Scotland’s proposed new environmental watchdog – a rottweiler or a poodle?

25 June 2020 by Rosalind English

The vigilant gaze of the European Commission will begin to turn away from UK when the post-Brexit transition period ends at the turn of the year. The Commission has used its powers as the ‘guardian of the treaties’ to enforce EU laws relating to nature conservation, waste and air pollution. Its absence will leave a governance gap, and replacement institutions are needed to ensure that environmental laws are enforced.

The UK Environment Bill proposes an ‘Office for Environmental Protection’, with powers to enforce environmental laws mainly in England and Northern Ireland (discussed on the UKHRB by Rosalind English & Rafe Jennings). A separate body is planned for Wales.

The Scottish Government published its plans last week for the creation of a new environmental watchdog named ‘Environmental Standards Scotland’ (ESS) in the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.

This article discusses the functions and powers of the ESS in the Bill and then analyses the proposals through the lens of the UN’s Paris Principles (used for assessing the credibility of national human rights institutions).

1. Functions of ESS

Its functions are broadly threefold (cl 16). It will monitor and investigate public authorities’ compliance with environmental law, the ‘effectiveness’ of environmental law and how it is implemented and applied. It will also enforce environmental law by taking the steps it considers appropriate to secure public authorities’ compliance.

2. Powers of ESS

To carry out its functions, the Bill gives ESS powers to issue ‘information notices’ (cls. 20-21), ‘improvement reports’ (cls. 22-26), ‘compliance notices’ (cls. 27-33) and to raise judicial review proceedings or intervene in civil proceedings (cl. 34). Public authorities will be subject to various ‘co-operation duties’ to assist its work (cl. 19). Its proposed powers are worth unpacking.

a. Information notices

An information notice will allow ESS to request any documents, an explanation or even any unrecorded information which are reasonably required for the purpose of exercising its functions. In the event of failure to comply with a notice without a reasonable excuse, ESS can report the matter to the Court of Session, which can make an order for enforcement and/or deal with the matter as if it were a contempt of court.

b. Compliance notices

A compliance notice would require a public authority “to take the steps set out in the notice in order to address its failure to comply with environmental law” (cl. 27(2)). It would only be competent where ESS considers that there is an ongoing failure to comply with environmental law, or a past failure occurred in circumstances that make it likely that the failure will continue or be repeated. The failure must be causing, or has caused, ‘environmental harm’ (or at least risk this). ESS can report non-compliance to the Court of Session.

c. Improvement reports and improvement plans

An improvement report would set out the details of an alleged failure and recommendations to address this. ESS can prepare one if it considers that a public authority has failed to comply with environmental law, make effective environmental law, or implement or apply environmental law effectively; or if the combined effect of such a failure by two or more public authorities has resulted in ‘systemic failure’. ESS can only use this power if satisfied that a compliance notice would not address the failure instead.

Improvement reports are to be published, laid before the Scottish Parliament and sent to the Scottish Ministers. The Ministers must then lay an ‘improvement plan’ before Parliament within a maximum of 9 months of the report being laid. The improvement plan must also be laid before Holyrood, and if rejected by MSPs, this would trigger a requirement to revisit it.

d. Judicial review and intervention in civil proceedings

ESS will be able to raise judicial review proceedings and intervene in civil proceedings where it considers that a public authority’s conduct constitutes a “serious failure to comply with environmental law” and it is necessary to make the application “to prevent, or mitigate, serious environmental harm” (cl. 34(1 and 4)).

3. Analysis of the proposals

The Bill envisages an institution with powers to monitor and enforce environmental law. These are welcome proposals in terms of addressing the governance gap.

While the Bill may glister, its proposals are not golden. I draw selectively on the UN’s Paris Principles to analyse the Bill here. The Principles concern the design of national human rights institutions, such as the Scottish Human Rights Commission. They provide standards to assess ESS’s credibility, independence and effectiveness.

The Principles are useful even though ESS is not an explicitly human rights-focussed institution. The Scottish Ministers will be the subject of ESS’s enforcement functions, and this clear conflict of interest should preclude them from having any significant influence over its operation. This tension with the executive branch of government will be familiar to national human rights institutions.

a. Competence

Principle A2 requires that a “national institution shall be given as broad a mandate as possible”.

ESS has a broad remit, but there are several notable shortcomings. Clause 39 defines ‘environmental law’, and by extension, the remit of ESS. It provides that legislation relating to the disclosure of, or access to information, national defence or civil emergency, and finance or budgets are not environmental law. Disclosure of and access to information is largely covered by the Scottish Information Commissioner. The exclusion of national defence or civil emergency and finance or budgets put potentially significant areas of law out of ESS’s reach. No explanation is given for these exclusions in the various notes and memoranda which accompany the Bill.

Parts 1 to 3 of the Climate Change (Scotland) Act 2009 have also been carved out of ESS’s remit (cl. 39(4)). These Parts contain the Scottish Ministers’ legal duties to achieve various emissions reductions targets, and the associated reporting duties. The Bill’s explanatory notes states that the excluded provisions “are subject to bespoke parliamentary procedures, and on which the Scottish Ministers receive advice from the Committee for [sic] Climate Change” (para 140). They are indeed, but this non sequitur does not rationalise their exclusion. The Committee is a technical advisory body – it does not enforce the law. This exclusion is difficult to justify during a climate emergency when ministerial adherence to climate laws is critical.

b. Composition, independence and pluralism

To paraphrase, the Paris Principles require that the appointment of the institution’s members shall be done in a manner which ensures the pluralist representation of relevant civil society actors (Principle B1), the institution shall have adequate funding “in order to be independent of the Government and not be subject to financial control which might affect its independence” (B2) and membership “shall be effected by an official act which shall establish the specific duration of the mandate” (B3).

The Bill explicitly states that “Environmental Standards Scotland is not subject to the direction or control of any member of the Scottish Government” (sch. 1 para 1). It then details three features which flatly contradict that statement:

• The chair and between 4 to 6 other members of ESS are to be appointed by the Scottish Ministers (sch. 1, para 2). This is subject to parliamentary approval.

• There is no fixed term for members of ESS. They are appointed for a period “as the Scottish Ministers determine”, up to a four year maximum (sch. 1, para 2(3)). The Scottish Ministers can terminate membership early if they consider that a member is “unsuitable to continue as a member” (albeit subject to parliamentary approval (sch. 1, para 5)).

• The remuneration and expenses of ESS’s members is subject to the Scottish Ministers’ approval (sch. 1, para 4).

There are no guarantees of pluralism, adequate funding or the specific duration of mandates. The Scottish Ministers’ ability to choose its membership, set their term of office and exercise the purse strings would give them significant control over ESS.

4. A rottweiler or a poodle?

The ESS proposals have merit in that there is clearly an attempt to replace the watchdog role of the European Commission. The Bill would establish a body with powers approaching rottweiler-strength which could allow it to robustly defend the environmental rule of law (albeit with some key limitations on its competence).

On the other hand, the proposed institutional design suggests a poodle categorisation may be more suitable for this watchdog. For those who have any familiarity with Scottish politics, it will probably seem odd that the political party whose central organising principle is independence, has produced a Bill whereby the expressed importance of the ESS’s independence from Government is a thin veneer covering an architecture which would establish its dependence on, and control by, the Scottish Ministers.

The Bill has just entered the Scottish Parliament. My hope is that MSPs familiarise themselves with the Paris Principles, and use them to establish the Scottish Parliament’s control over the ESS.

Ben Christman is a trainee solicitor at the Legal Services Agency (Glasgow). All views here are his own.