Effectiveness of environmental governance arrangements: statement

Report of Stakeholder Engagement Workshops

Overview

As part of the consultation on the report into the effectiveness of governance arrangements, the Scottish Government engaged in discussions with stakeholders. This included three workshops on the 5^th, 7^th, and 12^th, of September. The workshops aimed to raise awareness of the report, encourage consultation responses, and engage with stakeholders directly. The agenda focused on the content of the report firstly covering the three areas which the Scottish Government was required to consult on through the Continuity Act, before offering stakeholders the opportunity to provide general comments on wider issues of environmental governance. The key points have been collated from all workshops and listed by chapter below. An attendance list for each workshop can be found below.

Existing Governance Arrangements

Questions discussed at the workshops included:

1. What is your experience with the new governance arrangements post-Brexit, particularly with ESS?

2. How does this compare with arrangements in the EU (do you agree with the differences listed within the report)?

3. Do you feel there are any gaps within the new governance arrangements since leaving the EU?

Summary of Points:

• There is widespread satisfaction amongst many of the stakeholders with their relationship with ESS and how ESS is functioning. Specifically, the differences in the local approach that ESS adopts compared to the EU is welcomed.
• Stakeholders did note that there is a significant difference between the remit of ESS and the EU, as ESS can be specific and there is a greater level of scrutiny. ESS is more accessible than the EU Commission. In addition, the remit of ESS extends to all environmental law, not only to EU environmental law, which widens the scope, for example to forestry.
• While ESS has worked to fill some gaps left by the exit from the EU, some stakeholders consider that there are still some gaps in environmental governance, some of which existed prior to exit from the EU.
• Some stakeholders hold that the report implies that ESS has a wider remit than it does, as the loss of the EU Commission, European Court of Justice, and the monitoring of European Environment Agency has created gaps that ESS cannot address on its own.
• Some stakeholders hold the view that there are clear gaps in governance relating to the monitoring and scrutiny of policies and public bodies.
• While most feedback about ESS is positive it was considered by some participants that ESS has a lack of urgency to take things to court, has a narrow remit and it is unknown if it has adequate remedies to achieve a solution (e.g., lack of the ability to issue penalties).
• Some participants commented that where there is an alleged violation of laws, ESS requires a considerable amount of evidence which is difficult for small organisations to obtain.
• Additionally, some stakeholders think that the report and government should consider how effective the ESS informal arrangements are at achieving success and how these are maintained.
• Stakeholders raised the issue as to whether the report may be looking too inward and considered that the report could have covered whether Scotland remains aligned with the EU. Some stakeholders’ view was that there are developments within the EU that Scotland may not be keeping aligned with, for instance, the developing standard for pesticide use: the EU Green Deal sets out ambitious targets, including a 50% reduction in overall use and risk of chemical pesticides and a 50% reduction in hazardous pesticides by 2030.
• Some participants thought that the report should have considered in greater depth broader questions related to environmental governance, specifically how new governance structures impact the public sector and if there are adequate structures to support the public sector.

Access to Justice

Questions discussed at the workshops included:

1. Do you feel that the ongoing work and policy proposals will improve access to justice?

2. Do you have any comments on the proposed recognition and inclusion of the human right to a healthy environment in the new Human Rights Bill?

3. Are you aware of other initiatives that government should be aware of or considering on improving access to justice?

Summary of Points:

• Stakeholders noted that it is positive that the report acknowledges the concerns of the Aarhus Compliance Committee around access to justice.^[6] The UK is a signatory to the Aarhus Convention, and some stakeholders drew attention to its importance with respect to access to justice and to work across the UK to address the matters raised by the Compliance Committee.
• Some stakeholders indicated that there is a need for greater information on how the Scottish Government will aim to comply with the Aarhus Convention by October 2024, with views expressed that there is no clear commitment that current proposals will meet compliance and if these do not, that further proposals will be guaranteed.
• Several participants noted that the Aarhus Compliance Committee has yet to comment on third party right of appeal in Scotland, and therefore the report and Scottish Government position that the planning system is inclusive could yet be challenged.
• There is significant support amongst stakeholders for the inclusion and recognition of the right to a healthy environment within the Human Rights Bill. Some stakeholders noted that there is a need for more information on the enforcement of the rights.
• Some participants discussed how environmental issues are now becoming more connected to health issues, and the inclusion and recognition of a right to a healthy environment will increase awareness of the link between environment and health. The governance review could be an opportunity to consider structures of community empowerment and how institutions can support communities in achieving positive health outcomes.
• Some stakeholders raised concern with the developments considering the right to a healthy environment. There are concerns about how this will work in practice and change the procedural arrangements. The proposals within the Human Rights Bill can be seen to present complexity and there is a lack of detail on the role public bodies will play in ensuring these rights and how they will react to it.
• Stakeholders noted that improved signposting of routes to justice within the current system could help improve access to justice.
• Participants suggested that there is an argument for increased expertise within the system, for example, training has been provided to councillors in planning policy, a similar pilot could be run for judges.
• Some stakeholders argued that, because of Judicial Review, not enough cases are reviewed on the basis of merit. This is an issue which they felt should have been addressed in the report.
• Stakeholders noted that the Programme for Government (22/23) sets out proposals for new land reform, which will make requirements and regulations more enforceable, and asked whether similar developments will be trialled elsewhere to improve access to justice.
• Most stakeholders welcomed the policy proposals listed in the report as these may improve access to justice. However, they argued that these processes are underway and have unknown outcomes. Therefore, it was argued that government should make a commitment that if these fail to address issues within access to justice then further measures will be proposed.

Environmental Court

Questions discussed at the workshops included:

1. Do you think an environmental court could enhance existing governance arrangements?

2. Are you aware of any advantages or disadvantages of establishing an environmental court in Scotland?

3. At what level do you see an environmental court considering issues – at the level of policy/ guidance, or at the level of individual decisions?

4. Do you consider that the court would be able to order a material change in the actions of government, for example requiring new infrastructure or clean up actions?

5. How would any new actions required by the court be funded?

6. Would the court’s decisions to demand actions be subject to requirements such as the principles duty, environment assessment, consultation, carbon assessment, etc?

Summary of Points:

• Some stakeholders argued that the government should present more information on how effective the current system is of dealing with environmental cases, particularly the routes to access justice.
• It was noted that while ESS has not taken any investigations/cases to court, this will inevitably happen over time, and this may highlight the effectiveness of the current system and access to justice.
• Certain stakeholders expressed concerns around access to the courts, particularly how costly this can be, and argued that an environmental court could improve access to court for stakeholders.
• A number of stakeholders voiced their support for the creation of an environmental court arguing that it would significantly enhance the existing governance arrangements. Several voiced their disappointment with the position of the government on the issue.
• It is argued that a dedicated environmental court would be flexible, offer better routes to justice and new methods of dispute resolution. Due to this, it was argued that the court would provide cost savings over the longer term through efficiencies.
• Stakeholders noted that there is already an existing specialist court in Scotland, the Scottish Land Court. It was argued that this could be expanded to include issues of the environment, and therefore the government would not need to start from scratch.
• Some stakeholders suggested that access to justice requires reforms to legal aid and protective expenses orders as a part of achieving Aarhus compliance to deliver fairer, cheaper, quicker access to process and outcomes. A small number of participants expressed doubts that the right to a healthy environment will deliver meaningful change.
• Some stakeholders queried where the jurisdiction of an environmental court would begin and end as issues such as planning would incorporate many sub-issues. More expertise on environmental matters in the current judicial system could be a useful alternative to a specialist court.
• Several stakeholders agreed that there may need to be consideration of the pros and cons of an environmental court, including compromises which may involve the expansion of the Scottish Land Court and increased specialisation within the existing system. On the latter, there is evidence that increased specialism within the judicial system brings benefits such as improved resolution.
• Some participants noted that a ‘one stop shop’ environmental court is attractive to access to justice, however, they thought that the government should think about the jurisdictional boundaries of an environmental court. These stakeholders also noted that the Court of Session still has excessive costs associated to access and it could be argued that creation of a specialist court or tribunal could lower costs.

Wider Issues of Environmental Governance

Questions discussed at the workshops included:

1. Do you have any further comments on additional matters of environmental governance which are covered in chapter 2 of the report?

2. Do you have any further comments on additional matters which are not covered in the report?

Summary of Points:

• Most stakeholders welcomed the publication of the Statutory Guidance on the Environmental Principles as it further reduces any gaps in governance following the exit from the EU. However, policies which are developed with a principle as the focus need to consider the resource implications of enforcement. For example, while policies which are based on the polluter pays principle are welcomed, enforcement of these policies places a cost on local authorities which needs to be considered by government.
• Some participants raised concerns around the potential impact of applying principles to international trade agreements and how this could be balanced.
• Some comments were raised which noted the role of local government in ensuring environmental governance operates successfully as these are the organisations that will likely enforce and deliver change. Therefore, it is important that information on existing arrangements and new developments is shared across all levels of government.
• Some environmental stakeholders insisted that the review of governance arrangements is too narrow and that broader questions on the whole framework of environmental governance are needed – e.g., the role of local authorities and public bodies, accountability and scrutiny and division of responsibilities?

Workshop Attendance

The organisations that attended these sessions are as follows:

• Scottish Courts and Tribunals Service
• SEPA
• NatureScot
• Royal Botanic Gardens
• Public Health Scotland
• ESS
• Green Action Trust
• Dumfries and Galloway Council
• Highland Council
• CEMVO Scotland
• Badenoch and Strathspey Conservation Group
• Environmental Rights Centre for Scotland
• The National Trust for Scotland
• Forestry and Land Scotland
• SE Link
• Fisheries Management Scotland
• Sustainable Scotland Network
• COSLA
• ECAP Consultancy
• Law Society of Scotland
• RSPB