Archive of: Chartered Institute of Ecology and Environmental Management

Although Director Chris Cathrine published an article on the implications of Brexit for Devolved Environmental Law in Scotland just three months ago, a lot has moved on since (read the blog on the original article here).  Using responses received from UK Government and Scottish Government officials, as well as newly published documents, Chris authored an update article which has been published in the latest issue of Chartered Institute of Ecology and Environmental Management (CIEEM) In Practice.  This new article adds clarity to the future of environmental law in Scotland, however there remains much uncertainty, particularly as UK Government responses to queries relating specifically to devolved law made reference to policy which only applies to England.  The new article can be downloaded from the Caledonian Conservation publications page.

The politics of Brexit continue at a rapid pace, and since this article was written the UK Parliament has voted on a number of amendments to the EU Withdrawal Bill (formerly known as ‘the Great Repeal Bill’) relating to both the future of environmental law and devolution.  Of particular note are the votes which rejected New Clause 67 and the amendments to Clause 11, the implications of which are summarised below:

• New Clause 67:  The UK Government has stated that all EU environmental legislation will be transposed in to UK law after Brexit through the EU Withdrawal Bill.  However, in its current form the EU Withdrawal Bill does not transpose the key foundation principles of EU environmental law in to UK law.  New Clause 67 was proposed to amend the EU Withdrawal Bill so that it does transpose these principles in to UK law after Brexit.  MPs voted against this amendment, with UK Government instead making reference to the ’25-Year Environment Plan,’ promising that the principles will be included in policy, and committing to a new independent environmental watchdog body.  There are a number of issues with this approach for the entire UK, with additional implications for devolved countries:

1. Law built on a foundation of policy is more difficult to enforce than if the principles were also defined in legislation.  It is therefore unclear how the independent watchdog will be able to enforce environmental legislation underpinned by these key principles.  Without these principles, there is an enforcement gap – ie many elements of environmental protection law become unenforceable, or open to wider interpretation.
2. At present, the ’25-Year Environment Plan’ has an English scope only, and so it is unclear how this policy document will, or can, apply to Scotland.
3. Environmental law is currently fully devolved to Scotland.  At present UK Government have declined to state which devolved areas will become reserved to Westminster (wholly or in part) after Brexit, and say this will be resolved after the UK leaves the EU.  Therefore, it is unclear whether UK Government environmental policies would apply to Scotland after Brexit.

• Amendment to Clause 11:  While the EU Withdrawal Bill gives sweeping new powers to UK Government Ministers, it adds new restrictions to Ministers of devolved administrations.  Furthermore, powers currently exercised at an EU level within areas fully devolved to Scotland would return to UK Government after Brexit.  MPs voted against an amendment to Clause 11 which would have resolved this issue.  As such, the First Ministers of Scotland and Wales have both recommended that their parliaments do not give Legislative Consent to the EU Withdrawal Bill.  UK Government can still progress with the EU Withdrawal Bill in its current form without Legislative Consent – although this would break political convention, and further damage trust between governments, the same approach has been taken with renewable energy powers and Article 50 via the European Union (Notification of Withdrawal) Act 2017 (also known as ‘the Brexit Bill’).  This clause and the UK Government’s willingness to break political convention adds uncertainty as to which areas will be devolved after Brexit, and the level of influence devolved administrations will have over future environmental law.

Unfortunately, these developments since writing the update article have failed to add further clarity to devolved environmental law after Brexit, and instead have increased uncertainty.

At present, environmental law is devolved in Scotland.  As such the responsibility for Scottish environmental law (including wildlife protection) rests with Scottish Government.  The European Union (EU) directives provide a framework for elements of environmental law, common to all UK nations and the other 27 member states.  As the UK leaves the EU, these frameworks will no longer apply in Scotland, and this, combined with other implications on the devolution settlement, bring a high level of uncertainty for the future structure of environmental law. The potential implications of Brexit for devolved environmental law in Scotland was the subject of an article by Caledonian Conservation’s Director, Chris Cathrine, in the Chartered Institute of Ecology and Environmental Management (CIEEM) In Practice publication.  This article is now available to download from the Caledonian Conservation publications page.

Note that the deadline for this article was before the snap 2017 General Election, and some of the areas of uncertainty are now becoming clearer – for example the background briefing notes for the Queen’s Speech indicate the intention of creating a UK-wide legislative framework for environmental law post-Brexit through the Agriculture Bill.  Therefore, an update will be appropriate as further clarifications are provided.

Caledonian Conservation Ltd staff have a wide range of expertise, and run training courses to share skills and knowledge with other ecology professionals.  Training that Chris Cathrine (Director) delivers includes running courses on behalf of the Chartered Institute of Ecology and Environmental Management (CIEEM), the  leading professional body for ecologists and environmental managers in the UK and Ireland.  Having run great crested newt survey and mitigation courses for CIEEM since 2015, Chris is also delivering Ecological Impact Assessment (EcIA) and wind farm bird collision risk modelling training courses for the professional body in 2017.

CIEEM runs EcIA courses for ecology professionals throughout the UK, ensuring trainers have appropriate experience of the country training is delivered in as relevant legislation and policies are devolved.  While updating the EcIA Level 2 course for Scotland, Chris worked with CIEEM’s England and Wales trainer, Mike Dean, and attended one of his courses in Wales to ensure that training would be appropriate but consistent between the UK countries.

Chris delivered his first CIEEM EcIA training course in Scotland last week, at a venue in Edinburgh, drawing on over 10 years' experience as an ecological consultant and his previous roles with Local Authority and as planning casework officer for a conservation charity.  Participants came from a range of backgrounds including consultants, charities / NGOs and government agencies / local authorities, really adding depth to group activities and encouraging interesting questions.  After all, EcIA principles can be applied to reports supporting planning applications, ecology chapters in Environmental Statements for Environmental Impact Assessment (EIA), Strategic Environmental Assessments (SEAs), Habitats Regulations Appraisals (HRAs), conservation management plans for sites – any project that could impact ecology.  The course was a success, based on informal and formal feedback, and Chris is looking forward to running more EcIA training on behalf of CIEEM in the future.

Chris will be running the following courses on behalf of CIEEM this spring:

• Wind Farm Bird Collision Risk Modelling - 30th March - Aberdeen
• Great Crested Newt Ecology and Survey Techniques - 19th April - Airdrie
• Great Crested Newt Mitigation and Assessment - 20th April - Airdrie

To find out more about Chris’s other courses delivered as part of CIEEM’s training programme and to book on to these or other events, visit:  cieem.activclient.com/CIEEM/Events/Event-Listing.aspx

To find out more about CIEEM, visit:  www.cieem.net

At Caledonian Conservation we aim to benefit people and wildlife.  To achieve this, we feel it is essential to share our experiences with other professional and academic ecologists to help improve best practice (within legal and commercial restrictions).  This includes presenting articles in the Chartered Institute of Ecology and Environmental Management (CIEEM) In Practice publication, which is distributed to the organisation’s membership.  Director Chris Cathrine has been an author of four articles in this publication, and we are pleased that we are now able to offer these publicly on the Caledonian Conservation Ltd website.  These articles include:

Cathrine, C. 2015. Wood Ant Nest Translocations. In Practice 89, 14-18.

Cathrine, C. and Amphlett, A. 2011. Deadwood: Importance and Management. In Practice 73, 11-15.

Cathrine, C. 2010. Invertebrates and Ecosystem Services: The Oil in the Ecological Machine. In Practice 68, 16-19.

Cathrine, C. and Spray, S. 2009. Bats and onshore wind farms: Site-by-site assessment and post-construction monitoring protocols. In Practice 64, 14-17.

To explore other publications, research posters and conference papers, go to the Caledonian Conservation publications page.

To learn more about the Chartered Institute of Ecology and Environmental Management, visit their website.