The impact of constitutional change on environmental law in Scotland was the focus of an event held in Dundee as part of both the SCFF programme and the University of Dundee’s Five Million Questions project, a knowledge exchange programme aiming to inform the debate in the run-up to the referendum. A panel of contributors spoke briefly before more general discussion, in the session and more informally afterwards. The audience came from very varied backgrounds, battling against the high winds which completely closed the Tay Bridge that day and kept some people away. The programme and contributors are listed below.
In introducing the event, Andrea Ross noted that on most environmental matters the UK authorities already exercise limited control, with the making and implementation of policy on many issues already transferred by the UK authorities to Scotland or to the EU, which shapes so much of our environmental law. Colin Reid then explored the technical differences that independence would bring, enabling Scotland to take an integrated approach to environmental matters with control over the full range of subject matters (e.g. all energy matters, marine issues and more esoteric issues such as Antarctica) and with access to the full range of mechanisms to give effect to policy (e.g. taxation, advertising and labelling, and corporate reporting and disclosure duties). Scotland would have a separate voice in international and EU negotiations, but not necessarily a strong one, and there would have to be decisions on the splitting of specialist bodies that work at UK level (e.g. on nuclear matters) and the relationships between Scottish agencies and their counterparts in the rest of the UK and beyond.
Speaking from the practitioners’ perspective, Richard Leslie emphasised that clients want to know how the law is interpreted and applied locally. He raised the question of how the court system would look in an independent Scotland (a separate Supreme Court, a specialist environmental court?) and noted the benefit of easier access to decision-makers in Scotland to enable stakeholders to influence the law. His colleague Kishwar Sarwar highlighted some of the divergences that already exist even in implementing the same law and policy, noting the different schedules for the recent marine legislation at UK and Scottish levels (and still pending in Northern Ireland) and the differences in guidance provided by regulatory bodies, e.g. the revised guidance from the Environment Agency on contaminated land that has not yet been matched by SEPA.
Chris Spray described the way in which the Tweed is currently managed on a whole catchment basis, affecting land in both Scotland and England. He explored how the provisions in EU and international law require this to continue and may insist on more formal mechanisms for co-operation. This might lead to the cross-border Tweed Forum becoming a formal river commission. Greg Lloyd then explored the potential for a wholly new approach to environmental valuation and taxation, moving away from intervention to correct market failures that assumes that everyone is a rational actor with maximising profit as their predominant goal. Looking afresh at what the environment provides and the different ways in which we connect with and appreciate it could provide the basis for a greener Scotland.
In the far-reaching discussion, the consequences of being a small nation were identified as both a strength and a weakness, with some concern over the capacity to support specialist courts or services and over the current legislative procedures. The fundamental question, perhaps, was how much would actually change if Scotland did become independent? Some people were excited by independence offering the potential, and perhaps being the trigger, for bringing about a transformational change in society and our relationship with the environment. Others felt that in practice there would be very little change due to the legal and commercial need to match what is happening elsewhere and the absence of clear prioritisation of environmental concerns within the current extensive powers. Such comments highlight different dimensions in the debate on the consequences of different constitutional futures, dimensions which are not unique to the environmental field. For some the focus is primarily on the mechanics of governance, for others it is on the vision for society, with new constitutional arrangements being simply the first step in a more radical transformation. We hope that both groups found it valuable to have the opportunity to explore the issues further at this event.
Colin Reid is Professor of Environmental Law at the University of Dundee
Environmental Futures - 16 April, 2013
Prof. Andrea Ross (School of Law, University of Dundee):
Introduction and Welcome
Prof. Colin Reid (School of Law, University of Dundee):
What would independence mean for environmental law in Scotland?
Richard D. Leslie (Tods Murray LLP):
Kishwar Sarwar (Tods Murray LLP):
A practitioner’s viewpoint.
Prof. Chris Spray (IHP-HELP Centre for Water Law, Policy and Science, Univ. of Dundee):
The Tweed as an international river basin
Prof. Greg Lloyd (School of Built Environment, University of Ulster)
Green taxation in an independent nation
Thanks to Dr. Sarah Hendry (IHP-HELP Centre for Water Law, Policy and Science, Univ. of Dundee) for her assistance in the organisation of this event.