In earlier posts, I explored the challenges facing a new environmental ‘watchdog’ for Scotland1, post-Brexit, and responded to an earlier Scottish Government consultation about the shape of the new body2. Now, with ESS up and running, there’s been a consultation over a draft strategic plan3. This post includes the response I submitted to some of the questions posed.
ESS was established by the (not so) snappily titled UK Withdrawal from the European Union (Continuity) (Scotland) Act 20214. Let’s call it the 2021 Act for short. As well as setting out the functions and powers of ESS, the Act establishes five ‘Environmental Principles’. In making policies, government Ministers must ‘have regard to’ these principles.
The draft Strategic Plan is mainly concerned with the modus operandi for ESS, which seems well enough thought through for starters. But I’d say it rather overlooks a couple of important strategic issues facing the new body.
The first is the interface between its work and that of its Whitehall equivalent, the Office for Environmental Protection. A memorandum of understanding is promised which will set out how ‘matters of common interest’ are to be handled. This is a key part of a wider set of relationships between Scotland and the UK which have yet to be clarified post-Brexit. Confusion, especially of English and UK perspectives on rural land management and environmental concerns, is currently widespread. Scotland’s interests are at risk of being overlooked in the UK context.
The second strategic issue seems entirely neglected. The modus operandi of ESS is strongly focused on the work of various public bodies, but increasingly these bodies are engaged in diverse delivery partnerships with private commercial and non-profit organisations. Scrutiny of these relationships can be problematic where, for example, they are judged to lie beyond the scope of freedom of information requirements. In such cases, it’s hard to judge how well the wider public interest is being served.
So here, for what it’s worth, are my responses to the consultation questions:
1. Do you have any comments on our Vision and Mission Statement, set out in chapter 3?
Answer: These set a welcome and appropriate level of ambition, although there must be some doubt whether the mission statement goes beyond the precise scope of the ESS remit set in the 2021 Act. Achieving Scotland’s ambitions requires more than simply compliance with environmental laws and standards;
ESS can help by highlighting gaps and shortfalls, which are likely to go beyond solely ‘public authority’ compliance to involve the activities of private and third sector actors.
2. Do you have any comments on our Strategic Outcomes, set out in chapter 3?
Answer: Outcomes 1,2,3 and 5 are broadly sound, but outcome 4 should be reworded to make clear that ‘widely understood’ is achieved through openness and transparency (as spelled out in the fourth principle, below). The summary wording used in Fig 1 (“Engaging & Communicating Effectively About Our Role and How to Raise Concerns”) is better, but rather narrow vs. the scope of principle 4 i.e.: “keeping people informed about the progress of our work and providing opportunities to input to and influence it”.
These outcomes should be reviewed after (say) three years to test their fit in the light of experience and in context with the vision and mission statement.
3. Do you have any comments on our Values and Principles, set out in chapter 3?
Answer: These are a good basis on which to work.
4. Do you have any comments on our proposed approach to resolving matters informally with public authorities, set out in chapter 4?
Answer: The approach is sound and consistent with principle 2, but Chapter 4 is overly focused on ‘public authorities’. These are certainly prominent in S20 (1) of the 2021 Act, but “the effectiveness of environmental law and of how it is implemented and applied” also requires partnership with private and third sector actors. Working with ‘public authorities’ is necessary but will not be sufficient. After more than a decade of austerity and budget restrictions, public bodies are increasingly working with and through private bodies to achieve environmental outcomes (see for one example: https://forestryandland.gov.scot/business-and-services/carbon-offset-partnerships ). Navigating these relationships is a key strategic challenge for ESS and deserves more explicit attention in this Plan.
5. Do you have any comments on our proposed approach to determining what constitutes a systemic failure, set out in chapter 4?
6. Do you have any comments on our proposed approach to determining whether a compliance failure could be addressed more effectively by a compliance notice than an improvement report, set out in Chapter 4?
7. Do you have any comments on our proposed approach to determining whether a compliance failure or environmental harm is serious, set out in chapter 4?
[Common answer to questions 5,6 and 7]: This approach is a fair starting point and should be reviewed in the light of experience after (say) three years.
8. Do you have any comments on our proposed approach to deciding whether, and how to prioritise and carry out our investigations, set out in chapter 5?
Answer: Para 5.14, “details of all active and completed investigations will be published on our website”, is especially welcome. This is consistent with the principle of transparency and openness.
9. Do you have any comments on our proposals for monitoring compliance and effectiveness, and taking account of different types of information, as set out in chapter 6?
Answer: These proposals are broadly sound, however there’s a general shortfall of understanding around who does what among the various bodies, public and private, with relevant roles in delivering environmental outcomes. Then there’s a shared challenge to minimise duplication while ensuring that any gaps in coverage are bridged. The ESS focus on compliance and effectiveness of environmental law requires multiple interfaces with other bodies involved in different aspects of environmental monitoring. But the ESS interest in monitoring is surely to inform the core purpose of compliance with environmental standards.
10. Do you have any comments on our draft priority topics for further analysis? Do you have any suggestions for key sources of data and intelligence that we should consider, as set out in chapter 6?
Answer: The bullet points in 6.13 are quite broadly stated. While these provide a sound starting point, they must be refined and updated in light of experience.
Priority issues are buried within some of these bullet points (for example, the effectiveness of deer legislation, or compliance with emerging proposals for licensing driven grouse moors are both key questions under the heading of ‘biodiversity decline’).
It is necessary to consider how emerging issues can be properly accommodated where resources are already stretched to cover those listed. New issues may well attract higher priority than some of those already listed.
11. Do you have any comments on our proposed approach to avoiding unnecessary overlap with other regulators, oversight and scrutiny bodies, as set out in chapter 7?
Answer: This is a key strategic challenge for ESS. The success of the proposed MOU with OEP will be important, helping to navigate the boundaries between ‘Scotland’, ‘UK’ and beyond, but there’s also the interface with private and third sectors actors within Scotland, especially where these are working in close partnership with public bodies. ‘Openness and transparency’, for example, is less assured where these relationships are involved and where ‘commercial in confidence’ can become the default preference at the expense of transparency. Perhaps more explicit discussion of the terms of a wider ‘public interest’ would help to frame this appropriately.
What are the implications of the ‘limits’ to openness mentioned in para 7.7?
The commitment in para 7.8 is especially welcome, providing clarity on the scope of work in progress and forthcoming findings.
12. Do you have any comments on our proposed approach to receiving and handling representations, set out in chapter 7?
Answer: The open approach is especially welcome, although how these are framed into investigations, and how these are placed in context of legitimate complaints and appeals will be key to its success.
13. Do you have any comments on how we maintain our ambition to be a high performing organisation, as set out in chapter 8?
Answer: This is a very small organisation, and so very dependent on others for many of its administrative systems. How will these be delivered – via Scottish Government? What constraints does this dependency place on how ESS can operate (eg required IT security policies affecting the ability to work collaboratively with public bodies and others)?
The initial balance of resources in Fig 8 seems quite weighted towards ‘Strategy and Analysis’. Surely as demand builds up ‘Investigations, Standards and Compliance’ will need to be reinforced? Is this going to restrict the number and scale of investigations ESS can conduct?
14. Do you have any comments on our proposed approach to measuring our impact, as set out in chapter 9?
Answer: Figure 9 is certainly logical, but the subsequent development and application of KPIs risks becoming burdensome. It’s important not to re-invent or duplicate measures already in place, or already required of public bodies like ESS. Where is the interface with the National Performance Framework?
15. Do you have any comments on our proposed key performance indicators, as set out in Annex B?
Answer: Although these each have validity, there are already too many for a small organisation. Where is the logic to determine which of these (or others) are really ‘key’?
16. Are there any other factors that you think we should consider before exercising our functions?
Answer: See 17 below
17. Do you have any other comments on our draft Strategic Plan and our proposed approach to fulfilling our remit?
Answer: In summary, this ‘strategic’ plan is rather focused on ways of working at the expense of some important strategic challenges. In particular, the strategic question of how best to interface effectively with other bodies, public or private, feels somewhat overlooked. For example, yes, the proposed MOU with OEP will help, but that is only one part of the interface between Scotland and the UK which will frame the work of ESS in its early years. Following Brexit, this has yet to take shape; it isn’t yet clear how the terms of cross-border or wider international standards will be established or maintained. The post-devolution co-ordination arrangements between UK government and devolved administrations are not an encouraging precedent, despite the recent refresh.
Second, as noted above, the interface between Scotland’s ‘public authorities’ and private or third sector actors is much less clear-cut than previously, yet this is barely mentioned in the Plan. Understanding and managing these interfaces will be key to achieving the overarching vision that “Scotland’s communities benefit from a high quality environment and are protected from harm through the consistent application of effective environmental laws, which are recognised internationally as setting high standards”.