Chamber and committees

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—

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.

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.

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.

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 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.

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.

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.

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 also very much the role of this committee to recommend things that should be done.