The Scottish Government have published their findings on the effectiveness of post-Brexit environmental governance arrangements following a consultation launched in 2023.

The review of environmental governance was required by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.  The consultation with stakeholders was a welcome opportunity to take stock of the significant changes that had taken place since Brexit despite some criticisms on the scope and breadth of the review – Environmental Standards Scotland described it as a missed opportunity to evaluate environmental governance more broadly and the Law Society of Scotland raised concerns about the role of environmental principles.

Overall, the Scottish Government concluded that there is no need to revise the environmental governance provisions detailed in the ‘Continuity Act’ and reinforced their view that Environmental Standards Scotland, a key plank of post Brexit environmental governance in Scotland, should continue to focus their scrutiny efforts on systemic failures in environmental law and not on individual cases despite strong dissenting opinion (see interventions by Scottish Environment LINK & Environmental Rights Centre for Scotland).

Stakeholders to the consultation had also welcomed the Government’s earlier proposal for a right to a healthy environment being enshrined in Scottish law, although it was unclear what the procedural aspects of this right would be. The Law Society amongst other stakeholders also highlighted the need for increased legal aid and greater information and education about legal rights. Scottish Environment LINK also welcomed the government’s acceptance that they were in breach of the Aarhus Convention, which grants the public the right to participation and access to information and justice regarding environmental matters, but emphasised the need for more action to ensure compliance with this Convention.

Disappointingly, and despite support from various stakeholders (including the Environmental Standards Scotland), the Scottish Government rejected the idea of creating a specialist and dedicated environmental court arguing that there are many existing paths to accessing justice.

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