Net Zero, Energy and Transport Committee
Membership changes
The membership of the Net Zero, Energy and Transport Committee changed during the course of the Committee's consideration of the Strategic Plan. On 9 November, Ash Regan MSP was appointed to replace Natalie Don MSP as a member of the Committee. The Committee would like to put on record its thanks to Natalie Don MSP for her contribution to scrutiny of the Strategic Plan.
Background
Environmental Standards Scotland is a public sector body, established by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 as a non-ministerial office, independent of Scottish Government and accountable to the Scottish Parliament. ESS is directed by a Chair, a Board of appointed members and a Chief Executive.
ESS was set up in order to prevent gaps in scrutiny and enforcement responsibilities following EU-exit and to ensure environmental laws and standards in Scotland are adhered to and are effective. ESS’s functions, as set out in the 2021 Act, include monitoring and investigating public authorities’ compliance with environmental law, the effectiveness of the law and how it is implemented and applied in Scotland. To perform these duties, ESS has been conferred a range of scrutiny and enforcement powers to compel public authorities to make improvements in order to meet their environmental obligations.
In order to fulfil its statutory requirements as defined in section 22 of the 2021 Act, ESS must prepare and publish a strategy that sets out how it intends to exercise its duties and lay it before the Scottish Parliament for approval. The Scottish Parliament has 40 days from its laying date, not including periods of dissolution or recess exceeding 4 days, to consider a motion on whether it approves the Strategy.
On 30th September, ESS laid its proposed Strategic Plan for the period 2022-25 before the Scottish Parliament. ESS also provided an accompanying statement which is available in Annexe A and a letter from the Chair of ESS to the Convener regarding the laying of the Plan, which is in Annexe B.
The Scottish Parliament designated the Net Zero, Energy and Transport Committee as lead committee to consider the proposed Strategic Plan and report its findings, including whether the plan should be approved.
Under rule 10.10 of the Scottish Parliament's Standing Orders, the Delegated Powers and Law Reform (DPLR) Committee has a formal role in considering any report, guidance, code of practice or other document laid before the Parliament which is subject to any form of Parliamentary control to ensure the appropriate statutory procedures are followed. At its meeting on 25 October 2022, the DPLR Committee considered the Strategic Plan and published a report which indicated no concerns were raised about the proposed plan.
At its meeting on 25 October, the Net Zero, Energy and Transport Committee held an evidence session with representatives of ESS to question them about aspects of the Strategic Plan, prior to reporting on it to Parliament, and to ask how the body intends to undertake its new role. The Committee took evidence from—
Neil Langhorn, Head of Strategy and Analysis;
Jim Martin, Chair; and
Mark Roberts, Chief Executive.
A key consideration of the Committee's scrutiny of the draft plan centred around how ESS will ensure public authorities are compliant with their environmental obligations. The Committee was keen to ascertain under what conditions the body would utilise its broad range of statutory powers such as issuing information and compliance notices or improvement reports, or making an application for judicial review, in order to secure improvements in compliancei.
The Strategic Plan outlines a clear desire from ESS to work constructively with public bodies and seek improvements through informal resolution.ii The Committee was content with ESS's approach to ensuring openness and transparency when seeking informal agreements through its commitment to put all relevant information relating to active and completed investigations in the public domain.i
Equally, in circumstances whereby an informal resolution is not appropriate, or when the nature of the issue is of significant concern and detriment to the public, ESS must act urgently and robustly in order to secure remedial action. To that end, the Committee was encouraged by ESS's clear indication that it will move quickly to using formal powers when appropriate, such as in the case of the improvement report issued on air quality.i
The Committee agrees with the overarching principles outlined by ESS in relation to approaching issues of concern, namely that decisions should be made on a case-by-case basis when determining whether the organisation will seek an informal resolution, or rather will proceed to use its statutory powers in order to secure improvements in compliance.i
A key component of ESS's statutory role is its approach to investigations and the practicalities around how it intends to organise and prioritise its work.
When issues of concern are brought to ESS's attention through a representation or through its own monitoring and analysis network, the strategy outlines that it will undertake a preliminary evidence-gathering exercise in order to better understand the issue.i The Strategic Plan outlines a number of key criteria ESS will look at when determining whether to undertake an investigation immediately—
Importance
Neglect
Added valueii
Neil Langhorn said—
For a representation that comes to us, we set out in the strategic plan a set of criteria that we will consider that against. Those criteria are focused on the seriousness of the issue, its potential impact, the risk of that impact and the urgency with which action needs to be taken. We will also consider whether other bodies, such as a scrutiny body or another regulator, are already taking or could take action. Through that triage process, we will decide whether we urgently need to address the issue and move to investigation.iii
The Committee is broadly supportive of this approach which should allow the organisation to focus its contribution and resources in areas where it can make the most impact.
The Committee notes there are aspects of environmental protection and standards which ESS deems outwith its remit. For example, the organisation stated it would not involve itself in the decision making of public authorities in areas such as planning, although it did say it would look holistically at these issues if they identify problems emerging across the board.iii
ESS has a statutory duty to monitor the quality of the environment in Scotland and the performance of public authoritiesi. This includes overseeing the Scottish Government's implementation of international obligations of the UK relating to environmental law as well as whether Scotland is ‘keeping pace’ with environmental standards in the European Unionii.
ESS's vision is to show international leadership in its monitoring and analysis work by building a robust structure to effectively evaluate environmental performance across the public sector landscape.iii This demonstrates ESS understands the significance of its role in securing the highest standards and effectiveness of environmental law and is serious about protecting and improving the environment in Scotland.
ESS told the Committee that, in order to effectively perform its keeping pace responsibility, ESS faces a significant challenge in monitoring all developments in environmental legislation occurring at a European level.iii However, the Committee is encouraged by the steps ESS has already taken to embed keeping pace as a key consideration across all strategic and operational matters of the organisation, including assessing the scope for appointing external expertise on the organisation's sub-committee advisory panel to support its horizon-scanning work.iii
ESS also informed the Committee it has been making progress with developing its network for accessing information and expertise on environmental law through its work to open up dialogue with institutions and agencies at a European and international leveliii. For example, ESS has recently became a member of Scotland Europa, which will provide the organisation access to a policy community with valuable insight into legislative development within a European context.iii
The Strategic Plan outlines ESS's desire to engage widely with a range of public bodies, stakeholders and groups to ensure its new role is understood across all areas of public life.i In doing so, ESS can avoid duplication of work with other environmental bodies, whilst also ensuring anyone who would like to make a representation with ESS knows how to do so and can easily access their servicesii.
The Committee notes ESS has already been engaging with advisory and expert bodies, such as the Climate Change Committee and the Joint Nature Conservation Committee.iii Furthermore, the Committee also heard evidence that ESS has been seeking to aid co-operation with its counterparts across the UK through signing a Memorandum of Understanding with the Office for Environmental Protection and Interim Environmental Protection Assessor for Wales.iv
As an independent, non-ministerial office of the Scottish Government, ESS is fully accountable to the Scottish Parliament and has a legal duty to produce an annual report to outline its activities. The Committee was encouraged to hear that ESS views its relationship with Parliament as important, and key to the organisation adhering to its principles of being open and transparent in its work.
The Committee invited Chair Jim Martin to outlined his views on how ESS sees its relationship with the Committee operating in practice. He said—
I see our relationship with the committee as being a productive one. I do not see us being an investigative arm of the committee—I need to say that very clearly.
The Committee welcomes ESS's commitment to provide regular updates on its work programme to ensure effective scrutiny can be undertaken, and the Committee looks forward to working collaboratively with ESS on areas of mutual interest pertaining to environmental standards and regulations in Scotland.iv
The Strategic Plan outlines a 'logic model' through which ESS intends to assess its performance as an organisation, through which the organisation aims to achieve successful outcomes, deliver good value for money and measure its impact as an organisation.i
The Committee asked Mark Roberts, Chief Executive of ESS, for his views on what ESS would look like as a high performing organisation. Mr Roberts said—
I think that a high-performing ESS will be an organisation that achieves what we have set out to do in our strategic plan, which is to ensure that we have a system of environmental law that actively protects and, ideally, improves the environment. Ultimately, that is the goal that we want to achieve. If we are able to contribute to that, it will, in part, demonstrate that we are a high-performing organisation. It is also really important that we are seen by the public to be responsive to their concerns. That public assessment and view of us is important.ii
The Committee notes that ESS has conducted a series of Baseline Evidence Reviews which outline performance and progress towards relevant targets in areas of environmental standards in order to identify the ESS's key priorities during the next three years and to also act as a benchmark for the organisation to measure its impact against.iii
On budgetary matters, ESS states it is committed to deliver high-quality service within the budget it has been allocated. The Committee notes ESS has implemented a financial framework for managing budgetary decision-making to ensure it is operating efficiently.
At this early stage, there is some ambiguity as to what level of resource ESS will require to operate effectively in the longer term as the level of demand for its services becomes clearer. However, ESS told the Committee it intends to work with the Scottish Government to ensure the organisation has adequate staffing and resources to undertake its functions effectively.ii The Committee further notes the statutory requirement that Scottish Ministers "must seek to ensure that the amount of resources allocated for use by Environmental Standards Scotland is reasonably sufficient to enable it to perform its functions."
The Committee recommends that the proposed ESS Strategic Plan 2022-25 be approved by the Scottish Parliament.
Environmental Standards Scotland – Strategic Plan – Accompanying Statement
Introduction
This statement accompanies the Strategic Plan that ESS has laid in the Parliament today in compliance with the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. It has been prepared to meet the requirement specified in section 2(4) of Schedule 2 of the Continuity Act and provides information about:
How Environmental Standards Scotland (ESS) consulted on a draft strategy (henceforth referred to as a Strategic Plan);
The views expressed in response to the consultation; and
How those views were taken into account in preparing the Strategic Plan that has been laid before the Parliament.
ESS published an Interim Strategic Plan on 1 October 2021. The Interim Strategic Plan sets out how ESS intends to carry out its role until a final Strategic Plan is approved by the Scottish Parliament.
ESS published a draft Strategic Plan for consultation on 25 May 2022 and invited responses by midnight on 17 August 2022. Responses were invited via Citizen Space, via email, or in writing. Details of the consultation and an invitation to respond were sent directly to a wide range of stakeholders, including:
Consultation details
all public authorities in relation to whom ESS has functions under the Continuity Act; and
a wide range of organisations in the public, private and third sector with an interest in the work of ESS.
Details of the consultation and how to respond were also promoted to the general public through social media and on the ESS website. In addition, ESS hosted a number of public online information sessions to explain the consultation process and what was in the draft Strategic Plan, and to provide an opportunity for attendees to ask questions. These included:
A general information session on 9 June 2022, which was attended by 21 people;
A general information session on 15 June 2022, which was attended by 14 people;
A session focused on the proposed analytical priorities within the draft Strategic Plan on 30 June 2022, which was attended by 23 people; and
A session for representatives of businesses interested in the work of ESS on 27 July 2022, which was attended by 15 people.
Furthermore, ESS offered to attend meetings hosted by other organisations to present details of the draft Strategic Plan and the consultation process. The following organisations took up this offer:
Scotland Europa and the Scottish Government’s EU Office on 20 June 2022;
The United Kingdom Environmental Law Society on 29 June 2022;
The Law Society of Scotland on 20 July 2022;
The Environmental Rights Centre for Scotland on 21July 2022;
Historic Environment Scotland on 25 July 2022;
The Association of Environmental Clerks of Work on 25 July 2022; and
The Board of the Scottish Environment Protection Agency on 26 July 2022.
Summary of views expressed in the consultation
ESS received forty responses to the consultation. (nine from individuals and 31 from organisations). These have been published on Citizen Space (where permission to publish was given by the respondent) and can be read at: Environmental Standards Scotland - draft strategic plan - published responses
ESS commissioned an independent summary of the consultation responses from the James Hutton Institute. This has been published alongside the Strategic Plan and this statement on ESS’ website. The executive summary states: Respondents welcomed the establishment of ESS, and there was broad support for the aims and level of ambition set out in the Strategic Plan. A range of suggestions to enhance or strengthen the Plan and its contents were made, and respondents also sought clarification about some of the terminology used, to provide more information about how ESS will undertake its responsibilities. The suggestions and observations raised cover a wide range of themes in response to specific questions raised by ESS about the content and intent contained in the Strategic Plan. A number of broad themes were present across the responses, of which the most common are summarised below.
Organisations and individuals welcomed the establishment of ESS and expressed willingness to support the activities of ESS through active collaboration and partnership working. Respondents reflected on the limited resources available to ESS and supported the prioritisation of issues within the capacity of the organisation and emphasised effective partnership working to manage the challenges of limited capacity.
While respondents generally reflected positively on the inclusion of collaboration in the Strategic Plan, there were also indications of concern surrounding the duplication of efforts due to similarities between ESS and other organisations as well as the risk of public confusion regarding the remit of ESS. Relationship mapping and clear indication of remits and responsibilities across organisations were just some suggestions among many to address such concerns.
Several respondents emphasised the need to include the biodiversity and climate crises as a critical backdrop to the work of ESS. Respondents sought further reference to environmental improvement and protection as a priority and intended outcome of the organisation’s work.
Respondents highlighted questions regarding how ESS might work to ensure compliance with environmental law as well as to identify areas where environmental law may need to be strengthened, or where ESS’s remit may extend to areas beyond environmental law and policy but which still impact the environment and its condition.
There was a substantial level of support for ESS’s commitment to transparency and openness. Respondents sought clarification on how transparency will be implemented in practice, while also ensuring fairness to those being investigated.
Respondents requested clarity about how ESS will become accessible to the public for raising concerns or representations, and how those making representations will be kept informed of progress. ESS was encouraged to work to reduce the institutional, social and cultural barriers experienced by marginalised groups to engaging in the work of ESS.
A strong level of support was indicated for the adoption of informal investigations and resolutions, alongside requests for clarity on how the informal approach will be made transparent and the point at which the resolutions will be escalated to the formal approach.
Respondents raised questions about the resourcing issues faced by public and other bodies, and the increase in resource requirements that the work of ESS will likely place on them through its role to regulate and scrutinise their work.
Some respondents expressed support for ESS to have the ability to raise resource concerns as part of their reporting. Similarly, respondents raised concerns about the potential level of expectation placed on ESS and its own resources to manage a broad and crucial remit. Respondents emphasised that ESS should provide support and assist with securing resources to facilitate public authorities’ compliance with environmental law.
Overall, respondents welcomed the important role ESS will assume in upholding and improving environmental law and asserted hopes that ESS would help Scotland establish more ambitious, internationally recognised, environmental standards. While many of the approaches, values and commitments outlined in the draft Strategic Plan were met with support, respondents gave numerous suggestions to strengthen the existing plan, with emphasis on transparency, communication, partnership working, and environmental protection. It was understood that ESS is a new organisation, with this in mind respondents asserted that ESS must maintain a clear sense of purpose to function effectively and drive forward environmental standards in Scotland.
Summary of how views expressed have been taken into account in preparing the Strategic Plan laid before the Parliament
The following changes have been made to the Strategic Plan that has now been laid before Parliament:
In response to suggestions for additions and changes to the Vision, Mission Statement, Values and Principles, minor additions and changes have been made to make clearer our aims and ambition. In particular, reference to ‘people’ and ‘nature’ have been added to the Vision, and ‘nature’ to the mission Statement. These reflect respondents views on ESS being inclusive, and ensuring that the biodiversity crisis is acknowledged more clearly alongside the climate crisis.
In response to suggestions for changes to the Strategic Outcomes, minor adjustments to the text have been made.
In response to requests for clarity over whether ESS would focus only on ensuring compliance with existing laws, the Strategic Plan has been updated to make clear that identifying gaps or shortcomings in environmental law and policy will also form part of the organisation’s role.
In response to requests for clarification of ESS’ approach to informal resolution, the text in section 4 has been updated to make clear that ESS will publish details of all issues resolved informally on our website. The first example of this on the use of Acoustic Deterrent Devices is now available at: Investigations - Environmental Standards Scotland
In response to comments about the criteria for, and circumstances in which, ESS will seek a Judicial Review, the text has been revised to make clearer ESS’ intent. Furthermore, in response to a number of comments concerning the specific use of the term “negligence” the text has been redrafted to replace that specific wording.
In response to requests for more detail and/or clarification about ESS’ proposed approach to investigations and use of our formal enforcement powers, the text has been updated to make clearer ESS’ intentions. Further details on the approach will also be made available on ESS’ website.
In response to a number of comments and queries about the criteria for prioritising and selecting issues for investigation, the text has been redrafted to make this aspect of the Strategic Plan clearer.
In response to some concerns and requests for clarification about when and how ESS will engage with public authorities informally, the text in the Strategic Plan has been revised to re-emphasise a commitment to engaging informally to try to achieve swift resolution wherever possible.
In response to comments about ESS’ proposed approach to the use of information notices, the text has been updated to make clearer the approach to confirm that ESS will always engage with public authorities informally before issuing an information notice. This will provide an opportunity for the authority to highlight any difficulties that they anticipate in providing the information sought and/or to clarify the scope of the request.
In response to comments on the categories proposed for organising ESS’ work to monitor and analyse environmental progress in Scotland, some minor changes have been made to the nomenclature used and emphasis has also been placed on the interdependencies between the categories. In addition, further details about the proposed approach to monitoring and analysis, and a forward work programme, will be published on ESS’ website.
In response to requests for clarity on the extent to which ESS will consider cultural heritage within its remit, adjustments to the text have been made to confirm that concerns about cultural heritage (including landscape) are within the organisation’s remit, and could be considered for analysis or investigation if they were considered a high enough priority.
In response to requests for more detail and clarification on how ESS will avoid overlap with a range of different organisations, further text has been added about the different types of relationships envisaged. A diagram has also been added to illustrate the different types of organisations and relationships involved.
In response to queries and requests for clarification on how ESS will update people about cases under consideration and what information can be published (given the restrictions placed on ESS by the Continuity Act and other legislation), references to our service standards and the limitations on what can be published have been added.
In response to requests to make the process for raising representations as accessible as possible, the text has been updated to confirm ESS’ commitment to this. In addition, text has been added to emphasise ESS’ intention to proactively engage with disadvantaged and/or under-represented communities to ensure that its role is understood and that groups are able to raise concerns.
In response to various comments about the resourcing pressures on ESS and public authorities in the current fiscal environment, the text has been amended to emphasise the need for ESS to retain flexibility in the deployment of staff and financial resources. A clearer reference to ESS’ commitment to diversity and equality among staff recruitment and development has also been added. In relation to resourcing pressures on public authorities under ESS’ scrutiny, the Continuity Act is clear that finance or budgets are excluded from the definition of “Environmental Law”. However, ESS may comment on resourcing issues when examining compliance or the effectiveness of how environmental law is being implemented or applied.
In response to queries about budgeting and financial reporting, an update on ESS’ audit plans and a commitment to assess the process of establishing ESS and key procedures and processes has been included in the plan.
In response to a range of comments and queries on ESS’ approach to measuring performance, the text in the Strategic Plan has been redrafted to ensure that it adequately describes the proposed approach, including the use of both quantitative and qualitative measures. There was broad support for the logic model approach proposed, but further work has been undertaken to develop and finalise the indicators that will be used by ESS to report progress in the organisation’s annual reports to the Parliament. Further details on the methodology and definitions to be used for each indicator will be published on the ESS website.
In response to concerns about the potential resource implications for public authorities of enhanced levels of scrutiny by ESS (in comparison with the European Commission), the Strategic Plan has been updated to emphasise the organisations commitment to resolving issues swiftly wherever possible. It has been concluded that no further impact assessments are required at this time. ESS will continue to monitor and seek feedback on the implementation of the Strategic Plan and to consider the potential impact on businesses, equality groups and the environment.
Finally, in response to a number of queries about certain phrases used in the draft Strategic Plan, some additions have been made to the glossary to clarify and define them, where relevant via reference to the provisions of the Continuity Act.
Various other changes have been made to the text of the Strategic Plan to reflect minor points of clarification or correction raised by consultees.
Conclusion
This statement provides details of:
How Environmental Standards Scotland (ESS) undertook consultation on its draft Strategic Plan;
What views were expressed in response to the consultation; and
How those views were taken into account in preparing the Strategic Plan that has been laid before the Parliament.
ESS looks forward to Parliamentary scrutiny of the Strategic Plan and would be happy to provide further details to support its consideration.
Environmental Standards Scotland
Letter to the Net Zero, Energy and Transport Committee from Jim Martin, Chair of Environmental Standards Scotland
Dear Mr Mountain,
It continues to be an exciting week for Environmental Standards Scotland, and following my letter to you yesterday regarding our first Improvement Report I am delighted to write that this morning ESS laid our proposed Strategic Plan before the Scottish Parliament for approval, as required by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.
The proposed strategic plan has been redrafted to take into account the comments we received through the consultation that we carried out over the summer. The proposed plan is also accompanied by a statement to Parliament, setting out a summary of the views expressed in the consultation and how they were reflected in the plan.
The Continuity Act includes a period for parliamentary approval of the proposed strategic plan of up to 40 days and I look forward to the committee’s consideration of it.
Yours sincerely
Jim Martin
Chair, Environmental Standards Scotland