Seòmar agus comataidhean

I do not have a date in front of me. Tim Ellis is showing me a bit of paper. I will have to go to Tim on this. The matter is very specific.

The Aarhus convention is not legally binding on the Scottish Government, and there are no plans to make it so. However, we are still working towards becoming compliant, and I have outlined a number of ways in which we are trying to do that.

We have full respect for the opinions of the Aarhus convention compliance committee, which is why we are responding to its recommendations and working with the UK Government on overall UK compliance. Incidentally, the UK Government had a deadline to provide the ACCC with an updated progress report by this month, but I think that it has asked for an extension in order that it can report this month. I am looking to my officials.

As I indicated, a number of public bodies in Scotland protect our environment—SEPA, NatureScot and, obviously, Environmental Standards Scotland, which I have mentioned as well. As you mentioned, the human rights bill will probably not be introduced in this session of Parliament, but the right to a healthy environment was associated with its initial draft. It is a very complex area, however, and the cabinet secretary who is leading on that work needs more time to review what has come in from the consultation process in order to get it right.

That does not mean that we will stop doing work in that area. I am always very interested in how we can improve the environmental protections that are in place: I am taking forward a natural environment bill, which will be introduced next year and is an opportunity for us to look at and to put in standards for our environment; SEPA’s enforcement activities are constantly under review, and various bills have improved the fixed-penalty notices aspect of its work; the Wildlife Management and Muirburn (Scotland) Act 2024 has environmental protections associated with it; and we have the enforcement powers of NatureScot, with all the licences that it has for the protection of the environment.

As well as “compliance with environmental law”, Environmental Standards Scotland’s remit extends to considering

“the effectiveness of environmental law”.

I was in front of the committee a few weeks ago, because ESS had suggested improvements and recommendations to the Scottish Government on some of our processes and policies. ESS constantly reviews how the law has been applied and where we need to up our game in certain aspects. It does not only take cases, complaints or issues from the public but does proactive work to consider how public bodies, including the Scottish Government, protect the environment and whether we are doing enough in those areas. For example, if an inner city or urban local authority had consistently poor air quality reports, Environmental Standards Scotland could look into what that local authority is doing with regard to its duties under various environmental laws.

That is why it is important that Environmental Standards Scotland be independent of the Government and report to the Parliament only. It must be able to go in independently and be the arbiter of whether standards are what they should be in all public bodies. It has a wide range of powers and teeth in that regard. It provides a constant, independent review of whether the Government is complying with new legislation and EU standards and whether public bodies throughout Scotland are acting in accordance with the environmental law as it stands.

It is also very much the role of this committee to recommend things that should be done.

There are a couple of things in there, including whether you accept that there is a gap in governance. There is also the issue of access to justice. I will deal with the access to justice aspect first.

I am sorry—good morning, everyone.

Siobhian Brown, the Minister for Victims and Community Safety, is leading on compliance with Aarhus. She gave helpful evidence to the Equalities, Human Rights and Civil Justice Committee on some of the things that she is taking forward to improve access to justice, and specifically her review of legal aid. She also laid out a couple of things that have been done in order to improve access to justice for those who have environmental cases.

I think that the main reason why justice has been seen as not being accessible is the associated cost. There is the legal expense of taking a case to court in the first place—of paying for your legal team and putting the case together. There is then also the associated cost if you lose, when you could also take on the costs of the people that you have taken the case against.

In her evidence, Siobhian Brown talked about cost protection. Under a rule that was changed in June this year in relation to protective expenses orders, she said that a petitioner can

“request confidentiality when they lodge a motion requesting a protective expenses order”.

She also said that

“A rule change was also enacted in June 2024 with regard to interveners”,

and that

“In relation to court fees ... an exemption from such fees was introduced for Aarhus cases raised in the Court of Session.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 12 November 2024; c 22.]

Therefore, people now have that protection against runaway costs.

Siobhian Brown is also looking at the review of legal aid, which will consider access to justice in the round, such that, if people feel that they cannot access legal aid, there could be some flexibility. However, I do not want to pre-empt that review.

In relation to the governance gaps that the deputy convener identified, Environmental Standards Scotland was put together to address the gaps associated with a European Union exit that this Government did not want. Some members of the committee will have scrutinised the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, part of which was about setting up ESS.

I think that ESS is filling that gap very well, to be honest. It is independent of Government. It can issue improvement reports and prevent things from getting to the point where there needs to be a legal case in the first place. It can also issue improvement reports to the public bodies that it is investigating or looking into, which are perhaps not meeting their environmental legal obligations. It can work with public bodies to reset in relation to whatever gap in achievement they have. It can also issue compliance notices requiring a public body to take certain action. However, there has not been a need for that to happen so far. In the most extreme instances, ESS could petition the Court of Session to go to judicial review. Again, however, it has not been in that situation so far.

ESS can act as a result of investigations that it has done, which have perhaps been put to it by people in civic Scotland who have been unhappy with the work that a public body has done or not done. As a result of that investigation, or of a compliance notice being issued, in an extreme situation, it could also take the matter to the Supreme Court. There is therefore also access to justice through the routes and powers that ESS has.

The committee knows that Environmental Standards Scotland is doing a strategic review, and I am interested to see the areas that it proposes where it might want to expand what it does, perhaps by addressing some of the gaps that others have identified.

That review will not be a report to ministers but a report to the Parliament, because ESS is completely independent of the Government. It would be for the Parliament to decide whether the review addresses some of the gaps that have been brought to it. It would also be for the Parliament to decide whether it wants any perceived gaps to be filled and in what way. Members will probably want to talk about what some stakeholders have identified as gaps. I will not go into my responses to particular suggestions in detail right now, because I imagine that members might want to ask me specific questions.

We are satisfied that we have stuck to section 41 of the 2021 act in addressing the governance gaps that were left by EU exit, but we are only four years on from EU exit, so it is early days. Nothing has happened so far that has shown that there has not been a home in the justice service for any particular incident to be investigated, and we obviously do not want something to happen in order for that gap to be identified. I am satisfied that ESS has enough authority and powers to address environmental concerns from across Scotland about how public bodies act and that there is a court system that can deal with environmental cases as they come up.

Let us also remember that ESS is not the only body involved. The Scottish Environment Protection Agency, NatureScot and Marine Scotland are public bodies that are tasked with protecting the environment, nature and our marine environment.

I guess that we will explore that when we take the human rights bill forward. In relation to the Aarhus convention, we responded to the most recent decisions on article 15, which deals with reviewing compliance and states that it should be done on the basis of consensus. That work is actively happening in the Government, not just in my portfolio, but particularly in the justice portfolio.

What would a right to a healthy environment that was enshrined in law mean? I guess that it would mean that things could be actionable in a legal setting if they were not complied with. However, that does not get round the fundamental point that access to justice is not just about what is in law and what courts and processes are available but is about the expense that is associated with access to justice. Ms Brown is actively working on that, because it has been a barrier to justice, particularly in environmental cases.

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.