UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021

Interpretation of Chapter 2

Section 42 - Meaning of “public authority”

162. Section 42 sets out the meaning of “public authority” for the purposes of this Chapter, which determines the public authorities in relation to whom Environmental Standards Scotland has functions under section 20(1). It means a person exercising any function of a public nature, but it excludes Environmental Standards Scotland itself, courts and tribunals, the Scottish and UK Parliaments, UK Government Ministers, bodies to which paragraph 3 (reserved bodies) of Part III of schedule 5 of the Scotland Act 1998 applies, and persons exercising functions in connection with proceedings in the Scottish or UK Parliament.

Section 43 - Meaning of “failing to comply with environmental law”

163. Section 43 defines the references to a public authority “failing to comply with environmental law” for the purposes of this Chapter. They are references to a public authority failing to comply with environmental law in any of the following ways: by failing to take proper account of environmental law when carrying out its functions; by carrying out its functions in a way that is contrary to, or incompatible with, environmental law, or by omitting to carry out its functions where the omission is contrary to, or incompatible with, environmental law.

Section 44 - Meaning of “environmental law” and “effectiveness of environmental law”

164. Section 44 provides definitions of “environmental law” and “effectiveness of environmental law” for the purposes of this Chapter.

165. Subsection (1) defines “environmental law” as any legislative provision that is mainly concerned with environmental protection and is not concerned with an excluded matter. Subsection (2) sets out excluded matters. Subsection (3) sets out the meaning of “legislative provision” as provision contained in, or in an instrument made under, an Act of the Scottish Parliament, and provision contained in any other enactment that would be within the legislative competence of the Scottish Parliament.

166. Subsection (4) to (6) provide for the Scottish Ministers to make regulations to set out that a legislative provision is, or is not, within the definition of “environmental law”. Regulations under subsection (4) are subject to the affirmative procedure. The Scottish Ministers must consult Environmental Standards Scotland, and any other persons they consider appropriate, before laying a draft of such regulations before the Scottish Parliament for approval.

167. Subsection (7) defines “effectiveness of environmental law” and “effective environmental law” in terms of the law’s effectiveness in achieving its intended effect by reference to its contribution to environmental protection as well as to improving the health and wellbeing of Scotland’s people, and achieving sustainable economic growth, so far as consistent with environmental protection, and also its effectiveness in contributing to the implementation of any international obligation of the United Kingdom relating to environmental protection.

Section 45 - Meaning of “environmental protection”, “environmental harm” and “the environment”

168. Section 45 provides meanings for “environmental protection” at subsection (1), “environmental harm” at subsection (2) and “the environment” at subsection (3). Subsection (4) defines “human activities” for the purposes of the definition of environmental protection. These definitions are more developed than is generally the case in legislation that uses these terms, and are primarily required to ensure that there is clarity about the scope of the law that is within the purview of Environmental Standards Scotland.

Section 46 - Interpretation of Chapter 2: general

169. This section defines various terms and expressions used throughout Chapter 2 of Part 2 of the Act.