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Colin T Reid and Andrea Ross: Scotland's Future and the Environment

The Scottish Government’s paper Scotland’s Future and the Environment marks a late and limited entry of this topic into the independence debate.  In some ways this may seem surprising given that landscape, generally good environmental conditions and ample natural resources are all positive features of many images of Scotland.  Some natural resource issues, especially oil and gas and renewables, have been mentioned but other aspects have been far from prominent.  As noted at the SCFF/5Million Questions event Environmental Futures held in April 2013, this may be because many environmental controls are already in the hands of the Scottish Government or largely shaped by the EU.  Nevertheless, the paper highlights “Five Key Gains for the Environment” which are worthy of some attention. 

1.  We can place the environment at the heart of a written constitution.

The existence of a written constitution at all, and the presence of environmental provisions within it, would be among the biggest formal changes brought about by independence.  In the past few decades it has become commonplace for new constitutional documents to include environmental provisions, but their status and impact varies hugely.  There are some radical statements, such as the 2008 constitution of Ecuador, which confers on nature itself the “right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes” (art.71).  Most provisions, though, lie closer to the aspirational end of the spectrum and place the onus on the state as steward of the environment, rather than conferring justiciable legal rights on individuals.  The Welsh experience in crystallising their excellent policy on sustainable development into a Wellbeing of Future Generations (Wales) Bill shows that the process of converting policy into legal provisions may not be straight-forward and the result may not be as ambitious as the policy equivalents. 

The proposals in the draft Scottish Constitution (ss 31 and 32 of the draft Scottish Independence Bill) follow the general pattern, asserting the right of every person “to live in a healthy environment” and then placing on the Government and public authorities a duty “to seek to protect and enhance the quality of the environment”, whilst natural resources are to be used “in a manner which is best calculated to be sustainable”.  The fate of such provisions will depend on the wider constitutional jurisprudence that emerges, with constitutional courts around the world taking varying approaches.  Some have been happy to build on broad constitutional phrases (even the simple right to life) to insist on action to tackle significant environmental risks, whereas others have resisted intervention even in the face of apparently more powerful phrases.  It is perhaps hard to imagine the current judiciary at the vanguard of environmental activism, but the elevation of environmental concerns to constitutional status should indeed make some difference to their potency in policy and legal terms. 

2. We can have a nuclear free Scotland

This is one area where independence would make a big difference, enabling Scotland to determine its own course on what is at present very firmly a reserved matter determined at Westminster.  Making the policy declaration may be harder than resolving the practicalities of closing and replacing the nuclear power stations generating electricity, and even more of reaching and implementing an agreement on the removal of the nuclear weapons based in Scotland, but these are long-standing goals of significant elements of the Scottish political world.  An independent Scotland would be able to pursue these in a way beyond its reach within a United Kingdom where there is currently no sign of such goals being shared. 

3. We will have access to the support and funding we need to protect our natural environment

The core of the argument here is that an independent Scotland would be able to follow its own priorities and by negotiating in its own right gain more resources from the EU for rural development than are flowing through the current structure filtered through the UK.  The much higher sums gained by Ireland are noted (suggesting that on the same basis Scotland would receive an additional €3 billion for 2014-20), as well as some of the opportunities such resources would provide.  The snag here, of course, is that these gains depend on membership of the EU and the outcome of the specific negotiations on the distribution of funds.  

4. We will be represented in the EU and have the opportunity to drive the agenda

The previous “gain” is just one example of the wider point made here that an independent Scotland’s relations with Europe would be transformed by becoming a direct participant in EU negotiations, rather than having all its dealings with the EU mediated through London.  This offers opportunities for influence, for pursuing distinctly Scottish priorities and for outcomes which are better suited to meet the needs of the Scottish environment, which are in many ways quite different from those of the UK as a whole.  Assuming that Scotland’s EU membership can be rapidly confirmed, the precise terms of membership remain to be determined and the progress of discussions on specific policies and programmes is always uncertain.  It is certain that if Scotland is an independent nation its own voice will be distinctly heard at the negotiating table, but the outcomes cannot be guaranteed. 

5. We will have a stronger voice on the global stage

An independent Scotland would likewise have its own voice on the global stage and be able to participate in international negotiations in its own right, but how powerful that voice would be must be more doubtful.  There can be an influential role for small nations, but it is worth remembering that at the Copenhagen Climate Conference in 2009 even the EU as a whole was side-lined by the deal done by the USA, China, India, South Africa and Brazil.  Again, what can actually be delivered depends on the reactions of others, not just what Scotland itself might want to achieve. 

The Five Key Gains that are claimed to arise from independence are thus rather different in nature.  The first gain would be part of the transformation of the constitutional framework of Scotland and would elevate environmental concerns to a national priority, but one among many whose precise impact is unclear.  The second on nuclear policy is an area where constitutional change would enable one of the clearest policy divides between Scotland and the UK to be turned into a reality.  The remaining ones are all consequences of an independent Scotland emerging as a distinct member of the international and EU communities, able to present its own case and reach its own agreements on environmental as well as all other matters.  What this would mean in practice for Scotland’s environment is as uncertain as the future if the status quo is maintained, and the environmental dimension is just one part of a much wider picture and seems unlikely to be a deciding factor by itself. 

At the Environmental Futures event in Dundee over a year ago, two contrasting voices came from the audience.  One noted that Scotland already has control over many aspects of environmental law and policy and that independence would be unlikely to lead to significant change; a “greener Scotland” is already an objective of the Government and is being pursued, but not as a predominant goal.  The other saw independence as the catalyst for a new and transformed Scotland, with environmental enhancement and sustainability among the elements of the fairer, better society which Scotland on its own could build as it develops on its own, creating a markedly different country from that of today.  Neither view is likely to be changed by this latest Government paper. 

The paper discussed here, Scotland’s Future and the Environment, does of course set out the future as the SNP Government would like to see it.  The Scottish Green Party’s vision post-independence is different again.  Their emphasis on returning power closer to the people, ensuring that Edinburgh does not become the new London, and on decentralisation of the economy has profound implications for the sustainability of natural resources and communities, clearly distinct from those discussed here. 

Colin T. Reid and Andrea Ross are both Professors of Environmental Law at the University of Dundee.

For further discussion of the environmental consequences of independence see: Reid, “Independence and the Environment” (2013) 159 Scottish Planning and Environmental Law 102

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