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Environmental Standards Scotland

Letter from Cabinet Secretary for Net Zero, Energy and Transport to the Convener, 6 September 2021

Dear Convenor, 

Provisions to establish the new Scottish environmental governance body, Environmental Standards Scotland (“ESS”), were included in the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (“the Act”). The Bill for the Act completed its passage through the Parliament during December 2020, and received Royal Assent on 29 January 2021. Roseanna Cunningham, as Cabinet Secretary, wrote to the Environment, Climate Change and Land Reform (“ECCLR”) Committee on 12 November 2020 to explain the Scottish Government’s plans to establish ESS on a non-statutory basis. On 8 December 2020, the ECCLR Committee took evidence from the Board members that Ministers were minded to appoint to the non-statutory body. Following the passage of the Bill in Parliament, a motion was passed on 23 December 2020, approving the establishment of ESS on a non-statutory basis and the appointment of these members to the non-statutory body.

I would now like to set out the plans to vest ESS as a statutory body, able to exercise its full functions and powers. ESS has been operating as a non-statutory body since the start of 2021. This was important to ensure that there was no gap in the oversight of the delivery of environmental law. The period of non-statutory operation has allowed the Board to consider key aspects of its role, to prepare an interim strategy and for the necessary preparations for staff and other resources to be made.

It is intended that Commencement Regulations, to commence sections 19 to 46 and schedules 1 and 2 of the Act, will be made on 6 September 2021 and laid before Parliament on 8 September. Subject to Parliamentary approval of these Commencement Regulations, it is currently intended that the provisions will be commenced on 1 October 2021, thereby statutorily vesting ESS.

As you may recall, the Act and supporting UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (Consequential Provisions and Modifications) Order 2021 provides for ESS to be established as a Non-Ministerial Office in the Scottish Administration, independent of Ministers and directly accountable to the Parliament. This independence was an important point of discussion during the passage of the Bill, as it is important that ESS can form independent judgement of the performance of the Scottish Government. Looking forward, provision is made for appointments to ESS in its statutory form to be proposed and made by Scottish Ministers, subject to approval by the Scottish Parliament. In the first instance, there is special provision in the Act that the members serving in the non-statutory body immediately before section 19 of the Act (establishment of ESS) is commenced are to be appointed as members of the statutory body on vesting, without a further selection process. As Roseanna Cunningham made clear in her letter, it is the Scottish Government’s intention that this will happen, in order to achieve continuity in the organisation. As a non-statutory body, ESS has been considering matters within its responsibilities and developing its procedures and strategies fully independently of Ministers since January and the current members are, therefore, well placed to continue their effective and independent role following vesting.

Schedule 1, paragraph 6(1) of the Act provides that the statutory ESS will have, as a member of staff, a chief executive. As an extra safeguard of the independence of the new body and, to support the smooth establishment of the body, the Act provides that the appointment of the first chief executive of the statutory ESS is to be made by Ministers, with the approval of the Scottish Parliament. ESS itself will appoint each subsequent chief executive thereafter.

The team supporting ESS in its current, non-statutory form includes a civil servant, Brendan Callaghan, as interim chief executive. Subject to the approval of the Scottish Parliament, the Scottish Ministers intend to appoint Mr Callaghan as the first chief executive of the statutory ESS. This is the continued assignment of Mr Callaghan, as a suitably qualified and experienced civil servant on loan from Scottish Forestry (an executive agency of the Scottish Government), to this post on a temporary basis (until 17 April 2022), in order to support ESS during its transition to a statutory body. I plan for this appointment to be formally approved through a Parliamentary motion that will also note and welcome the vesting of ESS.

I would be happy to discuss this further with the Committee, if that would be useful. Clearly, as an independent body, it is for ESS itself to explain its own plans as it takes up its statutory functions and powers.

Your sincerely,

Michael Matheson