Official Report 557KB pdf
Environmental Standards Scotland Strategy 2026-2031 (ESS/2026/01)
Welcome back to this meeting of the Net Zero, Energy and Transport Committee.
The fourth item on our agenda is consideration of Environmental Standards Scotland’s proposed strategy for 2026 to 2031, which has been laid before Parliament under the procedure set out in the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. Environmental Standards Scotland is the independent body established under that act to monitor compliance with, and the effectiveness of, environmental law in Scotland.
The document is a revised version of ESS’s original strategy, which was first published in 2022, and it sets out how the organisation intends to exercise its functions over the period from 2026 to 2031. An earlier version of the revised strategy was laid last year, but it was subsequently withdrawn following consideration by the Delegated Powers and Law Reform Committee, which identified that certain information required by the parent act did not appear to have been fully reflected in the document. A revised version was laid on 5 February, and I note that the Delegated Powers and Law Reform Committee has reported that it has no recommendations to make.
This morning, the committee will take evidence from representatives of ESS before deciding whether it wishes to make any recommendations to the Parliament. If members have no concerns, the committee may simply note the document.
I welcome to the meeting Dr Richard Dixon, chair; Mark Roberts, chief executive; and Neil Langhorn, head of strategy and analysis, all from Environmental Standards Scotland. Thank you for attending this morning. Richard, I think that you want to make an opening statement.
Yes, please. Thank you for giving us the chance to come and talk about our new Environmental Standards Scotland strategy, which will cover the next five years.
The strategy builds on our successful four and a half years of operation, and it takes us into a period of change in which we will be absorbing two new scrutiny functions—one on nature targets and the other on the climate duties of local authorities and how they perform them. We will, of course, be accountable to a new Parliament soon, with new members, new committees and a new set of legislative priorities.
Our new strategy puts us in a strong position to deliver over the coming five years. We will continue to ensure that public bodies in Scotland comply with and effectively implement environmental law, and we will build on our achievements since we formally came into being, in October 2021, as a non-ministerial office answerable to this Parliament.
Our work is resulting in real change. For example, our investigations have led to increased support for local authorities in meeting their climate change duties and full implementation of the Ramsar convention to safeguard Scotland’s internationally important wetlands, and our findings on incineration have helped to prevent overreliance on that method of waste management.
You will be familiar with our recent report on storm overflows, which is being taken forward by Scottish Water, the Scottish Environment Protection Agency and the Scottish Government. As in every case when we have agreed action with a public body or a group of bodies, we will continue to monitor progress, scrutinise the implementation of our recommendations and hold those bodies to account.
We have also recently made recommendations on topics as diverse as improving air quality, reducing marine litter, protecting soils and eliminating non-native species, which will all make a difference to Scotland’s environment and communities.
Our strategy builds on the previous strategy and our past four and a half years of work, and it sets four clear priorities for our proactive work, which are climate, nature, resources and water—that is, fresh water—and the marine environment. The board worked closely with the staff of ESS to produce the strategy, and we carried out wide-ranging consultations online and in person. We are grateful to everyone who took the time to respond, and we are pleased that the feedback on the proposals in our draft strategy has been overwhelmingly positive.
The feedback informed and improved the final version, which you have in front of you. We hope that you like it, and we are very happy to answer your questions.
Thank you very much. I get to ask the first question. What lessons did you learn from your first strategy document about how to implement your second strategy document?
I will start and then hand over to Mark Roberts. Our first strategy was written when we had been operating for only six months. It was a good strategy; it was certainly fit for purpose, but we learned a few things along the way. One of those was the level of work that we need to do to follow up investigations that are finished. Quite a big part of our work is going back to public bodies and asking, “Have you done this now? What is the timetable for that?” and having a discussion if it is off track. That is quite a big part of our work, and we, perhaps naively, did not quite anticipate how big that would be, so that is now built into the new strategy.
Another thing that we learned is about focus. The first strategy listed 14 priorities. We have progressed something on all those 14 priorities, but we have focused down to just four big priorities in this strategy in order to make it clearer for decision making internally and clearer for external stakeholders where our big priorities are, without excluding everything else.
Those are the big priorities for the proactive work that we decide to do off our own bat, but people can still bring us any subject that they like, whether it is one of our priorities or not, and, if it is within our remit, we will investigate it for them.
Mark, do you want to come in on that?
I do not think that there is much more to add. The key learning from my point of view was the need to have a greater degree of focus, as Richard Dixon said, because our remit is quite wide and the organisation is relatively small. As Richard described in his opening statement, the areas that we cover and the different aspects of environmental law that we focus on are varied, which is why I was very supportive of the board saying that there needs to be a bit more focus and prioritisation in the strategy.
Looking forward to the work in the areas that you want to concentrate on—some is proactive and some is reactive—how will you make sure that you spend enough time getting the right responses from your work in the reactive areas? I am slightly concerned. I am keen that, if you start down a route, people must understand the seriousness of your recommendations and actually sort things out. Perhaps you would like to talk briefly about that.
I think that public bodies have got used to us being here. ESS was a new organisation, and our function did not entirely replicate what went on previously, pre-Brexit, as ESS is much more immediate than the European Commission was. We talk to the Scottish Government, SEPA, NatureScot, local authorities and other public authorities on a very regular basis.
Across the four and a half years of our existence, there has been a marked change in the recognition of our role and how responsive public bodies are to us, as well as in the recognition that we will keep coming back to people and following up on recommendations that we have made and agreements that we have reached on implementation. As Richard Dixon said, those long tails of work are now quite significant for us. In the vast majority of cases, we get a positive response from public authorities following our requests for information or the recommendations that we make. There will always be a degree of tension in any scrutiny relationship, but, on the whole, I think that it works reasonably well.
11:30
You are saying that public bodies have got used to your existence—I think that that is the expression that you used—but you are pretty sure that they have not become too comfortable with your existence.
I do not think that they have become too comfortable. I imagine that, if representatives from the public authorities that we scrutinise were here, they would probably say that ESS is on their case very regularly and frequently.
That is good. I will bring in Michael Matheson.
Let us turn to your enforcement role. Given your experience to date, it would be helpful to get a sense of how you are finding the approach that you are taking to enforcement. I understand that you have an informal resolution process in the first instance. Could you explain how that is working and provide any examples of how you feel it has or has not worked? That would help the committee to get a sense of the progress that you are making.
We were set up under the 2021 act, which requires us to seek agreement with public authorities through a process of informal resolution. It may be helpful to set out the process that we go through. I will use the example of what happens when we receive a representation.
A member of the public, a non-governmental organisation, a community or an industry group might come to us with concerns about the way in which a piece of environmental law has been implemented. We will do some pre-screening to determine whether the matter is within our remit and whether it relates to an element of environmental law. We will follow it up with some research that may involve engagement with public bodies and a wider look at the context. We may use our powers under the 2021 act to require those bodies to provide us with information. We can issue information notices that require public bodies to provide us with data, documentation and so forth.
Having gathered all the information, we may identify areas of concern or areas where we think there could be improvements. We then approach the public authority to say, “Would you be willing to work with us on an informal resolution?” In the vast majority of cases, that works quite well and there is a significant amount of exchange in the process in that we say what we think should happen and the public authority may express some doubts. Quite frequently, we go back to it and reiterate our points. When we are satisfied that the recommendations have been adequately implemented or there is a plan in place for that, we consider the informal resolution to be closed, after which we issue a report. As Richard Dixon said, we then follow up on that and ensure that the recommendations have been implemented.
There have been cases in which we have not been able to reach agreement with public authorities. We have brought two improvement reports to the committee about cases in which we were unable to reach agreement. One of those reports was about air quality in 2022, and another was about local authorities’ climate change duties. When an improvement report is laid in the Parliament, the Scottish Government and its relevant public authorities have to produce an improvement plan in response, which the Parliament has to approve. That is an important element of our enforcement powers that we have used.
During our first four and a half years, we have not used our more stringent enforcement powers for compliance notices, petitioning or judicial review. We have contemplated compliance notices but have decided that they were not merited, or action was taken when we were considering making use of them. Those two powers remain at the pointy end of what our enforcement powers could be. Our strategy sets out our criteria for when we would go down those routes. However, I envisage and hope that, in the vast majority of cases, we will be able to secure improvement through informal resolution.
That is helpful. I presume that you will build experience of using informal resolution as you go. However, it will create additional workload in that you will potentially have to look at a public body’s compliance with any changes following that informal resolution. How are you going about managing that, given that you will have to take a rear-view-mirror look at what I suspect will be an increasing number of cases while continuing to try to make progress and deal with new issues as they arise?
That is an excellent question. As the chair said in his opening statement, informal resolution is becoming a significant element of our work, given the amount of follow-up that we have to do and the further exchanges that we have with public bodies. We are in the process of establishing a formal programme management function within the organisation, as we have reached a stage and scale where there are so many strands of work.
We are currently considering about 29 active representations and following up on a number of past representations. For example, we will soon go back to SEPA to ask for an annual update on its programme of removing physical barriers and weirs from rivers. We agreed a plan with SEPA, and we follow up with it every year. The programme management approach will give us a much more managed way of keeping on top of the resources that are available for all that follow-up work. Informal resolution will absolutely be a growing piece of work, and it will get bigger as time goes on. I hope that, ultimately, some of those issues will go away and be resolved, but it is a significant issue.
In my experience, more new things tend to come into your inbox than issues that go away. I presume that getting the programme management structure in place will be critical to ensuring that the organisation can manage the cases in an effective and robust way, so that informal resolution does not become such a burden that the organisation struggles to deal with new and emerging issues as they arise.
Yes, that is critical. That is why I have put that structure in place. It is not only for the work in response to representations received; we continually monitor developments in the wider environmental law landscape—internationally, at a UK level and within Scotland. As Richard Dixon described, we do proactive monitoring and analytical work. We have also responded to an awful lot of consultations and calls for views. Those are all individual strands of work that we are putting together, which is why it is imperative that we have a more formal programme management structure at this stage in our development.
Richard Dixon, is the board satisfied that those in the executive team are able to manage that challenge and that they can put in place project management arrangements to deal with that potentially significant burden on the organisation?
Yes, we are. We have discussed it a number of times. We are keen to get reassurance that the resources are in place, that the scale of the challenge is recognised and that we are able to cope in a way that, as you suggest, does not interfere with dealing with new stuff that might come in. At the moment, we are completely reassured that the organisation is on top of that. We also fully support that activity. We think it is essential that the organisation makes sure that things that have been agreed are not left to slide and that the promised change comes into effect.
We should not make that sound like a huge task. For instance, we write to SEPA once a year to ask it about weir removals, and, if it says that everything is on track, that is the end of that conversation for a year. If someone says to us that there has been a bit of a delay and that they are not going to do something yet, a conversation takes place about what a new timescale might look like. The board might even consider whether we should use our enforcement powers to ensure that something that has stalled moves. We have not needed to do that yet, but the board has a clear sight on such issues, and we are convinced that the organisation has a good handle on them.
I want to ask about the two new scrutiny functions. The Natural Environment (Scotland) Bill will grant powers in relation to scrutinising the nature targets, and Richard Dixon has mentioned the local climate change reports. What will be your approach to scrutinising the nature targets? What will be the resource implications for the organisation?
We are taking on the function of the independent scrutineer of the Scottish Government’s progress towards meeting the statutory nature targets. It might be helpful if I set out the timescales. Those targets must be set in secondary legislation within a year of the commencement of the bill’s provisions. The next key date that is set out in the bill is 2030. The bill will require us to report on progress on meeting the targets at least every three years, but we anticipate that we will want to do work in advance of the move to the three-year frequency, not least because 2030 is not very far away from where we are now and from when the targets will be set.
The setting of the targets is for the Scottish ministers, following advice from NatureScot. We are observers in the advisory group that is developing the targets; we are not participants, given our scrutiny role.
We have received an increase in our budget for 2026-27, and some of that funding will be used to increase the number of staff who will focus primarily on scrutinising the statutory targets when they are formally set. I anticipate that we will start doing our work during 2027-28 and that we will start to increase our staff numbers during 2026-27.
Right now, beyond being an observer in the room, is part of your role to ensure that the process of target setting is on track, or are you waiting to see what the output is before starting to look at implementation?
To a certain extent, we are observing the process of development, but we have to wait until the targets are set. The most important thing is that the bill’s provisions are commenced as early as possible in the new parliamentary session, which will set the clock ticking in relation to the setting of the targets, because we will rapidly get to 2030 if that is not done quite quickly.
We are almost there already, to be honest. What about the local climate change reports?
As the committee might recall, those stemmed from our improvement report about local authorities’ climate change reporting, as I just discussed with the deputy convener. The Scottish Government has updated its statutory guidance to public bodies on climate change duties, which was one of our recommendations, and the new statutory guidance was published on Friday last week. Local authorities will start reporting based on that guidance during 2026-27, and we will start our scrutiny of that reporting during 2027-28. Again, we will start the process of expanding our staff numbers and recruiting new people for that specific role during 2026-27, because we will have to provide that scrutiny immediately in 2027-28.
You will be aware of the committee’s conversation with the UK Climate Change Committee about the draft climate change plan. I am interested in your memorandum of understanding with the CCC. When the CCC came to this committee, I got the impression that resourcing is an issue. It has only two members of staff who cover Scotland, and it has a defined remit in legislation. It also strikes me that a range of bodies, including yours and Audit Scotland, have a role in guiding the action and scrutinising whether action is appropriate enough to meet the targets. Is that situation evolving? How is that reflected in your memorandum of understanding?
The CCC was quite clear about its resource constraints. Unlike ESS, it is not required to report to this committee on its resourcing requirements, which are not a matter for this Parliament.
11:45
Our memorandum of understanding is quite a high-level document about where we will share information and collaborate. Practically, we have regular exchanges at a variety of levels. Some members of Neil Langhorn’s team meet members of the CCC regularly to update them on our work on climate change, and Richard Dixon and I have met the relatively new chief executive, Emma Pinchbeck, and we provide the CCC with information if we are doing any work in the climate change area.
I anticipate that, during the next parliamentary session, we will want to focus on implementation of the climate change plan—I imagine that the committee would expect us to do that. That will build on work that we have done in response to a representation that we received in 2022, if I recall correctly, about the content, detail and implementation of climate change plans. I suspect that that will be one of those pieces of work that we will want to pursue. If we do not do that in collaboration with other bodies, such as the CCC, Audit Scotland and the Scottish Fiscal Commission, we will make sure that they are aware of and aligned with the different angles that we are all taking and respecting our different governance arrangements.
That was the approach that we took in early 2025, when we all wrote to the committee saying that those were our expectations for a good climate change plan. We will all operate independently, as is appropriate, but we will keep each other aware of what we are doing in that area.
What would be your next actions on that? I remember your submissions about what a good climate change plan looks like, which were useful for the committee as well as other organisations.
We are now about to hit dissolution. The new committee in the new parliamentary session will take several months to get up and running, and we have a draft climate plan that will be signed off in a matter of weeks. It does seem that reassessment will be needed immediately following implementation of the plan. Are you working with those other organisations—Audit Scotland, the Scottish Fiscal Commission and the Climate Change Committee—on next steps, or are you waiting to see what scrutiny will look like in the next parliamentary session and what you will be asked to do?
We are not actively in discussion with those bodies at the moment, but as Richard Dixon said in introducing the strategy, climate change is one of our priority areas. We are going through a process of what we should look at underneath each of those four priorities. We might choose to look at implementation of the climate change plan and, if we do that, it could start quite early in the next parliamentary session. Again, we will work through the prioritisation process, but I recognise that new parliamentary committees will take time to get established in the next session and make a decision about whether they wish to focus on CCP implementation.
I will move on to how you are able or not able to deal with individual cases and complaints. You have probably had a couple from my office, not about ESS—not yet, anyway—but individual cases and complaints about regulators, regulatory processes and problems.
We have been faced with the challenge of advising constituents to frame their complaints in a way that points to a systemic problem with environmental law or with the way in which regulation is being enforced that is replicable across Scotland. We are trying to find some way of getting around the issue with individual complaints by pointing to those wider themes.
How are you, one year on from your last appearance before the committee, dealing with that? After all, it is a problem that, for those who are still in the European Union, the European Commission can take on and deal with individual complaints as individual complaints, while you are, in theory, quite restricted in that respect.
The 2021 act restricts us from looking at a complaint about, say, an individual regulatory decision, be it made by SEPA, by NatureScot or by a local authority. However, you are absolutely right: we can take on representations that come to us, if the example of an individual case illustrates a wider systemic issue. We are not here to second-guess regulators’ decisions—that is not our role—but if a case flags a wider issue about a particular piece of legislation, we absolutely can look at it.
Therefore, the approach that you have just described with regard to helping people frame representations is absolutely correct, and it would fit within our remit. I should say that we also provide support and advice to individuals who come directly to us on how best to frame their representations.
So what do you see as the governance gap? Indeed, do you feel confident in talking about, say, environmental courts or other governance gaps, or is that something that you feel is not for you to look at?
One might construct an argument as to whether there is a governance gap through reviewing individual cases, but that is not ESS’s job. It falls outside our remit. I know that others have suggested that that ought to be something that we could do, or something that an environmental court could take on, but I just want to make it clear to the committee that that is not a job for ESS, under the 2021 act as currently drafted.
I am aware of that.
Finally, the committee has to write a legacy report, and there is an issue that I am interested in hearing your views on. You have had quite a close relationship with this committee, and you do play a formal role in bringing improvement notices back here, but where do you think our successor committee should focus in its relationship with ESS and the priorities emerging at your end? Do you see ways in which you could engage better with the successor committee?
As I think that the chair said in his most recent update to the committee, however committees are constituted in the next Parliament, we would certainly offer to provide regular updates to the successor committee on our work. Personally speaking, I would very much like to have the type of relationship that we have had with this committee during this parliamentary session, because it is quite a practical and effective way of demonstrating how that accountability works, and it allows us to bring things to the Parliament’s attention in quite an effective way.
Richard, do you want to add anything?
I agree with the comments about our relationship with the committee. Depending on the committees that are formed, we could have two committees in our sights. I hope that we will have a good relationship with the successor committee, or committees, and we will work hard to try to make that happen.
As for this committee’s own work programme, I am sure that you will be saying that, although the draft climate change plan got a lot of scrutiny, there was not much time for the Scottish Government to do very much about that scrutiny before the plan was finalised. Therefore, a key job for the successor committee, or committees, will be to look at implementation and think about a plan B, if certain things do not come about. That is the strong message that we will be sending—indeed, I think that we will both be saying the same things in that respect.
Another key area of unfinished business is Scotland’s continued non-compliance with the Aarhus convention. That is something that we will continue to work on, and again, we will be very happy to talk to the successor committee about how to take forward that work and, indeed, its relationship with environmental courts, as they might provide the solution to our problems of non-compliance with some of the convention.
As no other members have questions, I will just make two comments, one of which is, in a way, a question.
Of course, we do not have the final climate change plan yet; it is up to the Government to lay it, if it wants to, by the end of this parliamentary session, but it does not have to do so. However, one of the recommendations that we have made is that early warning indicators be introduced to highlight when things are not going right. My question to you, then, is this: will you take that up with the Government and with future committees? Surely that sort of thing would form quite a basis for your own work.
Yes, I think that that would be very sensible. Given the big lag—a year and a half—in the climate data, that sort of approach would let us know much earlier that we had not built as many cycle lanes, say, or planted as many trees. Those kinds of early warning indicators are very helpful in trying to take corrective action.
I just want to come back to the previous question about our MOU and our working relationship with the Climate Change Committee. Obviously, it has a small resource, but its work is very technical. It gives advice to Government; the Government does not have to take that advice, but it does have to respond to it and it is, perhaps, embarrassing if it does not go along with it. However, there are no statutory powers to force it to do anything that the CCC says. Instead of looking at the very technical things that the CCC looks at, we look at governance issues and can use our powers, as we have done with the climate change duties for local authorities, to compel some action. Therefore, we can have that dual role: the CCC does the technical stuff and gives excellent advice that the Government must respond to, and we can look at implementation and the governance systems and try to make those better. I hope that those two bits are complementary, rather than overlapping.
My other comment is that I remember the committee’s first meeting with ESS, at which our relationship was pencilled out. It was to be close, but it was not to be one in which one would tell the other what to do. I think that that will be the basis of any future relationship that you will have with committees—that is, you will work closely but both sides will be given space to work within their own areas.
I think that those are all the questions that we have. Thank you for coming in.
11:57
Meeting continued in private until 12:11.