Award of RESAS-013-2020 - The Provision of Legal Services for Environmental Standards Scotland Lo...

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Background 5. Environmental Standards Scotland (ESS) will be a new, independent public body established to help Scotland uphold high environmental standards. It is being created in direct response to EU Exit. At the end of the current transition period, the European Commission will no longer have a role in scrutinising the performance of the Scottish Government and regulators in complying with environmental law. Environmental Standards Scotland will fill this governance gap and ensure our high standards of environmental governance are maintained. It will be responsible for making sure that public authorities in Scotland correctly apply environmental law, and that environmental law in Scotland is effective in protecting nature and our wellbeing. 6. Provisions to establish ESS are contained within the UK Withdrawal from the European Union (Continuity) (Scotland) Bill (“the Continuity Bill”). This Bill was introduced to the Scottish Parliament on 18 June 2020. 7. ESS will be set up as a Non Ministerial Organisation within the Scottish Administration, and will be accountable to the Scottish Parliament for the effective performance of its functions. ESS is expected to become a statutory non-ministerial organisation, with statutory functions and powers, after the commencement of provisions in the Continuity Bill, following a period of non-statutory (or “shadow”) operation, from the start of January 2021. 8. The Supplier is required to provide legal advice to ESS during its period of shadow operation (i.e. 1 January 2021 to 1 July 2021). The Contract may be extended as per paragraph 33. 9. During the period of shadow operation, ESS will develop an interim strategy, in consultation with stakeholders, to guide its investigation and enforcement processes. The interim strategy is required to be in place before ESS can become statutorily-vested. 10. The interim strategy (to be developed over the coming months) will outline further the types of investigations which are expected to fall within the scope of ESS’ functions and the criteria for assessing significance of environmental concerns. A sample list (non-exhaustive) of the types of concerns which would fall within the scope of ESS’ functions is provided below for information; -A regulator allowing unregulated abstraction of water; -Breach of air quality rules by waste incinerators; -Failure to consult on plans or sites; -Approval of too much development within one area (Where such approval would lead to serious environmental damage); and -A local authority failing to comply with their duties regarding air quality. 11. The following types of concerns/complaints will not fall within ESS’ scope; -Planning – live planning cases; -Policy issues; -Cases already subject to existing appeals processes; -Criminal offences; and -Issues which fall within the remit of the Ombudsman or an existing complaints procedure. 12. ESS’ role will involve monitoring information about the quality of the environment in Scotland and the effectiveness of environmental law, including information brought forward by citizens and interested groups. Individuals and organisations will be able to submit information to ESS from the 1st January 2021 (i.e. at the commencement of the shadow period). 13. The ESS Board will select a small number of cases for detailed investigation, prioritising cases where there is the greatest risk to the environment. In performing its functions, ESS is not subject to the direction or control of any member of the Scottish Government. ESS will not have the power to review individual regulatory decisions. 14. Where necessary, ESS will work with public authorities to seek to agree changes in practice to reflect environmental law, or develop advice on recommended changes to the law to improve its effectiveness. 15. Once established on a statutory basis, the organisation will gain the powers to require information, to issue compliance notices if regulatory practice is out of