Environmental Standards Scotland

In May 2022, the Scottish Government, by way of Environmental Standards Scotland (“ESS”) invited responses to ESS’ draft strategic plan. ESS was set up to provide oversight of how environmental standards should be maintained / improved following the UK’s departure from the EU. (Environmental issues are largely a devolved issue, that is the responsibility of Holyrood and not Westminster.)

The Consultation document and IES’ response can be viewed at https://consult.gov.scot/environmental-standards-scotland/draft-strategic-plan/

Prior to submitting a response to the Consultation, Hamish Dow and Allan Mungall attended an on-line briefing session run by ESS, on behalf of IESConsult. In a subsequent exchange of emails, we posed two additional questions to Neil Langhorn at ESS which were answered as follows:-

Question 1. “An IES colleague has suggested that ESS essentially provides a “Quality Assurance / Quality Control” function, monitoring the performance of SEPA and others. Is this also your view? If not, is there not an element of un-necessary duplication and what, indeed, is ESS function with respect to the issues which SEPA already covers?”

ESS Response

“We don’t consider that there is duplication. ESS has been established as an oversight body and our remit is to scrutinise public authorities compliance with environmental law, as well as the effectiveness of these laws and the way they are implemented and applied. That’s not the same as a quality assurance/quality control function and we will not routinely consider how SEPA and other authorities are fulfilling their regulatory functions.

We are not regulators ourselves, nor an appeals body, and do not for example, grant consents, permissions or provide licenses. Where there is a concern that a Public body (including SEPA, Transport Scotland & local authorities) is not taking proper account of environmental law when exercising its functions or is acting in a way that is contrary to (or incompatible with) environmental law, ESS could investigate and work with the public body to remedy that, though informal, or where needed, formal powers. ESS wouldn’t duplicate SEPA’s functions as regulators/ advisors on environmental activities, and as a public body SEPA have their own systems in place to evidence performance, and are accountable to Scottish Government.”

Question 2. “As Question 1, but with respect to Transport Scotland and local authority road departments, with particular regard to those “environmental” issues which appear to be a Transport Scotland or local authority function rather than a SEPA one – for example, aspects of road traffic noise?”

ESS Response

“The same (as our response to Question 1) could be said for the Transport Scotland and local authority road departments. Where authorities have different regulatory functions in relation to an environmental issues (e.g. road noise) and there are concerns about how effectively the system was working then then we might investigate that part of the system. Equally, we could look at the role of one authority and whether they were acting compliantly. Without the establishment of ESS no one would have such a role in Scotland.”

Further, we emailed ESS with a response to their particular request at their Presentation for assistance with Key Performance Indicators:-

“At the presentation, you discussed aspects of Performance Indicators agreeing that, largely, they currently measure activity rather than effectiveness. You also asked for suggestions as to how “effectiveness” indicators might be generated. Not wishing to teach my grand-father “how to suck eggs”, a fairly conventional approach might be to ask “what hazard is ESS intended to prevent?” or “what would happen if ESS didn’t exist?”. The answer to these questions usually allows the generation of appropriate effectiveness indicators. So for example, “If ESS did not exist, there would be no decrease in the level of traffic noise. That is unacceptable. We will set ourselves the target of ensuring that noise levels on Trunk roads are reduced by 5% per year.” I hope that this potential approach is of some interest?”

ESS Response

“Thank you for your comments on measuring effectiveness, that a helpful approach to consider. Indeed one our starting points was that ESS was created to prevent enforcement gaps arising from the UK leaving the European Union, by ensuring there was a body in place to monitor the effectiveness of environmental law in Scotland and public authorities’ compliance with it.”