What could Scottish independence mean for environmental law?

What could Scottish independence mean for environmental law?


What are the potential implications for environmental legal practice in the event of a Yes vote in the Scottish referendum? Kenneth Ross, partner and specialist in environmental law at Brodies, says the impact will be relatively limited and there is a risk that the potential impact of independence on environmental law might be overstated.

How could your practice area be affected by an independent Scotland?

I think the impact on environmental law would be relatively limited. Before devolution in 1998 all legislation was made at Westminster, but Scotland did administer a fair amount of environmental law, for example via the Scottish Environment Protection Agency and the local authorities. The Scotland Act 1998 added legislative powers. The basic concept is that all legislative power would devolve apart from reserved powers. It has to be borne in mind, however, that most environmental law—whether in the UK or Scotland—is driven by European law. There is, accordingly, very little room for manoeuvre.

It could be argued that if an independent Scotland were to remain within the EU there would be very little difference. There is, of course, political debate as to whether an independent Scotland would remain within the EU. However, it is difficult to imagine that it would not, ultimately, either retain or negotiate membership. Even if an independent Scotland were not to remain within the EU, it is worth noting that European countries which are not members of the EU (such as Norway), tend to accord with European environmental law so as to be able to trade with Europe.

What are your key concerns as the referendum draws near?

I wouldn’t say that there are any real concerns in the approach to the referendum: rather than in the event of a Yes vote there will be a number of issues which would be the subject of negotiation, such as EU membership and the potential for shared regulatory schemes, and on which, therefore, at this stage, we can’t say for certain how those will operate in practice in an independent Scotland. Those issues should become clearer during the proposed transition phase to independence.

The Defra withdrawal of contaminated land funding only applied to English local authorities enforcing Part 2A—could we see a two-tier system with polluted sites being cleaned up in Scotland, while brownfield sites in England remain untreated?

Recent events in England would appear to have simply brought its system in line with the position which has existed in Scotland for some time. Ring-fenced funding for contaminated land was removed in Scotland a number of years ago. We are unlikely to see a two-tier system with polluted sites being cleaned up in Scotland while brownfield sites in England remain untreated. It would appear likely that there will be a lack of funds for clean-up of polluted sites in both countries for the foreseeable future.

Do you think there are any issues that haven’t received enough attention?

Many technical issues have not been the focus of political debate—perhaps because they may not be seen as key to voters. More attention could have been given, for example to what would happen to a number of existing bodies that might require to be split if there was an independent Scotland, such as the Forestry Commission and the Health and Safety Executive.

What would a Yes vote mean in practice for lawyers in your field?

A Yes vote may lead to more work for environmental lawyers at least in terms of establishing the new state. The ultimate source of environmental law is mainly European legislation, and that is unlikely to change. However, work would need to be done in terms of splitting institutions and clarifying the nature of regulation going forward. That said, the activities of any future Scottish Government would depend on its political make-up and it is likely that any future administration in an independent Scotland would want to be seen to be active within the environmental arena.

Any other thoughts?

There is a risk that the potential impact of independence on environmental law might be overstated. I suspect that, to a large extent, it will be 'business as usual' and that Scots lawyers will just get on with it as we always have done.

Interviewed by Nicola Laver.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

See more opinions on the Future of the Union and how this affects different practice areas here.

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