Scottish devolution and environmental law

Journal of Environmental Law

Volumn 12, Issue 2, 2000, Pages 155-173

  Little, Gavin ^a  

^a UNIVERSITY OF STIRLING   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

DEVOLUTION; ENVIRONMENTAL LEGISLATION; INTERNATIONAL LAW; LEGAL SYSTEM; POLITICAL SYSTEM;

UNITED KINGDOM;

EID: 0034578661     PISSN: 09528873     EISSN: None     Source Type: Journal    
DOI: 10.1093/jel/12.2.155     Document Type: Article

References (159)

1. Scotland Act 1998 (1998 c 46), hereinafter referred to as 'the Scotland Act'. All further statutory references are to the Scotland Act, unless stated otherwise. The Scottish Parliament assumed its powers on the 1 July 1999.
2. The Scottish Executive is the term applied to the devolved Scottish government, under the terms of the Scotland Act: it is headed by the First Minister and is comprised of ministers selected from the Scottish Parliament and the Law Officers (see s 44). The current Scottish Executive is a Labour/Liberal Democrat coalition, and it is envisaged that it will perform a similar role to that of the Westminster government: ie policy development, and the implementation of a legislative programme through the control of the majority in the Scottish Parliament.
3. There are currently 129 MSPs: the number may be reduced as a result of boundary changes. The current composition of the Scottish Parliament, which was elected under a system of proportional representation, is as follows: Scottish Labour Party 56, Scottish Liberal Democrat Party 17, Scottish National Party (the Official Opposition) 35, Scottish Conservative Party 18, Others (including Green Party (1 MSP)) 3.
4. See Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36). Of particular significance in the environmental context are the Concordat for the Coordination of EU Policy Issues, and the Concordat on International Relations (see Memorandum of Understanding, Part II, B and D respectively); together with the interdepartmental Concordat between Department of Environment, Transport and the Regions, and the Scottish Executive (November 1999).
5. See Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36). Of particular significance in the environmental context are the Concordat for the Coordination of EU Policy Issues, and the Concordat on International Relations (see Memorandum of Understanding, Part II, B and D respectively); together with the interdepartmental Concordat between Department of Environment, Transport and the Regions, and the Scottish Executive (November 1999).
6. See Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36). Of particular significance in the environmental context are the Concordat for the Coordination of EU Policy Issues, and the Concordat on International Relations (see Memorandum of Understanding, Part II, B and D respectively); together with the interdepartmental Concordat between Department of Environment, Transport and the Regions, and the Scottish Executive (November 1999).
7. See C. T. Reid, Environmental Law in Scotland, 2nd edn (W. Green: Edinburgh, 1997) 1-2.
8. For example, the nuisance provisions of the Public Health (Scotland) Act 1897 remained in force until repealed by the Environment Act 1995, but were a development and consolidation of previous public health Acts dating from the early nineteenth century. See Little and Godwin, 'History of Local Government' in The Laws of Scotland: Stair Memorial Encyclopaedia (henceforth SME) (Butterworths: Edinburgh, 1988), vol 14, para 37;
9. and Fletcher, 'History of the Development of Environmental Law' in SME (Butterworths: Edinburgh, 1987), vol 9, paras 1102-3 for background to Public Health (Scotland) Act 1897 .
10. For example, some provisions of the Alkali etc. Works Regulation Act 1906 remain in force in Scotland: the 1906 Act was itself a consolidation of previous Alkali Acts, which dated from 1861. The Act has been repealed in England and Wales.
11. Reid, supra, n 5 at 4.
12. For instance, tort.
13. Reid, supra, n 5 at 7-8.
14. For example, the Scottish criminal prosecution process, and the laws of evidence, procedure, nuisance, negligence and civil remedies differ from the rest of the UK.
15. For example, the Water (S) Act 1980.
16. For example, Scots provisions on statutory nuisance were repealed and replaced by English law provisions under the Environment Act 1995, s 107.
17. The creation of SEPA under Chapter II of the Environment Act 1995 was intended to deal with the problem of 'agency fragmentation'. It is within the powers of the Scottish Parliament to develop SEPA's role as a strategic regulator within the constraints of the Scotland Act: it remains to be seen whether and how the issue is dealt with. SNH was established under the Natural Heritage (S) Act 1991 and is responsible for nature conservation. There are 32 unitary local authorities in Scotland.
18. Environmental Impact Assessment (Scotland) Regulations 1989 (SSI 1999 No 1).
19. Currently, Sarah Boyack, MSP.
20. The standing orders have been enacted as a statutory instrument: Scotland Act 1988 (Transitory and Transitional Provisions) (Standing Orders and Parliamentary Publications) Order 1999 (SI 1999 No 1095).
21. Ibid, Rule 6.2.
22. See Scotland Act, Schedule 5, Part II, Head D, s D1-5. As noted below at ns 25-30, Scottish ministers have, under 'executive devolution', also been allocated a number of functions in connection with the electricity and nuclear industries, which are therefore subject to scrutiny by the Scottish Parliament.
23. Macrory highlights the crucial influence of EC and international environmental obligations in determining the nature of the relationship between the devolved administrations and Westminster: see R. Macrory, 'The Environment and Constitutional Change' in R. Hazell (ed), Constitutional Futures: A History of the Next Ten Years (Oxford University Press: Oxford, 1999) 178 at 193-4. For an interesting discussion of the development of UK environmental policy in its international and EC context, see D. Osborn, 'UK Environmental Policy 1970-95', 9 Journal of Environmental Law 3 (1997).
24. Macrory highlights the crucial influence of EC and international environmental obligations in determining the nature of the relationship between the devolved administrations and Westminster: see R. Macrory, 'The Environment and Constitutional Change' in R. Hazell (ed), Constitutional Futures: A History of the Next Ten Years (Oxford University Press: Oxford, 1999) 178 at 193-4. For an interesting discussion of the development of UK environmental policy in its international and EC context, see D. Osborn, 'UK Environmental Policy 1970-95', 9 Journal of Environmental Law 3 (1997).
25. Provides for the enactment of subsidiary legislation: see inter alia, ss 112-15, 118 and Schedule 7 of the Scotland Act.
26. Section 28. Of course, the Scottish Parliament can also amend or repeal its own legislation.
27. See s 29(2)(b) and (d). Convention rights are defined in the same way as in the Human Rights Act 1998: see Scotland Act, s 126. The Scottish Parliament is also prohibited from modifying the principal terms of the European Communities Act 1972, and the Human Rights Act 1998: see Schedule 4, Part I, 1(2)(c), (f) and 13(1)(b).
28. See, inter alia, ss 52-7.
29. Section 63(1)(a)-(c).
30. Under the Scotland Act 1998 (Transfer of Functions to Scottish Ministers etc) Order 1999 (SI 1999 No 1750).
31. See ibid, s 2 and Schedule 1 (which inter alia allocates functions under ss 36, 37 and Schedule 8, Electricity Act 1989).
32. See ibid (and ss 3(3), 32 and 33, Electricity Act 1989).
33. See ibid (and ss 2, 6, 19, 20, Nuclear Installations Act 1965 (as amended)).
34. See ibid (and s 60, Electricity Act 1989).
35. 32 Section 28(7).
36. See Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), paras 13-14, and ns 50-9.
37. See ss 31-4.
38. Section 31. There is no equivalent requirement for 'non-government' Bills.
39. Section 33. Reference to the Judicial Committee of the Privy Council can be made by the Lord Advocate (the Law Officer of the Scottish Executive), the Advocate General (the Scottish Law Officer for the UK government) and the Attorney General.
40. Section 32(3)(a). Provision is also made for the reference of a provision to the European Court of Justice: see s 34.
41. Or where the Secretary of State has reasonable grounds to believe that the Bill would have an adverse effect on the operation of the law as it relates to reserved matters. Note that this power can be exercised by any Secretary of State, and not merely the Secretary of State for Scotland.
42. It is anticipated that the Court of Session will bear the main burden of dealing with these cases, but appeal is available to the Judicial Committee of the Privy Council.
43. Schedule 6, Part I, 1(b)-(f).
44. Supra, n 38.
45. Paragraph 1 (by virtue of ss 29 and 57).
46. Section 129 of the Scotland Act provides that convention rights must be observed in the transitional period between the coming into force of the Scotland Act and the implementation of the Human Rights Act. Note also Schedule 4, paras 1(2)(f) and 13(1)(b), which provide that, subject to exceptions, the Human Rights Act 1988 cannot be amended by the Scottish Parliament.
47. Convention rights under the Scotland Act are defined in the same way as under the Human Rights Act: see s 126(1). See also s 100, which imposes similar definitions of victim and damages for the purposes of a breach of convention rights as under the Human Rights Act.
48. See Lopez Ostra v Spain (1994) 20 ECHR 277 at paras 51, 52; and D. McGoldrick, 'Sustainable Development and Human Rights: An Integrated Conception', International and Comparative Law Quarterly (1996) 796 at 816-18 for comment. See also Guerra and Others v Italy ECHR 116/1996/735/932, paras 58 and 60; P. Shiner, 'Environmental Protection, Judicial Review and Human Rights', Judicial Review, 43 at 49; and R. Macrory, supra, n 20 at 190-1 for comment.
49. See Lopez Ostra v Spain (1994) 20 ECHR 277 at paras 51, 52; and D. McGoldrick, 'Sustainable Development and Human Rights: An Integrated Conception', International and Comparative Law Quarterly (1996) 796 at 816-18 for comment. See also Guerra and Others v Italy ECHR 116/1996/735/932, paras 58 and 60; P. Shiner, 'Environmental Protection, Judicial Review and Human Rights', Judicial Review, 43 at 49; and R. Macrory, supra, n 20 at 190-1 for comment.
50. Article 6 provides for a 'fair and public hearing . . . by an independent and impartial tribunal'. See Shiner, ibid at 44-7, in which consideration is given to potential grounds of challenge in the context of UK planning and integrated pollution control procedures.
51. See generally, F. Jarvis and P. Sherlock, 'The European Convention on Human Rights and the Environment', European Law Review (1999) 15 at 17-24; and Macrory, supra, n 45.
52. Despite the provisions for executive devolution, Schedule 5, Part II, Head D, ss D1-5 effectively prevents the Scottish Parliament from involvement in strategic direction of important sectors in the energy industry which have, in broad terms, implications for the environment. See n 19.
53. See Schedule 5, Part I, para 7. Note that 'international obligations' means any international obligation of the UK other than obligations under Community law or the ECHR: see s 126(10).
54. See Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Explanatory Note. For the Concordat on the Coordination of European Policy, and the Concordat on International Relations, see Memorandum of Understanding, Part II, B and D respectively.
55. See Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Explanatory Note. For the Concordat on the Coordination of European Policy, and the Concordat on International Relations, see Memorandum of Understanding, Part II, B and D respectively.
56. Ibid, Part II, B1.1, and D1.2.
57. Ibid, Explanatory Note.
58. Ibid, Part I, para 2.
59. Ibid, Part I, paras 28-30; and Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, para 37.
60. Ibid, Part I, paras 28-30; and Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, para 37.
61. Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, paras 12-19, and 22-30; and Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Part I, paras 4-12.
62. Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, paras 12-19, and 22-30; and Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Part I, paras 4-12.
63. Memorandum of Understanding, ibid, Part I, paras 26-7.
64. See Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, paras 20-1, and Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Part I, paras 22-5.
65. See Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, paras 20-1, and Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Part I, paras 22-5.
66. See Memorandum of Understanding, ibid, Part II, paras A1.3-4.
67. Ibid, para A1.10.
68. Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, paras 31-5. For the Concordat on the Coordination of European Policy, and the Concordat on International Relations, see supra, n 50.
69. Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, paras 31-5. For the Concordat on the Coordination of European Policy, and the Concordat on International Relations, see supra, n 50.
70. Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, paras 31-5. For the Concordat on the Coordination of European Policy, and the Concordat on International Relations, see supra, n 50.
71. Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Part II, D1.3.
72. Ibid.
73. Ibid, Part II, D1.4.
74. Ibid, Part II, D3.6.
75. Ibid, Part II, D3.8.
76. Concordat between Department of Environment, Transport and Regions, and the Scottish Executive, paras 31-5.
77. Concordat on Coordination of EU Policy Issues, at Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Part II, para B1.3. See also G. Clark, 'Scottish Devolution and the European Union', Public Law (1999) 504 at 510.
78. Concordat on Coordination of EU Policy Issues, at Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Part II, para B1.3. See also G. Clark, 'Scottish Devolution and the European Union', Public Law (1999) 504 at 510.
79. Memorandum of Understanding, ibid, para 63.4.
80. 69 Ibid, para B3.6.
81. Ibid, paras B3.8 and B3.17.
82. Ibid, paras B3.12-13. The lack of a right to participate in negotiations has been a controversial issue, most particularly in the light of Article 203 of the EC Treaty, which is seen by regional governments in Germany and Belgium as recognition of such a right. See Clark, supra, n 67 at 509-17.
83. Paras B3.12-13, supra.
84. For instance, the length of time it can take to reach agreement; the tendency of states party to agree general, 'lowest common denominator' terms to arrive at consensus; and, given the possibility of reservations, the problems involved in ensuring effective implementation and enforcement. See P.W. Birnie and A. Boyle, International Law and the Environment (Oxford University Press: Oxford, 1992) pp 11-14 and 546-7.
85. For an evaluation of the merits of the Conventions and their implementation in the UK under the Merchant Shipping Act 1995, see G. Little and J. Hamilton, 'Compensation for Catastrophic Oil Spills: A Transatlantic Comparison', Lloyd's Maritime and Commercial Law Quarterly (1997) 391 at 392-4 and 398-405; and J. Hamilton and G. Little, 'Liability for Oil Spills: The Sea Empress and Recent Developments under the Merchant Shipping Act 1995', International Journal of Insurance Low (1996) 287.
86. For an evaluation of the merits of the Conventions and their implementation in the UK under the Merchant Shipping Act 1995, see G. Little and J. Hamilton, 'Compensation for Catastrophic Oil Spills: A Transatlantic Comparison', Lloyd's Maritime and Commercial Law Quarterly (1997) 391 at 392-4 and 398-405; and J. Hamilton and G. Little, 'Liability for Oil Spills: The Sea Empress and Recent Developments under the Merchant Shipping Act 1995', International Journal of Insurance Low (1996) 287.
87. See for further discussion: G. Little, 'The Hazardous and Noxious Substances Convention: A New Horizon in the Regulation of Marine Pollution', Lloyd's Maritime and Commercial Law Quarterly (1998) 554.
88. SeeG. Little and J. Hamilton (1997), supra, n 74. Other international developments in the regulation of marine pollution which are also of relevance to Scottish interests include the North Sea Ministerial Conferences, which discussed controls over dumping of pollutants in the North Sea, and gave rise to the London Dumping Convention 1972. Parts of the 1972 convention were then implemented in the UK by the Food and Environment Act 1985 and the Environmental Protection Act 1990.
89. 31 ILM [1992] 874.
90. 31 ILM [1992] 848.
91. 31 ILM [1992] 818.
92. For instance, 'development that meets the needs of the present without compromising the ability of future generations to meet their own needs'. See the World Commission on Environment and Development ('the Bruntdland Report'), Our Common Future (1987) p 43.
93. See Rio Principle 8: 'To achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies.'
94. The Fifth Action Plan, Towards Sustainability, is set to last from 1993-2000: see Official Journal (1993) 138. It was reaffirmed by European Parliament and Council Decision 2179/98.
95. For a full discussion of the implications of the Treaty of Amsterdam in the environmental law context, see S. Bar and R.A. Kraemer, 'European Environmental Policy after Amsterdam', 10 Journal of Environmental Law 314 (1998).
96. See for example, Sustainable Development: The UK Strategy, Cm 2426 (1994); Climate Change: The UK Programme, Cm 2427 (1994); Biodiversity: The UK Action Plan, Cm 2428 (1994); and Sustainable Forestry: The UK Programme, Cm 2429 (1994).
97. See for example, Sustainable Development: The UK Strategy, Cm 2426 (1994); Climate Change: The UK Programme, Cm 2427 (1994); Biodiversity: The UK Action Plan, Cm 2428 (1994); and Sustainable Forestry: The UK Programme, Cm 2429 (1994).
98. See for example, Sustainable Development: The UK Strategy, Cm 2426 (1994); Climate Change: The UK Programme, Cm 2427 (1994); Biodiversity: The UK Action Plan, Cm 2428 (1994); and Sustainable Forestry: The UK Programme, Cm 2429 (1994).
99. See for example, Sustainable Development: The UK Strategy, Cm 2426 (1994); Climate Change: The UK Programme, Cm 2427 (1994); Biodiversity: The UK Action Plan, Cm 2428 (1994); and Sustainable Forestry: The UK Programme, Cm 2429 (1994).
100. See the Environment Act 1995, s 31 (2); and Natural Heritage (Scotland) Act 1991, s 1 (1).
101. Scottish Office, Down to Earth: A Scottish Perspective on Sustainable Development (25.2.99). The report is part of the UK Opportunities for Change Programme of Consultation, which is being led by the Department of Environment, Transport and Regions.
102. Scottish Office, Down to Earth: A Scottish Perspective on Sustainable Development (25.2.99). The report is part of the UK Opportunities for Change Programme of Consultation, which is being led by the Department of Environment, Transport and Regions.
103. Concordat between the Department of Environment, Transport and Regions, and the Scottish Executive, Annex 1. See also statement by the Scottish Minister for Transport and the Environment, Sarah Boyack MSP, Scottish Office News Release 1241/99 (17.6.99).
104. See n 49 and Concordat on International Relations at Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36) Part II, para D3.6). The Rio Declaration is taken as the example of the type of agreement which the UK government alone has the power to negotiate. Furthermore, in the context of the CLC, Fund Convention and HNS Convention, the primacy of the UK government is emphasised by the specific reservation of their implementing statute to Westminster (ie Merchant Shipping Act 1995; see Scotland Act, Schedule 5, Part II, Head E, s E3(i)).
105. See Concordat between the Department of Environment, Transport and the Regions, and the Scottish Executive, Annex 1, paras 1 (1) (UK-wide policy reports), 1 (6) (1) (energy efficiency), 1 (8) (climate change), 1 (10) (new chemicals), 1 (11) (1) (Directive 90/220/EEC on the deliberate release of GMOs into the environment), 1 (12) (environmental research), 1 (13) (air quality monitoring), 1 (14) (radioactivity monitoring); and 1 (15) (radioactive waste management).
106. Concordat on International Relations at Memorandum of Understanding and Supplementary Agreements Between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/90/36), Part II, D3.9-12; and Concordat between the Department of Environment, Transport and the Regions, and the Scottish Executive, paras 31-5. International obligations may also be implemented on a UK-wide basis by Westminster. See also ns 49 and 61-5. A recent Scottish Executive statement in connection with the UK climate change programme to meet the Kyoto Protocol illustrates that the role of the Scottish Environment Minister is that of consultation with the DETR as UK lead ministry, and to ensure the implementation by Parliament of appropriate devolved measures by primary or subordinate legislation. See Scottish Executive Press Release SE0309/99.
107. Concordat on International Relations at Memorandum of Understanding and Supplementary Agreements Between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/90/36), Part II, D3.9-12; and Concordat between the Department of Environment, Transport and the Regions, and the Scottish Executive, paras 31-5. International obligations may also be implemented on a UK-wide basis by Westminster. See also ns 49 and 61-5. A recent Scottish Executive statement in connection with the UK climate change programme to meet the Kyoto Protocol illustrates that the role of the Scottish Environment Minister is that of consultation with the DETR as UK lead ministry, and to ensure the implementation by Parliament of appropriate devolved measures by primary or subordinate legislation. See Scottish Executive Press Release SE0309/99.
108. See Part II, D3.12, Concordat on International Relations, supra.
109. See, for concise but nonetheless wide-ranging evaluations, C. T. Reid, 'The Impact of EC Environmental Law in Scotland', Juridical Review (1997) 355; and Macrory, supra, n 20 at 185-90.
110. 94 See Articles 2, 3 and 6 (formerly Article 3c).
111. Formerly Articles 130r-130t.
112. See Reid, supra, n 92 at 363-65. In a recent statement, the Scottish Environment Minister recognised 'the value of European legislation as a driver of progress' in environmental law. See Scottish Executive Press Release SE0899/1999.
113. EC Directive 85/337.
114. A subsequent ruling by the European Court of Justice reiterated the requirement that all Member States were to have implemented the Directive by July 1988. Case C-396/92, 9.8.94; and see ENDS Report 237 (October 1994) 43.
115. SI 1988 No 1221, as amended by SI 1994 No 2012 and SI 1997 No 1870.
116. For a concise commentary, see J. Rowan-Robinson, 'Planning Law' in Reid (ed), supra, n 5, 119 at 130-1.
117. Reid, supra, n 92 at 362.
118. The European Commission subsequently proposed and then implemented changes to the 1985 Directive, which have promoted greater transparency and openness in EIA procedures. See Official Journal (1994) 130; and Directive 97/11/EC. See supra, n 99 for implementing SIs.
119. There will be a close-working relationship between the Scottish Executive and the DETR in connection with aspects of environmental impact assessment. See the Concordat between Department of Environment, Transport and the Regions, and the Scottish Executive Annex 1, para 1.21.
120. Directive 96/61/EC.
121. See s 5(3) of the Pollution Prevention and Control Act 1999. The Act received the Royal Assent on the 27.7.99. Special provision for the implementation of pre-commencement (ie ante or in the same Parliamentary session as the Scotland Act) Westminster statutes are set out in s 53.
122. See ss 1-2 and Schedule 1 of the Pollution Prevention and Control Act 1999. For a summary of what is likely to be involved in adopting the new procedures, which should be implemented in early 2000, see SEPA, Corporate Plan 1999/2000, p 30.
123. As provided for by the Environmental Protection Act 1990, Part I, as amended. For a comprehensive comparison of IPC and IPPC procedures, see N. Emmott and N. Haigh, 'Integrated Pollution Prevention and Control: The UK and EC Approach and Possible Next Steps', 8 Journal of Environmental Law 301 (1996). For a full discussion of IPC procedures in Scotland see J. M. G. Blair, 'Integrated Pollution Control' in Reid (ed), supra, n 5 at 92-108. See also SEPA, ibid at 26-7 for a summary of regulatory action in this area.
124. As provided for by the Environmental Protection Act 1990, Part I, as amended. For a comprehensive comparison of IPC and IPPC procedures, see N. Emmott and N. Haigh, 'Integrated Pollution Prevention and Control: The UK and EC Approach and Possible Next Steps', 8 Journal of Environmental Law 301 (1996). For a full discussion of IPC procedures in Scotland see J. M. G. Blair, 'Integrated Pollution Control' in Reid (ed), supra, n 5 at 92-108. See also SEPA, ibid at 26-7 for a summary of regulatory action in this area.
125. As provided for by the Environmental Protection Act 1990, Part I, as amended. For a comprehensive comparison of IPC and IPPC procedures, see N. Emmott and N. Haigh, 'Integrated Pollution Prevention and Control: The UK and EC Approach and Possible Next Steps', 8 Journal of Environmental Law 301 (1996). For a full discussion of IPC procedures in Scotland see J. M. G. Blair, 'Integrated Pollution Control' in Reid (ed), supra, n 5 at 92-108. See also SEPA, ibid at 26-7 for a summary of regulatory action in this area.
126. 108 For example, various aspects of intensive farming, the food and drinks industry and large landfill sites. See SEPA, supra, n 106 at 30.
127. SEPA, ibid.
128. Possibly by early 2000. See 'Draft White Paper on Environmental Liability', 8 Environmental Law Monthly 3 (1999) 1; and V. A. Jenkins, 'Environmental Impairment Liability in Europe', Journal of Business Law 378 (1999) for discussion of the June 1998 draft. Adoption of the White Paper was, however, delayed by the forced resignation of the Santer Commission, which postponed publication of the draft directive.
129. Possibly by early 2000. See 'Draft White Paper on Environmental Liability', 8 Environmental Law Monthly 3 (1999) 1; and V. A. Jenkins, 'Environmental Impairment Liability in Europe', Journal of Business Law 378 (1999) for discussion of the June 1998 draft. Adoption of the White Paper was, however, delayed by the forced resignation of the Santer Commission, which postponed publication of the draft directive.
130. See 'Draft White Paper on Environmental Liability', ibid at 1; and Jenkins, ibid at 378. See also EC Green Paper on Remedying Damage to the Environment, (COM(93)47); and D. J. Wilkinson, 'EC Green Paper on Remedying Damage to the Environment', European Environmental Law Review 159-61 (1993).
131. See 'Draft White Paper on Environmental Liability', ibid at 1; and Jenkins, ibid at 378. See also EC Green Paper on Remedying Damage to the Environment, (COM(93)47); and D. J. Wilkinson, 'EC Green Paper on Remedying Damage to the Environment', European Environmental Law Review 159-61 (1993).
132. See 'Draft White Paper on Environmental Liability', ibid at 1; and Jenkins, ibid at 378. See also EC Green Paper on Remedying Damage to the Environment, (COM(93)47); and D. J. Wilkinson, 'EC Green Paper on Remedying Damage to the Environment', European Environmental Law Review 159-61 (1993).
133. See 'Draft White Paper on Environmental Liability', ibid at 1; and Jenkins, ibid at 378. See also EC Green Paper on Remedying Damage to the Environment, (COM(93)47); and D. J. Wilkinson, 'EC Green Paper on Remedying Damage to the Environment', European Environmental Law Review 159-61 (1993).
134. See 'Draft White Paper on Environmental Liability', supra, n 110 at 1-2; and Jenkins, supra, n 110 at 378-80 for comment.
135. It is thought that 'dangerous activities' would be covered initially. This would, however, ex facie include those activities already regulated by EC environmental legislation, ie many major industries and processes. See 'Draft White Paper on Environmental Liability', supra, n 110 at 3; and Jenkins, supra, n 110 at 379-80.
136. See Article 6 of the Consolidated Version of the Treaty Establishing the EC. The integration principle broadly means that sustainable development should be realised by the integration of environmental protection concerns into a wide range of policy areas. See also Bar and Kraemer, supra, n 83 at 318-19 for further discussion.
137. Which permits measures to be taken even when scientific evidence as to the nature of the risk to the environment is unclear: see Article 174(2) of the Consolidated Version of the Treaty Establishing the EC, and Principle 15 of the Rio Declaration.
138. For instance, the polluter must pay for preventing, controlling and providing compensation for environmental pollution.
139. See Down to Earth: A Scottish Perspective on Sustainable Development, supra, n 86 at 22-40 for a general idea of the policy issues which are likely to be addressed by the Scottish Executive and Parliament, and Concordat between Department of Environment, Transport and the Regions, and the Scottish Executive, Annex II. See also Scottish Office News Release 1241/99, supra, n 87 for a Scottish Executive policy statement.
140. See Down to Earth: A Scottish Perspective on Sustainable Development, supra, n 86 at 22-40 for a general idea of the policy issues which are likely to be addressed by the Scottish Executive and Parliament, and Concordat between Department of Environment, Transport and the Regions, and the Scottish Executive, Annex II. See also Scottish Office News Release 1241/99, supra, n 87 for a Scottish Executive policy statement.
141. Down to Earth: A Scottish Perspective an Sustainable Development, supra, pp 4-5, and 40.
142. For example, in relation to improved pollution monitoring techniques, the understanding of ecosystems, 'clean' technologies, and waste prevention techniques. The difficulties of assessing scientific understanding in the context of environmental legislation are considered in D. Fisk, 'Environmental Science and Environmental Law', 10 Journal of Environmental Law 3 (1998).
143. The Scottish representative office is known as Scotland House. Clark, supra, n 67 at 519-22, discusses the inherent limitations of representative offices of this sort, whilst acknowledging the potential value of developing informal links. The Scottish Environment Minister has, indeed, already sought to develop such links with other EU Regional Environmental Ministers and the Commissioner for the Environment: see Scottish Executive Press Releases SE0687/99 and SE0899/1999.
144. See n 49 and 66-72.
145. Ibid. Note also that, although the working arrangements are as yet unclear, it is possible that the Scottish Parliament and its European committee may have some opportunity to participate in UK European policy-making independently of the Scottish Executive. See Scottish Parliament Committee News Release 001/1999 (23.6.99).
146. Concordat on Coordination of EU Policy Issues - Scotland at Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/36), Part II, paras B3.16-20 for agreed processes for implementation: see also n 136. A recent statement by the Scottish Environment Minister on Scotland's place on the 'European environment stage' stressed the importance of the obligation to implement EC obligations. See Scottish Executive Press Release SE0899/1999.
147. And other Scottish public authorities such as the Scottish Agricultural and Biological Research Institutes. It should, however, be noted that the remit of the Scottish Executive and Parliament is limited to a right of consultation and information with regard to 'cross-border authorities' under s 88 of the Scotland Act. These include (inter alia): Advisory Committee on Hazardous Substances, Advisory Committee on Releases to the Environment, Advisory Committee on Pesticides, British Waterways Board, Forestry Commission, and the Royal Commission on Environmental Pollution. See: Scotland Act 1998 (Cross-Border Public Authorities) (Specification) Order 1999 (SI 1999 No 1319). Section 89 of the Scotland Act makes provision for the modification of these arrangements as appropriate.
148. Under the Alkali etc. Works Regulation Act 1906; and Health and Safety at Work Act 1974.
149. Under the Environmental Protection Act 1990, Part I, Part B processes.
150. Under the Control of Pollution Act 1974; Control of Pollution (Amendment) Act 1989; and Environmental Protection Act 1990 Part II.
151. Supra, ns 104-9 for discussion.
152. Under Control of Pollution Act 1974; Rivers (Prevention of Pollution) (S) Act 1951.
153. Under the Environmental Protection Act 1990, Part IIA.
154. Under the Environment Act 1995; and Producer Responsibility Obligations (Packaging Waste) Regulations 1997 (SI 1997/648).
155. Under (inter alia) Town and Country Planning (S) Act 1997; Planning (Listed Buildings and Conservation Areas) (S) Act 1997; and Planning (Hazardous Substances) (S) Act 1997.
156. For example, under Town and Country Planning (S) Act 1997; Planning (Hazardous Substances) (S) Act 1997; Environment Protection Act 1990 Parts II and III; Sewerage (S) Act 1968; and Water (S) Act 1980.
157. See for further examples: Urban Waste Water Treatment Directive (91/271/EEC); Bathing Waters Directive (76/160/EEC); Dangerous Substances Directive (76/464/EEC); Nitrates Directive (91/676/EEC); Groundwater Directive (80/68/EEC); Directive on Disposal of PCBs and PCTs (96/59/EC); Air Quality Framework Directive (96/62/EC); Future directives will assume even greater significance: eg the forthcoming Water Framework Directive; Landfill Directive; and Waste Framework Directive. See also Draft Communication on Community Strategy to Combat Acidification (COM(97)88) for further possible developments. The relevance of EU proposals and directives at all levels of Scottish environmental protection is apparent in SEPA, Corporate Plan 1999/2000, pp 10-33.
158. While it is sometimes claimed that national parliaments are unable to influence EC strategic policy-making, it is contended that this view can be exaggerated. For example, concerns about potential repercussions in national parliaments with regard to some of the draft Articles of the Amsterdam Treaty led to governments agreeing to a much less ambitious project. See A. J. Riley, 'Amsterdam: Stepping Stone or Epitaph?' European Current Law Year Book, xlv at xlvii (1997).
159. Concordat on Coordination of European Union Policy Issues at Memorandum of Understanding and Supplementary Agreements between the UK Government, Scottish Ministers, and the Cabinet of the National Assembly for Wales (SE/99/ 36), Part II, para B3.17. Disputes over vires in the context of implementation will be referred to the Judicial Committee of the Privy Council under s 33: see para B3.8.