exercised by the EU after Brexit. 3 Whoever is in charge of environmental affairs after Brexit, one thing is already clear. The approach envisioned in the EUW Bill could be a viable solution for some areas of * Lecturer in Environmental Law, University of Stirling. This article draws on the report A Cardesa-Salzmann and A Savaresi (eds) The Implications of Brexit
2018
The subgroup co-opted Professor Colin Reid as a member. Additional support was provided by Bridget Marshall (SEPA), and Dr. Ian Jardine, Kate Thomson-McDermott and Keith Evans from Scottish Government as well as Isobel Mercer from RSPB and Professor Elisa Morgera. 2 The work was carried out largely in February and March. Editing and updating was undertaken in May. The Defra Environmental Governance consultationhttps://consult.defra.gov.uk/eu/environmental-principles-and-governance/-emerged as the final document was being produced. Cardesa-Salzman and Savaresi 5 ; and Greener UK's report, on 'The Governance Gap' 6 in shaping our consideration and findings. 2.2 The group developed a framework approach to assess the governance status and issues across areas of environmental law. The following areas were considered: Nature Conservation and Biodiversity Air Pollution Emissions, Transboundary Pollution and Climate Change issues Environmental Impact, Access to Environmental Information and Environmental Justice Marine Environment Nuclear and radioactivity issues Waste and Circular Economy Water environment and Flooding Chemicals, biocides and pesticides General Governance 2.3 These areas were mapped against current legislative and governance arrangements, focusing on what happens and needs to happen at the Scottish level, when and if EU-level arrangements are removed. Hence, we considered the policy issues in summary terms in the following ways, first: International framework and existing governance European framework and existing governance Any UK framework and existing governance, where possible indicating if these were established and operated through legislation, MoU or other administrative arrangement between UK nations.
Water institutional reforms in Scotland: Contested objectives and hidden disputes
Water Alternatives, 2008
One fundamental limitation of the contemporary debate over water institutional reforms has been the excessive concentration on scientific assessments and management techniques, with insufficient consideration of the underlying politics of decision-making and socio-economic asymmetries. This article examines the 'sociology of water regulation' to demonstrate how the implementation of the European Water Framework Directive (WFD) in Scotland is profoundly influenced by broader political and economic circumstances. The ongoing reforms of regulatory institutions became entangled in the reorganisation of a devolved Scottish Administration in the late 1990s, which has directly influenced the channels of representation and the overall decision-making processes. It is claimed here that, despite a discursive construction around sustainability and public participation, the new institutional landscape has so far failed to improve long-term patterns of water use and conservation. The article also analyses how the exacerbation of the economic dimension of water management has permeated the entire experience, serving as a political filter for the assessment of impacts and formulation of solutions. The ultimate conclusion is that formal changes in the legislation created a positive space for institutional reforms, but the effective improvement of water policy and catchment management has been curtailed by political inertia and the hidden balance of power.
Does devolution make a difference? Legislative output and policy divergence in Scotland
The Journal of Legislative Studies, 2003
Devolution provides large scope for Scotland to make its own policy. Primary legislation is one measure of this. Scottish legislation before devolution tended to replicate measures for the rest of the United Kingdom, with differences of style. Scottish legislation in the first four-year term of the Parliament shows a big increase in output. There is an autonomous sphere, in which Scotland has gone its own way without reference to the rest of the UK. In other areas, there is evidence of joint or parallel policy-making, with Scottish legislation meeting the same goals by different means. Finally there is a sphere in which Scottish legislation is essentially the same as that in England and Wales. Sewel motions have not been used to impose policy uniformity on Scotland. There is evidence that devolution has shifted influence both vertically, between the UK and Scottish levels, and horizontally, within a Scottish legislative system that has been opened up.
Scottish Devolution and Independence: From the Scottish Covenant to Brexit (1949-2016)
This paper aims at understanding the process of political devolution in Scotland. The paper examines relevant statistics and literature to understand the roots of the devolution movement, and follows its political and legal evolution through the assessment of relevant political events and legislation. The analysis of the political framework seeks to fathom the context that allowed the establishment of the form of government, while the analysis of the main legislation on devolution allows to reconstruct the progressive nature of its establishment in the most objective manner possible. The main political actors are the Liberal-Democrat, Labour, Conservative, and Scottish National parties, which orchestrated the critical Scottish Devolution referendums of 1979 and 1997 and the 2014 Referendum for Scottish Independence. The most relevant pieces of legislation on the issue are the Scotland Act 1998, and its subsequent amendments. Once the context, and the evolutionary nature of devolution in Scotland have been grasped, the conclusion of the paper tries to assess what the future holds for Scotland. In particular, the final part of the work seeks to answer to the question whether independence or further devolution of powers are the most feasible development of Scotland’s path in light of the 2016 Brexit vote by UK citizens.