Effectiveness of environmental governance arrangements: statement

Scottish Ministers’ recommendations in response to the views raised in the consultation

Following the close of the consultation, section 41 of the UK Withdrawal from the European Union (Continuity) Act 2021^[7] (the ‘Continuity Act’) requires Scottish Ministers to lay before the Scottish Parliament a statement comprising:

• details of the consultation,
• a summary of any views expressed in response to the consultation, and
• the Scottish Ministers’ recommendations in response to those views.

This section of the statement will set out Ministers’ recommendations in response to the views raised in the consultation on the report and sets out our reasoning behind those recommendations.

Environmental Governance Arrangements

The first matter that the Continuity Act requires to be covered by the report is “whether the provisions of this Chapter 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.”

The report set out an overview of environmental governance in Scotland following exit from the EU. This discussed the roles of government, of parliament, of regulatory bodies and ESS and of the courts, in promoting and protecting high environmental standards. The report also set out the early experience with the operation of the provisions of the Continuity Act that established ESS and gave it its powers and functions. The report concluded that the Scottish Government is content that the provisions in Chapter 2 of the Continuity Act establishing ESS and providing for its powers and functions 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. The report emphasised the independence of ESS and made some observations about the operation of the system of environmental governance, including with respect to the treatment of cases involving a concern about the application of environmental law in a single location.

As set out in the Consultation Analysis, the responses on the environmental governance arrangements section of the report were generally positive on the creation of ESS. There were some calls for changes to the approach of ESS to the consideration of individual cases.

Some responses to the consultation from environmental NGOs stated that the report did not give sufficient consideration to wider issues of environmental governance, such as the role of public bodies and wider environmental quality concerns. It was argued that the report should have discussed the quality of environmental governance, encompassing government and regulators as well as ESS, impacts on environmental outcomes such as air pollution, water pollution, biodiversity and the climate crisis. The report set the particular issues of the effectiveness of the Continuity Act’s provisions of environmental governance in a wider context. The focus of the report, consultation and response under section 41 of the Continuity Act is directed to consideration of the matters listed in section 41(2): wider consideration of environmental outcomes and policies is therefore outside the scope of this review, though may be referenced to provide relevant background. Indeed, the Continuity Act provides separately for an environmental policy strategy which will consider strategic policy issues.

In the period since the publication of the report in June 2023, ESS has continued to carry out and develop its role, conducting a number of significant investigations. The Scottish Government respects ESS’s independence and has been itself the subject of a number of investigations. As is clear in the relevant Continuity Act provisions, it is for ESS to make their judgement about the prioritisation of matters for investigation, and they are accountable to the Parliament for the effective performance of their duties. Further experience of the operation of the Continuity Act environmental governance provisions since June 2023 has not changed the view that we took in the report.

Having fully considered the views raised in the consultation, the Scottish Government’s recommendation is that there is no need to revise the environmental governance provisions in the Continuity Act.

The report discussed the exclusion of individual cases from ESS's remit, and recalled that this issue was discussed at length during the passage of the Continuity Bill. As anticipated in the report, this remains a concern for some stakeholders as was reflected in some consultation responses. ESS’s consideration of representations about local or site specific environmental concerns is guided by its strategy and by the provisions of the Continuity Act.

Three provisions of the Continuity Act that have an important bearing on the exercise of ESS’s functions with respect to local environmental concerns are set out below:

• ESS are excluded from using their enforcement powers with respect to “a failure to comply with environmental law arising out of any decision taken by a public authority in the exercise of its regulatory functions in relation to a particular person or case (for example, a decision on an application for a licence or a decision on regulatory enforcement in a specific case).” The intention behind this provision was to ensure that ESS did not become an appeals body for regulatory decisions with impact on the environment such as permitting and planning decisions (sections 27 and section 32 of the Continuity Act).
• ESS are required to set out in their strategy how it will exercise its functions in a way that respects and avoids any overlap with other statutory regimes (including statutory provision for appeals) or administrative complaints procedures. (Schedule 2, para 1(1) of the Continuity Act)
• Where ESS may prepare an improvement report with respect to the failure of two or more public authorities if it “considers that the combined effect of two or more public authorities exercising their functions (including regulatory functions) in the same or a similar way constitutes a systemic failure by those authorities”. (Section 26(2) of the Continuity Act, note that at section 26(1) there is no requirement to identify a systemic failing with respect to an improvement report covering a single public authority.)

In its strategy, ESS sets out its practices for accepting representations and carrying out investigations, within the framework set by the Continuity Act. Nothing in the framework in the Act prevents ESS from investigating concerns within its remit from individual communities, including where concerns relate to compliance with, or the effective application of, environmental law by a single local authority or planning authority. There are examples of investigations that have been triggered by representations about local compliance matters, for example a representation received by ESS asserted that a local authority in Scotland was not complying with several environmental laws in respect of ‘permitted development’ works, despite the potential for adverse impacts on protected areas and/or trees^[8]. As a result of ESS’s investigation, the local authority agreed to make changes to their procedures with respect to future cases.

Having considered the views expressed in consultation, the Scottish Government remains of the view that this exclusion as set out in section 27 and section 32 of the Continuity Act is appropriate, and that it should remain the case that it is not ESS's role to act as a point of appeal for individual planning, licencing and consenting decisions. ESS's role is to ensure that public authorities comply with environmental law in the exercise of their functions, not to review their judgement on individual regulatory or consenting decisions. ESS can also consider the effectiveness of the environmental law and policy that sets the framework for individual regulatory decisions. We also consider that the provision requiring ESS to avoid overlap with other appeals and complaints procedures is justified, and that it is appropriate that there is a requirement to identify systemic failure where an improvement report covers two or more public authorities.

Considering the views expressed in the consultation, there is a perceived difficulty in bringing to the attention of ESS matters concerning the application of environmental law in a particular geographical area, and the environmental impact on a particular group or community. We understand the position raised in consultation responses that communities can feel powerless in the face of circumstances leading to them suffering poor environmental quality. We recognise that it is not always straightforward to separate concerns about the application of environmental law in a local area from the impact of individual regulatory decisions for which ESS is not a point of appeal. We also understand that, as ESS seeks to avoid overlap with other appeals and complaint processes, communities may perceive ESS as being unresponsive to their concerns.

ESS is required under the Continuity Act to develop their strategy which includes their approach to the discharge of their investigatory functions. When ESS come to review its strategy, under the provisions of Schedule 2 of the Act, we recommend that it should give further consideration to the conditions where it would be appropriate to investigate the individual circumstances of a local area, group or community, given the restrictions on exercise of its powers and functions. We also recommend that there should be careful communication of the position with stakeholders and communities. We note and welcome ESS’s new community engagement programme^[9], which includes a series of workshops to encourage individuals, groups and communities to meet and talk to ESS about the environmental issues that matter to them.

Having fully considered the views raised in the consultation, the Scottish Government’s recommendation is that ESS, when they revise their strategy, should give further consideration to the conditions where it would be appropriate to investigate the individual circumstances of a local area, group or community, given the restrictions on the exercise of its functions. We further recommend that the Parliament considers this matter in their oversight of ESS’s activities and in particular when reviewing a draft revised strategy in due course.

Access to justice on environmental matters

The second matter that the Act requires to be covered by the report is “whether the law in Scotland on access to justice on environmental matters is effective and sufficient.”

The report considered various issues that had been identified in the evidence gathering sessions about access to justice on environmental matters, in particular with respect to the costs of access to the courts. The report also discussed the concerns that have been raised by the Aarhus Convention Compliance Committee with respect to the costs of access to justice on environmental matters. The report set out a number of measures that have been taken with respect to these costs, and further steps that are under consideration.

The Scottish Civil Justice Council reviewed Protective Expenses Orders (PEOs) and has introduced changes, which include:

• a PEO will carry over to proceedings in the Inner House as standard, regardless of whether the petitioner or respondent is appealing the original decision;
• a provision has been added to explicitly provide for the confidentiality of all financial information provided by the petitioner or respondent;
• a provision has been added so that there is improved clarity on the potential exposure to an interveners expenses; and
• consideration will be given to consulting on a proposal to extend PEOs to certain relevant litigation in the sheriff courts.

In addition, we previously exempted court fees for Aarhus cases in the Court of Session which supports the system of PEOs which can restrict the applicant’s liability in expenses to the respondent to £5,000 and the respondent’s liability to the applicant to the sum of £30,000.

The report also discussed our proposals to recognise the right to a healthy environment in a Human Rights Bill. Policy proposals for this Bill had been subject to separate consultation. In a letter of 4 September 2024 to the Convenor of the Equalities, Human Rights and Civil Justice Committee, following the publication of the Scottish Government's Programme for Government 2024/25, it was explained that the Human Rights Bill would not be introduced this parliamentary session and further engagement will be conducted with stakeholders to develop proposals. We are continuing to develop our thinking and take into account views expressed through the consultation on the best approach to recognising and including the right to a healthy environment in the Bill. However, there are a number of challenges to incorporating the right as it has only recently been recognised internationally and it is not contained within an international treaty, unlike the other rights the Bill is incorporating. As with all the Human Rights Bill proposals, we will carefully consider our approach and next steps, and engage with stakeholders as we further develop the Bill. The challenges of climate change, biodiversity and nature loss have direct impacts on people’s rights both here in Scotland and across the world and it is important our approach recognises these challenges whilst allowing us the flexibility to align with the international position as it continues to develop.

The majority of the 25 responses to the consultation raised concerns about access to justice on environmental matters. These concerns included the level of costs involved in accessing the courts, and calling for the establishment of an environmental court, a third party right of appeal in the planning process and lower costs for accessing justice on environmental matters. Stakeholders were largely supportive of proposals for the recognition of the right to a healthy environment in Scots law.

Having fully considered the views raised in the consultation, the Scottish Government will continue to work to improve access to justice on environmental matters. We will carry out further engagement with stakeholders on our approach to environmental rights.

Environment court

The final matter that the Act requires to be covered by the report is “whether and, if so, how the establishment of an environmental court could enhance the governance arrangements [in Chapter 2 of the Continuity Act].”

The report set out that 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. This is our conclusion generally with respect to environmental matters, and also for the issue set out in the Continuity Act for consideration in the report, with respect to a possible role for an environmental court in strengthening the system of environmental governance. 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.

In responses to the consultation, there was strong support from environmental NGOs and ESS for the establishment of an environment court. In general, little detail was given about the nature of a court in the Scottish judicial system, although various international examples were discussed in consultation responses as providing useful models to draw from. Some stakeholders called for a further process to consider the possible creation of a specialist court.

In addition to the content of the report, we made available additional briefing on some of the information considered by the review on the Scottish judicial system and the experience of environmental courts in other jurisdictions. As highlighted by stakeholders in their responses to the consultation, environmental courts play a valuable role in the environmental governance structures in some jurisdictions. However, the Scottish Government remains of the view that the creation of a specialist court is not necessary to achieve high environmental standards and progress on nature and climate targets. We also believe that creation of a specialist court would be a costly and disruptive process at a time when we need to focus on the actions necessary to achieve our targets for 2045. We therefore are not going to recommend the creation of a specialist court for the environment in Scotland. The role of the Land Court will continue to develop following the merger with the Lands Tribunal. We will continue to consider on a case-by-case basis whether new or amended environmental legislation should specify that cases should be heard by the Land Court, taking full account of the capacity of that Court.

We are aware that some stakeholders have drawn connections between the proposed statutory recognition of the right to a healthy environment and the role of a potential specialist court for the environment. As we consider our next steps on the right to a healthy environment, we shall continue to engage with stakeholders on the design of structures and mechanisms for securing individuals’ environmental rights, including where appropriate through access to justice through the courts.

Having fully considered the views raised in the consultation, the Scottish Government will continue to consider on a case-by-case basis whether new or amended environmental legislation should specify that cases should be heard by the Land Court, taking full account of the capacity of that Court.