Effectiveness of environmental governance arrangements: statement

Summary of views expressed in response to the consultation

Overview of environmental governance in Scotland following exit from the EU

The report provided a strategic overview chapter which covered wider issues of environmental governance which were raised with the Scottish Government within the evidence sessions. This section of the consultation provided respondents with the opportunity to present comments and evidence on wider issues of environmental governance in Scotland.

1. Do you have any general comments on the scope of the review and the Scottish Government approach?

There were 19 responses to this question from the 25 respondents. Respondents commented on the scope of the report and the position taken by the Scottish Government, as well as access to justice and ESS.

The report

The section 41 duty on the review and the report into environmental governance was broadly welcomed by all respondents to the consultation. However, a majority of stakeholders viewed the scope of the report as being too high level and without providing a focus on the issues that some desired. Some stakeholders encouraged the government to consider a more widely focused review looking at a wider range of issues of environmental governance. Some areas that stakeholders would like to see a greater focus on included appeals in planning law, cost of court action and enforcement action.

However, there was some agreement with the Scottish Government on the scope of the report and positions presented. Specifically, some responses agreed that any changes to the existing governance arrangements must recognise the possible delay and uncertainty in the system that any changes could cause.

Additionally, there was some criticism and disappointment with the Scottish Government’s position on the wider issues of environmental governance, with some responses seeking greater detail on how the government came to this position. Furthermore, it was noted that the report in their view did not include detail on the relationship between the Scottish and UK Governments on environmental governance.

Access to justice

Points were raised in this question to the detail on ways to access to justice, particularly in relation to the Scottish Public Services Ombudsman (SPSO) and Drinking Water Quality Regulator for Scotland, noting that the report overlooks these bodies in regard to access to justice.

Points raised about ESS

Responses explored the role of ESS to date and there was widespread approval from respondents about its creation and role. However, it was argued by some respondents that in their view ESS lacks the scale of enforcement powers that respondents think are appropriate, and that new powers should be provided to the organisation so that its actions can be strengthened.

2. Do you have any further comments on wider issues of environmental governance?

There were 18 responses to this question from the 25 respondents, which commented on the role of ESS, access to justice and the current system of environmental governance after leaving the EU.

Points raised about ESS

Some respondents brought up concerns about how organisations, including public bodies and entities, share information with ESS. These respondents made some suggestions about consideration of changes to existing legislation for certain public bodies and organisations to facilitate information-sharing with ESS.

A small number of responses expressed support for the Scottish Government's position on not expanding the role of ESS, especially in relation to individual planning and consenting decisions.

One response noted that the ESS Strategic Plan states that ESS will ensure that Scotland keeps pace with developments in environmental law and policy in Europe and elsewhere. However, the respondent questioned how ESS will do this and if it is the role of ESS to provide recommendations where legislation fails to align with the EU.

Access to justice

Several respondents argued that there is a connection between environmental damage and the high cost of accessing justice. They argued that the prohibitive cost of accessing justice deters individuals and organisations from taking action to prevent environmental damage.

Additionally, some responses pointed to what they saw as a lack of transparency in the decision-making processes of regulatory bodies and the government in environmental governance. This lack of transparency is argued to erode confidence that decisions are being made in a fair manner, taking into account all relevant interests. These responses also noted that the lack of confidence is exacerbated by the perception that certain duties imposed on public bodies are not resulting in material differences.

Some responses noted that stakeholders continue to challenge decisions, leading to expensive and time-consuming review and redress procedures for public bodies. It is argued that these issues are attributed to resource constraints rather than deficiencies in the legal frameworks.

Environmental governance following the exit from the EU

Numerous responses indicated that in their opinion several gaps in environmental governance existed before the UK's withdrawal from the EU, including the monitoring, measuring, and reporting on environmental data, the implementation of environmental law, and the introduction of more powers to enhance access to justice. It was suggested that while some of these have been addressed by the Continuity Act, others are argued to persist, and some respondents called for a comprehensive review to address these gaps in greater detail.

A limited number of responses contended that the UK's exit had left Scotland outside of EU jurisdictions and that they believed that there had not been an adequate replacement for these EU institutions.

Environmental Principles

The introduction of the new duty on Ministers and public bodies to consider the environmental principles was mentioned. One response noted that the new duty would not apply to every regulatory and operational decision. The response noted that legislation and caselaw does set procedures for making regulatory decisions and embed the principles. However, the respondent argued much of this caselaw comes from the EU and will lose precedence after 1 January 2024, under the Retained EU Law Act. The respondent concluded that in their view it is unclear what the implications of this change will have on individual regulatory decisions, particularly in the event of a successful challenge in the UK Courts.

Whether the provisions of the Continuity Act have ensured that there continues to be effective and appropriate governance relating to the environment following the withdrawal of the United Kingdom from the EU?

This section of the report provided an overview of environmental governance following the exit of the UK from the EU, covering issues such as environmental law, existing governance arrangements, the role of Environmental Standards Scotland and how this compares to governance within the EU. The answers to each question are summarised below.

1. Do you have any comments on the content of chapter three and the Scottish Government policy on this subject?

There were 18 responses to this question from the 25 respondents. A majority of responses focused on the role and remit of ESS and its formation, while a smaller number of responses explored access to justice and the judicial system.

Points raised about ESS

Some responses expressed concern about a requirement for stakeholders to demonstrate systemic failure to ESS in order for it to raise an investigation into a particular issue. The responses argued that NGOs and community groups often lack the resources to identify and report systemic failures, which impacts on local communities efforts to achieving action to address local concerns.

These respondents further argued that the report should contain more detailed information about ESS investigations and the level of representations received. They raised concerns about the exclusion of individual cases from ESS's remit, asserting their belief that it unhelpfully constrains its powers. Specifically, some responses argued that individual cases can have a significant impact on the environment and the exclusion of individual cases from ESS remit therefore limits their ability to uphold environmental law and protect the environment. Additionally, some responses argued that this puts environmental governance in Scotland at a disadvantage compared to England and Northern Ireland.

However, a small number of responses supported the Scottish Government’s position as they believe that it was appropriate for ESS not to consider individual cases, as long as ESS effectively addressed systemic issues.

Additionally, some responses noted that ESS is settling into its role well, and expressed their support for its strategic plan. However, some argued it was premature for the Scottish Government to conclude that ESS is effective, especially in the absence of meaningful improvements in its areas of investigation.

Moreover, it was pointed out in some responses that ESS has limited powers, particularly as it cannot conduct investigations in areas such as national defence and financial budgets.

Several respondents challenged ESS's effectiveness, as they felt it did not fully replicate the functions of the European Commission and the Court of Justice, and that ESS could not be the sole response to leaving the EU and broader environmental governance issues. They highlighted issues such as the lack of legal expertise, focus on challenging regulatory and performance failures, and limitations on individual cases.

One response expressed their support for more coordination between regulatory bodies and ESS, particularly in supporting individuals and groups seeking environmental justice.

Some responses suggested that, in their view, the impact of the proposed Human Rights Bill for Scotland and a specialist environmental court working proactively with ESS would be better suited to assess individual cases and government policy against environmental law and targets.

One response noted that in their view it remains unclear how ESS exercises their powers and functions, especially when they may interfere with the activities of other regulators. Several responses urged the Scottish Government to continue monitoring the effectiveness of the Continuity Act in ensuring governance arrangements as ESS develops in its role. Some respondents expressed concerns that ESS isn't utilising its powers, especially regarding the investigation of enforcement by public bodies and environmental damage.

Several responses argued that the text of the Continuity Act presumes that effective environmental governance existed before the UK's exit from the EU, which they disagreed with. Some recognised that replacing the external framework provided by the EU would be a significant task, and felt the current arrangements were working well in the current context.

Access to justice and the judicial system

Most of the responses pointed out the loss of routes to access justice or address environmental damage due to the exit from the EU.

A small number of responses discussed accessing justice and the barriers. They argued for changes in the judicial review system to allow cases to be reviewed on their merits, particularly for Aarhus cases.

2. Do you have any further comments on the existing environmental governance arrangements?

There were 13 responses to this question from the 25 respondents. The majority of respondents to this question reiterated their response that it was too early to establish any firm conclusions.

Points raised about ESS

Some stakeholders agreed with the report that ESS has been working effectively and welcomed their flexible approach to investigations, for example some noted that the fact that ESS can pause an investigation but ensure monitoring of an issue is an effective way to ensure resolution without the application of resources to the management of enforcement action. It is their view that this would allow resource to be allocated to practical solutions.

Other responses supported the Scottish Government’s position that it remains appropriate that individual cases are excluded from the remit of ESS as, in their view, ESS should focus on issues of systematic failure. Additionally, some respondents welcomed the suggestion in the report for the government to continue to work on removing friction from the system.

A small number of respondents commented that it is essential that the government should work to ensure that appropriate resource is provided to ESS and public bodies, particularly SEPA as it recovers from a loss of data. The need for more accessible and better data from all public bodies was argued by some.

One response noted that not all of the legislation within the remit of ESS was derived from the EU, and this is shown by the breadth of work carried out by ESS. This response argued that ESS’s remit includes keeping under review the implementation of any international obligation of the United Kingdom relating to environmental protection.

Governance arrangements and external engagement

Some responses argued that existing governance arrangements have, in their view, contributed to the nature and biodiversity crisis, and have helped protect businesses and landowners from improving their environmental responsibility.

Another response noted that the Memorandum of Understanding between ESS, the Interim Environmental Protection Assessor for Wales and the UK Office for Environmental Protection (OEP) in September 2022^[3], is a small but essential building block in the framework of environmental governance for Scotland. This response indicated that it will take time to understand if this is sufficient in ensuring that the relevant information is shared via regular communication between ESS, the Environmental Protection Assessor for Wales and OEP. The respondent concluded that this is important as there is now an understanding that the separation of devolved and reserved powers is not clear, and expressed disappointment that the report overlooks this.

3. Do you have any further information or evidence on the issues presented in chapter three?

There were nine responses to this question from the 25 respondents. Some of the topics discussed in response to this question included the Scottish Government’s biodiversity consultation, the performance of ESS and comparison with governance arrangements in the EU.

Biodiversity consultation

Several responses raised the Scottish Government consultation on biodiversity. It was highlighted that within the biodiversity consultation, there is a proposal to create an independent review body to report on the progress in meeting the statutory nature recovery targets. One respondent argued that this will be an important element of environmental governance, and more detail is needed on how this would work with ESS and other public bodies.

Points raised about ESS

Some responses questioned the findings of the report regarding the performance of ESS. These responses noted that it is still early, but in their view that ESS has shown that it has an unwillingness to challenge the constraints of individual versus issues of systematic failure, and that ESS has a bureaucratic, slow and conservative approach on identifying and addressing environmental failures and delivering access to justice. One response argued that ESS has failed to pursue cases by handing cases to the SPSO, the information commissioner, or regulators, which they deemed unacceptable.

EU comparisons

Some responses covered the changes in governance arrangements compared to that of the EU. Some of these challenged the report’s findings that ESS is accessible and often more accessible than the European Commission, as the Commission had significant engagement with governments and NGOs. A small number of responses covered the changes with the EU and how this impacts public bodies. These responses argued that some of these differences have resulted in public bodies and local authorities being more involved in environmental governance than previously; indicating that this was because bodies have to respond to more requests for information from ESS than was required under arrangements with the EU. Some responses noted that the changes have resulted in higher demands on resources which have not been covered with any additional funding from government.

Whether the law in Scotland on access to justice on environmental matters is effective and sufficient?

This section of the report covered evidence around access to justice on environmental matters in Scotland, presents stakeholders’ input and the Scottish Government position on ensuring that there is effective access to justice on environmental matters in Scotland.

1. Do you have any comments on the content of chapter four and the Scottish Government position on this subject?

There were 16 responses to this question from the 25 respondents. Responses covered a wide range of topics including the measures to improve access to justice, ESS and whether it provides an additional route to access to justice, the Aarhus Convention, third party right of appeal, standard of review and forestry protection.

Measures to improve access to justice

Some responses argued that this section of the report lacks evidence. The responses suggest that there is not a meaningful consideration of the failures of process and outcome around access to information which is the first step towards access to justice. Some responses stated that, in their view, while the number of developments listed in the report may help improve access to justice, the outcome of these are uncertain and do not promise definite improvements.

On the developments to improve access to justice included in the report, several responses welcomed the proposed recognition of the right to a healthy environment but suggested that it is unclear how this will lead to any substantial change in enforceable rights within several years. Some responses noted that there is a lack of detail on how this new right would be enforced.

A small number of responses raised concerns that the rules for Protective Expenses Orders (PEOs) can be complex and require disclosure of personal information, and that the review on PEOs does not guarantee improvements.

On legal aid, some responses stated that it should be expanded to public interest environmental litigation to ensure that civil society and NGOs are eligible, which in their view would improve access to justice. Alternatively, other responses noted that it is important to strike a balance between access to justice and ensuring appropriate safeguards are in place against spurious litigation. Particularly, as it is noted that judicial reviews are complex and costly for all parties, including the public purse, while there can also be an opportunity cost. Therefore, these responses argue that it would not be appropriate to extend legal aid to NGOs or community groups.

Some responses did welcome the indication that the Scottish Government will continue to explore ways to improve expert support within the judiciary.

Measures suggested by stakeholders to improve access to justice

Some responses argued that qualified one-way costs shifting (QUOCS) should be introduced for public interest environmental litigation to replace the ‘loser pays’ rule. One response also highlighted that the report fails to note that the exemption of fees for Aarhus cases relates to only a small part of seeking justice at the Court of Session and by limiting the exemption to Court of Session, this excludes cases in the Sheriff Courts or the Land Court.

Does ESS provide an additional route to access justice

Several responses suggested that as ESS is the only oversight body, it plays a big role in delivering access to justice. However, it was also argued that ESS does not provide sufficient access to justice as it is argued that there are often delays in determining if they can take a case, due to specificity, or if it is best managed by approaching the regulator or duty holder. It was suggested that this was particularly the case where ESS passes a case to the SPSO, as SPSO has a backlog of cases which leads to delays. Another response focused on the need for an environmental court, indicating that since ESS is not a court or adjudicative body, arguing that its existence alone does not meet the Aarhus Convention requirements on access to justice and an environmental court may be necessary.

Some responses raised concern over the loss of the oversight of the Court of Justice of the EU, and the access to justice through it, while other responses raised concerns over the lack of merits-based reviews of environmental cases.

Aarhus Convention, third party right of appeal and standard of review

On the Aarhus Convention, some of the responses welcomed the acknowledgement that Scotland is not complying with the Aarhus Convention in relation to the cost of accessing justice, and argued that the Scottish Government should commit to complying with the Convention^[4]. One response argued that the report states without any justification that third party rights of appeal are not required to comply with the Convention, when the Committee has held that there are very similar arrangements in Northern Ireland who are in breach. This response argued that there should be a re-consideration of equal rights of appeal in planning, and that the Scottish Government position may not be in compliance with the Aarhus Convention.

Some respondents raised concerns about the standard of review applicable in judicial review proceedings. In particular, the respondents commented that the Wednesbury unreasonableness standard^[5] is set very high and is difficult to overcome.

Protection of forestry

One response argued that there is very little access to justice in Scotland in regard to protecting forests and woodlands in Scotland, as Scottish Forestry has not worked with Procurator Fiscal in prosecuting illegal tree felling, while the introduction of non-native species has gone unchallenged.

2. Do you have any further comments on existing access to justice on environmental matters?

There were nine responses to this question from the 25 respondents. Responses covered a range of topics including the right to a healthy environment, the Aarhus Convention, legal aid, expert witnesses and ESS.

Scottish Public Services Ombudsman (SPSO)

It was noted by one respondent that the SPSO will have a central role in public service complaints in relation to the right to a healthy environment, which may require changes to SPSO’s powers to ensure they can do more in a more rights-based environment.

Aarhus Convention

A number of responses noted their disappointment that the paper does not mention or address the issues of merits based rulings. These noted that Article 9.2 of the Aarhus Convention requires a state to provide its citizens (and NGOs) with access to a review procedure before a body established by law, to challenge the substantive and procedural legality of any decision, act or omission”. Respondents noted that this is subject to an ongoing representation to the Aarhus Convention Compliance Committee in respect of Scotland. Some stakeholders noted their disappointment that the report does not recommend a wider review to consider such issues.

Legal aid

Legal aid was brought up as a barrier to justice within multiple responses, with stakeholders reiterating that it needs substantial and urgent changes. Respondents argued that PEOs and QUOCS dimensions need to be effectively addressed to rebalance the legal process in relation to costs and power. Additionally, some responses argued that the way courts currently process work does not allow comparability or fairness between Sheriff Courts and the Court of Session regarding fees.

Expert witnesses

Other responses indicated that there is a need to improve the use of expert witnesses in courts, and argued that this could be achieved easier through the creation of an environmental court.

Points raised about ESS

It was suggested by some responses that while the report highlights the ability of ESS to provide an additional route to access, this is contradicted by their inability to deal with individual cases.

Right to a healthy environment

Some responses noted that whilst enshrining a right to a healthy environment in domestic law would be a positive step, it is not the solution to improve access to justice and not in a reasonable timescale, as the full implementation will be several years away. These responses argued that it would be more effective to ensure environmental standards are set and enforced appropriately, with adequate resources, and communities supported to ensure the law is upheld. It was noted within one response that the new right could help highlight that environmental governance arrangements may not be working as well as they could be.

Information and access

One respondent stated that effective access to justice requires attention not just to the formal procedures for resolving disputes but also to much earlier stages of information and education on legal rights and processes, as well as timely access to expert advice.

3. Do you have any further information or evidence on the issues presented in chapter four?

There were seven responses to this question from the 25 respondents. Responses to this question centred around legal aid, greater transparency and evidence brought to public bodies and further expert support to prosecutors.

Legal aid

Some responses noted that while legal aid could be expanded so that it is available to NGOs, this would be heavily dependent on government finances which, as evidence suggests, are extremely strained. Therefore, it would depend on spending decisions by government.

Greater transparency and evidence

Other responses insisted that there is a need for greater transparency and evidence around the requests, cases and complaints which are brought forward to public bodies, ESS, government and parliament. In particular, respondents would like better available data on ESS and their cases to help to inform a meaningful public discussion.

Expert support to prosecutors

It was commented that efforts to provide further expert support to prosecutors would be welcomed and supported by some respondents. Respondents noted that public bodies work with environmental crime units, which help to provide a standing offer of training and support on environmental matters, and suggested that the Scottish Government engage with public bodies to explore how these initiatives can be built upon.

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

This section of the report provided an overview of the evidence on whether an environmental court can enhance existing governance arrangements, and presented the current position of the Scottish Government on the issue.

1. Do you have any comments on whether an environmental court would enhance environmental governance arrangements and the Scottish Government position on this subject?

There were 17 responses to this question from the 25 respondents. The responses focussed on a number of issues such as whether an environmental court could enhance governance arrangements, the previous consultation on environmental governance arrangements in February 2019, the Aarhus Convention, how an environmental court could improve access to justice and next steps.

Environmental court and governance arrangements

Several of the responses expressed their support for the creation of an environmental court or tribunal. However, there is less consensus amongst responses on the remit of such a court or tribunal and how this would be established. Several stakeholders expressed their disappointment at the Scottish Government’s position that it was not convinced that the creation of an environment court would enhance governance arrangements. Some respondents argued that there is a lack of thinking and consideration on how the overall system of environmental governance could be different and how an environmental court could be a significant element of a new system.

It was also suggested that governance arrangements could be improved by the introduction of other initiatives, such as a statutory tribunal. It was suggested this could be used to deal with environmental matters that go beyond legal issues. This response noted that a statutory tribunal can be less intimidating than court and allows people to represent themselves.

Several stakeholders noted that in their view the current governance arrangements in relation to access to justice are fragmented and unsatisfactory. They therefore argued that an environmental court would help improve access to justice, as it would be a clear method for people to access justice, and a court would also help ESS to enforce environmental standards.

Some responses suggest there is considerable evidence that an environmental court would enhance environmental governance arrangements. They argued that environmental courts in other countries have helped to develop judicial expertise in environmental law. It was suggested that in Sweden the use of technically trained judges in environmental courts has improved the quality of judgements, while the Land and Environment Court of New South Wales has developed the concept of ‘ecologically sustainable development’ and developed planning principles. Lastly, it is argued that the environmental courts have helped incorporate alternative dispute resolution, with the Planning and Environment Court of Queensland appointing an alternative dispute registrar to help settle cases.

On the other hand, several responses expressed their agreement with the Scottish Government position that there is no strong case to establish an environmental court at this point. With some responses noting the different range of routes to access justice on environmental matters which currently exist.

Previous consultation

Some responses commented that the report did not highlight that the majority of respondents to a previous consultation in February 2019, on Environmental Principles and Governance After Brexit, were in favour of introducing an environmental court and tribunal. Responses further argued that support for an environmental court within the evidence sessions that informed the report had also been overlooked.

Aarhus Convention

A key argument put forward for an environmental court by respondents was that it would help to ensure the Scottish Government meets its requirements as part of the Aarhus Convention in regards to access to justice. Responses argued that without a fuller understanding of whether the current system discourages cases coming to court and whether desired outcomes are achieved, potential barriers to access to environmental justice should be considered further as part of any decision on an environmental court or tribunal.

Improving access to justice

Additionally, some respondents suggest that over time environmental courts develop innovative approaches and solutions to environmental cases, which improve access to justice, mainly as these reduce the cost of litigation. In their view this would improve environmental decision making, as governments look to meet the challenges of the climate and nature emergencies.

Next steps

Some responses argued that the Scottish Government should agree to conduct an in-depth consultation on an environmental court. With some stakeholders also querying what further evidence the Scottish Government would need to reconsider its position on an environmental court.

2. Do you have further comments on whether an environmental court can enhance governance arrangements?

There were eight responses to this question from the 25 respondents. Responses focussed on routes of appeal, judicial reviews and how an environmental court could enhance environmental protections.

Routes of appeal

Some respondents argued that the routes of appeal, and the way that these are accessed and used on regulatory decisions on environmental matters, appear to be fragmented and inconsistent. Responses argue that the overall landscape demands further attention to produce a more coherent system that is easier to engage with and allocates decision-making to appropriate levels which are governed by appropriate procedures that enhance access to justice.

Justice system

Some stakeholders argued that having arrangements in which environmental litigation is carried out in different courts and tribunals has resulted in a fragmented and inefficient system, and that the creation of an environmental court could provide a focus point for environmental issues and improve access to justice. Furthermore, some stakeholders contend that the fragmented system does not allow legal and scientific expertise on environmental issues to be built up within the judiciary, as in their view, judges may not be exposed to environmental disputes on a regular basis.

Judicial review

It is argued that existing mechanisms, such as judicial review, act as a glass ceiling, which can be seen but are routes to justice in name only. Some respondents argued that there is limited access to justice on the basis that judicial reviews are costly, inaccessible and complex, and that the level of environmental expertise within the judicial system is limited.

Environmental protections

Arguments were made by several respondents on the need for radical change to ensure a high standard of environmental protection and that the creation of an environmental court be a step in the right direction. Certain responses also noted that in their view an environmental court would improve enforcement, with some responses insisting that too few environmental cases are enforced. Their view was that this would help to interpret and apply a complex area of law in a coherent way, which would benefit public bodies and authorities.

3. Do you have any further evidence or information on whether an environmental court can enhance governance arrangements?

There were nine responses to this question from the 25 respondents. Responses covered protection of woodlands and the fragmentation of the judicial system.

Woodland protection

One respondent reiterated the view that Scottish Forestry have not used their regulatory powers, while the Procurator Fiscal is argued not to prosecute woodland protection cases.

Judicial system

It was argued within several responses that the current judicial system needs reform, as it is fragmented with multiple routes of appeal against regulatory decisions on environmental matters.