Environmental governance arrangements: report

5. Whether and, if so, how the establishment of an environmental court could enhance the governance arrangements introduced by the Continuity Act?

Section 41 of the Continuity Act requires us to consider whether the establishment of an environmental court could enhance governance arrangements put in place by Part 2 Chapter 2 of that Act.

Since the establishment of ESS and the commencement of the provisions of Part 2 Chapter 2 of the Continuity Act, there have yet to be any cases taken to court under those provisions. Under the provisions, ESS has the ability to report a public authority to the Court of Session if they fail to comply with a compliance notice. There are also enforcement provisions should a public authority fail to comply with an Information Order. In the particular circumstances set out in section 38 of the Continuity Act, ESS also have the power to apply for judicial review or intervene in civil proceedings if the public authority's conduct constitutes a serious failure to comply with environmental law, and it is necessary to make the application to prevent, or mitigate, serious environmental harm.

The fact that no cases have arisen under the environmental governance provisions is not surprising, given that the intention in framing the provisions was to promote informal resolution, and that the arrangements are still relatively new. ESS has set out in their strategic plan that they will try to resolve matters informally with public authorities, wherever possible. Public authorities also have a duty to cooperate with and assist ESS, and try to swiftly resolve any matters that are raised without the need for the formal use of the powers given to ESS in the Continuity Act.

This situation is in many ways similar to the position within the European Union, where investigations conducted by the European Commission are generally resolved before reaching the European Court of Justice.

As set out in chapter 2, the Scottish Government does not see any strong argument for a change in the balance of parliamentary, administrative and judicial roles in decision making on environmental matters, or for the creation of a specialist court. The particular question asked of us by section 41 with respect to a possible role for an environmental court does not change this conclusion. Indeed, there are promising signs that the system of governance will continue to work as intended, with very few instances of recourse to the courts.