Will Scotland's new Environmental Standards body keep EU standards for our public authorities?

A new body was officially launched on 1 October to ensure Scotland’s public authorities adhere to environmental laws. Environmental Standards Scotland (ESS) has been set up as a non-ministerial office, independent of Scottish Government and accountable to the Scottish Parliament. Prior to the UK’s departure from the EU, the European Commission was responsible for scrutinising and enforcing compliance with environmental laws and standards. 

ESS will scrutinise the actions of all public bodies, including the Scottish Government and its agencies, and those carrying out work on their behalf. When considering whether environmental laws in Scotland are effective, ESS will take account of the developing environmental regulations internationally, including in the European Union. It will be interesting to see whether this means that, in practice, Scotland will continue to adhere to EU environmental standards.   It will also be interesting to see whether other nations within the UK introduce organisations with similar responsibilities and, if so, whether these organisations will all take a similar approach.  

ESS will also carry out essential monitoring and research to track Scotland’s environmental performance and identify areas of concern where laws are not being complied with, or are ineffective. We wait to see how this will happen in practice –  ESS has stated that they will seek to resolve issues through agreement wherever possible – having recourse to their formal powers where they judge it is necessary to deliver the outcome expected.  Formal powers include issuing a compliance notice, issuing an improvement report and referring an issue for judicial review.  

While ESS cannot impose fines, we expect that the reputational damage which would occur for non-compliance with environmental laws will be sufficient to encourage public bodies to take their environmental obligations seriously, particularly given the increased focus on climate change and sustainability.