In recent years, outdoor bathing has become increasingly importance to our health and wellbeing, with more and more of us taking the plunge into Scotland’s lochs, rivers, and seas. Yet all is not well – not a day goes by without another sewage scandal, another tale of polluted rivers or beaches clogged with plastic waste.
All the way back in January 2023, ERCS made a representation (the term used to submit a request to investigate) to Environmental Standards Scotland (ESS) about the Scottish Government’s 150 bathers minimum threshold used to designate bathing waters. This made it near impossible for some popular bathing water sites to get bathing water status. Bathing water status is important for communities because it results in more regular monitoring for pollutants.
Following intervention from ESS, the Scottish Government revised the designation criteria in April, and despite ERCS scoring a partial victory – the removal of the 150-bather minimum threshold – it was unfortunately accompanied by the addition of new, onerous criteria to make the designation of bathing waters even more difficult.
This matters, because while the right to ‘safe and sufficient water’ is set to be incorporated into Scots law, currently a lack of monitoring and regulatory failure has left our waterways in a perilous state – contaminated with faecal matter, pharmaceuticals, chemicals, and microplastics. Bathing water designation is one of the few tools communities have to stimulate improvements through increasing monitoring and testing of water quality, but the new criteria makes it even more challenging to ensure robust standards are consistently applied.
Over the summer, we learned from ESS that, despite removing the 150 bather threshold from the application form as an explicit requirement, the Scottish Government has continued to apply it in practice to new applications, in addition to the new criteria. The 150 bathers threshold has continued to operate, in effect, as a secret policy. The complex criteria and lack of transparency makes it virtually impossible for any community group to meet the multiple standards demanded by the Scottish Government.
Earlier this month, ESS issued a press release summarising their response to our representation. ESS’ position is that the 150 bathers threshold is lawful in principle. ESS have provided no reasoning to support their position, which is at odds with the decision of the Court of Justice of the EU in Commission v UK C-56/90 (which stated at paragraph 34 that numeric thresholds are inconsistent with the purposes of the Bathing Waters Directive). We also believe that various aspects of the new criteria are unlawful, since they have no basis in the Bathing Waters (Scotland) Regulations 2008.
We have since written to ESS highlighting discrepancies in their approach and requesting that they review their position. It is unacceptable that 11 months on from the date of our representation, the designation criteria have worsened. All that ESS has achieved is an agreement in principle by the Scottish Government to review certain features of the criteria – with no deadline or binding guarantees.
At this moment in time, we believe that ESS has failed to ensure that the Scottish Government produces lawful designation criteria.
ERCS will continue to fight for a just outcome, ensuring that bathing water designation is within reach of all communities in Scotland. This is another example of why we need a dedicated Scottish Environment Court, so that communities can directly hold public bodies and polluters to account. There can be no more dither and delay – it’s time for a new approach.