A bit of a waste of time for all of us: the Scottish Government’s Review of the Effectiveness of Environmental Governance

By Dr Ben Christman, ERCS Legal Director

In this long read, our Legal Director Dr Ben Christman breaks down the failures of the Scottish Government’s review on environmental governance, in which they refused to strengthen environmental protections.

Environmental governance dictates whether environmental laws become dust-gathering works of fiction or have a material, real-life impact. Weak environmental governance allows environmental rules to be flouted and environmental harms to flourish and vice versa.

Scotland’s environmental governance system – broadly the ‘administrative, regulatory and judicial structures that contribute to protection of the environment’ – has several unfortunate features.

Going to court over the environment is unaffordable, which deters members of the public and NGOs from taking legal action to uphold environmental laws. Many environmental laws are not enforced as a result.

There is little scrutiny of whether environmental laws are implemented after being made by Parliament. Overall, there is a significant gap between political rhetoric on the environment and reality.

A comprehensive review of environmental governance in Scotland is long overdue, which is why we were encouraged by the prospect of a Scottish Government consultation on this subject in 2023. That sense of encouragement evaporated once the reality of the consultation became clear.

Background to the Review on environmental governance

The Review was a reaction to Brexit. The Scottish Government recognised Brexit would create new environmental governance gaps and environmental NGOs pointed this out with some force too. As a result, environmental NGOs and experts were successful in ensuring that the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 required the Scottish Government to prepare and consult on a report regarding the effectiveness and appropriateness of governance relating to the environment. There was to be a particular focus on access to justice and whether the establishment of an environmental court could enhance environmental governance.

The Scottish Government published their ‘Report into the Effectiveness of Governance Arrangements, as required by section 41 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021’ on 1 June 2023 and consulted on the Report over the summer.

The Scottish Government’s Report

The main theme of the Scottish Government’s Report was that things were working well and there was no need for any major changes. The RSPB commented that the Scottish Government “appear to have already concluded that environmental governance is effective before considering consultation responses”.

In our consultation response, we pointed out that this was no review of environmental governance, broadly because the Scottish Government failed to analyse any of the problems in that area – and there was no assessment of the environmental problems facing Scotland.

The Scottish Government made three main claims about environmental governance in the Report. To paraphrase: the environmental law watchdog Environmental Standards Scotland is working well and has closed the Brexit ‘governance gap’, there is no strong argument for any major reforms on accessing justice nor for establishing a specialist environment court.

The Scottish Government’s assessment of ESS was light on evidence. The Scottish Government did not analyse ESS’s work on enforcing environmental laws.

Our view on ESS is different – but ours is based on evidence drawn from directly dealing with ESS since it was established. Our report on the first eleven representations we made to ESS outlines several concerns about the ways ESS enforces environmental laws (ESS disagrees).

The Report described several measures being carried out by the Scottish Government as “current work ongoing to aid access to justice”. Those measures were vague, lacking in timescales and insubstantial.

One example given of that “ongoing” work was the proposal to recognise the right to a healthy environment in the (then forthcoming) human rights bill. Remember that bill? The Scottish Government binned it in September 2024.

Another example is the introduction of a court fee exemption for Aarhus cases in the Court of Session in July 2022. We welcomed that change, but it was wee tatties which has not materially improved the affordability of going to court over the environment. It is also important for consultations to be accurate and truthful. Is a one-off change made almost a year prior to the publication of the Report really “work ongoing”?

The failure to improve access to justice has been borne out recently in a November 2024 UK progress report to the Aarhus Convention Compliance Committee. Accessing justice remains unaffordable and the Scottish Government has no plans to address this.

While the parts of the Report on ESS and access to justice were poor, we were unprepared for the section on whether to establish an environmental court.

A consultation so bad it broke the law

The Report was required by law to cover, “whether and, if so, how the establishment of an environmental court could enhance the governance arrangements…”.

The Scottish Government felt confident enough to do that in 382 words. With no references or footnotes. In a concise five paragraphs, the Scottish Government explained why it was opposed to an environmental court. They might as well have saved printing costs and written: ‘NO WAY’.

There was no consideration of the possibility of establishing an environmental court or the benefits such a court could bring.

This falls short of what is required by the legal duty quoted above. In July 2023, we wrote to Mairi McAllan MSP (the responsible minister) to raise concerns that the Report was unlawful due to the failure to consider the possibility of establishing an environmental court. The Scottish Government disputed this.

John Campbell KC’s view is that the report was not consistent with the consultation duty.

Ministerial and civil servant nerves fraying, the Scottish Government then published a briefing paper on environmental courts which they described as “summarising the information on environmental courts that was considered in the production of the report”.

Plagiarism in the briefing paper on environmental courts

The briefing paper begins with a summary and an image of the Scottish court system which appears to have been copied from Wikipedia’s ‘Courts of Scotland’ page.

A few other sections of text in the briefing paper looked familiar. We put the document through the online plagiarism checker ‘PlagScan’. The plagiarism report we received states that 27.5% of the text in the briefing paper is found in other documents.

Significant portions of the briefing paper appear to have been copied directly from the Scottish Government’s 2017 analysis and response to the ‘developments in environmental justice in Scotland’ consultation. That was the last time the establishment of an environmental court in Scotland was considered by the Scottish Government.

We believe that the act of copying and pasting from the last consultation reflects how little consideration the Scottish Government gave this subject.

The statement to Parliament

The Scottish Government concluded the consultation exercise with a statement to Parliament on 19 November 2024.

The statement explained that:

• “… there is no need to revise the environmental governance provisions in the Continuity Act”.

• When ESS revise their strategy this year, they “…should give further consideration to the conditions where it would be appropriate to investigate the individual circumstances of a local area, group or community, given the restrictions on the exercise of its functions”. Parliament should also consider this in their oversight of ESS.

• “…the Scottish Government will continue to work to improve access to justice on environmental matters. We will carry out further engagement with stakeholders on our approach to environmental rights”.

• “…the Scottish Government will continue to consider on a case-by-case basis whether new or amended environmental legislation should specify that cases should be heard by the Land Court, taking full account of the capacity of that Court”.

Or in other words, the Scottish Government has no plan to improve environmental governance.

ESS has since pointed out that the only recommendation in the statement of any substance (the second bullet point above) is unworkable, because ESS lacks the power to review public authorities’ individual regulatory decisions.

Or as the chair of ESS Dr Richard Dixon explained to a committee in Parliament on 18 February 2025, his personal interpretation of the Scottish Government’s recommendation on ESS is:

“…that ESS should look at what it can do on the things that it is legally forbidden from doing, and then the Parliament should ask us why we are not doing the things that we cannot do—which is a bit of a waste of time for all of us.”

Environmental governance: where next?

‘A bit of a waste of time for all of us’ is also a fitting description of the overall consultation process.

The November 2024 statement was a dismal conclusion to a pointless consultation. The Scottish Government refuses to face reality; never mind consider the changes that are needed to develop effective environmental governance.

All this consultation established is that the Scottish Government remains strongly opposed to effective environmental governance.

The deep-seated problems in this area have not magically disappeared. A comprehensive review of environmental governance in Scotland continues to be necessary. ERCS will continue to advocate for better environmental governance and the establishment of an environmental court.