Page 26 - Lawtext Environmental Liabilty Journal Example

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[2008] 3 Env. Liability : Transposing the Environmental Liability Directive in Scotland : Brown 9393
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(Scotland) Regulations 2008. Completion of the culture which is reflected in the way in which EU policies
transposition process is scheduled for December 2008 and are adopted and transposed into the Scottish context.
the Scottish Government has already highlighted which It is therefore not surprising that Scotland’s blend of
features of the ELD are acceptable and can be transposed old and new constitutional factors has influenced the
and which should be minimised, thus shaping the actual transposition process of the ELD so far. For example, in
policy in a distinct manner. true traditional fashion, upon receiving the ELD the then
Scottish Executive immediately consulted Whitehall, in
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particular Defra, BERR, the Cabinet office, and HM
8
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The Scottish policy transposition network
Treasury. Similarly, the Scottish Executive went on to
The shaping of an EU directive has to be understood in the consult long-established key players on environmental
context of the transposition networks within the Member policy implementation – the Scottish Environmental
States. As far as these networks are concerned, Scotland Protection Agency (SEPA), Scottish Natural Heritage
has always been a special case. Even before devolution, (SNH) and Convention of Scottish Local Authorities
Bomberg pointed out that Scotland had a distinct network (CoSLA) – before extending the consultation process to
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of actors involved in political discourse and policy process. include a new and wider range of ‘stakeholders’
With devolution, this network has become even more representing both business and environmental groups in
distinct. Whereas before the Scottish office had a somewhat the network: the 427 addressees include small and medium-
hybrid role, representing the interests of both Westminster sized enterprises, trade associations, non-governmental
and Scotland (thereby connecting Scottish and UK levels), 4 organisations, quasi-governmental organisations, local
the Scottish Government and Parliament now enjoy a authorities, and political parties. Scotland (together with
devolved role in many policy areas as well as a newly-gained the rest of the United Kingdom) has missed the ELD’s
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confidence in shaping their own ‘tailor-made’ policies. This transposition deadline of 30 April 2007. At the time of
new approach has also contributed towards an EU policy writing, Scotland is in the middle of the consultation
transposition process that is deliberately different from the process, having just completed stage one and currently
traditional Westminster/ Whitehall process. Scottish processing stage two.
political actors have adopted a more transparent and Following the tradition of a somewhat reluctant policy
inclusive approach, with an emphasis on consultation and broker, the Scottish Executive started the consultation
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coalition-building. Having said that, not all ties with process by pointing out that transposition of the ELD was
counterparts south of the border have been cut and not all not going to be straightforward as it affected several policy
Whitehall practices and traditions abandoned. In many areas and existing legislation. To help with the consultation
respects, Scottish actors have maintained old process, the Scottish Executive undertook a regulatory
communication channels and practices. Nevertheless, impact assessment based on past experiences and predicted
Scotland has witnessed the development of a new policy that the ELD would generate up to 10 cases per year. This
is a surprisingly small number of potential cases. However,
the Scottish Government has recently confirmed this
estimate and emphasised that the policy would apply only
to ‘significant’ cases. Apart from keeping the cases to a
3 E Bomberg ‘Policy Networks on the Periphery: EU minimum, a great deal of attention was also paid to the
Environmental Policy and Scotland’ Regional Politics & Policy (1994)
4 (1) 45–61. financial costs (rather than the environmental benefits) of
4 When it came to the implementation of EU environmental ELD implementation; the financial costs would amount to
policies, the Scottish Office generally followed the lead of
Westminster and Whitehall. A Brown EU Environmental Policies in c£2.8m while also generating benefits of an estimated £3m.
Subnational Regions (Aldershot Ashgate 2001).
5 Responsibilities between Westminster and Holyrood are
divided into ‘reserved’ (ie UK level) and ‘devolved’ matters.
Reserved matters include defence, security, foreign policy and
macro-economic decisions, as well as constitutional matters, the 7 Following the Scottish National Party electoral victory of May
currency and immigration. Devolved matters include health, 2007 and change of government from a Labour-Liberal Democrat
education, criminal justice, agriculture and the environment. The coalition to the SNP, the Scottish Executive has been re-named
two levels overlap. For instance, in the areas of social security (UK) Scottish Government.
and care for the elderly (Scotland), nuclear energy (UK) and 8 Department for Environment, Food and Rural Affairs.
environmental quality (Scotland) and railway/ air transport (UK) 9 Department for Business, Enterprise and Regulatory Reform
and road transport (Scotland). (formerly the Department for Transport and Industry).
6 For instance, J Mitchell ‘Scotland: Expectations, Policy Types 10 The term ‘policy broker’ is used by many political analysts. See
and Devolution’ in Trench (ed) Has Devolution made a Difference? The P Sabatier and H Jenkins-Smith Policy Change and Policy Learning: An
State of the Nations (Exeter Imprint Academic 2004). Advocacy Coalition Approach (USA Westview Press 1993).

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