Scotland’s new environment watchdog needs more teeth

23 Jul 2020

Image by Ander Unibaso Villaverde from Pixabay

Environmental Standards Scotland: a Scottish Environment LINK perspective

Since the EU referendum, Scottish Environment LINK has been calling for a new environmental ‘watchdog’ to be established in Scotland to replace the oversight and enforcement functions previously carried out by the EU institutions. The Scottish Government’s new ‘Continuity Bill’, introduced to Parliament last month, proposes just such a body – to be called Environmental Standards Scotland. This is a very welcome step forward.

But how fully does the proposed watchdog replace those EU functions? Will it have the independence, powers and resources required to hold government to account on environmental matters? In this ‘long read’, Lloyd Austin examines these questions and suggests how the bill might be improved by Parliament to ensure Environmental Standards Scotland is an effective watchdog.

Nature has become increasingly important to many people during the covid-19 pandemic. But long before the virus struck, we were facing two linked existential crises – climate change and biodiversity loss. These human-induced emergencies, both requiring urgent action, would be difficult to address even without the constitutional turmoil of Brexit. With 80% of Scotland’s environment law derived from EU law, the UK’s departure from the EU makes these crises even more challenging.

Scottish Environment LINK and its members have engaged with the environmental implications of Brexit since it was announced, seeking to influence the debate in Scotland and engaging in discussions at both UK and EU levels along with partners in Greener UK and the European Environmental Bureau.

Governance gap

A major concern identified by environmental NGOs, and acknowledged by governments across the UK, is the environmental ‘governance gap’ resulting from the UK’s departure from the EU. Regardless of other arguments for or against Brexit, the role of the EU treaties and institutions in protecting the environment is widely recognised.

Court of Justice of the EU. The institutions of the European Union have played a positive role in protecting the environment. Image by Marc Schneider from Pixabay

Our Fight for Scotland’s Nature campaign has been a public expression of this work, calling for legislation to:

  • Embed key EU environmental principles in Scots law;
  • Create an independent and well–resourced watchdog to enforce environmental protections; and
  • Set clear targets for environmental protection alongside adequate financial resources.
The Continuity Bill

Last month, LINK therefore warmly welcomed the introduction of the ‘UK Withdrawal from the European Union (Continuity) (Scotland) Bill’ to Parliament. This bill, which will be considered in detail by MSPs over the late summer and autumn, purports to address the first two of the above issues. On its publication, Michael Russell MSP, the Scottish Government’s ‘Brexit’ Secretary, said:

The Bill’s proposals on environmental principles and governance will also help us to maintain high standards, in line with the EU, in Scotland. … It proposes the creation of a new governance body – Environmental Standards Scotland – which will be able to investigate whether public authorities are failing to comply with environmental law, to take steps to ensure public authorities remedy any failure to comply with environmental law, as well as to investigate the effectiveness and delivery of environmental law by public authorities.

The bill is, therefore, a very welcome and big step forward. It parallels the proposed Environment Bill, currently proceeding through the UK Parliament, which will cover England and (subject to agreement by the devolved Executive) Northern Ireland. Similar measures are under consideration in Wales, although no detailed legislation has yet emerged.

The bill includes three main proposals: a so-called ‘keeping pace’ power, the incorporation of the EU environmental principles into Scots law and the creation of a new governance body, to be called ‘Environmental Standards Scotland’ (ESS). A previous blog provided an overview of the bill, and some immediate thoughts on the proposals for ESS. This more in-depth analysis tests the provisions against the need for new governance, as identified by LINK, including in research commissioned from Professor Campbell Gemmell. Future blogs will look at issues such as the ‘keeping pace’ powers.

When the Scottish Government announced its plan to set up a new watchdog, LINK’s Chair, Charles Dundas, welcomed the proposal but added, summarising the nature of an effective watchdog:

We need a watchdog with teeth: real independence, the power to enforce protections, and the people, expertise and funds to do the job.

These three themes of independence, powers and resources will be used to examine the detail of the proposals in the bill.

Independent, unless it isn’t

In order to ‘replace’ the oversight functions of the European Commission and Court, LINK has consistently argued that any new watchdog(s) must be “truly independent of government” and that, for Scotland, this means ‘it will have to be appointed by and accountable to the Scottish Parliament.’ This view was supported by Professor Gemmell’s research which, based on international examples of environmental governance arrangements, proposed an independent Parliamentary Commissioner for the Environment. Our colleagues at Greener UK have sought similar independence for the UK Government’s proposed watchdog, which will deal with England, probably Northern Ireland, and any reserved matters.

The Fight for Scotland’s Nature campaign has been pushing for an independent, well-resourced watchdog.

However, despite these proposals, neither the UK Government’s proposed “Office for Environmental Protection” (OEP) or the Scottish Government’s proposed ESS are truly independent. When the UK Government’s proposals for the OEP were first published, the Scottish Government was understood to be sceptical at the time– suggesting that a ‘non-departmental public body’ (NDPB) model provided insufficient independence. Yet, this is exactly what is now proposed for the ESS. Both governments have sought to include some reassurances about the independence of what are, otherwise, standard NDPBs – with members appointed by the relevant Ministers and with their budgets decided by those Ministers.

In Scotland, one supposed reassurance of independence provided in the legislation is that ‘Environmental Standards Scotland is not subject to the direction or control of any member of the Scottish Government.’ Yet, this provision is accompanied by an exception that it ‘is subject to any contrary provision in this or any other enactment.’ In other words, it is independent unless it isn’t! This exception should either be deleted or circumstances for its use clearly defined.

Rubber stamping?

The other alleged reassurance is that appointments to the board of ESS must be approved by the Scottish Parliament. This is welcome, but is at risk of being, or becoming, a ‘rubber stamping’ exercise. The bill itself should proscribe greater Parliamentary involvement in the selection process. This might, for instance, include provision for the relevant committee to specify role profiles for board members, or areas of expertise that must be represented. A committee might also nominate ‘rapporteurs’ to be involved in the recruitment/selection process.

LINK is calling for greater parliamentary involvement in the selection process for the ESS board. Image by Waldo Miguez from Pixabay

Future budgets for ESS will significantly define its future effectiveness. Yet, this is purely a matter for Ministers, as part of the normal, annual budget process for the Scottish Government and its agencies. This should be improved to ensure multi-annual, ring-fenced funding that cannot be ‘threatened’ by Ministers. In relation to the OEP, funding was recognised as crucial part of its independence, and UK Ministers have now made additional commitments, such as in their response to pre-legislative scrutiny of Environment Bill. Similar commitments are needed in Scotland.

The UK Environment Bill also requires the OEP to include, in its annual reports, an assessment of whether it has been provided ‘sufficient funds to carry out its purposes’. This allows more transparent scrutiny of ministerial decisions on funding, and such a provision should be added to the Scottish bill.

To address these issues and ensure that ESS is genuinely as independent as possible, the bill should be amended, or Ministers asked, to:

  • Delete the proposed exception to the prohibition on control or direction (Schedule 2, para 1(2)).
  • Enhance parliamentary oversight of appointments.
  • Consider multi-annual, ring-fenced funding arrangements with parliamentary scrutiny separate from the annual budget for the government.
  • Add a requirement for ESS to report on the adequacy of its funding.
International obligations

The general functions of the ESS are wide-ranging and, in principle, very welcome. Its high-level functions are:

  • to monitor compliance with environmental law,
  • to investigate if a public authority is failing (or has failed) to comply with environmental law, and
  • to take the steps to secure compliance with environmental law.

To carry out these broad functions the body then has a range of general and specific powers. The general powers are very wide-ranging and include matters such as ‘carry out or commission research’, ‘seek advice’, ‘review data’ and ‘make recommendations’. It is particularly welcome that they also include:

  • keep under review the implementation of international obligations related to the environment,
  • have regard to developments in international environmental law, and
  • collaborate with other environmental governance body in the UK, including the OEP.

These general powers are all welcome and will, if adequately resourced, make a significant contribution to replacing some roles of the EU institutions. However, if the Scottish Government is serious about ‘keeping pace’ with, and maintaining or exceeding EU standards, the power on developments in international law should specifically require regular reports on, and recommendations in relation to, how this might be achieved. In addition, reviewing ‘international obligations’ will also need to include work and advice on targets (e.g. the Aichi targets and their successors) as well as advice and recommendations to Scottish Ministers on how such targets should be set in Scotland.

These general powers are also accompanied by a variety of specific powers in relation to its investigation and enforcement functions, such as on information collection, improvement, compliance, and the ability to seek Judicial Review. These are also welcome – but, as the bill is currently drafted, they are unnecessarily restricted and will limit their effectiveness.

No individual decisions

First, ESS cannot use its powers related to ‘improvement’ and ‘compliance’ in relation to ‘any decision taken by a public authority in the exercise of its regulatory functions in relation to a particular person or case’. This is an extraordinary limitation of its role, with individual decisions, including casework, excluded from its remit. The Scottish Government attempts to justify this exclusion with a suggestion that that the ESS should focus on strategic issues, and not be overwhelmed by trivial matters. This argument neglects to take account of two factors. First, under current EU arrangements, by failures with individual decisions – and ESS’ internal operating processes could determine that a case, or cases, that raise issues of strategic importance are prioritised or accorded enhanced action. Secondly, these internal processes could also include a system to ensure that genuinely vexatious or trivial cases are not entertained.

It has also been suggested that this provision is because of a wish to ensure that the ESS does not, in effect, become an additional layer of appeal. However, this argument is disingenuous – as there is no doubt that the functions of the European Commission (EC) and the Court of Justice of the EU (CJEU) are (or were), in effect, an additional layer of appeal! If this argument is deployed, it undermines the Scottish Government’s claim to be replacing the functions of the EC/CJEU.

Indeed, casework – arising from complaints submitted by citizens, communities, and NGOs, made up most of the European Commission’s work (although the Commission was selective in choosing cases of strategic importance to pursue through all the stages, or to refer to the CJEU). To anyone from Scotland submitting such complaints, this extra European ‘layer of appeal’ is (or was) of great importance – because opportunities to appeal domestically are limited by poor provisions in relation to access to justice (e.g. Judicial Review in the UK is either prohibitively expensive or inappropriate because of its inability to address the ‘merits’ of the case).

The new watchdog proposed in the Continuity Bill will not be able to investigate complaints about specific, local breaches of environmental standards.

Finally, it should be noted that the proposed OEP will not be so constrained – and, indeed, has a specific ‘complaints’ provision (s.29 of Environment Bill). In Scotland, the ESS’ strategy has to address how it will ‘provide for persons (including members of the public, non-government organisations and other bodies) to make representations to it’ about issues of (alleged) failures to comply with environmental law. However, this seems less clear and specific than the proposed OEP complaints procedure – and there is no duty to investigate such representations (just to indicate how they will be ‘handled’).

Defining environmental law

The second serious limitation on the powers of ESS arises from the definition of ‘environmental law’, which is the legal term used to define all its enforcement powers (although not its research, monitoring and reporting functions). The definition in the Scottish bill is identical to that used in the UK bill and raises the same concerns – the ESS’ general powers in relation to international law are considerably better (see above) but the definition issue is the same.

The Scottish Government has a very welcome policy ‘to maintain or exceed EU standards’ and retain alignment with European and wider international environment law – a commitment the UK Government is unwilling to make (due to its underlying desire to ‘take back control’). Nevertheless, it is unclear whether ‘environmental law’, in this bill, includes such EU/international law that is not (or will not be) binding in domestic law. If not, ESS will be unable to use its specific enforcement powers to take improvement action against the Scottish Government if it fails to live up to its own aspirations. This issue should be clarified, or the bill amended to ensure that it is explicitly within the powers of ESS.

People, expertise, and funds

Any effective watchdog needs the resources to do its job. These include people, expertise, and funds. The bill itself makes no provision, positive or negative, in relation to resources; these will be a matter for the Scottish Government’s annual budget process as well as the decisions of the new body itself. However, the financial memorandum suggests the new body would require ‘funding of around £1.5 million a year, based on the budgets of similar bodies, such as the Office of the Informational (sic) Commissioner and the Scottish Fiscal Commission’. It further suggests that ‘a staff complement of around 20 is envisioned for the new body’.

This may or may not be sufficient funding to enable ESS to do its work – whether or not it is will depend on the number of complaints it receives and/or the number of issues of (alleged) non-compliance it investigates as well as how many of these prove to require enforcement action. At this stage, LINK will press Ministers to provide reassurance that, as these factors become known, resources are made available as required. This process will made more open and transparent if ESS is (as with the OEP) required to report on such matters and the sufficiency of its funding.

Interim arrangements

The UK is expected to leave the EU completely on 31 December 2020, at the end of the current transition period. Ideally, therefore, it would be best if the replacement governance mechanisms were in place and operational from 1 January 2021. While this bill may have been passed by that date, it is unlikely that implementation will be complete – including the establishment and operation of ESS.

There is, therefore, a need for some form of interim arrangements and it is welcome that the bill makes some provision for this. The bill refers to a ‘non-statutory Environmental Standards body’ and permits the members of such a body to become the initial members of ESS. It can thus be assumed that Scottish Ministers will establish this non-statutory body and enable it to begin appointing staff, developing strategy and procedures etc; indeed, recruitment for a chair and board members is now underway.

Such an interim, transitional arrangement is welcome – to limit any ‘governance gap’. However, it is also important (especially as the interim board will become the first formal board) that appointments are carried out adopting as much transparency and parliamentary engagement (see above) as possible. Ministers should also confirm that the interim body will be able to accept and investigate complaints from the public – and that, although formal enforcement action may not be possible until the body is legally vested, that such action will still be valid for issues arising during the interim period.

Delivering a genuine replacement

The Scottish Government is committed ‘to maintain or exceed EU environmental standards.’ Such standards should include the establishment and operation of appropriate governance mechanisms. It is therefore welcome that a new governance body, Environmental Standards Scotland, is being proposed. Cabinet Secretary, Michael Russell MSP, has said that this is beingestablished to replace the system of environmental governance provided by the institutions of the European Union which will be lost at the end of the transition’. It is notable that Mr Russell uses the word ‘replace’, suggesting that ESS should be able to carry out the full range of governance functions of the EU institutions – and to be able to do so as independently as those can at present. To fulfil this pledge and deliver a genuine replacement, the bill should be improved to address issues of independence and breadth of powers. Ministers should also provide reassurance regarding the adequacy of funding – and require ESS to report on its sufficiency.

Lloyd Austin is an honorary fellow of Scottish Environment LINK, and convenes its governance group.

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