Functions of Environmental Standards Scotland
Section 20 - Functions
94.Section 20 sets out the functions of Environmental Standards Scotland.
95.Subsection (1)(a) confers on Environmental Standards Scotland the function of monitoring public authorities’ compliance with environmental law and the effectiveness of environmental law and of how it is implemented and applied.
96.Subsection (1)(b) confers on Environmental Standards Scotland the function of investigating any question of whether a public authority is failing (or has failed) to comply with environmental law, as well as any question about the effectiveness of environmental law or whether it is (or has been) implemented or applied effectively. Environmental Standards Scotland can investigate on its own initiative or in response to information from another person, who could be, for example, a member of the public, a civic society group, a business or a public body.
97.Subsection (1)(c) allows for Environmental Standards Scotland to take appropriate action to secure a public authority’s compliance with environmental law, and to secure improvement in the effectiveness of environmental law or in how it is implemented or applied.
98.Subsection (1)(d) provides that Environmental Standards Scotland has the additional functions conferred on it by this or any other enactment.
99.Subsection (2) provides for a range of supporting functions in exercise of the functions at subsection (1).
100.Subsection (2)(a) and (b) provides for Environmental Standards Scotland to carry out, commission or support any research, as well as seek any independent and expert advice, it considers appropriate. Subsection (2)(c) and (d) also enables Environmental Standards Scotland to make recommendations on any matter relevant to its functions as well as consider, assess and review data on the quality of Scotland’s environment.
101.Subsection (2)(e) and (f) provides that Environmental Standards Scotland may also keep under review the implementation of any international obligation of the United Kingdom relating to environmental protection as well as have regard to developments in, and information on, the effectiveness of international environmental protection legislation. (“International environmental protection legislation” is defined, in section 46(1), to mean legislation in countries other than Scotland, and legislation made by international organisations, that is mainly concerned with environmental protection. The European Union is one example of an international organisation with a legislative function). This will allow Environmental Standards Scotland to make comparisons with the effectiveness of environmental law in other countries.
102.Subsection (2)(g) provides for Environmental Standards Scotland to collaborate with any other environmental governance body in the UK (as defined by section 46(1)), including the Office for Environmental Protection (an environmental governance body being established by the Environment Bill5), or such other persons as it considers appropriate. Other persons could include relevant international bodies, such as the European Commission. This will allow joint working on policy effectiveness, and sharing of experience and best practice.
103.Subsection (2)(h) allows for Environmental Standards Scotland to request information from public authorities regarding the exercise of their functions under environmental law. This may, for example, be for monitoring or investigatory reasons.
104.Subsection (3) sets out that, when exercising its functions, Environmental Standards Scotland must act objectively, impartially, proportionately and transparently.
Section 21 - Power to modify functions.
105.Section 21 enables the Scottish Ministers, by regulations, to modify the functions of Environmental Standards Scotland in response to requirements set out in agreements on the future relationship between the UK and EU. This will ensure that Scotland is able to achieve and demonstrate compliance with the terms of such agreements without the need for further primary legislation.
106.Subsection (1) sets out the circumstances under which this regulation-making power has effect, that is for the purpose of implementing international obligations arising out of a future agreement or arrangement between the UK and the EU.
107.Subsections (2) to (5) set out further conditions for this regulation-making power, including that the Scottish Ministers are required to consult with Environmental Standards Scotland and any other persons they consider appropriate. Any regulations made under this section are subject to the affirmative procedure.
Section 22 - Duty to prepare and publish strategy on exercise of functions
108.Section 22 places a duty on Environmental Standards Scotland to prepare and publish a strategy on the exercise of its functions, and to exercise its functions in accordance with that strategy. Further provision on the strategy is set out in schedule 2.
Section 23 - Co-operation duties of public authorities and Environmental Standards Scotland
109.Section 23 sets obligations on public authorities to co-operate with Environmental Standards Scotland. This is to ensure that Environmental Standards Scotland is able to carry out its functions, and enable public authorities and Environmental Standards Scotland to resolve matters by agreement wherever possible.
110.Subsection (1) requires public authorities to co-operate and provide reasonable assistance following requests made by Environmental Standards Scotland in connection with the exercise of its functions, including the provision of information.
111.Subsection (2) requires public authorities to make all reasonable efforts to swiftly resolve any matter which Environmental Standards Scotland raises concerning a failure to comply with environmental law, a failure to make effective environmental law or a failure to implement or apply it effectively. Public authorities are further required to make all reasonable efforts to reach agreement with Environmental Standards Scotland on any remedial action needed to be taken by the authority for the purpose of environmental protection.
112.Subsection (3) places a duty on Environmental Standards Scotland to consult the Office for Environmental Protection, or any equivalent environmental governance body in Wales or Northern Ireland, where Environmental Standards Scotland considers that the exercising of its functions may be relevant to the exercise of that body’s functions (for example, where a matter has a cross-border impact). The Environment Bill(6) likewise places a duty on the Office for Environmental Protection to consult devolved environmental governance bodies. The intention is that this duty will be placed symmetrically on all environmental governance bodies in the UK. This duty to consult stands alongside Environmental Standards Scotland’s power to collaborate with those bodies as set out in section 20(2)(g).
The Environment Bill commenced its Report Stage in the House of Commons on 26 January 2021. Information on the progress of the Bill and a copy of the Bill following it’s Commons Committee Stage is available on the UK Parliament’s website, which can be accessed via this web link.
Information on the progress of the Environment Bill and a copy of the Bill following it’s Commons Committee Stage is available on the UK Parliament’s website, which can be accessed via this web link.
