Official Report 812KB pdf
Agenda item 2 is an evidence-taking session on environmental governance. The committee has previously taken evidence on this matter in relation to the Scottish Government’s environmental governance arrangements report, which was published back in June 2023. The Scottish Government has now consulted on those arrangements, and it submitted a statement to Parliament on 19 November, outlining the consultation process, summarising the responses and presenting ministers’ recommendations. In our evidence session today, we will explore environmental governance further in light of that statement.
I am pleased to welcome to the meeting Gillian Martin, Acting Cabinet Secretary for Net Zero and Energy, and, from the Scottish Government, Tim Ellis, deputy director of future environment, and Charles Stewart Roper, head of environment strategy and governance unit. We will move straight to questions from the committee, and I will get us started.
The Government’s statement on environmental governance in November recognises that there are issues with the operation of such governance at present, particularly when it comes to access to justice. However, it appears from the outcome of the review process that little has been given in the way of options to address what seems to be a gap with regard to environmental governance and access to justice. Can you explain to the committee why, now that the issue has been identified, there appears to have been a lack of action in addressing it?
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.
Notwithstanding whether you think that there is a gap in governance, it would be fair to say that the review identified issues with governance in environmental matters and with access to justice in itself. On the basis of what you have said about the changes to access to justice arrangements that are being made, alongside ESS’s powers, are you satisfied that the existing governance arrangements are adequate? The review suggests that there could be further engagement to look at areas in which improvements could be made. If there is a need for further engagement, are there areas that you think should be prioritised?
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.
Cabinet secretary, you mentioned earlier that your colleague Siobhian Brown is looking at access to justice. Today is international human rights day. The 2023 review said that human rights legislation, which could act as a mechanism to improve access to justice, was forthcoming and that it would include a right to a healthy environment. Now that the proposed human rights bill is not going to be introduced in the current parliamentary session, are there other ways in which improvements can be made to access to justice? Is that some of the work that Ms Brown is carrying out? How does the Government intend to continue to update the committee and the Parliament on that issue?
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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.
On the access to justice issue, is Siobhian Brown, who is working on it, taking advice from ESS and others about their knowledge of folk or groups who might have difficulty accessing justice through the courts?
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.
Convener, I have not seen the evidence that was given to the Equalities, Human Rights and Civil Justice Committee, so could we ask the cabinet secretary to get an update, through her good offices, on where that stands? That would be of great interest to us all.
Yes, I am happy for us to take that forward, if the cabinet secretary can arrange for that to be provided to the committee.
We have moved on to a theme that other members are interested in, so I invite Monica Lennon to raise her points now.
Good morning. Some important issues have been raised, and it is human rights day, so these discussions are timely. I appreciate that people across Scotland might not know what the Aarhus convention is. To recap, it is about protecting every person’s right to live in a healthy environment, and it guarantees the public three key rights on environmental issues, which are access to information, public participation and access to justice. We know that those things are important.
We also know that the EU and its 27 member states are all parties to the Aarhus convention, and the policy of this Government is to align with EU law and to keep pace with developments. Cabinet secretary, you said that the Scottish Government is looking at compliance with the Aarhus convention. Why is the convention not something that the Scottish Government absolutely wants to sign up to, given the well-established policy of keeping pace with the EU and taking such international treaties very seriously?
Siobhian Brown has said that we are actively putting things in place to comply with the convention. As I said, we are not compelled to sign up to the convention, because we are not an independent state and we are not a member of the EU. However, Monica Lennon is absolutely right that we want to keep pace with standards in the EU, including environmental standards, but, in rights terms—
Just to be clear, is it the Government’s position that it is working towards compliance with the Aarhus convention?
Yes, and Siobhian Brown is leading on that. I will provide more detail on access to justice. In case I did not make this clear earlier, Ms Brown has introduced an exemption for court fees for Aarhus cases. That is in addition to the protective expenses order system, because that can restrict applicants’ liability in such cases. Under the PEO regime, the applicant’s liability in expenses is limited to £5,000, and the respondent’s liability to the applicant is limited to £30,000. The Scottish Civil Justice Council has undertaken a review of the protective expenses order regime and will be consulting on the proposal to extend PEO for certain relevant litigation in the sheriff court, too.
Those are some of the measures that Ms Brown has been actively working on in order to improve access to justice. That is separate from what she is doing in relation to her review of legal aid. That has already been done in relation to Aarhus cases. In the past couple of weeks, she has made public statements to say that she is now reviewing access to legal aid as well. That will weave in with her work on compliance with Aarhus.
The primary aim of the human rights bill was to embed a human rights culture in public bodies. Getting it right first time is better than having to take public bodies to court.
I come back to where Environmental Standards Scotland fits in. It works with public bodies to prevent a situation in which someone might feel that they have to go down a legal route. The most important thing is getting a result—an improvement in environmental standards. There should be proactive improvements in the work that Environmental Standards Scotland does in scrutinising how things are working—whether in Government, local authorities or other public bodies—but also a response to consistent issues in a particular area as a result of non-compliance with existing environmental law. It will go in and can issue improvement reports and compliance notices. That ability to prevent things getting to a legal situation is critical.
It is reassuring to hear about the work that is going on in Government, particularly in the community safety minister’s portfolio. However, many stakeholders and communities feel frustrated and perhaps do not feel reassured, because they do not see action and outcomes happening quickly enough—there is lots of reviewing and lots of work, but nothing substantially changes.
The UK is a party to the Aarhus convention, and the Scottish Government has a responsibility to implement the convention in devolved areas. Even if the UK Government is taking longer, is it a priority for the Scottish Government? Given that the human rights bill—which we hoped would have included the right to a healthy environment—is not going ahead as planned, will that right be included in any other Government bill, such as the natural environment bill? Is there a way to tie that together? Obviously, that is really important. If it is not done in this parliamentary session, who knows what will happen next time around.
It is important to mention that the human rights bill would not have included absolutely everything that would have got us to compliance with Aarhus. Access to justice has a financial aspect. Having access to a court involves not just the existence of that court or process but the costs that are associated with going through that process. That is why Siobhian Brown prioritised the caps to the expenses that are associated with that, which you have mentioned as a crucial step in access to justice.
Convener, I have a final question, because I know—
I am sorry, but may I finish my point, Ms Lennon?
Yes. Sorry.
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.
I have a final question on that. The right to a clean, healthy and sustainable environment does not automatically unlock a door to environmental justice. What would be the benefit of having those rights enshrined in Scotland? What would it mean to communities? What is the Government’s understanding of that? What difference would it make?
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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.
Cabinet secretary, before I bring in Douglas Lumsden, I note that both you and Monica Lennon mentioned that a natural environment bill is to be introduced. In the consultation on that, an independent monitoring body was suggested. Do you envisage that that body would be Environmental Standards Scotland?
That is really for Parliament to decide. ESS is doing a strategic review, and it is not for the Government to dictate what its strategy should be or what its review should include because, as I said, it is completely independent of Government. It is answerable to Parliament and, indeed, to this committee.
If ESS comes forward with recommendations on expansion of its remit, the law under which to set them up would be the 2021 act. ESS has a lot of flexibility within that act in relation to its role. When ESS reports on its strategic review it will, I presume, bring that to the committee. Obviously, it will copy in ministers as well, but it does not report to ministers. I will be very interested to see what its strategic review includes and what direction it wants to move in.
If ESS wanted an independent review body, which it might suggest, I do not know whether it could fulfil that role itself. That would be up to ESS. Obviously, Parliament will scrutinise any proposal and come to a decision.
I take it from that that you do not, at this stage, know who would fulfil that role. However, it is in the Government’s consultation—it is a proposal from the Government.
It would make sense for the role to be fulfilled by Environmental Standards Scotland.
Okay. Douglas Lumsden is next.
Cabinet secretary, stakeholders were critical of the scope of the review. Scottish Environment LINK said that it was
“a missed opportunity to examine the environmental governance gaps”.
The Environmental Rights Centre for Scotland said:
“The Report is superficial in its analysis, narrow in scope, and appears pre-determined in its conclusions.”
Professor Sarah Henry said that the review was “narrow” and could have been more ambitious. Do you accept that the review could have been wider in scope and could have included more analysis?
I do not accept that, because the review covered all the matters that are required by the 2021 act. It set out a clear overview of the policy on environmental governance. It recognised the strengths that exist and the balance of parliamentary, administrative and judicial roles in decision making on environmental matters.
We do not consider that our review was not expansive enough to comply with the environmental governance requirements that are set out in the 2021 act. It not only explicitly covered matters that are required under section 41, but went beyond those requirements and provided an overview on wider issues of environmental governance that stakeholders had raised with the Government. I do not accept those criticisms about the scope of the review.
The sense that I get is that certain stakeholders wanted us to consider the setting up of an environmental court as part of the review, which seems to be the driver behind those views, particularly from non-governmental organisations. However, the Government has decided that there is no need for an environmental court.
The stakeholders were quite critical. They want the Government to be more ambitious. How do we take that forward? Is that part of ESS’s forthcoming strategic plan? How will we progress some of those things?
ESS’s strategic review is part of that: it is completely independent of the Government, and ESS will report to the committee and to Parliament. It will assess whether there are gaps, and whether it thinks that it can expand its remit within the bounds of the 2021 act. I am open to having those discussions.
Of course we will have those discussions, but it is really for ESS and for Parliament to look at the 2021 act, which sets out ESS’s parameters. There is quite a lot of scope under the 2021 act. ESS is a young organisation—it has been operational for only a few years. It is only right that it reviews what it has been doing and what more it could perhaps do. It would then be for the committee and Parliament to decide whether to accept its recommendations. Whatever ESS wants to do within the parameters of the 2021 act is entirely within its gift.
It would be at that stage that we would look at the powers of ESS and then decide where we want to go.
Yes. There is certainly scope in the legislation for ESS potentially to do more. I really look forward to seeing what its review comes up with. If it thinks that there are areas in which it can do more, and those fall within the powers of the current legislation, it will be up to Parliament to scrutinise that and to ask it questions about what it would do.
I guess that, if ESS feels that it could do more and that enabling that would require more legislation, it would be up to the Government to introduce legislation to allow that to happen.
It is also very much the role of this committee to recommend things that should be done.
I want to ask about Aarhus convention compliance. Is there any sanction for not meeting the terms of that important international agreement? The Government was not in compliance in October. I think that that was the most recent deadline that passed. What happens now, as a result? Is it just a bit embarrassing, or do you work towards some strict monitoring deadline that is enforceable through the convention? Will you explain to me how that works, because—
I will try to.
—it feels like we are edging along towards trying to meet the terms of that important environmental international convention. Ultimately, what is the sanction on the Government for not doing so?
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.
Would it be helpful if I explained what is happening a little bit?
Could you?
The Aarhus convention compliance committee has produced some recommendations that are directed at the UK Government, as the constituent party to the convention. The UK Government has replied and produced a report, which it recently sent back to that committee. However, because of the UK general election, it was given a bit of an extension to do that.
The position now is that the response from the UK Government, which covers Scotland as well, is back with the ACCC, which is taking evidence on the response from stakeholders, including in Scotland. The ACCC will then produce views on what it considers should happen next.
I understand that the UK Government published its report and response last month.
That is correct.
Has the Scottish Government given the ACCC a date—by the end of this parliamentary session, the end of this year or the middle of next year, for example? I understand that the Scottish Government is nestled within the UK, as the signatory state, but what is the Scottish Government’s commitment to meeting the terms of the convention? Have you given a date for when that will happen?
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.
That is fine.
The UK’s final progress report was submitted in November, and that included various areas of compliance. It is not just on one particular point; the ACCC has made four or five recommendations, and there are different provisions in relation to each of those. Some relate to things such as the protective expenses order, which the cabinet secretary has already referred to, and others refer to other aspects. Therefore, it is not about our being compliant by a single point in time: it is about the things that we are doing that we believe are taking us towards compliance.
Does that mean that there are four or five dates?
No—there are four or five areas.
Is there a time horizon, rather than a date, by which you expect to be in compliance with that important international treaty on the environment?
The report back to the compliance committee sets out the work that we are doing. We hope that that will meet the committee’s concerns, but we wait to see whether it has, in fact, allayed them. In some cases, we—
Okay—there is no fixed date, but there is a kind of work plan.
The concerns in relation to Scotland were mainly around cost caps. I have outlined how Siobhian Brown has introduced measures to put cost caps in place, because that was the biggest barrier to justice in this area. That has already been done in the areas that I have outlined in order to protect people from runaway legal costs. As I said, there is also the work that she is doing on access to legal aid, which I am hopeful will further enhance that work.
If there is a date for that, it would be useful for this committee and the compliance committee to know what it is.
The report to the protective Aarhus committee anticipated that the next consultation on court fees will take place during 2025.
Right. What about the outcome of that?
That will be for the courts to take forward.
Okay—I think that we have done that question. Great.
I want to return to an issue that we talked about a lot in the predecessor committee when the UK Withdrawal from the European Union (Continuity) (Scotland) Bill was going through Parliament: that is ESS’s role in relation to individual cases. There is a slight difference in the way that that has landed. The Office for Environmental Protection in England has the ability to investigate individual cases, but we still do not have that in ESS’s role. You advised ESS
“that it should give further consideration to the conditions where it would be appropriate to investigate the individual circumstances of a local area”.
It sounds to me as though you are giving ESS, even within the context of the 2021 act as it stands, a bit of a nudge towards something.
Have you anything more to say about how you define that? It is an area that NGOs and communities are interested in. Part of the context is that not everybody will have an environmental issue that is replicable in other areas of Scotland. One of ESS’s first cases was to look at acoustic deterrent devices at fish farms. That was an issue from around the coast of Scotland in which various communities were concerned. However, I guess that not every community will have an issue that is replicable—it might have more of a stand-alone individual case.
I am trying to read into that comment from the Government what you would like ESS to explore and where we might end up after that strategic review.
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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.
I understand that, and I presume that the right to appeal will be with the regulator, if there is an environmental issue. I am interested in a situation in which there might be a very localised case—it might be the only case in Scotland—of a pollution incident, for example. There might not be a way to adequately seek justice in that case and the case might point to the need for a change in the law, or for the regulatory body to regulate in a different way from how it currently discharges its duties. ESS might have gone through the complaints process with the regulatory body and not got anywhere, so it might think that it could look at whether the body is regulating effectively and whether there needs to be a change in the law. Is that not a difficult decision for ESS to make right now? It would still just be one case. Where is the discretion in 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.
One aspect of Aarhus compliance involves the ability of citizens to challenge not only a decision-making procedure that they believe was inadequate, but the merit of the decision. That is something that we do not really have. The convention talks about
“the substantive and procedural legality”
of environmental decisions. At the moment—this is the case with fracking and some other environmental issues—environmental non-governmental organisations can take bodies to court when they believe that they have not followed an adequate procedure, but they cannot challenge the substance of the decision. For example, they cannot say that a decision is not great in relation to our legal obligations around climate change. As long as the procedure that a minister or a body goes through to get to that decision is procedurally correct, there is no issue for the courts to consider.
Where does the Government sit on that issue? It would be quite a move to enable people to challenge a decision based on the merits of the decision, and not just on the procedure. I would be interested to hear your views on 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 know that we are discussing licensing this morning, but I will bring my question down to a specific issue. Do you think that the Supreme Court’s recent decision on Rosebank starts to move into the area of concern about the merit of a particular decision rather than the procedural aspect of it?
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.
You have suggested that the Government could have concerns about the establishment of an environmental court, because it could be disruptive—I think that that is what you said—to actions that we need to take in relation to delivering net zero by 2045. I suppose that Mr Lumsden might want to take the Government to court over its decisions on pylon lines or whatever.
Could you expand on that issue? What is the underlying concern? Is it about environmental NGOs possibly challenging offshore wind farms, such as the Berwick Bank project, about which there is concern at the moment? There have been concerns about other such projects in the past. Is the Government hesitating on the issues because there is fear that some of the tensions around environmental mitigation and impact could result in lengthy delays to some of the good stuff that it needs to do around net zero?
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.
I have a broader question about the 2021 act, which has been referred to in today’s evidence. That act does not require us to align with EU environmental regulations, but my recollection is that the Scottish Government’s stated position at the time was that it would continue aligning with those regulations, largely because there was concern about a potential rowing back on environmental standards. Is it still the Scottish Government’s stated position that we will align with EU environmental regulations and standards?
The position is still that we will align, where that is appropriate. As you know, Angus Robertson gave a statement to Parliament in October on the current status of EU legislation—he might even have written to the committee about it. I think that he gives an annual report to Parliament about where we are keeping pace with European legislation and regulations and what we are working on. Keeping pace with EU standards, particularly on the environment, is a consistent goal for the Scottish Government.
When the UK decision to exit the EU—which we did not want to do—was taken, there was huge concern that there would be a rowing back on environmental protections. We stated very early on that we wanted to keep pace in order to protect Scotland from any potential UK Government that wanted to row back from those protections.
It is helpful to note that the unqualified position of the Scottish Government is that it will align with environmental regulations or standards that are set by the EU for its member states.
Absolutely.
That is very helpful.
I thank the cabinet secretary and her officials for attending today, which has been very helpful. The committee will consider the evidence in private later and will consider next steps.
I suspend the meeting to allow for a changeover of witnesses, and intend to restart the meeting at 10.25.
We are slightly ahead of schedule, but that will allow us to ensure that the next group of witnesses is here.
10:13 Meeting suspended.