Official Report 791KB pdf
Welcome back. Agenda item 4 is an evidence session with Environmental Standards Scotland to consider its latest annual report and accounts. It is also an opportunity for a wider-ranging discussion about all of ESS’s main challenges and priorities.
I welcome from Environmental Standards Scotland Dr Richard Dixon, acting chair, and Mark Roberts, chief executive. Richard, I notice that you are still the acting chair, but I congratulate you on your appointment as chair. We look forward to working with you. I understand that you would like to make a brief opening statement.
Thank you very much for your congratulations. The appointment is going through security checks, which we hope will be finalised soon.
Thank you for the opportunity to speak to the committee. I will start with a quick overview of the activities that ESS has carried out in the past year.
Environmental Standards Scotland is coming up for three and a half years old, and we think that we have firmly established ourselves as an essential part of the system of environmental governance in Scotland. In the past year, we have produced three major reports: on sewer overflows, on marine litter and on the management of soils. We are in discussion with the Scottish Government and the relevant public bodies about all three of those reports.
We continue to get representations from the public, communities and organisations. In the past year, we have resolved six cases through discussion with public bodies, including one on the impact of wrasse fishing on protected birds and one on making the procedures for applying for bathing water designation simpler and the decision-making process more transparent.
We have two live investigations—one is about the management of fish stocks to the west of Scotland and the other is about the classification and designation of specially protected areas for protected birds. We have another 15 investigations that are in development. In the past year, we have responded to 12 consultations and to the conclusions of the Scottish Government’s rather lacklustre review of environmental governance.
The Natural Environment (Scotland) Bill has been introduced, and we very much welcome the proposals for statutory nature targets and for a new scrutiny function, which ESS would deliver. As a result of our improvement report and the Scottish Government’s improvement plan on local authority climate change duties, which the committee discussed in the autumn, it is likely in the medium term that ESS will also be asked to carry out a scrutiny function for local authorities’ climate change plans and reports. That means that two scrutiny functions may well be coming to us.
Given the importance of reversing the loss of nature and of tackling the climate emergency, we think that it is really important that those scrutiny functions are independent of Government, so that they report to Parliament, as we do, and not to ministers; that they are effective; and that they are properly resourced, so that they do not take away from other work that we are supposed to be doing.
A big bit of work for ESS this year, in particular for the board, is the creation of our new five-year strategy. We plan to set out a number of priorities to guide our work, and we are aiming to make the biggest difference that we can on the most important issues. We will consult stakeholders over the summer on a draft and we will lay the final draft in Parliament in October for members’ thoughts and approval.
I hope that that is a useful overview of the broad range of our work—thank you for listening. We are very happy to answer any questions that the committee may have.
As you would expect, there are a few questions. Before we get into them, I remind members and those who are watching that, as a farmer, I have an interest in a family farm on Speyside; it is adjacent to the river, and we extract water from the river for irrigation. I am also a member of the Spey Fishery Board and I have an interest in a wild salmon fishery, which may be important when we come to talk about water abstraction. I declare all those interests at the outset.
I have a quick question on all the work that is going on. You mentioned that you follow up on your reports. How do you do that, and how do you keep track of how the Government is responding? We have heard about what you have done, but I am not quite seeing what the Government is doing in response in every case.
That area of work is increasing, and the board regularly asks the team, “Have you got enough resources to do this?” When we come to an agreement with the Scottish Government or another public body to say, “Over this period, you will do these things,” we have a set of activities that we regularly check on to see whether the work is on track. If it is not on track, we have a conversation, or that public body may volunteer a conversation and say, “Oh, sorry—we’re running two months late; is that okay?”
We follow up on quite a big area of activity. We have had to have quite tough conversations when things have not been delivered as they were specified in the agreement between ESS and the public body, but all those situations have been resolved. It is a reasonable process but, as you say, it is quite a big area of work, and we have recently realised that it is not very visible. If you go to the ESS website and look up the thing that we did on wrasse fisheries, you can see that the situation was resolved and that there is a letter of decision that says what is going to happen, but you cannot really track that there is follow-up activity and that the things that were promised are on track. We are going to do a bit more to make that visible.
If we look ahead at some of the areas in which you will have to do more work next year, I take it that resources are fine—that there is plenty of money and you are not stuck for staff to make that work.
I am sure that Mark Roberts will have a view on that. We have already written to the committee this year to say that the proposed budget settlement works for us in terms of the work that we have to deliver. New duties are coming—for instance, the scrutiny role that arises from the Natural Environment (Scotland) Bill will require new staff and extra resources—and that needs to be built into a future budget, although probably not this year’s budget.
Of course, we will come to tell the committee every year whether we think that the budget is adequate. You will understand that, as in every other public sector body, the wages bill is going up by something like 3 per cent a year so, if our budget is flat, it is not long before we will start to have a problem with delivering our core functions. We would expect to have that type of conversation with the committee every year, so I thank you very much for asking the question.
Does Mark Roberts want to say something?
Mark ruffled his brow when I said that there was enough money, so I am interested in hearing his comments.
It is fair to say that we are having to start making choices about the work that we will do over the next year. One characteristic of ESS is the breadth of its remit and the relatively small size of the resources and the team that we have available. In the coming year, we will be looking, for example, at questions around river basin management planning and invasive non-native species. In the marine environment, we have a piece of work on-going to look at the implications of disturbance to the sea floor for good environmental status.
However, we are having to be a bit more selective when there are pieces of work that we would like to do but we are a bit too stretched with what we are already doing. We would rather do things in detail and in depth than do anything too superficial.
Richard Dixon referred to the two on-going investigations, which I expect to come to a conclusion over the next few months. We are in the latter stages of considering other investigations that we will initiate. I would be doing my team a disservice if I did not say that it is running pretty hard and things are running pretty tight. Nonetheless, we have scoped the work and we have plans, in our business plan for next year, that are appropriate to the resource that we have.
Will you remind everyone how big your team is?
There are 26 people.
Are you suggesting that that number might have to grow substantially?
The new duties that are proposed under the Natural Environment (Scotland) Bill mean that an additional function will be asked of ESS. As the bill goes through parliamentary consideration, I am expecting there to be discussion about the resources that ESS needs.
As Richard Dixon mentioned, we are likely to take on responsibility for scrutinising local authorities’ reporting on climate change duties, which will start in a couple of years’ time. That is an additional task that ESS will be taking on, and we will therefore be seeking additional resources for it.
You must have a forward-facing plan. How many people do you think will be in your team in three years’ time?
I would estimate somewhere in the upper 30s.
The upper 30s—okay.
The next questions are from Douglas Lumsden.
ESS received some criticisms last year in the “Report on ERCS’s first 11 representations to Environmental Standards Scotland” by the Environmental Rights Centre for Scotland. They include criticisms that you are taking too long following representations to decide whether to investigate and that you are relying exclusively on using informal resolution rather than exercising enforcement powers such as issuing compliance notices. What is your reaction to that criticism?
To take the second point first, on our approach to enforcement, the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, which set up ESS, requires us to take an approach that tries to resolve matters informally wherever possible. Our first strategic plan, which we are coming towards the end of, explains how we are going to do that.
It is a well-established principle in many scrutiny and oversight bodies, not just in respect of the environment, that it is much more efficient and effective to resolve things through discussion with the organisations that one is scrutinising, rather than jumping rapidly to enforcement. We would prefer to remain doing that if we can. If we have to, we will use our enforcement powers, but we will always strive to use informal means to resolve matters.
With regard to the criticism from the ERCS about taking too long to deal with investigations, it is important to explain exactly what we do once we receive a representation. We will do background research on a particular area and engage in correspondence and meetings with the public bodies that are affected. They may provide us with information that satisfies us and gives us all the background that we need, or we may need to go back to them on several occasions to clarify matters, points of detail, data and that sort of thing. We go through quite a long and involved pre-investigation process before we reach any conclusion.
We always remain in contact with the organisation—including the ERCS—to provide it with updates on the work that we are doing. What we cannot do, and what would be disproportionate, is provide a running commentary on every detail of every investigation that we are doing. We are an independent body, and we need to have the space in which to conduct our work.
I guess that resolving issues informally rather than going through compliance is a success story, rather than a criticism.
We would see that as a success story. We would also see it as being entirely compatible with the legislation that set up ESS.
One of the examples that the ERCS used was the amount of time that SEPA was given to comply with its legal duties regarding the public register. Will you provide more detail on that?
SEPA maintains—I think—16 public registers relating to different pieces of legislation. Historically, they have been hard-copy registers that people had to go to a SEPA office to look at. They contain, for example, details of licence conditions that individual operators may have to meet.
Following the cyberattack on SEPA five years ago, the body is gradually rebuilding all its public registers and making them available electronically. We have agreed with SEPA a timetable by which it will do that, and it has provided us with reports on its progress.
The work is not complete, but we are continuing to engage with SEPA on its progress. That is an example of the monitoring work that the convener referenced. At the end of the process, there will be a fully online, electronically accessible register for everything that SEPA is required to do, which will be a significant improvement on the previous version.
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Would you like that work to go faster? Are you taking into consideration what SEPA went through and the resources that it has?
We are taking into consideration the resources that SEPA has, what it has been through and the complexity of the task. SEPA will be making tens of thousands of documents available online, so it is having to work through a significant change management and technology implementation task. We are required to act proportionately in what we do, and we seek to do that in reaching informal resolutions and agreeing timetables such as this one.
The board has discussed the use of formal powers several times with the executive team, and we are very pleased with where we are at. When we do an investigation, our process is to identify the problem, say what end state we desire to be delivered and then talk to the public body or bodies about how we might get there, so there are conversations.
When we talk about informal resolution, it sounds a bit as though we have a cosy chat and there is a gentleman’s agreement, but it is nothing like that—it can be quite tough. On the back of that process, we have a stick, which is the threat of a compliance notice or an investigation report.
We have used our power to do an investigation report a couple of times with the Scottish Government, and we routinely issue information notices, which is another of our formal powers. When we write to ask a public body for information, that falls under one of the statutory provisions in the 2021 act, so we have that formal power.
Because informal processes have the connotation of being cosy chats, we are having a think about whether informal resolution is a misleading term and whether we should call it something else. The process is not particularly informal—it is only that we are not using our formal, legal powers.
Perhaps you could call it a threatened solution—or maybe not.
Something nice.
Mark, you wrote to the committee on 21 March in response to our letter regarding the climate change plan, and I just want to pick up on a couple of the points in that letter.
The second paragraph notes that the previous climate change plan was agreed to in the dying days—for lack of a better description—of the previous session of Parliament, prior to the May 2021 election, with the plan being agreed to without amendment in March 2021. You felt that that was unsatisfactory, but it looks as though we will be in the same position again. We will receive comments on the climate change plan from the Climate Change Committee in May and will go through the procedure up until Christmas. If I was a betting man, which I am not, I would probably say that we will not agree the climate change plan until March next year, which will be just before the next election. Are you happy that we will be back where we were before?
No, I am not. Our intention in writing to you—and thank you for the invitation to comment on the letter—was to try to get ahead of the game and say, “This is what we think a good climate change plan would be.” Instead of waiting until September to see a draft, we wanted to put in writing what we and other scrutiny bodies thought would constitute a good climate change plan, so that the Government could have that in mind during its preparation work.
It does not get away from the fact that, almost inevitably, there will be limited time for parliamentary scrutiny of a fairly significant plan that should stand for the next few years. I remain concerned that there will be very limited time during the last remaining months of the parliamentary session to consider the climate change plan.
Whatever happens, the plan will probably not be agreed until March next year, so the current Parliament will be binding definitely two, and possibly three, future Parliaments to achieving what we need to by 2045. To me, that seems to be a very difficult situation to be in. I cannot work out whether it is better to do a lot of the work and then let a new Parliament agree to a plan when it is convened.
As that is a political choice, I do not have a view on it. The rationale behind writing to the committee was very much to set out our view of what a good-quality climate change plan would be, based on previous experience and some of our previous work.
You dodged that nicely, but it is a real problem that we are going to be doing this right up until the last moment of this session of Parliament.
In paragraph 4 of your letter, you talk about
“SMART (specific, measurable, achievable, relevant and timebound) ... targets”,
“costed”
policies and
“robust scrutiny of the plan”.
Will we get all that when the plan is put forward in September, or is that wishful thinking?
I remain an optimist, just about, so I hope that all the lessons that should have been learned from previous plans will be taken into account to ensure that the plan meets those requirements.
My fear is how it will be costed. There might be some very high-level objectives and aims, but we will have no idea of the true cost of the heat in buildings strategy or whatever the Parliament decides to do. The problem with the last plan was that there was no costed idea of where it was going, was it not?
The Scottish Fiscal Commission has made it very clear in its statements the importance of understanding the costs of implementing the plan, and we absolutely endorse that view.
The Auditor General has also been quite clear in his view that the issue of costs is vital.
I will move to Mark Ruskell, and then I might come back with a further question.
I have just a follow-up question. I am aware that you have a memorandum of understanding with the United Kingdom Climate Change Committee, and that one of its principles is a “no surprises” approach. Was it a surprise that the CCC delayed its advice to the Scottish Government over the carbon budget? Were you aware of that?
We were aware of it, so I do not think that it came as a surprise to us. The Climate Change Committee is obviously an independent organisation that operates to its own timescales and under its own governance. We were aware of that, but that is exactly what I would expect to happen.
From your perspective, is the memorandum of understanding working well between the two organisations?
From my perspective, yes. My team speaks regularly to the relevant people and analysts in the Climate Change Committee. In fact, Dr Dixon and I will be meeting its new chief executive in May, shortly after the publication of the advice to the Scottish Government. The arrangement works very well from my perspective.
I want to come back with a couple of other questions, if I may. On the climate change plan, you say in paragraph 6 of your letter that it is really important that all the departments speak to each other and that there is a clear plan across the
“Government, public bodies and local authorities”.
That is a huge amount to ask for before September, is it not? Will the plan cascade all of that down?
It is a huge amount to ask for, but it is really important. One of the things that previous plans have been perhaps less than clear about is where responsibility lies and how that will work where multiple bodies are involved. Obviously, some of that will be wholly in the public sector space, but it is also about what will be needed from private sector partners on delivery. It is critical to spell all of that out very clearly.
In paragraph 8 of your letter, you talk about “the cost of ... interventions”. Everyone will have to cost every single thing that they do, and the Government will have to cost all its policies for delivering net zero by 2045. Do you think that that is realistic in this first plan?
I think that it is really important to make estimates and to try to understand the costs, so that there can be a frank discussion and open scrutiny of how significant a change will be required across multiple sectors to meet net zero by 2045. It will be very challenging, and I do not underestimate the difficulty that the Government faces.
Richard, are you going to tell me that you are more optimistic than Mark Roberts?
I am somewhat optimistic. We should remember that the new climate change plan will have almost all the policies from the current climate change plan—and more, I hope—and, indeed, will accelerate some of those policies, if it is to do the job.
Discussions have already taken place between different bits of Government and between Government and other public bodies, so some of that work has already been done. Those conversations need to be resumed so that we can say that, for example, we need to do this quicker or faster or find a cheaper way of doing it and so on. As you have suggested, the cost estimates for measures that will happen in 2040 will be top level, because we cannot really say what things will cost in 2040.
Another important dimension, which started to come in with the last climate change plan update, is the need to understand how much it will cost not to do these things. How much is climate change already costing us? If we do not reduce emissions or go for adaptation in a serious way, what will that cost the economy and individuals? The Scottish Government says that that bill is already in the billions; there are billions to be saved by spending money to reduce emissions, so that other half of the financial equation needs to be part of the discussion, too.
In his letter, Mark Roberts talks about the Government’s commitment to continued annual reporting. Will you review that annually to ensure that it is measuring up to its targets?
I do not think that we would necessarily review it annually—that might be more the Climate Change Committee’s work. We will keep a weather eye on what is happening with the climate change plan, but I reserve my judgment on whether we would do any formal work on it.
It sounds as if there is a massive amount of work to do, and it is all in the last months of this session of Parliament. I must say that I have grave concerns about the whole process and the fact that it is running when we are running out of time.
Douglas, did you have a question?
I have a question about local authorities. The last time that we had the ESS in, you were supportive of the Scottish Government’s plans to mandate local authorities to report on scope 3 emissions, but you were concerned about the timescales. Has anything changed since the last time you were here to give you some assurance that that can be done?
There has been significant progress. The Scottish Government is currently consulting on the revised statutory guidance on climate change duties, and that consultation will run until later in the year. It is a very weighty set of guidance, and we see that as a very important next step.
We were concerned that there was no timescale for when local authorities would be required to report on scope 3 emissions. Coming back to the convener’s previous question, though, I feel optimistic that things are moving in the right direction. We continue to follow up, and the Government provides us with a quarterly update on progress against the various recommendations in its improvement plan.
I think that Bob Doris has some questions.
As we know, the Rural Affairs and Islands Committee is leading on the Natural Environment (Scotland) Bill, but this committee will have an active interest in that piece of legislation, too. In that respect, what are your initial views on the function being given to you by the bill, and your capacity, to be the independent review body, and will that impact on any of your other functions?
I have to say that I was distracted by the financial memorandum in that regard. I note, for the record, that it estimates that
“to monitor, assess, review and report on the progress made towards meeting ... targets and the Scottish ministers’ review of those targets will require 5.5 to 10 full-time staff members, costing between”
£467,000 and £819,000. What level of funding do you need to ensure that this does not impact on ESS’s other functions? That question is for Dr Dixon or Mark Roberts.
The estimates that you mentioned in the bill’s financial memorandum are a minimum and maximum estimate of what we think we would need, and they take into account the full costs of the additional staff that we think would be necessary, not only to perform the statutory functions as detailed in the bill, but to provide what we think is necessary for a more year-on-year scrutiny of the Scottish Government’s progress against the Scottish biodiversity strategy delivery plan and wider work on preventing nature loss and protecting biodiversity.
Those costs include necessary support for our corporate services. This is a significant additional task for us, as a small organisation, to take on, and it will involve significant additional costs. Therefore, we are trying to be as precise and as fulsome as we can be in our cost estimates of what will be required to ensure that it does not detract from our existing work.
In our thinking with regard to taking on the new duty in the bill and the functions that Mr Lumsden has just referred to, we, together with the board, have set a series of criteria that we want those new functions to meet. They have to be compatible with our existing duties of scrutinising the implementation of environmental law; they have to protect our independence and our duty to report to the Parliament, not to ministers; and we need to be adequately resourced to carry them out effectively to ensure that taking them on will not be to the detriment of our other work.
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You might say that, Mr. Roberts, but the figures that I saw ranged from around £467,000 up to £819,000. In other words, we are talking about headroom of almost 80-plus per cent above what you think the minimum required to carry out those functions would be. It is a massive range, and if a minister came forward with it, they would be put under quite severe scrutiny. Why is there such a dramatic range in costs? Moreover, do those figures also include the £100,000 of additional money that you contend will be needed for consultancy fees, or are we talking about another £100,000?
The costs are what we estimate to be the minimum and the maximum to do the task set out in the bill. The lower number is the absolute bottom line in terms of the number of staff members that we would need, and the upper figure is what we would need to have everything that we wished for and to be able to do a very broad range of work on what is a very important subject. The £100,000 is included within that.
For clarity, are you saying that to get everything that you want to meet these responsibilities in—and I hate to sound glib about it—an all-singing, all-dancing way, the cost would not be £819,000 plus the £100,000 in consultancy fees?
Yes, that is correct.
The note that I have here says that the £819,000 would be for 10 members of in-house staff. They, by definition, would not be consultants.
That is correct.
So, unless my briefing paper is wrong—and I am looking at the convener when I say this—it appears that the cost would be £819,000 plus another £100,000.
That is right.
I am sorry—I thought that you said the opposite. So, we would be nudging £1 million.
Yes, we would. It is additional.
We are not the Finance and Public Administration Committee, but I am minded to note that the cost could be between half a million pounds and £1 million.
That is correct. I am very much aware that that is a broad spread. In producing that material, we looked at a range of options for resourcing those duties, and the Scottish Government asked us to provide a minimum and a maximum estimate.
Would it be reasonable, Mr Roberts, to have a core range of provisions that are costed, with the ability to flex up and get additional expenditure in years 2 or 3, instead of seeking the best part of a million pounds in year 1?
To be clear, we envisage the costs ramping up over time. The bill sets out the framework for the statutory targets, with the actual targets and the details themselves coming later in secondary legislation, but we think that we will need to build up some of our capacity and expertise over the next couple of years to be ready for that. This will be a significant additional piece of work for us. As you have said, we have offered a range of models that we think are viable. We are about to have a further discussion with the Scottish Government about exactly how that might work in practice.
You could be completely right about all of that, Mr Roberts—I am merely questioning the numbers. That is my job here today.
My final question on this issue is this: if we were to approach the £800,000 figure, would it be possible to get in-house expertise so that you did not have to rely on consultants?
I certainly hope that we would be able to get some in-house expertise. The advantage of having some money available to bring in external consultants—which we already do—is that we would be able to commission specific pieces of work from third parties, instead of relying on having in-house expertise for everything. Part of the model for how we are resourced is about maintaining a degree of flexibility. We have permanent members of staff; we have staff on fixed-term contracts; and we also retain capacity to commission external advice. I see that model continuing and certainly being applied to the duties under the Natural Environment (Scotland) Bill.
That was helpful. Thank you.
I do not think that that is the final question on this theme. Kevin Stewart wants to come in, too.
First, as a general comment, if somebody estimated a cost as X up to double X, I would find that a bit questionable. I do not want you to go into detail today, but it would be interesting to see your workings for all of this.
Mr Doris has already asked about the £100,000 for external consultants, and Mr Roberts, you said that you have used external consultants when the expertise has not been there. How much have you spent on external consultants in, say, the past year?
I am afraid, Mr Stewart, that I cannot give you that number off the top of my head. I will put that in writing for the committee.
We would be grateful for that.
How many times has the same individual consultant or same organisation of external accountants been used on more than one occasion?
The only circumstance that I can think of where we have used the same source of external advice is in relation to external legal advice; we have a contract with a legal practice to provide us with legal advice on a standing basis. All other external advice that we have got has come from different organisations.
Again, it would be very useful for the committee to see where you are getting the external advice from and how you are going about contracting external advisers. I agree with Mr Doris that, in some regards, it would be better if those things could be done in-house. I recognise that there are certain levels of expertise that are difficult to capture, but legal advice is not normally one of them, I would say.
We come back to Mark Ruskell, who has some questions.
One area of biodiversity that you have focused on is the designation and protection of internationally important wetlands—the Ramsar sites—and the two-tier level of protection that exists in that respect. I am aware that the Scottish Government is consulting on that, and I think that you have supported those recommendations, but is there a timescale for implementing them? Will you request the Government to introduce a timescale for implementation, and does that link into the Natural Environment (Scotland) Bill?
The two-tier system with regard to Ramsar sites, special protection areas and special areas of conservation has been a long-standing issue, and the consultation that is live at the moment should address it. We are awaiting the summary of responses to the consultation, and we will engage with the Scottish Government on exactly when it will implement the conclusions of that, so the answer to your question is no, we have not yet set a timescale for that. Are we watching carefully and monitoring what is happening? Yes, we are.
Would that require legal change through the Natural Environment (Scotland) Bill?
I think that the intention is for all of that to be done through policy changes.
Right. Thank you.
Monica has some questions.
I turn to the issue of sewage pollution, which ESS has done a lot of work on. There have been many concerns across the UK about the antiquated condition of sewage infrastructure and about monitoring and data. There are also concerns about complacency in Scotland, in that our situation is not as bad as what is happening over the border. I know that that issue has been looked at closely.
The committee previously took evidence from Scottish Water, which, it is fair to say, disputed allegations that it was acting illegally in relation to discharging combined sewer overflows during dry weather. Are you able to give any update on ESS’s analytical work into the matter and on whether there is any evidence of illegal sewage discharges in Scotland?
Our analytical work in this area, which we published in September, looked at the legislation and at the data that was available on spills from storm overflows. That work picked up on the fact that a relatively small proportion of the total number of storm overflows was monitored. During 2024, Scottish Water had been actively trying to increase the number of monitors that it had in place in storm overflows as part of its improving urban waters route map. That work has been completed, and Scottish Water has subsequently committed to extending the network of monitored storm overflows during 2025. Off the top of my head, I think that that will take it to roughly half of all combined sewer overflows being monitored.
A very positive step with regard to the public’s interest in that topic—which, as you point out, is significant—is that you can now go to the Scottish Water website and see live data on spills from storm overflows. The data also indicates whether a storm overflow is a priority for future investment, which is a positive step, too.
Our work picks up on the fact that the guidance that existed around the operation of storm overflows was somewhat elderly, dating back to the end of the 20th century. In response to our report, the Scottish Government has said that, at a high level, it is looking at the regulations on urban waste water treatment in the round, in the context of the recasting of the European Union urban waste water treatment directive, which became law last year. The Scottish Government is looking at its entire approach to the regulation of waste water treatment in the light of all the pressures that climate change and increasing run-off from urban areas are putting on the waste water treatment network, and in the light of our recognition that, as you have said, the infrastructure is ageing. That is the right thing for it to do.
The public are still very concerned. Scottish Water has obviously made some progress, but are you satisfied that the actions that were set out in responses from Scottish Water, the Scottish Government and SEPA to the ESS investigation report on storm overflow will address your recommendations? I hear what you say about the Scottish Water overflow map, but do we now have a complete picture or is it still incomplete?
I would not say that we have a complete picture. The fact that the Government has decided to look at the urban waste water treatment regulations in the round is positive. In late 2023 and early 2024, it consulted on an approach to managing waste water, and that set out quite clearly some of the challenges that the water industry faces.
At the moment, Scottish Water is consulting on its long-term strategy, which is picking up on some of the challenges, too. It is very honest about the fact that everything is not perfect and that the network must be adapted and invested in to ensure that it is resilient for the future.
Is there anything in relation to CSO that should be in the long-term strategy that Scottish Water is consulting on?
We are very positive about the improved data that is available. The approach that is being taken to try to concentrate on storm overflows that spill during dry weather—which really should not be happening—is appropriate. I recognise that investing in infrastructure and making changes takes time, but we want to see a clear plan for when we will no longer see any storm overflows spilling during dry weather.
11:15It is important to note that the system exists to ensure that, at times of extreme rainfall, there is no flooding of houses and businesses—it is a necessary safety valve. However, spills in dry weather should not be happening.
Is there still work to be done on having a clear plan to address that?
That is a continuing work in progress by Scottish Water.
I go to the deputy convener for a question.
Sticking with the issue of storm overflow during dry weather, I would like some clarification. Do you have any evidence, as part of the analytical work that you have carried out, of storm overflows taking place during dry periods?
Yes.
You do. To what extent?
It is a small number of overflows in a very restricted number of locations, but it is happening, in some cases for very extended periods. We want to see a plan to address that in the terms of Scottish Water’s next—
Yes, I understand that—you have covered that part. I am trying to understand the extent. What are we talking about here? You say that it is a “small” amount. What is a small amount?
Again, I do not recall the precise numbers of storm overflows as a total of the 3,000-odd that exist across Scotland. I do not want to say a number on the record and give you a misleading figure, but I think that it is in the tens.
The tens of thousands?
The tens.
Oh, the tens—as in double digits.
Yes.
Right. What is the frequency with which that happens?
It varies significantly from one storm overflow to another. The particular nature of the infrastructure around an individual storm overflow varies significantly.
Where we had real concerns was where the data was showing us that there were extended periods of spilling taking place after extended periods of dry weather. That is not the way in which the system is supposed to work. When there is a spill during a dry period, there is less of a dilution effect, so the environmental impact is potentially greater.
I am trying to understand the extent and the scale of the challenge. Of the tens of cases in which spillage occurred, on how many occasions did that constitute a significant level over an extended period of time?
Again, I would want to go back to the data to give you an accurate picture. I apologise—I do not have the details in my mind at the moment. We will write to the committee to explain exactly the results of our analysis.
That would be helpful, so that we understand it.
So, when Scottish Water disputes the allegation that it is illegally discharging CSOs during dry weather, that is wrong.
Our work looked at the data that existed where there was information available from Scottish Water. We did not look at the individual compliance conditions that might have pertained to those spills, so we did not comment on that—we looked at it purely from the perspective of, “This is the data, and this is where it’s telling us that things are happening that shouldn’t be happening.” We did not look at whether or not those were in breach of any legal requirements.
Okay. Who provided that data?
Scottish Water.
Forgive me—I am a wee bit confused here, which is easily done sometimes. I am just trying to understand. Scottish Water says that it disputes that it has illegally discharged CSOs during dry weather. It has provided you with data, and from that data you have assessed that there are circumstances, numbering in the tens, in which CSOs have been discharged during dry weather, but we do not know whether or not that is illegal.
That is correct. We did not set out, in what was an analytical project, to look at the data to examine individual cases of compliance or otherwise—that was not the purpose of the work.
Okay. So, who would determine whether it was illegal or not?
It would be SEPA, I think, that would look at that, as the regulator of Scottish Water.
That is helpful—thank you.
It might be helpful to you, Michael, but I am still totally confused as to who is doing what. SEPA and Scottish Water—which will, no doubt, be reviewing this evidence session—might want to pass comment on the information that we have just heard, because I am sorry to say that I remain confused.
I will come to Mark Ruskell for a question, but before you leave the topic of water and go on to something else, I would like a follow-up. You go ahead with your question first.
Sure—that is fine.
I want to reflect on the evidence that we had from SEPA when it came to the committee last month. We discussed the central overarching target of ensuring that about four fifths of our water bodies in Scotland, which include rivers and coastal lochs, are in good or better condition by 2027. SEPA identified that the biggest issue there is more to do with diffuse pollution, which comes from agriculture and other sources more generally, rather than from CSOs specifically.
I ask you for your reflection on that. It feels like it is a big issue if we miss that target. What more can ESS do? Do you share SEPA’s concerns? Where should the pressure on Government, or on other bodies, be?
We share SEPA’s concerns. Diffuse pollution is probably the largest pressure on water bodies across Scotland. Waste water remains a significant issue in a small number of catchments, and it is really important—as we have just discussed—that those are addressed. River basin management planning through the lens of diffuse pollution is one of the analytical pieces of work that we are doing this year. I absolutely agree that diffuse pollution remains the primary pressure on water quality.
What kind of output will we see from ESS on that? Arguably, this area is harder to tackle. It should be relatively easy where Scottish Water has consent for discharge of CSOs—that is permitted and there is a set of rules, and if you break those rules, you are out of compliance. Diffuse pollution is harder—it is about farmers and landowners, and regulation, good practice or whatever. It feels like a trickier issue to deal with.
I think that it is a trickier issue to deal with. It has been around for a very long time and has been a hard nut to crack. As I said, SEPA is absolutely correct in saying that it is probably the biggest pressure on water quality, and we need to look at run-off from agriculture and from urban areas in the round if it is to be improved to meet the 2027 target.
Convener, you wanted to come back in on that topic.
Yes—I have a couple of questions on river basin management plans. It is about not just pollution but a change in the water quality. For example, I know that, on the Spey, increased temperature is a threat because cooling water is going into the river, which has an effect on flora and fauna. In addition, there is the abstraction of water—we know that 40 per cent of the water above Aviemore that should go into the Spey is being hived off to the Tay or down to Fort William to generate power.
When you look at the river basin management plans, you will no doubt be looking at Q95 flows, which I am not sure that anyone truthfully understands, and any response to them does not plan for them being potentially breached. Are you going to do any work on all the pressures on the river? It is not just what is flowing into it but the effects of industry and abstraction, as well.
In that piece of work, we will not be looking at abstraction. We have chosen to concentrate, as I said, on diffuse pollution. We are interested in wider questions around abstraction and irrigation and the impact on climate change and water availability and scarcity in the round, but we will not be pursuing a piece of work on that in the immediate future. It has been on our longlist, but we have decided to prioritise other things this year.
As an observation, it seems that, if we agree to abstract water out of one catchment to put it into another, we cannot continue to do so if pressures on the catchment from where the water is disappearing continually increase. That seems to be the wrong thing to do—it might be robbing Peter to pay Paul.
As I say, we want to look at river basin management planning in the round and take an overview of that system during our current piece of work. I will bear what you said in mind in how we frame that.
Sorry, I will push a little more on water temperatures. There is the whole issue around decreased summer flows, which we appear to be getting, except for extraordinary events where there are spates in rivers. If there is less water, the water temperature will be warmer because the water level will be shallower across a river. That will have an effect on the flora and fauna; it might encourage algal and weed growth or be a detriment to freshwater mussels, salmon or any other species. Will you look at that, or are you happy for us to allow water temperatures on the Spey, say, to go up by 4 degrees because of industrial activity?
I would not say that it is something that I am happy about. Where I would come from in this discussion is where we can add value and our remit in looking at relevant pieces of environmental law. The issue is absolutely on our mind. We look at climate change adaptation and the impacts of climate change throughout our work, and we will bear water temperature in mind, but we are not explicitly concentrating on it as part of our current piece of work.
I hope that you have heard my comments, Mark.
I have.
I will hand back to Mark Ruskell.
I will move from water to air. You will be aware that the committee is currently looking at a petition that recommends the adoption of the World Health Organization’s recommendations in relation to nitrous oxide and particulate matter. You have already been in touch with the Scottish Government to recommend that it adopts those guidelines on particulate matter. Have you had a response from the Government on that?
We have had a response from the Government, which has said that it will consider those guidelines in the context of its review and revision of its current cleaner air for Scotland 2 strategy. Our understanding is that the Government intends to start working on its next air quality strategy during the current year. That is another piece of work where we continue to monitor exactly what progress is being made. We would very much like to see a tightening of the air quality standards in order to meet or to move towards what is recommended by the World Health Organization.
The development of the cleaner air for Scotland 3 strategy will obviously take time to come through and to be implemented. Some of the actions in CAFS3 might take a number of years to filter through. Do you see an issue there with potential divergence from the EU? Is the EU moving more quickly on adopting more rigorous, health-based limit values?
The European Union tightened its air quality standards in its revision of the ambient air quality directive, which came into force last year. We would like to see the Scottish Government taking that into account in its thinking about what is best for Scotland. Its policy of maintaining alignment with the European Union, with the caveat of that being where that is appropriate and effective for Scotland, remains in place. We will continue to stay in touch with the Scottish Government to see what it comes up with in terms of next steps in improving air quality.
To reference the committee’s previous evidence session with the cabinet secretary, in our report on particulate matter, we advocated that the air quality strategy should encompass a wider range of areas that have perhaps not been a focus of past policy and action. For example, in the future, the Scottish Government may want to do more on ammonia as a potential precursor source of particulate matter from agriculture.
What is the timescale for member states to implement the ambient air quality directive? Could we be in a situation where member states are adopting more stringent air quality regulations than Scotland, which has an intention to do something in the space but is a wee bit behind, or are we making progress on that at the same pace?
I am afraid that I cannot recall the timescale for implementation of that. Again, I would have to write to the committee to clarify that.
Dr Dixon, do you want to come in?
11:30
I think that the timescale is 2030. If a CAFS3 is created next year and finished in 2027, there will be a short interval in which to catch up. The standards that the European Union has adopted are not quite the full WHO standards. They are a compromise between where they were and those standards. If we were to go for the same thing, we would have that period of 2027 to 2030 to reach the same standards.
The frustration is that if a certain level of air pollution is bad for you today but it is not illegal, why should you wait until 2030 before it becomes a problem? It is clearly a problem for you today. There is always a compromise between where we should really be and how quickly society can change to get there. That is why 2030 is, I believe, the European deadline.
Mark Roberts was talking about the previous evidence session that we had on authorisations and ammonia emissions. Do you see a similar potential for mismatch or alignment with the EU industrial emissions directive when it comes to ammonia? Is Europe moving at pace to start to regulate medium-scale intensive livestock production? Are we falling behind that, or are we broadly in line with it?
I would certainly agree that Europe is moving at pace in that area. I am not clear about what the Scottish Government’s next steps will be in that area, and I am waiting for the air quality strategy revision process so that I can see what those steps will be.
Would you say that ESS is holding back a bit—
I would not characterise it like that.
—until you get involved in the CAFS3 process and see what Government thinking is on those things?
We are waiting to see the development of that process, and we will scrutinise that as it goes through its various stages.
You do not have a view in advance of CAFS3 being consulted on.
That is correct.
You are waiting for the process.
We are. The Government has been very clear that that will be the vehicle that it will use to take forward the next stage in its approach to air quality. That is a reasonable approach, and it is therefore appropriate that we, as you suggest, hold back until that is slightly more developed. However, we are very much in touch with the air quality team in the Scottish Government.
I am looking around the committee to see whether there are any other questions. Mark Roberts, you may be in for a shorter evidence session, because Dr Dixon was in here not long ago and answered many questions. He may have saved you.
I still have questions, convener. I want to ask about environmental governance, if that is okay.
One of ESS’s analytical priorities is environmental governance. Earlier in your opening statement, Dr Dixon, you referred to the Scottish Government’s governance review. You used the word “lacklustre”, so I am keen to hear more about your thinking on that.
I am also keen to know what work ESS is doing, or is planning to do, around Aarhus compliance. My understanding is that, because we do not have access to an environmental court or tribunal, because we have unequal rights of appeal in relation to our planning system and because the costs around access to justice in environmental matters are very prohibitive, people feel that they do not have routes to environmental justice. You said that what the Government is doing there is lacklustre, but what more is ESS doing to try to get some progress and compliance?
I will start off on the Government’s review. We have previously said that it was a missed opportunity. It drew a very narrow boundary and did not look at the whole system of environmental governance and the bodies that are involved in delivering it in Scotland.
The review focused on and said some nice things about ESS, which, of course, we are grateful for, but to me, there are three areas of unfinished business. The review did not talk about some of the things that Europe used to require us to do, which we as ESS do not do and which nobody does any more, and principal among those is reporting environmental data.
We had to report a lot of data through the UK to the European Commission or the European Environment Agency, and that does not happen any more. If we get a scrutiny duty through the Natural Environment (Scotland) Bill, we will have reinstated a little bit of that, but there will still be considerable gaps. The European Commission would take and interpret data from all the member states, so that states could understand how well they were doing in comparison to others and whether others had clever ideas that they might want to copy to help deliver improvements in environmental quality. That gap still exists and has not been thought about enough.
The second thing is the Aarhus convention. As you say, Scotland continues to be in breach of the Aarhus convention and the Scottish Government acknowledged that in its consultation. However, it proposed a number of measures that might address the excessive cost of taking action and the fact that, when you do take action, it is probably an expensive judicial review that looks at whether the correct procedure was followed rather than at whether the right outcome was arrived at and the merits of the case. Those two things are still the case. Of the three or four measures that were proposed, the biggest one was that we were soon to have a right to a healthy environment through a human rights act. Of course, that has been either postponed or completely shelved, so the big thing that was going to fix that problem is not happening any more. Again, we are left with no answer about how we are going to become compliant with the Aarhus convention.
One way of addressing a lot of those issues would be to have an environmental court, but the Government was desperate not to do that. The original consultation on the governance review hardly mentioned an environmental court and dismissed the idea without any evidence. Lots of people complained, so later on in the consultation the Government produced a really shoddy secondary paper that went into environmental courts and why it does not want one, but it was still not very convincing. In the final write-up of the consultation, it handed us a poisoned chalice, which is very carefully phrased. It says that we 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.”
It also asks the committee to ask us what we have done about that.
I say that that is a poisoned chalice because, although technically those words are neutral, they give the impression that ESS is going to fix the problem that there is no environmental court. It has passed the challenge and the expectation on to us, and when we say that we can do certain things, but we cannot actually do most of the things that we are looking for, we will get the blame. The committee will then have to ask us why we cannot do those things. That is the third piece of unfinished business out of that consultation. It is hard to see a way forward.
As the Government has requested, we might say something quite robust in our strategy about what we can do and what we cannot do. That will clearly define the gap that people think should be filled and we will say that we cannot fill it with our current powers, and that we might not be the right body to do that. That is why I called the consultation lacklustre and why I think that it is a missed opportunity.
That sounds shambolic. Many constituents and communities across Scotland are worried that they do not have any effective means of challenging decisions about the environment that are made by public authorities We know that judicial review is very expensive and that it looks at process rather than the merit of a decision. It sounds as though you are saying that there is no real leadership.
We on the committee are all well aware that Scotland has a serious nature and climate emergency to tackle. Hearing words such as “lacklustre” and “shoddy” and the Government passing the independent watchdog of the ESS a “poisoned chalice” is quite alarming. Where does Scotland go from here?
To pick up on the point about the lack of data reporting, I am keen to get some clarity about the timeline. It sounds as though, if we eventually report that data, there will be quite a big gap in time. It worries me that we are creating opportunities for polluters to continue to wreck and damage Scotland’s environment with little consequence.
What more can ESS do on environmental governance? Who needs to be held to account on the gap in and reporting of environmental data?
On your second question, often data is still being collected but is just not being reported anywhere. There will be some cases in which it is not collected any more, so we have lost some years of data on particular topics. In general, the data is probably collected, and it might appear on Scotland’s environment web, so it is available. However, there is a missing step: there is no interpretation of that data. No one is saying, “Oh, this is getting worse. What’s happening here? Something should be done,” so it is that—
I hope that you do not mind me interrupting you, Richard. You do not appear very confident on the issue. Data that is collected but not analysed or reported does not serve any purpose. Can you be more precise about the topics that you are referring to? When you say that the environmental data is either being collected and not reported or it is not being collected, can you give some examples to the committee of what you mean?
An example would be the air quality information that we collect. We used to collect the data and report it to the European Commission and the European Environment Agency. Every year, they would produce a report about air quality across the European Union. Our data, though inadequate, was compared with that from other countries. We could look at that and, for example, say, “We’re doing better than Poland, but actually Spain has done something really clever—let’s look at that.” That kind of interpretation was possible, and there was some pressure on us from the European Union to do better if we were not doing better.
As I said, we still collect that data. It is still available, but no one—apart from Friends of the Earth sometimes—is saying annually what the picture is. There is no official publication setting out the state of the air in Scotland for that year, and, for example, why some of it has got worse, why quite a bit of it has got better and what things are being done about it. We have lost that data analysis part. That is the kind of gap that I am suggesting.
On your other question, about whether there is a lack of leadership, there is quite a strong determination not to have an environmental court. In a sense, that is quite strong leadership, but it is just not in the right direction, as far as I am concerned.
What can we do about it? We had a representation about compliance with the Aarhus convention. We looked at that, then put it on hold, because the Government was doing a governance review. Now that that review has finished, we are reactivating that investigation, so we will again have some more to say about our compliance or lack of it and what should happen.
We have regular conversations about court fees with the Scottish Government and the ERCS about where we are at and what should happen. We keep an eye on the Aarhus convention compliance committee, which meets every year and says that the UK and Scotland are out of compliance.
I want to correct a misconception that you might have been left with when the cabinet secretary was here. The Aarhus convention does apply in Scotland and the compliance committee has looked at the situation specifically in Scotland, not just in the UK. It is not that the UK is out of compliance and therefore Scotland might be. According to the compliance committee, Scotland is out of compliance.
Do you think that the Scottish Government is failing to understand that?
I think that it probably understands that extremely well. The consultation probably stated that quite honestly, because the Government thought that it had some solutions. However, now that those have fallen apart, it is in a bit more of a quandary about what to do.
ESS will continue to look at that. It will presumably end up as a full investigation, and we will see where we get to in trying to provoke some change.
To recap, we are in breach of the Aarhus convention because people do not have proper rights to challenge environmental decisions by public bodies, the Scottish Government does not appear committed to enacting a right to a healthy environment and we do not seem to have a proper system of collecting and reporting environmental data. Do the Scottish Government and the other public bodies that have a role take the climate and nature emergency seriously enough?
11:45
To correct the first part of that, the compliance committee has said that we are definitely out of compliance on cost. It is too expensive for a normal person to go to court to challenge a decision, because they could be risking their home in doing so.
On the second point, about lack of access to legal review, which is about the merits rather than the procedure, a case alleging that there is a lack of access is in front of the compliance committee. The case, which has been open for a long time, is said to be moving again. We expect the compliance committee to say, “Yes, that’s the case. That’s a problem.” Common sense tells you that that is a problem, but, as far as I am aware, it has not officially ruled on that yet.
Are we failing on the nature and climate emergency as well? Clearly, we have a Natural Environment (Scotland) Bill, some targets are coming in and we are getting a scrutiny role. That seems to be taking the nature emergency seriously and moving in the right direction.
Are we taking the climate emergency seriously? Clearly not, because we have had to abandon our 2030 and 2040 targets, and less than 50 per cent of the measures in the current climate plan are on track to deliver. Clearly, we have not been taking that seriously. As a country, we have done something about that by producing the new bill, and we will be doing something by producing the new climate change plan, albeit on a rather tricky timescale with regard to scrutiny. The picture is mixed. We have failed in the past and we are trying to improve.
On Aarhus compliance, it is obvious that the Government, whose previous answers have fallen through, does not have an answer at the minute. Our investigation will no doubt highlight that and might well suggest the way forward. Of course, part of the process of investigation is that we will talk to the Scottish Government and we might agree some action with it and potentially with other bodies. It might be that we will get to a solution that we have helped to create and that reaches the end point that we all want, which is that people have access to justice on environmental matters. That is the outcome that we will continue to push for.
Thank you. I think that we all want to see an improvement on “lacklustre” and “shoddy”.
As there are no further questions that the committee would like to raise, I thank Richard Dixon and Mark Roberts for coming to the meeting and giving evidence today. There are a few things that we will need to follow up with you, and the clerks will prompt you about the issues on which we are looking for answers.
11:47 Meeting continued in private until 12:13.Air ais
Subordinate Legislation