Will Scotland's wildlife protections survive Brexit? Fears at-risk species could be sacrificed in rush for new trade deals

While one in nine species in Scotland is at risk of extinction, past warnings about the threats to at-risk animal species such as the red squirrels, some birds of prey and sea mammals have so far failed to result in adequate action, says the Scottish Environment LINK (SEL) union of conservation groups.

And it fears Brexit deals could further place Scotland's wildlife at risk, with otters, bottlenose dolphins, puffins, bats, golden eagle and osprey among a host of species that now face "increased threats".

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Through its Fight for Scotland’s Nature campaign, SEL fears a "rush" to rapidly agree bilateral trade deals with other countries could lead to the slashing of environmental standards, including crucial protections for Scotland’s wildlife.

The appeal comes as Scotland prepares to host two major environmental summits.

In April, the country will host the UN Convention on Biological Diversity in Edinburgh, while the COP26 climate change talks will be held in Glasgow in November.

SEL warns that swiftly agreed trade deals with countries such as the United States and China could lead to "weaker regulations" on animal welfare standards, food quality and environmental protections.

The group first outlined its concerns through The Herald in November 2018, calling for legally binding measures to ensure that the nation’s natural environment, wildlife and air and water quality were safeguarded.

Among its concerns was that there was no mechanism to replace the European Commission's LIFE-Nature Fund which had given £25 million over 25 years to Scotland to help with more than 25 important conservation projects protecting the country's at-risk wildlife and landscape.

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It then warned the projects were all at risk if the funding was lost during post-Brexit negotiations and no alternative source of money was found through matching contributions from government or elsewhere.

The campaign says environmental principles, previously applied through European law, should be embedded into Scots law before it is too late. And it has reiterated its call for a new independent environment watchdog for Scotland to oversee the transition.

SEL says that without the option for people to raise complaints to the European Commission, existing protections may not be enforced, leaving wildlife vulnerable to "further declines and destruction of habitats".

It has raised further concerns that safeguards contained in Theresa May’s Brexit deal, aimed at preventing environmental standards being lowered, have been removed from Boris Johnson’s deal.

The May draft deal had referred to non-regression of environmental standards – but this no longer features, leading to concerns that the law will come under sustained pressure to water down regulations.

Charles Dundas, chairman of SEL, said: “Brexit will leave the Scottish wildlife we all love open to a host of new threats if environmental standards are lowered, just when we most need to stop nature’s decline and help it recover.

"The Brexit deal and the pressure of new bilateral trade deals make it more urgent than ever that the Scottish Government acts to ensure our environmental protections remain intact.”

In a briefing last month to MSPs, Dr Annalisa Savaresi, senior lecturer in environmental law at the University of Stirling's faculty of arts and humanities, says Brexit raises "fundamental questions concerning the allocation of powers between the UK's administrations".

And she warns that Scotland's ambition to align with EU law on certain environmental standards "could be frustrated" in some areas.

While the UK and Scottish governments have agreed on the need to replace the EU’s review and enforcement powers over public authorities in the UK, and to maintain the role of EU environmental law principles in future policy making, there is no clear idea about how that will pan out, she says.

"After the EU referendum, several experts – including the UK Environmental Law Association (UKELA) and the Scottish Universities Legal Network on Europe (SULNE) – identified the loss of the EU’s review and enforcement powers as a pressing concern," she says.

"In order to address this concern, the UK and the Scottish governments have both held consultations on how to hold public authorities to account for upholding environmental standards after EU exit. To date, however, no legislative measures have been adopted by either."

She added: "What seems clear is that the quest for solutions to bridge the gaps in environmental governance associated with EU exit continues. While recent announcements on interim solutions on the enforcement of environmental law have shed some light on what may be expected in the event of a no-deal EU exit, much uncertainty remains on intra-UK arrangements and on what more long-term solutions may be adopted, on both sides of the border."

SEL is concerned that the US has banned mention of climate change from trade talks with the UK. The group believes the Americans want the UK to move to a US system where things are assumed safe until harm or damage is proved.

While the Scottish Government has repeatedly said it will not water down environmental protections after Brexit, SEL fears that if standards are slashed in the rest of the UK, there could be "huge pressure" on Scotland to follow suit.

In 2018 the European Court of Justice ruled that Britain is failing to protect its wildlife adequately with environmentalists citing scientific evidence showing that more protection areas are needed, particularly in Scotland.

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In her briefing, Dr Saveresi says Brexit raises "fundamental questions concerning the allocation of powers between the UK's administrations". She says that since devolution in 1999, the EU has provided "an element of commonality in environmental standards across the UK".

The UK and devolved governments have agreed “in principle” to work together to develop common frameworks in some areas which are currently governed by EU law and are meant to provide long-term policy arrangements to be implemented by the end of the Brexit transition period in December.

But even though environmental issues are a devolved matter, international affairs including relations with international organisations are reserved to the UK Government.

Dr Saveresi says this means that while Scottish Parliament can legislate on environmental matters at home – such as, for example, fisheries – the Scottish Government is limited in its ability to enter formal negotiations with international parties to address Scottish interests.

So Scottish ministers’ ability to exercise their powers on matters such as fisheries after EU exit "may be" framed by UK Government decisions.

The Scottish Government's Programme for Government for 2019-2020 produced in September committed to introducing a Continuity Bill to take forward measures to address a set of environmental governance issues associated with EU exit.

It stated that EU exit "must not impede our ability to maintain high environmental standards".

Dr Saveresi says the progamme referred to "interim, non-legislative measures" to be taken while continuing to develop longer-term solutions.

In October, the Scottish Government announced an interim advisory panel to ensure the “maintenance of environmental standards and implementation of environmental law in Scotland”.

The new interim advisory panel would “replicate as far as possible the role of the EU Commission in scrutinising environmental compliance by the Scottish Government and other public bodies”.

The panel would also deal with pending infringement cases before EU institutions, but Dr Saveresi said it "is not clear what power the panel will have in this connection". It is understood there are six such cases pending.