29 January 2021
117.Section 26 sets out the power for Environmental Standards Scotland to prepare an improvement report in respect of failures by public authorities to comply with environmental law, to make effective environmental law or to implement or apply environmental law effectively. This power is generally available to Environmental Standards Scotland for addressing matters of genuine strategic importance. The co-operation duty on public authorities at section 23, coupled with the requirement on Environmental Standards Scotland at paragraph 1(1)(g) of schedule 2 to set out how it intends to resolve issues through agreement, are intended to ensure that most matters that come to the attention of Environmental Standards Scotland are resolved without any formal exercise of its powers.
118.The power to prepare an improvement report is one of the three enforcement powers provided to Environmental Standards Scotland with respect to compliance with, and effectiveness of, environmental law. The power to prepare an improvement report should not be used where exercise of the compliance notice power under section 31 would be more effective. This will mean that the compliance notice is used in preference to the improvement report for matters relating to a public authority’s exercise of its regulatory functions (as defined by section 46(1)). Environment Standards Scotland is also given the power to apply for judicial review of a public authority’s conduct or intervene in an existing case, in situations where there are serious failures to comply with the law creating serious environmental harm or risk of harm.
119.Subsection (1) gives Environmental Standards Scotland the power to prepare an improvement report if it considers that a public authority has failed to comply with environmental law, make effective environmental law or implement or apply environmental law effectively when carrying out its functions. Examples could be a strategic failure to take an action required by environmental law, such as banning a practice or substance; that an environmental duty on public bodies generally is specified in such a way that it is not achieving its goals; or that a regulatory regime is being implemented in a way that is ineffective in reaching its goals. The expectation is that improvement reports will be prepared for a broad area of environmental policy, so identified failures could span all number of these examples.
120.Subsection (2) allows Environmental Standards Scotland to prepare an improvement report if the combined effect of two or more public authorities exercising their functions in the same or a similar way constitutes a systemic failure to comply with environmental law, make effective environmental law or implement or apply environmental law effectively. This might, for example, cover the circumstance where many public bodies are failing to implement a duty, or carrying out a function in a way that systemically fails to take account of an aspect of environmental law.
121.Subsection (3) requires Environmental Standards Scotland to be satisfied that any failure arising out of a public authority carrying out its regulatory functions could not be addressed in a more effective manner by issuing a compliance notice under section 31(1).
122.This is to ensure that the compliance notice route is preferred for regulatory practice issues, such as the conditions that a regulator is placing on a class of permit, although it would be covered by subsection (1), leaving the improvement notice power for more strategic issues.
123.Subsection (4) explains what an improvement report is. It is a report that sets out the details of the alleged failure and recommends measures that the public authority should take—
to comply with environmental law, or
to improve the effectiveness of environmental law, or how it is applied.