Review of Environmental Governance: response to Scottish Government consultation

Despite a title unlikely to draw a crowd, the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 has established formal Environmental Principles and set up Environmental Standards Scotland (ESS), responding to erosion of environmental protections in Scotland following Brexit. Five years have passed since I first blogged on the vexed question of ‘watchdogs’1. Now, Section 41 of the 2021 Act gives Scottish Ministers a duty to consult on the effectiveness of environmental governance, hence this review2. In brief, the review has an air of complacency, failing to set out robust analysis or sufficient evidence to justify its conclusion that the governance arrangements now in place are broadly satisfactory. In my view, setting up ESS has been a welcome step forward but it is still early days for this new organisation, and much else remains to be done. I am especially disappointed that the review makes no reference whatsoever to much-needed co-ordination between Scotland and the UK given the evident tensions emerging, for example around the UK Internal Market Act 2020. The new UK Office for Environmental Protection has made a stronger start, and many of the issues have cross-border dimensions.

Here is the text of my consultation response:

Overview of environmental governance

Chapter two of the review highlights wider issues of environmental governance.

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

The scope of the review is far too narrow, falling far short of the stated ambition to support ‘transformative change’ addressing the twin challenges of climate and nature. The report lacks any serious analysis of the problems of environmental governance which exist in Scotland, it fails to draw on or to reference previous published assessments and it does not even acknowledge the key interface with UK arrangements and the necessity for effective collaboration with the UK Office for Environmental Protection. The 2021 Act and the establishment of Environmental Standards Scotland are steps in the right direction, but much more needs to be done to if Scotland is to have a truly effective and appropriate system of environmental governance.

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

Prior to Brexit, environmental governance in Scotland was already deficient, and leaving the EU has made matters worse. The establishment of Environmental Standards Scotland and the Office for Environmental Protection are welcome key steps to offset this weakness, but leave an urgent need for further improvement.

There is a regrettable pattern of rhetorical reassurance from Scottish Government contrasting with the failure, on the part of a range of public bodies, to scrutinise and enforce the environmental protections which are in place. As a result, monitoring and measurement of impact demonstrates continuing decline – falling far short of the promised ‘transformative change’.

Robust environmental governance is absolutely central to overcoming these difficulties, covering structured assessments of:

– the coherence and co-ordination of effort across a range of public bodies operating in Scotland including both Scottish and UK dimensions;

– various limitations on scrutiny, audit and challenges to decision-makers so securing accountability;

– the vague and non-binding nature of many statutory targets, duties and powers;

– the ambivalence of political will to sustain and hear a voice for the environment within government;

– the progress of economic transformation which respects environmental limits;

– realistic means to overcome the shortfall of funding and staffing for environmental initiatives.

Perhaps the most important weakness in Scotland’s environmental governance is the widely acknowledged failure to implement aspects of the Aarhus Convention as explored later in this consultation. Putting this right would help to overcome barriers of access to environmental justice which include availability of relevant information, facilitating and engaging public participation and mitigating costs of litigation.

Environmental Governance Post-Brexit

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

Chapter three is focused on the work of ESS, concluding that “there continues to be effective and appropriate governance relating to the environment following the withdrawal of the United Kingdom from the EU”. But this conclusion is not adequately evidenced. It is far too soon to draw such a conclusion since only one case (the air quality investigation) was sufficiently advanced. While this case shows positive signs, there is no evidence provided that this has yet led to any improvement in air quality. Meanwhile, the continuing failures in many other areas – for example wildlife crime – show that such a general conclusion cannot be sustained.

It is astonishing that this assessment of the work of ESS omits any discussion whatsoever of the interface between Scotland and the UK, especially regarding the September 2022 MoU agreed with the OEP. The success of these arrangements will be an essential dimension sustaining any conclusion along the lines proposed in this chapter.

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

The Memorandum of Understanding with the UK Office for Environmental Protection (September 2022) is a small but essential building block in the framework of environmental governance for Scotland.  The document itself is modest in scope, undertaking to share relevant information and maintain regular liaison. Time will tell whether this is sufficient to address the challenges to effective environmental governance flowing from the evident post-Brexit tensions between UK government and the devolved administrations. We now understand that the separation of devolved and reserved powers cannot be as clear-cut as it once seemed, so although many aspects of environmental governance are devolved the interface with wider UK perspectives must be worked through in each case. This will have unavoidable implications for the conduct of environmental governance in Scotland, yet these have been overlooked in this report.

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

As noted above, the report  fails to explain how environmental governance and access to environmental justice in Scotland facilitate the broad aim for ‘transformative change’ (section 2.2) addressing the twin crises of climate and nature. These crises are global in nature, so cannot be resolved within Scotland in isolation. Brexit has made matters worse, but we now need clarity on the post-Brexit arrangements setting out how Scotland contributes to a wider effort in the UK and beyond. For example, the 2021 Institute for Government briefing “The United Kingdom Internal Market Act 2020” (https://www.instituteforgovernment.org.uk/publication/report/united-kingdom-internal-market-act-2020), read alongside the more recent 2023 Scottish Parliament Information Centre Highlight (https://spice-spotlight.scot/2023/03/24/from-single-use-plastics-to-the-deposit-return-scheme-how-are-common-frameworks-and-uk-internal-market-act-exclusion-processes-operating/) show work to be done to reconcile ‘common frameworks’ with the 2020 Act emphasis on ‘market access principles’, to establish appropriate regulatory alignment in many areas with environmental implications.

Access to justice on Environmental Matters

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

Chapter four concludes that there is no “strong argument for major reforms to the system of justice on environmental matters”, opting instead for some minor amendments. It is not clear that these will result in compliance with the Aarhus Convention.

The proposed recognition and inclusion of the human right to a healthy environment in the forthcoming Human Rights Bill does not, in itself, remove barriers to environmental justice such as the high costs of litigation.

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

References to legal aid reform in the report are vague and lacking in substance, for example civil society organisations (including community groups and NGOs) should be made eligible for legal aid.

The Report highlights ESS’ ability to provide an additional route to remedy and assist individuals and groups to ‘seek environmental justice’. This is contradicted by the inability of ESS to deal with individual cases.

The Report maintains that a third party right of appeal is not required in the planning system for compliance with the Aarhus Convention. I understand that this position remains under review via the Aarhus Convention Compliance Committee.

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

Nothing to add here.

Governance Arrangements and Environmental Court

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

The published consultation report dismisses the arguments in favour of an environmental court in Scotland without evidence or serious analysis. ESS is no substitute, and this approach seems unlikely to be compliant with the Aarhus Convention. Indeed, an environmental court would improve ESS’ capacity in enforcing environmental laws by giving it a cost-effective means to exercise its enforcement powers. Current arrangements, in contrast, are fragmented and unsatisfactory.

The 13-page supplementary briefing, published more recently, at least rehearses these issues in greater depth. But it reads as if written principally to buttress arguments against an environmental court. Drawing on the 2021 UNEP Guide for Policymakers is helpful, but does not address the core issues for Scotland as set out below.

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

– The supplementary briefing paper underlines how environmental litigation is carried out in several different courts and tribunals in Scotland, resulting in a system of environmental governance which is fragmented and inefficient. An environmental court could give a focus yielding efficiency benefits for example reducing the risk of having multiple legal proceedings arising out of the same environmental dispute.

– Environmental litigation in Scotland is unaffordable and time-consuming – in contravention of the Aarhus Convention.  An environmental court would help improve access to justice. For example, environmental courts often incorporate alternative dispute resolution, which can allow for less adversarial resolution than litigation. The supplementary briefing paper touches on this issue, without providing any additional mitigation for cases in Scotland.

– Some types of environmental litigation do not allow the courts to consider whether the substance of a law has been violated. An environmental court could be given the power to carry out merits reviews.

– Resolving environmental disputes requires both legal and scientific expertise. Due to the variety of legal routes described in the supplementary briefing, Judges in Scotland may not be exposed to environmental disputes on a regular enough basis to allow them to develop a specialism in this area. Environmental courts provide a focus to enhance judicial expertise in environmental science and law.

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

Please give us your views

The supplementary briefing paper makes one passing reference to the 2023 ERCS report: “The Clear and Urgent Case for a Scottish Environment Court” but fails to engage properly with this reasoned contribution. This consultation has not not adequately addressed the arguments supporting its conclusion, that: “in order to protect the environment and the citizen, (three) good governance tiers are  needed: independent oversight (including by Parliament), effective executive (including regulatory) controls and thirdly, robust juridical processes, and that a dedicated environment court or tribunal would effectively address the juridical route to remedy.”