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I imagine that she is absolutely doing that, not only through considering the environmental aspect of things but through leading on Aarhus compliance as well. We are not a state, as such, so we are not compelled to comply with the Aarhus convention. The United Kingdom Government is also looking at its compliance with the convention. Therefore, Ms Brown is working in concert with the UK Government on compliance with the Aarhus convention across the four nations of the UK.

Ms Brown has mentioned that she is looking at the Environmental Protection Act 1990 in relation to how some aspects have been complied with. I have mentioned some of the measures that she has already put in place, and she is particularly aware that environmental cases have traditionally not been taken because of the high costs associated with going to the Supreme Court. She has put caps in place for the costs that are associated with such actions. However, I do not want to go into all the detail—I cannot go into all the detail because it is not my portfolio, and Ms Brown is leading on that. I refer the committee to the very comprehensive evidence that Ms Brown gave to the Equalities, Human Rights and Civil Justice Committee on the matter.

The Government has also been working very closely with the United Nations special rapporteur on those issues, in developing the work that is still on-going on the human rights bill. Even though it will not be presented in the Parliament in the next year—it is not in the programme for government—work is still going on to get it into the shape that we want, including the right to a healthy environment. Work is happening with the UN special rapporteur.

However, that right to a healthy environment would not in itself make us compliant with Aarhus. Lots of other things can happen. Some of the things that I have pointed to that Ms Brown is doing in her portfolio would get us to a position of being more compliant with Aarhus. However, that is the direction of travel. We want to be compliant.

Obviously, the creation of a new court would be outwith my portfolio, so I do not want to speak for the Cabinet Secretary for Justice and Home Affairs or for people who are involved in the justice portfolio.

However, from my perspective, there are routes to justice that do not require a specific environmental court: we have a court system already. The biggest barrier to people taking environmental cases to court is not the lack of a specific court associated with environment, but the expense of doing so. It is surely better to look at the existing court system and at access to processes such as legal aid or at capping of the fees that are associated with environmental cases than to go through the expensive and time-consuming process of setting up an entirely new court.

If I take your last question first, the strategic review will look at that. Our response is that we think that there is scope for ESS to take into account community concerns about things that might happen as a result of whatever public body is involved not complying.

There is a difference between that and an actionable case. ESS is not set up to take on individual cases, but it could look at public bodies’ non-compliance with environmental law. It already looks into local communities’ concerns that relate to compliance with environmental law by a single local authority or any other public body. I gave the example of air quality compliance issues that had been going on for some time—ESS could look into those.

The exclusion of individual cases from ESS’s remit was discussed during the passage of the 2021 act—I think that we were on the same committee at the time, Mr Ruskell—and we decided to exclude it. The intention behind that was to ensure that ESS did not become an appeals body. We have seen in other parts of the world that such bodies have become appeals bodies that are almost like mini-courts. That is not the function of ESS, which is more of a strategic operation.

ESS’s investigatory aspect is that it can look into a systemic issue, perhaps with a public body, and it has been good at that, but it is for ESS to decide in its strategic review, within the parameters of the 2021 act, whether it wants to do more than that. I do not think that ESS wants to do that, and I do not think that anyone here would want ESS to do that, because it would then be almost like an appeals court and that is not what ESS does. It is more strategic than that.

ESS would not necessarily be investigating such a case—it would be looking at systemic issues that might have led to that case. You said in your description of that hypothetical situation that a case or an incident might point to systemic issues in respect of a public body not complying with environmental law. ESS can, of course, look into that.

Again, that is all very hypothetical. We have processes and procedures in place that are tied up in environmental law, and there are certain procedures that public bodies have to comply with. To give an example off the top of my head, with regard to consents for developments there is a process that is informed by regulations, some of which sit at United Kingdom level and some of which sit with the Scottish Parliament. Obviously, those regulations would need to change to enable what you are talking about. The issue is being actively looked at as potential developments change—in fact, there is a consultation going on at the moment on consents for energy. There is a constant review. The process that I just mentioned involves a joint consultation between the Scottish Government and the UK Government, because a lot of the regulations exist in the UK space. Whether a process is adequate at any given moment can change.

I will not go into the detail of specific court cases but, obviously, decisions that are made in courts could prompt Governments to consider their processes.

Absolutely.

None is expected at all.

My understanding is that all the emissions that the oil and gas industry produces are measured. They have to do that by law.