Chamber and committees

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.

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.

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.

It would make sense for the role to be fulfilled by Environmental Standards Scotland.

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.

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.

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.

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.

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.

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.