Guiding principles on the environment: draft statutory guidance

Overview

The UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (“the Continuity Act”) introduces new duties on Ministers and other public authorities to have due regard to five guiding principles on the environment. The guiding principles sit alongside Scotland’s arrangements for environmental governance, including the establishment of Environmental Standards Scotland and the publication of our Environment Strategy.

Guiding principles on the environment

The five guiding principles are set out at section 13(1) of the Continuity Act and are as follows;

• the principle that protecting the environment should be integrated into the making of policies;
• the precautionary principle as it relates to the environment;
• the principle that preventative action should be taken to avert environmental damage;
• the principle that environmental damage should as a priority be rectified at source; and  
• the principle that the polluter should pay.

The guiding principles form part of our strategic approach to environmental policy, supporting our objective to maintain and improve environmental standards, contributing to Scotland's responses to the twin climate and nature crises and keeping aligned, as far as possible, with EU standards.

Draft statutory guidance on the guiding principles

This draft guidance has been developed to serve as a practical guide to support public authorities and Ministers to implement these legislative duties.  This guidance is intended to promote a common understanding and interpretation of the guiding principles and how they should be considered and applied when developing future policy and legislation.

The guidance is aimed at supporting decision making by Ministers and other public authorities. We expect it will mainly be used by Government officials, officers of public authorities and advisers working with public authorities. This guidance will also be of interest to the general public and civic society groups with an interest in decisions that could impact the environment.

Under section 17(3) of the Continuity Act, those subject to a duty to have due regard to the guiding principles must, when doing anything in respect of which the duty applies, have regard to the final statutory guidance.

Strategic Environmental Assessment ("SEA")

Annex A to the draft guidance includes material concerning the duties in sections 14 and 15 of the Continuity Act and the SEA process.  This material is intended to form part of the final statutory guidance and be added to the existing Scottish Government guidance on the SEA process, to assist duty holders in fulfilling their new duties.

Read the consultation paper

Why your views matter

Section 18(3) of the Continuity Act requires that Ministers consult with Ministers of the Crown, responsible authorities who are subject to the duty under section 15 and such other persons as Ministers consider approriate.

We are seeking views on this draft guidance to ensure that the statutory guidance meets its aim of supporting and guiding Ministers and public authorities in meeting their legal obligations.

What happens next

Following the end of the consultation period, Ministers will prepare a consultation report, summarising the views received during the consultation period and how those views have been taken into account (or a statement to the effect that no views were expressed in response to the consultation, or that no account has been taken of the views expressed).

The consultation report and final guidance will be laid before Parliament for 40 days, for its approval prior to publication.

If, within 40 days of the guidance being laid before Parliament, Parliament resolves that the guidance should not be published, Scottish Ministers must not publish the guidance.