 spindly. I welcome you to the second meeting of the Net Zero Energy and Transport Committee for 2024. We have formal apologies from Monica Lennon and, on that basis, I am pleased to welcome Sarah Byock who is attending this morning as the Scottish Labour Party substitute. First item on the agenda is a declaration of interest. I invite Sarah to declare any relevant interests in relation to the committee and this evidence session. Do you have any interests that you want to declare? If you look at my register of interests, you'll find a number of organisations of a member off which I've declared but I think the main thing for declaration today is that I was actually the cabinet secretary that introduced the Transport Scotland Act 2001 just for people's interests. Thank you, convener. Okay, thank you. That's interesting and I should also say that the Deputy Convener, Ben MacPherson, is on his way but is struggling slightly with conditions getting here but may miss the first part of the session. So having done that is move on to agenda item two is a decision on taking business in private and this is a consideration whether to take item seven in private. Item seven is a consideration of the evidence that we'll hear today on environmental governance in Scotland. Are we agreed to take that item in private? We are agreed. Our next item is a gender item three, a consideration of a draft statutory instrument, the bus services improvement partnership objections Scotland regulations 2024. For this item, I'm pleased to welcome Fiona Hyslop, the Minister for Transport and the Ministers joined by Liana Fattyslover, who's a lawyer for the Scottish Government and Asoia Kerry. If I haven't got the pronunciation right, I'll always struggle a wee bit and I apologise if I've been clumsy, forgive me, who is a bus regulatory policy manager for Transport Scotland and Bettina Seisland, the director of bus accessibility and active travel for Transport Scotland. Thank you very much for joining us today. Following this evidence session, the committee will be invited at the next agenda item to consider a motion calling for the committee to recommend approval of the draft instrument. I just remind everyone that the officials can speak under this item, but not in the debate that follows. Minister, I think you want to make a brief opening statement and please go ahead. Thank you and good morning, committee, and thank you for inviting me to discuss the bus services improvement partnerships objections Scotland regulations 2024. The Transport Scotland Act 2019 was designed to help make Scotland's transport network cleaner, smarter and more accessible than ever before. For bus specifically, it provides an enhanced suite of flexible options for local transport authorities to improve bus services according to their local needs. The 2019 act offers wider powers for local transport authorities to run their own services, as well as providing viable options for partnership working and franchising. Bus service improvement partnerships or BSIPs, as they are known, provide a formal form of partnership working between local transport authorities and bus operators, with both sides working together to develop a partnership plan and related schemes to improve services in their area, jointly taking responsibility for delivery. Once a bus services improvement partnership is in place, all operators in the area are required to meet the service standards that it sets out, regardless of whether they supported its development. The objection process is key to ensuring that bus operators in an area are able to meaningfully engage with the BSIP as it provides a mechanism for them to object to the proposals. That ensures that the final partnership is based on mutual agreement and buy-in from both the transport authorities and operators so that they can serve the needs of local communities. The regulations under consideration today prescribe who can object to a BSIP when it is being made, varied or revoked, and the minimum number of objections needed to pause or halt the proposals. The local transport authority can only progress with the proposal if a sufficient number of operators do not object. That is intended to balance the right of a local transport authorities to bring forward a BSIP against the right of operators to object to what is being proposed. In developing those regulations, we have sought to account for the significant variations in local bus markets across Scotland and considered the wide range of possible scenarios in which a BSIP may be developed. We have also sought to ensure that no single operator is able to have an undue influence in relation to a BSIP. We have engaged closely with key stakeholders such as local authority transport officers and operators. They are involved in the development of the mechanism. Those regulations have been crucial in creating a practical approach that is designed to flexibly address local needs. Those regulations are a key part of creating successful partnerships between local transport authorities and operators to improve services for passengers. I am happy to answer any questions that members may have. Thank you very much Minister. I am going to get the first question. I seem to remember in 2019 when we were looking at the Transport Act that was going through at the time. There was quite a lot of support for local bus companies to be established by local transport authorities. I remember rightly that Lothian Buses was an anomaly that resulted in the fact that the law had not been complied to in relation to its disbandment and privatisation. There is encouragement to do it, but there is no money. There is no money in the budget this year, so how are local transport authorities going to do it if we are not going to give them any money considering the huge costs? That is not quite the case. I figure it may be set out that you referred to Lothian Buses, which is obviously a municipal bus company with ownership by the local authority. Those regulations are not anything to do with that. I am asking about other local transport authorities and how they are going to take the plan forward if you do not give them any money. The Transport Act provides for local authorities to run local bus companies like Lothian Buses partnerships, which are the subject of those regulations and thirdly develop franchises. The funding that supports those aspects of the 2019 Transport Act to which you are referring is still in the budget. The support for developing policies in relation to that is still in the budget. It comes under the community bus fund, which has £1 million set aside for £24.25 in revenue and £5 million in terms of capital. Does the budget support the work of the Transport Act? Yes, it does, and that is the mechanism by which it does so. In relation to funding for bus, there is and continues to be funding for bus in relation to the network support grant, which primarily goes to support the operation of the bus services and also in relation to bus funding. You have also got the concessory scheme, which has got a small uplift. In relation to support for the operation of buses, that funding is still there and is still fully funded as it was previously in relation to £23.24. Okay. I was not going to get into concessionary funding because we know that that only funds a proportion of the actual costs of it. I am looking at local transport partnerships having the money to create their own buses. Now, the bus company, what I am saying is that I do not think that there is much money in there. You said that there is £5 million in capital. I cannot remember the cost of a bus, but that is not even 15 buses, is it? In relation to buying buses, that would be a capital fund. It is not necessarily the responsibility for us to fund local authorities to buy buses. We have funded and supported them significantly to transfer buses within the local area. Obviously, you have indicated that Lothian operates in a different model than others to transfer a firm diesel to become more of electric buses, etc., in the case of Aberdeen hydrogen. That has happened, but it is in relation to bids in capital funding. You are talking about the operation of buses themselves. In relation to local authorities, they have responsibilities to help when there is a problem, particularly when we have seen that in different areas of some operators pulling out, and there has been spend of about £55 million by local authorities. That is part of the local government settlement. In relation to the development of the powers within the Transport Act, what I would say is that local authorities are interested in different models. They are trying to take forward that work. It is primarily about policy work. They will have to take it through their own committees when they come up with their own solutions, etc. However, in relation to policy work and development, the funding is there as it was previously. Are all those local authorities going to do everything overnight as in set up everything next year in terms of what your question is about the 24-25 budget? I am not aware of the pace of that being such that there would be major demands on the 24-25 budget. I am sure that local authorities will have a view on where they are going to struggle to find that money from. Mark, you want to come in, I think, on this to you. Mark. Yes, thanks, convener. I was interested in the minister's comments there about the community bus fund. It is a modest amount of money that has been allocated, but I am interested in which local authorities are taking up that opportunity, particularly on the revenue side, to do that business case work, looking at the options around franchising and municipalisation. Whether those are predominantly rural local authorities or urban, I think it would be useful to get a sense of how local authorities are responding to that money that is available and what work they are doing. The discussion on this is not in relation to the regulations that are in front of us. If everybody acknowledges that you are going more widely than the regulations that are here, I might be out between a size land and if she can give more information—my understanding—from my discussions with different transport authorities. I think that it is quite clear—I think that it is really important that the conveners refer to themselves—that a lot of those issues are driven by local authorities. I know that Swestrans have interests. I spoke to them, had a meeting with them about two weeks ago as to the different models that they have. They are still working that up. They expect—I think that it was in the summer—that they give indication that they—I do not want to speak for them because, obviously, they are an autonomous body, but they have been working up considerations of the type of scheme that they would want to have. I know that Highlands are particularly interested in different models again. I think that it is quite interesting that you have rural areas in particular taking forward work on that area. I know that Glasgow, of course, has the wider issue of the other local authorities and their transport authority, and I know that there has been talk about that. I do not know again the DC element, because it is not my direct responsibility. We give them the enabling powers within the transport act to take that forward. However, there is strong lobbying in different areas for a franchise model in Glasgow, but perhaps Bettina might bring the help. Those are all early stages and all the local authorities would acknowledge that, so that might address the issue in terms of the funding that is available for the next financial year, as was the initial question. Bettina, is there anything that you have got to add? We received a number of bits from local authorities and regional transport partners for use of the RDEL to explore their transport app powers. I do not have the list of the bits in front of me, so we are right to committee and provide that information. I would like to ask if transport Scotland officials engaged with UK counterparts, especially those in Greater Manchester, to learn about the development of bus franchising in major metropolitan areas in England? Yes, we are in contact with both DFT colleagues and colleagues in Manchester to understand what their experiences have been as they develop their franchising arrangements. Okay, thank you for confirming that. Can you tell me what it has proven? What has come of it? I think that it is still early days for them, so we are still learning with them. Okay, it does not appear that I am going to get much further on money or on that. So I will go straight to Jackie Dunbar with the next question. Thank you. I think that part of my question has already been answered by the transport minister and good morning to you all. Sorry for being a bit rude. It was regarding the powers allowing local authorities to establish bus companies. You have already said that some have already started discussions. Why do you think that some are not? Do you think that there is a reason behind it? What can or will the Scottish Government do to try to help those who are keen to establish a bus company moving forward? The three different models are the bus company, the partnership, which is the kind of regulations that you have got before years about the objections to setting up that in a more formal way. The third is franchising, so there are those three different models. In terms of what we can provide, it might help in relation to the last question. We do expect to provide more guidance help in terms of that sharing of best practice that will have been learned from elsewhere in terms of those different models. In terms of the bus companies setting up their own bus companies, it is really early doors. It is up to them, it is not actually up to us. We would keep a watching brief as you would as a company, as the committee, provide that. However, I think that that really is an issue that you might want to ask the transport officers or coslers or the companies themselves. It is important to say that there are different bus markets in different areas. Some of them are stronger than others. We know that the patronage of buses has not recovered to the level that it has. Many local authorities rely on private operators, in fact the vast majority, apart from as we refer to Lothian, rely on private operators. Obviously, there is a bit of attention if companies want to set up their own bus company, because that acts in competition. Obviously, there are competition law issues in and around that as well in relation to bus operators. At the same time, they are absolutely mutually dependent in terms of sustainability of bus services right across between all the different operators and companies. Some local authorities may want to take that step to set up their own companies. The transport act allows them to do that, but there are steps that they will need to take forward, and they will need to have confidence that they, as local authorities, are in the position to be able to do that. That is for them. That is not for us. We can try and keep a watching brief on it, and that is what we would do. When I visit a number of local authorities, they can share with me what the state has got to and the steps that they are taking. However, again, that is for them. It really is not for me to account for them in this committee, because I do not want to misrepresent them in any way. Bob, I think that you wanted to ask a supplementary on this. Just briefly, I apologise that the minister is reminding the clock back slightly in relation to franchising. I know that there is a little bit of mission drift on some of the questions, but for my own clarity here, minister. Clearly, we have to learn lessons that are elsewhere in relation to franchising, but my experience in Glasgow has been that there are some very profitable routes. I can think of the 61 bus and my constituents. We can pack them in. The bus is always full and there is a high frequency of service, but after a certain time at night, the eight or the 90, you cannot get it. There are connectivity issues in my constituency, so quite often what happens is that those routes are subsidised. I think that the minister mentioned £55 million of subsidies, so I suppose my substantive question, convener, would be that if franchising was to roll out in a meaningful way and routes were bundled as part of that franchising process, we expect to see that public subsidy through other areas where bus companies would withdraw from our service because they have no compulsion to continue to offer a commercial service there and require public subsidy should we see a shift in that relationship with franchising. Has that been modelling work in relation to that? Not for answer today, necessarily, minister, but I'm keen to better understand that relationship because I think that that's central to a lot of it. I think that what you're trying to set out was that I'm not familiar with the different local buses and the numbers that you refer to. I wasn't grilling you on that, minister. The principles of it could probably be achieved by both formal bus partnerships and franchising because you're trying to set out something that is more sustainable just now in terms of the financing of the bus market. You've got a situation where there's a huge amount of money going into concessionary travel, but it was set up in the previous legislation so that it was on a no worse off, no better off aspect. It does help patronage and hopefully then, as we discussed previously, younger people, for example, will become actual peer-paying passengers as they go on, but that point you're seeing allows that. I've heard that discussion with councils in Glasgow that what franchising can do is the bundling of it can enable the geography of an area to be complete because, as we all know, there are certain times of the day that buses are more popular than others. You can understand the position because, remember, we are a deregulated market that's been deregulated for a long, long time. Private operators need to ensure that they are making some kind of profit in terms of the viability of their services. Therefore, it's more attractive to do certain routes rather than others. That has led to local authorities having to pick up the pieces in those areas where buses have been withdrawn in particular ways. I think that the whole point of the Transport Act and what we can try to do in relation, I hope, with the fair fair's review, which is due and I've written to the committee that we're expecting that imminently, but to try to provide more sustainability in the system. I think that's what we need for bus services because if we're going to get more people back onto bus, they need to know that they've got a sustainable reliable services and at different times of the day because people who know are working in different shift patterns etc. In answer to your question, will that help in addressing the problems that you've got? My answer would be yes, not necessarily just in franchising, but if it was built into the bus partnership, for example, and the schemes that come as a result of that, that would be possible as well. The subsidy levels, if you like, where the commercial sector withdraws a bit and it's tendered and replaced again on a subsidised level with those subsidies, is that something worth tracking over time because if those partnerships and the franchise are successful, then a sustainable model wouldn't see that subsidising done in that way, it would have done the more proactive strategic way. Ideally, yes, but I think that the pressures in the bus market, particularly coming through the pandemic with the reduced numbers of people using the bus service, is challenging that. That's why I think that it's more important than ever that our local authorities look at models that can help to provide that reliable, sustainable service in their area that is less reliant on subsidy because that's over the piece, there's enough income, but that also includes trying to increase patronage as well. Douglas, I think that you've got some questions now. Thank you, thank you convener and morning minister. Really just to ask what the Scottish Government are doing to support the roll out of bus priority measures, especially on the trunk road network where Scottish ministers have direct control over. That's a very good and important question. We have supported bus priority measures in the last number of years. You'll be very familiar with the Aberdeen system and understanding that the bus gates are in operation. I also understand that the local authority with the local bus company are looking to provide free bus services during the weekend, which I think again is a very proactive measure, which I think is part of a more complete area. In terms of funding, the convener is obviously in conversation, but the convener was asking about funding in the budget. The bus priority fund, which helps to address some of the congestion issues and the capital issues, I would also refer that that is the area that we will not be able to fund next year. It has been paused. We know that the consequences of a very severe budget reduction in terms of capital that the Scottish Government has received, we know that we're going to have 10 per cent less capital funding over the next five years. The Scottish Fiscal Commission has itself reported to the Parliament that they expect that that reduction will be the value of 20 per cent over the next 10 years. Decisions have had to be taken in terms of our capital budget in transport, and the one area that we'll see a market change for next year is paused. It's a longer-term commitment that we want to try and restore, but the bus priority fund that funds the issue, for example, such as bus lanes and bus gates, has been paused for next year, and there isn't funding for that. All the plans that are in place that have been agreed will continue to be funded in 2023-24. The question was also to ask about, obviously, that there's no money in the bus partnership fund for the coming financial year. If we look at the Government's commitments about getting more people on to public transport, why was that part of the budget chosen to be, not cut zeroed, minister? Why was that chosen and not something else? Again, that's an important question for the committee to consider in your wider budget scrutiny, and I know that you've got the cabinet secretary appropriately coming in to discuss the wider bus issues. In terms of this one, if you think about the wider budget area, we have to keep our safety as paramount in terms of road and also in terms of rail, so that's the bulk of our funding in terms of our operations similarly, as you know, in terms of ferries. We have lifeline ferries. We have to make sure that they continue to be supported to provide that service. Additionally, which is what this is, this is about improving. You're right to identify and I hope that you're expressing support for the work in Aberdeen that has seen those bus gates and that change in that city centre completely to try and encourage more people in. That was a good scheme that came forward and quite came forward, I suppose, quite promptly. In terms of other schemes, they've probably come in in terms of ready to be invested in schemes a bit slower than we might have anticipated, but those are additional projects. They're not legally contracted, they're not financially contracted, they're highly desirable, but in a tight budget settlement with 10 per cent cut in terms of capital overall for government, tough choices have had to be made. Although the bus partnership fund is paused for next year, we would want to continue it because you're quite right in trying to encourage more people to use buses, freeing up lanes to ensure that you've got more reliable buses so that people can start to use it and increase the passage is desirable. I'm afraid I can't come with—I've been an MSP for a long time now. I remember all the budgets when people had additional funds that could then—the questions were about why you're giving additional funds, more additional funds to them and less additional funds to other areas. It was all about additional funds. We can't have additional funds in the financial climate we've got just now. It's regrettable, but I think it's understandable in the circumstances. Minister, can I just clarify, in terms of the bus partnership fund, was it a case that there really wasn't the demand into that fund maybe from local authorities or was it just that there was projects coming forward? It's just that the Government chose to not spend that money in that area next year. I suspect that it's a range of different factors. I was struck when I came into Government that there were less of worked-up ready schemes. Not that there wasn't a lack of demand, but there's obviously a lot of work. You'll know that from the experience in Aberdeen. There's a lot of work to go into the preparation, because it's not just a case of designating a lane. There's a lot of planning issues around that. There's a lot of engineering work within it. There's a lot of preparatory work involved in that, so it's not that there's a lack of desire in that. I don't know when a number of local authorities will want to do that, and we are honouring all the schemes that have come in for bidding. I think that it's an issue that people will want to do it with the pace of implementation. There may have other priorities, but there are challenges in particular areas, so there will be a number of different factors for different local authorities. I think that, again, you might have better insight into the types of schemes that have been coming in and the pace of which they're coming in. As the minister said, there weren't as many construction-ready projects as we anticipated or quick wins. We've had to take the time with the 11 informal partnerships to develop those schemes and go through the appraisal work and carry out the public consultation, because most of those are retrofitted into existing roadspaces, so they need quite a lot of local conversation, as well as technical appraisal work before they can be ready to be delivered. That's taken some time. In terms of that £500 million commitment minister, is that still a commitment that's on go? What was the timescale for that commitment when it was made? It was set out in 1920, and the pandemic obviously overtook a lot of issues, so a lot of things weren't progressed. It is a longer-term commitment. I'm not in the position to be able to tell you how long and for when that will be, but we can't because of the financial situation that we're in. I think that everybody recognises that, for a whole variety of different reasons, the UK and subsequently the Scottish Government's financial position is not nearly as strong as it was prior to a number of instances, which I won't really just now, but even since 2019-20. What I can reassure you on is that I know that increasing and improving bus patronage is important for a whole variety of reasons, because people need it for their jobs, but for climate change as well, that's the shift that we have to take. Can I assure you that I will continue to make sure that we can reinvest in this area? The answer is yes, but I can't do it next year. I move on from capital to revenue for my next question. In terms of the budget for next year, the network support grant is 11 per cent less than it was for 2023-24. The rate per kilometre travel is not being increased either. How do you justify reducing support for the provision of bus services? As we all agree, increased bus travel is vital for us to meet our climate change targets. That's a very good question, but I can answer it by assuring you that the network support grant has been fully funded. What that means is that we have worked with the bus operators to identify that it's done by a kilometre rate. In relation to what they have experienced in the past year and what they are experiencing this year, it is continuing to fund it at a similar rate. What that means is that, last year, the network support grant did not get drawn down as much as anticipated because of the reduced patronage numbers and, as we know, in a number of local authority areas, bus services were cut, so the funding for that was not needed. If I can reassure you that the funding from last year will be and has been reinvested back into bus services, the network support grant is fully funded, albeit at a reduced rate, because the demand and need for it is not as much as was anticipated because, unfortunately, some bus companies have reduced their routes, which means that, in terms of the formula basis that is used, they will not need as much. Therefore, that is the explanation, so it is still fully funded and it is stable. It is just at a different level than we would have anticipated because of the reduced patronage and routes in some areas. To clarify, Minister, for my understanding, the money is being reduced for the network support grant because we have less buses and less routes. Is that a fair comment? Yes, I think that that is fair and that is why we need to, and I think that this is a critical question facing the bus services, find means by which we can have greater sustainability in the bus service because it has been weakened because of the pandemic and the numbers of passengers have not returned to rate, which also makes some services more vulnerable for what our private operators in a deregulated bus market are. Sorry, I will just briefly... Is there been analysis done on that, Minister, of why there are less routes? Is it because people are using trains, for example, or are they staying on their cars or are they working from home? Is there any analysis done at all? Yes, so there has been, and we can try and identify how we can share that with you. The conversion of passenger transport have also done work themselves. It is particularly in relation to an age profile that more than 60 people in particular have not returned. We also know that some people will be... The working patterns and transport patterns have changed completely, so the weekends are now... In fact, the busiest day for transport in rail, for example, is Saturday. Losian buses, when I visited them, were telling me how Sunday is becoming more of a travel day because people want to visit family, etc. Weekends are busier. That may be, and I think, as a consequence of maybe more people working from home during the week, so they do want to get out and about at the weekend. There is quite a variability of behaviour within the bus system that everybody is looking to try and analyse, but the consequences, particularly in terms of the reduction, is in the older age group. That also... Again, it is anecdotal, but there are areas that I know that the bus academics, bus researchers looking into, is whether that age profile is more a reluctance to be out and about more after having had, as a very serious experience of a pandemic when you were probably used to not going out as much and how that has affected. There are a number of different reasons also. Again, it comes back to the sustainability of the market. Remember, you had fuel price increases as well, and that will have hit a number of transport authorities, not least obviously bus operators as well, so in terms of profitability of routes. There is a bit of a knock-on impact of reliability and sustainability, which is why I am keen as minister to address that issue. That is one of the things that, when I hope, I get a chance to come back to the committee on the affairs fair review, on how we can try and openly, because this is not just for this Government, it is for any Government in the future. How do we ensure that we have a sustainability of our bus system going forward? I think that you might have a further question. I will come to Sarah and Sarah. If you want to bring up any points that you have just heard in that session, that will be your chance to do it. Thank you very much, convener. Minister, on the funding going into bus services in Scotland, there is a significant financial consequence of £429.7 million, but I am conscious that £370 million of that is concessionary travel, being that for under 22 is over 60 in some other groups. I am just wondering whether or not there are any unintended consequences of such a significant split of investment between concessionary travel and the wider funding of bus services. What the rationale is from the Government of doing that, and whether there is a relationship between that and what we have all sometimes seen from time to time in our constituencies is that certain routes have been less commercially viable and the withdrawal of certain services. Is there a relationship between the increase of concessionary schemes, the massive public investment and that? Is there a relationship between that and some services being less commercially viable, if you like, elsewhere? If I can maybe caveat, this is my overview as Minister, as opposed to being able to give you concrete correlation and evidence. There is a relationship, I think. The more you have funding for concessionary travel, you are then limiting the market for what you might call full fare paying passengers. If you have a concessionary fare scheme that is based on a system where bus operators are no better off and no worse off and you have 2 million people using concessionary fare, that means that there is less scope for them to rely on full fare paying passengers in terms of funding for their services. You are right, we are probably disproportionate in terms of the amount that we fund concessionary fare and free bus travel anywhere internationally, because I do not want to pre-empt what you will see in the fare's fare reviewer. That is a considerable amount. I have said to the committee that a test of what is an extremely popular measure that is helping families to address the cost of living, which is the under-22 free bus travel. That is good in and of itself, as is the concessionary fare for older people, for good social reasons, economic reasons within families, etc. However, the challenge is how do we use public funding, which is a considerable amount. When you add in the other bus funding that we are providing, you are talking about £500 billion, is there a way that we can better use that to provide more sustainability of bus services? Clearly, it is great if you have a free bus pass and you are under 22, but if you live in certain parts of the country and you do not have the bus services to go on, it is not as great a benefit as it might be for Glasgow or for other parts of the country. Are there unintended consequences? Over the piece that there has been, that is why, working with the committee, I am quite keen to look at that overall sustainability and reliability of the bus market to ensure that we can have a better use of public funding to help to support that. That is a general view with you. In terms of looking at the evidence that you want, I think that the first three of you will provide that in a more concrete way for you once it is published. Thank you, minister. A slight reflection on the follow-up question, just if you are right, I cannot recognise an urban MSP. There will be clearly unintended consequences of some remote and rural areas, but I would put an appeal in densely populated urban areas. You get large volumes of young people in school, children going to certain travel routes as well. Within cities, there can be unintended consequences also, but it is not simply a remote and rural issue. It is worth putting on the record that is a city MSP. Are you effective? A few years' time, we have been nudging half a billion pounds public investment in bus services. There must be a better way of keeping a rock-solid commitment to concessionally travel to using that half a billion pounds in a few years' time almost to better have a sustainable, affordable bus service. That is a pretty good start for bus companies—a level of investment that we put in it at the moment. Is that a reasonable picture to paint? I think that that is something that every MSP was in the Parliament should be thinking about. Thanks, Bob. Cery, you have got some questions. It is fascinating to come in off the back of that set of questions, because I did not declare it. Of course, I introduced the first free bus travel for the over-60s in Scotland, and it is interesting to see the extent to which members of the public are now using concessionary bus passes where they are over-60s or under-22s. It is really to follow up on that about the Scottish Government's strategy and funding streams to ensure that we have more and more people using buses, because, as colleagues have pointed out, we have lost a lot of bus services over the last few years. In terms of today's piece of work around bus service improvement partnerships, what analysis have you done in terms of the benefits of BSIPs versus bus franchising and the costs and benefits of the different options? One thing that feels clear is the resource issue for local authorities to choose. What to do, whether it is BSIPs, as you mentioned, or bus franchising, is the start-up cost for that, and the on-going cost. Have you got a cost-benefit analysis that you could share with us about the choices to increase the modal shift? In terms of development, you will understand that I was not the transport minister who brought through the 2019 act, which has been, as the committee has pointed out, a number since then, as well. However, in terms of the different models, the choices that local authorities face will be exactly what the member said. Some will want to take on through bus ownership aspects and implementations, and many look, obviously, at the Lothian system. Some will want to look at franchising, and some will look at bus service improvement partnerships, which may more reflect some of the informal bus partnerships that currently exist, which may require less resource funding. I think that your referring is not just the capital resource, because in that operation you are still dealing with buses that are primarily owned, potentially least in the future, etc., or least us now. However, it is the people resource for local authorities to run those partnerships. Remember that local transport authorities already have significant departments that have already run their transport work. However, that is a decision that they will make. Can you look back historically and look at the different models of what work has been done? Obviously, the part of that is sharing the best practice that we have had and looking at other parts of the country, the rest of the UK, that has looked at different models to see what the cost benefit aspect is. That is why people are interested in Manchester, but there are negatives on that as well. I think that they themselves said that they might resource time to set up some time aspects, to set up that. It is not all just easy sealing that there are challenges within that, so that is the sort of information that we do want to share. In terms of the guidance that will be coming out later on this year, we will address some of those issues as well. The work today is focused on the regulations and the legislation that is required to give local authorities the powers to look at the different arrangements that might be appropriate in their local areas. Those are very much tools for the local authorities to use. As the minister said previously, it is the community bus fund that provides a bit of resource for the local authorities to look at the cost benefits in their particular area of using the different powers. That is the level at which we would expect the cost benefit to be taken up. Have you done the actual analysis of the different costs of increasing model shift? We have lost so many bus services. It is partly how you stabilise and sustain bus services, as the minister said. We are also about creating new services that attract people that could be timings or routes. The community bus fund is £1 million. Is there something about the start-up cost to get the block that was introduced in the 2001 act? Having the powers available but using them is a huge gap here? The overall model shift will have been work done, and we can look at what we have in terms of the cost benefits and model shift. In terms of the individual areas that I had with Swestran, that is exactly what they are looking at themselves—the different models and the cost benefit. That is their work. Remember, there is not a one-size-fit all in Scotland in terms of us. I think that that is the challenge, so it would not necessarily be for me as minister to set that out. That would be for the local authorities themselves and the transport authorities who have the legal responsibility in their local area to look at that. What is really important is that they have the ability to share what their analysis is, because, although Highland might be different from Dumfruce and Gallaby, there may be similarities. Bob Doris has talked about remote and rural. I do not like using the word remote. It depends on where you are starting from. A lot of people think that Glasgow is remote, for example. One of the biggest challenges is semi-rural. It is not just what you might say about more dispersed communities in terms of geography and land and availability of buses. Some of the dynamics and the market working of areas that are close relatively close to cities can be more problematic even than more rural areas. We have to move on. Have you done an analysis of how many routes you think will be saved or added through using bus priority fund partnerships? What is the analysis in terms of modal shift? It is not bus priority partnerships, although it is bus services improvement partnerships. Too many of these names are similar. The bus partnership fund is not about saving bus services as was discussed with Douglas Lumsons. It is about making it more convenient. There might be a correlation. If you make more bus lanes that allow Aberdeenshire—for example, people in Aberdeenshire—to get into Aberdeen more quickly and more reliably, you could save potentially services in Aberdeen. That is a job that the local transport partnership and authorities will do to say that, if we can get more people from Aberdeenshire coming into Aberdeen using those bus gates, it is becoming more reliable. We know that the passage in Aberdeen has gone up. That is good. It is why I am frustrated that, unfortunately, because of the financial settlement, the 10 per cent cut in our capital budget, the escalation of inflation construction costs and putting pressure on the transport budget, we are having to pause the bus priority fund that we discussed earlier, because I think that it will help. Your point about saving bus services is not necessarily the purpose of it. Unintended is consequential. It may well do that, because it is about sustainability of buses and sustainability of the market that will help to save the routes. Even in relaying this, you will see that it is a very complex area. Every single part of Scotland will have a different experience and the cost benefits of it will be different to different parts of the country. Mark Ruskell has got the final question. Thank you. It has been an interesting evidence session. I was reflecting on the number of my constituents who write to me every week with concerns about the quality of services, not just about whether services are running or not, but whether they are running on time, whether buses are breaking down. I wanted to ask you about the conditionality that is applied to public sector funding, because I think that Jenny Gilruth, as a previous transport minister, announced that there was going to be a review of bus sector funding. There was part of that. There would be consideration about what conditionality can be applied to that funding. Obviously, we have got the traffic commissioner that is able to hold some of the bus companies to account, but I am interested in what work the Government has done to make this substantial investment in the bus sector every year conditional on some basic standards of service and improvements going forward. I remember being part of this committee when that was previously discussed. How do we use what is our considerable amount of grant funding that comes in this area to try to deliver the changes that we want in terms of particularly fair work first? We are working through all the different funding streams to ensure that we can maximise that. The most recent one was on the network support grant, which, as I said, although it is not the same amount as last year, is fully funded for the kilometres that are being met. That would be the expectation and requirement of those that are in receipt of the network support grant that they look at and implement fair work first. For example, one aspect is only one aspect of the fair work first principles in terms of the real living wage. Recently, I had the letter from Firstbuss letting me know about their commitment on the real living wage. There is work that has been done as part of the network support grant. It may be something that we can probably relate to the committee following this session as to where we are in the review of the conditionality and the other funding and also the findings that we had under what was announced as a review on the network support grant. Do you think that that conditionality needs to go beyond fair work to the actual quality of delivery of services? On the point of the quality of delivery of services, the expectation of customers is an issue there that I will take back in relation to discussion with CPT and indeed the bus providers is that in conditions of grant there has to be a warm bus, for example. That is a challenge in a day like this in certain parts. There may not be the kind of quality of us interested in the variability across the country. I do not know to what extent we can enforce the conditions within the grant that they meet a certain level of service. As you said, it is more of a traffic commissioner. However, with your agreement, you may not take that way to think more about the condition of service, as opposed to what my understanding was of conditionality. There is more to do with the standard of operation in relation to workforce, etc., and fair work first. Obviously, there are the basic legal requirements that are enforced by the commissioner. I do get a steady stream of complaints about buses that just fail to turn up on a regular basis. That presumably is something that the commissioner could enforce, but I think within the space about how we improve bus services working in partnership, substantial amount of money going in, I would be interested to hear more about how the Government can extend that conditionality further beyond just basically legal compliance with a timetable. I would say that there is different experience in different parts of the country, and we know that the availability of bus drivers has had a considerable impact on reliability of services in the past. If there are no bus drivers, that causes an issue. It seems to be slightly improving, but that depends on wages and conditions of service for operators and those who want to keep and retain. I have worked on that as well as important recruitment drives in different parts of the country to try to get more bus drivers, people to train as bus drivers. Mark, I said the final question. You have three there, so I think you pushed that as far as I can with the timing stage. I am afraid that I will have to move on to the next agenda item, which is a debate on the motion S6M-11609, calling on the committee to recommend approval of the draft bus services improvement partnership objections Scotland regulations 2024. I remind everyone that the minister may speak in this debate from that end of the committee room. Do you want to speak and move the motion? I detect from the questions that there are very little concerns about the actual regulations that are in front of us in terms of the objection system. I refer to my opening remarks when I set out the rationale for it. It is a technical aspect of making sure that we have all the system in place and that it is a completion of what is required on the bus service improvement partnerships to ensure that you are developing them if there are plans put in place that it has a co-operative agreement buy-in from all concerned. If operators have an objection, there is a mechanism and route that is understood as to how they might do that, but with that, convener, I am happy to move. My question to members is, does anyone want to make any contributions at this stage where the minister will get a chance to sum up and answer them at the end? Does any contributions from members? Sarah? I think that there has been a lot of questions to the minister because I think that there is a degree of scepticism as to what big changes it is going to deliver. At the end of the day, it is about will bus users get better services that are more reliable and sustainable. I think that I am certainly going to let this piece of legislation go through today, but it is the report back and the action afterwards that I am really interested in. Thank you, convener. Okay, Bob. I suppose just to give a slight balance to the debate. I did not detect any scepticism. I think what I heard today from the line-in question myself included was the huge challenges to get that modal shift and individuals and families out of cars and onto buses, but already the significant public investment, massive public investment that sits there and how that existing money could be used better. I suppose that this important legislation as part of that is about ensuring that local authorities can use new powers that are there, but bus operators, so they mean key strategic partners, can object as appropriate to some of those measures, and this appears to be a balanced statutory instrument. That is hence why we did not really ask about that. I think, convener, that we used it more as an opportunity to have a strategic look again at how we take forward publicly funded buses in Scotland in a strategic manner and a wee bit of wider budget scrutiny. I did not detect any cynicism. I should put that on the record, but I did detect significant challenges that we have all got a responsibility to gather to address as a Parliament, not just Government, and I will leave it at that. I am going to speak briefly, convener, because it was mentioned during the question about the bus lanes in Aberdeen City, and I think that sometimes people think that I am actually against those. I am not. What I was against is the way it was actually done, and I think that when we actually introduced things like bus priority measures, it should be done with full consultation with businesses and with residents in that area. I think that what we have seen in Aberdeen was that regulations come forward as experimental traffic orders, which has probably meant quite a substantial amount of money being spent by the Scottish Government to be fair on a scheme that has not actually got long-term approval, so potentially that money could be wasted. I just wanted to put that on the record, convener, because it is often mentioned that I am not in favour. That is not the case. I just think that the way it was done was not the correct way. Douglas, having mentioned that, do you want to just make a declaration of interest to remind the committee members of your previous role? Thank you, convener, for reminding me of that, and I would like to remind everyone that at the start of this session I was a local councillor at Aberdeen City Council, which is why, Minister, I was checking with the clerks whether he needed to make a declaration when you pulled me up for talking when you were speaking, but I can do two things at once, Minister, as you will have now noticed. Minister, would you like to respond to those comments? I just have one comment to make, and I think I understand your comments about funding, but to make significant change in the way buses are operated and run will require significant funding. On that note, Minister, I hand back to you to sum up. I want to see a strong, sustainable, reliable, affordable and accessible bus system, and to do so relies on local authorities and bus operators being able to work in partnership. As Mr Doris pointed out, there are really big challenges coming out of the pandemic, but I think that we all need to work collectively to identify how we do that, because, as we all know in our constituencies, bus services are frequently the issues that our constituents do contact us about. Thank you. We're now going to move to the question, which is that motion S6M-11609 in the name of Fiona Hyslop be approved. Are we all agreed? We are agreed. The committee will report on the outcome of this instrument in due course, and I invite the committee to delegate authority to me, as convener, to finalise the report for publication. Is the committee happy? Douglas, are you happy? Yes. And Jackie? Good. Thank you. Thank you and thank you, Minister, and your officials for attending. I'm going to briefly suspend the meeting till 10.25 to allow a changeover of witnesses. Welcome back. Our next item of business is an evidence session on environmental governance in Scotland. In June last year, the Scottish Government published its report into the effectiveness of environmental governance arrangement as required by section 41 of the UK withdrawal from the European Union Continuity Scotland Act 2021. The committee has since agreed to carry out a short assessment of the state of environmental governance in Scotland. This morning, we're going to hear from a panel of environmental stakeholders and law practitioners to discuss the Scottish Government's report and environmental government issues in Scotland more broadly. I'm pleased to welcome, first of all, Lloyd Austin, the convener of the governance group, Scottish Environmental Link, Dr Shivali Fifield, the chief officer for environmental rights centre for Scotland, Professor Sarah Henry, Dundee Law School, University of Dundee, Bridget Marshall, the chief officer for Scottish Environmental Protection Agency, Professor Simon Parsons, director of environmental planning and assurance for Scottish Water, and joining us remotely is Jamie Whittle, the convener of the Environmental Law Sub-Committee Law Society for Scotland. Thank you for joining us today. We've got around an hour and a bit for this, and we're going to move to questions from the committee. It is quite a large panel, so for fear of upsetting you all, you might not get to answer every single question. I invite committee members to ensure that they target their questions at the people they want to answer from. However, on the first question, I'm going to give you all a chance to answer, because it's my question. I would say, please don't over-egg the response, but some concerns have been raised by stakeholders about how the Scottish Government approached the 2020 environmental governance review, which was a requirement, as we know, of the Continuity Act. Has the Scottish Government provided enough detail in the review, and if not, what's it not provided detail on? I'm going to work from you to write and come to Jamie Whittle last, so, Lloyd, if you want to head off. By the way, if Lloyd gives all the answers to the points that you want to raise, you can just say that Lloyd is correct. Lloyd, please. I can't say that, can I? I can't say that Lloyd is correct. First of all, convener, I thank you for the opportunity to give evidence on this, and Scottish Environment Link warmly welcomes the fact that the committee is looking at this important topic. I think it's something that deserves more attention and more debate, and I hope that what we're able to say today will be useful to you. I think that you're right that across stakeholders there was general disappointment with the Government's report, not purely on its outcomes, but the quality of its assessment and its lack of firm proposals was probably the biggest concern to us. Whilst we welcomed the publication of the additional briefing paper during the consultation phase, it didn't provide that much more substance. I think that from the various responses to the consultation that are publicly available have been supplied to you or to have been published by the respondents, because the Government hasn't published all the responses yet. I think that it's clear that the concerns are widespread and that, essentially, those concerns relate to the very narrow interpretation of the questions, the depth of the assessment and the lack of any real analysis of the pros and cons of different measures and so forth. I think that we would very much like to see, in general, I talk about the specific parts of the consultation in subsequent questions when you ask specific things, but, in general, I think that the most important thing is that the Government be encouraged to respond to that concern that was expressed by the respondees, and that some form of fuller, more detailed analysis is carried out or commissioned that can lead to further debate and, hopefully, actions so that we don't lead to the whole thing effectively being closed down with no kind of response to the issues that have been raised. Shumali, do you want to come in on that? Lloyd is correct, and also, in terms of the detail of what was not provided, I'll just give a quick summary as we put in our submission to you on 6 October. The report, overall, failed to consider whether the establishment of the Environment Court can enhance environmental governance arrangements, and I know that we'll talk a little bit more about that in follow-up questions. But, in terms of looking at the scope, it did not contain any analysis of the entrenched environmental governance problems that exist today, the lack of enforcement of environmental laws, the lack of access to justice. Scotland is still in breach of our convention article 9.4, access to justice requirements. There was no clear indication how that would be remedied by the deadline of 1 October 2024. There did not seem to be any analysis overall of what are the problems of environmental governance and what are the issues that we clearly have around environmental degradation, the climate crisis, the biodiversity crisis and what is the link between those in Scotland and what could we do better in terms of environmental governance. The report spent a long time talking about environmental standards Scotland. We welcome environmental standards Scotland, but they cannot resolve everything. Most importantly, they did not address the issues of individual complaints. I'll talk a little bit more about that, I'm sure, when you ask about how the 250 inquiries that we've received in our free legal advice service, what do those individuals do when they want to access justice? I think that that's the clear headlines for us that I'm sure I'll be able to detail as we progress. Sarah. Thank you, convener. I wouldn't disagree with much of what Lloyd and Chevalie have said. It was narrow and perhaps disappointingly so. I would have liked to have seen a bit more on those linkages with other policy areas. There's a lot going on in this space. There's a lot of proposals emerging at the moment. I thought it was quite thin, the biodiversity crisis has mentioned, but there isn't really any sense of how this piece of work is going to link into all those other pieces of work. I think there's a lot to be said, and that came across in the Law Society's paper as well and ESS around data and monitoring, and that helps so enormously with looking at enforcement for the benefit of individuals and communities. I also think that there wasn't anything very definite to suggest what would be happening next. It very much had the ear of something where, at least at a starting point, the decisions had been made. People were content with where things are at in that narrow scope of the act and not much about where we might go in the medium term as a country in terms of environmental governance. Bridget. Hello, I agree with the statements made so far about the narrowness of the report, but in many ways maybe that's not surprising. I think that the Government took a relatively narrow approach to governance. They were concerned with protecting Scotland's environment post-EU exit, and as others have said, particularly Sarah, they didn't think about what wasn't working particularly well in governance terms in the existing system, which is quite complex. They also didn't think about taking a step back and taking a broader view of governance. Now there are a number of things that they referenced in the report that are coming before this Parliament, which includes the human rights bill, but also I think the well-being and sustainable development bill. I think that there is an argument that CEPER actually made in our original response to the Government's consultation on setting up post-EU exit governance arrangements, that was 2019, that we need a governance system that's able to tackle complex environmental issues that we face today, which are largely systemic and that is multifaceted and multi-generational. I think that maybe not surprising, this particular report took a narrow approach, maybe it is disappointing that the Government didn't take the opportunity to build on this narrow approach that's taken so far and there is still much to be done in this space. Simon, what would you like to have? Good morning everybody. Our perspective comes from probably one of Scotland's most regulated organisations across water, soils, the air. When we've looked at the guidance, I think first of all I welcome the five principles that have been put forward in the guidance. The key for us will be getting the detail behind those and that's what's lacking at the moment. It's a real practical application of that guidance because that will be key for us in terms of how we make decisions, how we make investment decisions, how we prioritise our activities across Scotland. So more than anything else, it's really welcomed the principles, the keys, as the practical applications of how they will be used and implemented. Okay, and finally Jamie, are you going to break ranks and say it's brilliant? Thank you, good morning convener. And thank you very much for the opportunity to speak. I'm afraid I'm not necessarily going to break rank. What I would say is that the Law Society of Scotland's response in many ways echoes comments made before, but in particular there are maybe three points I'd like to pick up. One is the need to have detail on ongoing issues that were in place at the time of Brexit and two, and we would welcome a greater consideration of those such as the nature of appeals, the costs of remedying environmental justice, the importance of ensuring enforcement, consultation, public participation, these sorts of issues which have been existing and have required attention. The second point I would wish to make is really about the general question of what we mean by effectiveness, because as the Law Society of Scotland has submitted, it's very difficult to be able to measure the progress that is being made and judge whether or not one has been effective unless there are some key indicators and strategies and has been alluded already in relation to biodiversity. The report does mention about the environment strategy which the Scottish Government is taking forward and progressing at the moment, but thinking about, for example, the link into that and measuring what outcomes ideally should be reached. Then the final point where we considered that matters were light in analysis was in terms of initial administrative stages of regulatory decision making, so whether or not that's in the planning or in other administrations, and really just the importance of trying to get things right at an early stage before one is drawn into an appeal stage. I guess from the evidence that's probably what I should expect, but it wasn't a wholehearted ringing endorsement of the process so far. So there are questions from committee members and I'm going to come to Sarah by it first. Thanks very much, convener. It's come across in terms of the written evidence which we're very grateful for and the oral evidence so far that there's some really big ticket issues that need to be addressed. I maybe want to kick off and ask what difference has actually been made in terms of engagement with environmental standards Scotland. It's now sitting there, but I think one of the comments that struck out for me was the comments, I think, by Scottish Environment Link welcoming the acceptance that Scotland is in breach access to justice requirements of our hoost in relation to costs. So there's something about how do you get that difference to be made? I don't know, maybe start off with you, Lloyd, but I'd be keen to get a sense of the panel. There seems to be a big gap between what environmental standards Scotland was meant to achieve and actually the narrowness of what's been expected thus far. Do you want to give a quick comment, Lloyd, and then maybe pick up one of two of the other evidence submissions that we've had today? In terms of environmental standards Scotland, it's early days still, but the most important thing to say is that we very much welcomed its creation under the Continuity Act. Some form of environmental oversight body to replace the commission was important post Brexit, and we have the Office of Environment Protection, of course, for England and Wales, England and Northern Ireland, and reserved areas. So it's important that it's there, but it was never going to solve all of the post Brexit governance gaps. I think one thing I would refer you to would be the report from the round table that the previous Cabinet Secretary commissioned in the last Parliament that was chaired by Professor Campbell Gemmell that looked at the range of governance issues that needed fixed as a result of Brexit, and an oversight body in the form of what became environmental standards Scotland was one of the recommendations, and it was very positive that that was picked up and taken forward, but there was a range of other things to do with data and monitoring, for instance, that has been slipped and has not been picked up. Environmental standard Scotland was never going to address access to justice issues. The failure to comply with AHU's article 9 is actually a matter for the Government and the court service. It's not a matter for environmental standards Scotland. Of course, environmental standards Scotland can offer its opinion, but it's somebody else that has to fix it, and this consultation does, from a positive point of view, acknowledge the failure to comply with that AHU's convention article, but the items that are set out are five bullets in the report. There are all things that could help, but there are not things that will help, because we don't know the outcome of those processes that have been put in place, and so essentially we need some drive from Government to pick up those five processes and make sure they deliver the right outcome, which is to ensure that we move towards compliance in relation to the prohibitive expense of taking action in environmental law issues. I hope that that answers our access to justice point. That's really helpful. It links into what extent environmental standards Scotland has actually functioned as people expected. I can see some nodding from Dr Shavallie and Professor Sarah. Do you want to kick off there? I'm happy to. I'm not hugely involved with environmental standards Scotland. I'm also welcome at its establishment. There's no question. One of the problems is that different people hoped for and expected different things. Some people would have hoped to have had a wider remit and to be more fully resourced and to be able to do more and more quickly, and others feel that it's progressing nicely or perhaps even that it has quite extensive powers that they're a little concerned about. I think that spread of views is quite reasonable, but also it could never have solved everything. One of the problems with the consultation was that it kind of excluded any other wider discussion. It talked about what we set up environmental standards Scotland and they're doing a good job and that seemed to be enough, but they would never have been enough. They were only ever a part of the post-Brexit arrangements but the wider governance arrangements as well. We launched our free advice service at the same year that environmental standards Scotland was launched. Of the 215 inquiries that were received, we submitted 11 representations to environmental standards Scotland. I'm going to call them ESS for short just to keep it. That's almost a third of their overall representations, so I think we've got quite good evidence base. Again, I want to stress how much we welcome them, but their role is to address systemic failures in environmental governance. Their role is not to at the moment address individual complaints. We have had some concerns around the timeliness of how they respond to representations and how it's used its enforcement powers today and we've detailed that in our comprehensive consultation response, so I won't repeat all of that. One of the key things that the report did acknowledge was the inability for ESS within its powers to address individual problems. How do we identify systemic environmental governance problem? Individuals and communities can't do that. We've had to spend a lot of time and a lot of resource to identify the individual issue water pollution in River Almond for example. Is that a systemic issue? We took about six months to talk to communities, to make the gaps, to make the connections between other issues and say no, actually we can raise this as a systemic issue. We then do that and then take time for ESS to respond back. Then there's correspondence to CPRSWELL, there's correspondence with freedom information responses, appeals to that. We go on and 12 months later we are then informed that there's no case to find. Meanwhile communities across River Almond are wondering what to do and where do they go. I hope that's a really good example of how, regardless of how wonderful all the systems might work in theory, in practice individual communities who've been campaigning around water pollution and environmental degradation for a good couple of years, such as such spreading for example on agricultural land. Still, even with our intervention, with our correspondence with CPRSWELL, with submissions of FOIs, with environmental standard Scotland, they're left with no remedy. I think that CPRSWELL had quite a lot of inquiries as well. It might be worth. I was going to move it beautifully done actually, the example given by SEPA and Scottish Water on that issue of what difference has actually happened and to pick up the point that Bridget made earlier about wellbeing and sustainable development. There's both Scottish Government work considering policy and legislation and my own members' bill. So it's that issue about what difference is ESS making in terms of relationship with first of all maybe SEPA and then Scottish Water? If you look at the investigations and analysis that ESS have done, SEPA and Nature's Carp, there are probably two of the bodies that have been subject to the most scrutiny and we welcome that scrutiny. It is worth saying for balance that there is now greater opportunity provided by the setting up of ESS for scrutiny of the implementation of environmental law. So previously under the EU system there were extremely few cases bought and investigated by the Commission that directly affected Scotland or regulators like SEPA. The Commission had oversight of 28 countries, many of whom had much less developed environmental protection systems as we had and so the focus on the UK and particularly Scotland was very limited. So in those few cases that we were scrutinised by the Commission in the past, that scrutiny was at the Member States level and the new governance arrangements I think have successfully brought opportunities for scrutiny much closer to home and if you look at the number of investigations that ESS have undertaken in the short while that they've been in being, the number of investigations is far higher than we would have been subject to from the Commission as a Member State. The range of issues is much broader, the range of issues go from genuinely systemic ones like air quality to much more local issues and the direct contact with regulators like SEPA is much closer. So I think it's worth saying for the record that these new arrangements will take time to bed in. They're operating in a very different way from how the EU is to operate and all of us, all of us are players in this system are still learning about it as our ESS. But I do think there's something about making the whole system work as we have at the moment because we all have the same outcomes which is want to improve the environment, Scotland's environment and improve things for communities. So I think we all need to work collaboratively together with this system that we currently have to make sure that it works effectively. On the point about individual regulatory decisions, SEPA operates within a system set up by legislation that has appeals processes that has other scrutiny on those individual decisions. And we are quite clear, and I think the Government and ESS have been quite clear that ESS have not been set up to be an additional appeal forum against those individual regulatory decisions. But as Sovali has said, that those individual decisions, if SEPA is continually misdirecting itself under the legal basis under which it operates, then you will see a systemic pattern and that systemic pattern can then be investigated by ESS. So I think that's the points I want to make. But that is all about the limited systems error that has been set up. But I do think that it's something that we should, as a country, think about evolving as these new bits of legislation come into place. And we need to continually ask ourselves the question of what do we need not only to protect from the EU, but for wider environmental governance, which I think is something that the whole panel has really commented on. Thanks. And then from Scottish Water, did you have a particular perspective on this? So, obviously, just as Lloyd and others have described, actually, our interactions with ESS are all very new, a new organisation, and obviously building a new good team in the actual organisation itself. Its role is really important. It's replacing a missing bit of governance oversight that was provided previously by the EU. But that was provided on Member States, and the big difference of ESS is it's now down to public organisations rather than Member States. And I think that's the part that we have still yet to truly understand what does an action from ESS or a recommendation from ESS actually mean for us going forward. It was always very clear if the EU, and as Bridges were very well described, is the EU would have put an action on the Member State and then the Member State would have decided how we would meet or not that recommendation. And that meant, for example, when we were having discussions for us at Scottish Water about priorities for investment, priorities for our ministerial objectives, for example, it was always clear how that would flow through. It's less clear at the moment in terms of how actions, for example, from ESS will flow through to us as an organisation, because we are regulated by CEPA, we're not regulated by ESS in that sense. So, I think there's still a bit to get that clarity about what it is, and I think the key one, as Angus Wallace mentioned, is that their focus has to be on systemic issues, not individual issues. That's a role of CEPA. I don't think they're here to provide the role of an ombudsman, for example. I think that role is already fulfilled in the whole environment. Okay, thanks very much. I'm feeling that you've left Jamie Whittle out having gone through the entire panel, and it's just quite difficult, as convener, if I can just say this, Jamie, to you, to see if you want to ask a question, because it goes through broadcasting. So, if you wave at me, I'll assume that that's you wanting to come in, and I don't know if you're waving at me now, but I'll give you the opportunity to come in at this stage. Thank you, convener. I'm not waving, but I'll pass, but thank you for the opportunity. Okay, perfect. So, the next question, the questions go to Mark Ruskell. Mark. Yeah, thanks, convener. I was going to ask a series of questions about individual cases, but I think that evidence we've just heard is very useful in that regard. I suppose there are just two follow-ups then on the back of that. One is about whether you think there are pieces of work that ESS have done recently, which do kind of batch together concerns that have come from individual cases, and then go ahead and make recommendations about changing systemic approaches to regulation. So, an example of that might be acoustic deterrent devices, for example, should I mention the River Armands where perhaps hasn't worked so well, but I'm wondering if there are areas where it has worked quite well in terms of collating those individual cases and pointing to a systemic change. The other point really for SEPA to answer was quite struck by your submission where you talk about an increase in the number of complaints, perhaps with, in your view, an expectation from complainers that ESS will then pick up on a batch of complaints, a volume of complaints that are coming through to SEPA, and again do that work to address a systemic issue. I wonder if you could elaborate a little bit more on that, and I suppose I'm a little bit startled if SEPA is saying, well, we're a bit concerned about number of complaints and how we're going to resource this, and that that's a problem with the system rather than perhaps addressing the practice of SEPA, but I'd be interested in comments on both those issues. Okay, well can I start with the second question if that's okay? So I think it's an unintended consequence of the new system, and as I've said before, we are all learning in this new system, so I think there has been an idea that because you have to exhaust all existing domestic complaint remedies before you can go to ESS, that in a way people have to go through our complaints procedure before they can then move on to ESS, and we have had a number of complaints which have come from the Environmental Rights Centre, but they actually say that in the letters that come to us. So it's not that I think we object to that, we just think it's an unintended consequence that is worth just airing. We obviously deal with all complaints in the same way, and we have actually begun to liaise in a much more regular way with the Environmental Rights Centre so that in a sense we have some sort of informal discussion with them before these complaints come in. So I think this is all signs of the system beginning to mature a bit, and us all finding our feet. And as I previously said, I think it's really important that all the players within this new system learn to work together as collaboratively as possible, because we are in a public sector funding uncertainties, and it's really important that all our resources are used as effectively as possible. So that is really at the heart of our comments mark as an unintended consequence. I think people hadn't thought through of the new system, and maybe it will bed down as we become more used to all operating within this system. And obviously we always prioritise both complaints, but also scrutiny from ESS in terms of our resourcing. So it's really important that we do that, and we take obligations with those that regulate us really seriously. So we do prioritise work with ESS, and that means that other work that we're doing may be slowed down to accommodate that work with ESS. Okay, I appreciate that and appreciate the comments about the process there. Are there any other reflections then on individual complaints and how they've been effectively addressed by ESS to driver systemic change beyond the example of Riverund? Just to clarify, Mar-Shivali and Lloyd, I think would like to come in on those, if you're happy to take them to start with, and then see where it goes, Shivali, if you'd like to... Yes, just a quick come back also on SEPA's observation of the increasing complaints. We hope it's a good thing, you know, Environmental Rights Centre for Scotland was set up to try and amplify the voice of individuals and communities. We don't want to make complaints, we want to ask for a freedom of information request, and the information to be supplied straight away. It's not. That's why we have to do an appeal. Once we do the appeal or we threaten appeal, then we may get the information. We're really sympathetic to the limited resources of Scottish Water, SEPA and ESS, but they do have a duty to ensure high environmental standards are enforced. I think we have to keep on remembering that we have communities at the other end who are wanting to see an improvement in their environmental quality. We wouldn't have to ask for an FOI if the public registers were maintained. We appreciate the difficulty the SEPA have had. Nevertheless, if we had those public registers, we wouldn't have to ask for them. Surely the key message here is not how many complaints SEPA is receiving, but what are we doing to tackle the root of those complaints? Individuals do not come to us easily, but they want to have answers to why they have the issues they have in their environment. So that's the first thing around the unintended consequences. I think we're probably part of the unintended consequence, but I think we're quite proud of that. In terms of whether ESS has done well in packaging the systemic issues, Mark, I think this is one of the things that we are hoping will happen as ESS develops and consolidates. That isn't what they've been doing. It's been left to us and communities to identify whether it's a systemic problem. I would love ESS to start monitoring the kind of nature of issues that we're having and present to us what the trends are. ESS is beginning to do that through the 250 inquiries. We're not there yet, but we're a tiny organisation, but we're doing our best. When we have identified issues such as breaches of the Climate Change Act on the lack of the publication of a climate impact assessment on the infrastructure investment plan, we've submitted that to Environmental Standards Scotland. We've also submitted to Environmental Standards Scotland the breach of access to justice 94, but has that actually been up independent activities such as pre-litigation correspondence with the Scottish Government? That's actually got a more timely response to how we're going to get that published climate impact assessment. I hope that that will get better. As I said, we've got very good ratios with Environmental Standards Scotland, but it's still work in progress. I agree with things that Shawalee said about individual issues. I wanted to just look at the individual cases point from a policy perspective. The Scottish Environment Link, when the Continuity Act was still a bill that was going through, we were quite vocal in wanting the exclusion of individual cases, and it act removed. That was on the basis that the Commission didn't have an exclusion in its remit. Actually, quite a lot of the significant cases over the years that the Commission took forward, whether that be in the UK or elsewhere in the EU, were started off as individual cases. They led to case law that then meant that all 28 Member States, including the UK and Scotland, had to comply with that case law. However, that wasn't removed and it's in the Act. I do, to some extent, agree with the Government's concern about seeking to prevent an additional layer of appeal in the process, but I have to say that from the community or individuals point of view, there isn't a layer of appeal already because of the other issues that we've talked about, the access to justice and the other challenges that communities and individuals face when they want to be challenging of a public body. There is pros and cons to that effect. The difficulty is that, when is an individual case, a concern raised by a community about an individual case, when is it an individual case alone, and when is it a symptom of a systemic issue? Is it for the community or the complainant to identify it as a symptom of a systemic issue, or is it for the public body concerned? If that exclusion is going to remain in the Act, there needs to be some kind of interpretation and clarity that indicates that communities and others can bring forward examples of individual cases, but it's for ESS to group them in together and to analyse whether those individual cases from communities are symptoms of a systemic issue or not, or whether it's just some sort of one-off exception. Finally, going back to where I started, if ESS is not to provide an additional layer of appeal, then there has to be a system of an effective form of governance that enables communities and individuals to be able to be more challenging about individual decisions in other mechanisms, either through the individual regulators themselves or through the courts or through the Scottish Government, et cetera. Mark. All done. All done? Oh gosh. Unless there are others who wish to offer some insights into that. No, that's not me saying no, Mark. They're shaking their heads. They could have done it if they wanted to. Ben, as deputy convener, I should give you the opportunity to ask your questions now. Thank you, convener. Good morning to the panel. Thanks for your time this morning and your submissions. Before I ask my questions, I just want to draw members' attention to my register of interests as a solicitor on the role of solicitors and a previous practising and non-practising member of the Law Society of Scotland. All of this is about the climate crisis and biodiversity crisis at the larger scale, but in terms of the constituencies that we represent and the communities that we serve, it's about quality of place, quality of local environment and quality of life within that. What interests me about this wider issue is how do we make improvements together? I take SEPA's point around wanting to work collaboratively, and I've certainly seen that in my constituency at the Seafield wastewater treatment works, for example, that Mr Parsons has been engaged in and SEPA has as well, and we've seen improvement without the need for legal process through collaboration. However, I do think that there are questions about access to justice in order to make the improvements so I'm open minded of the idea of an environmental court. I know that Dr Pfeffield, you've been involved in the considerations about the water of leaf basin in my constituency, so thank you for that. What are the views on the panel and the need for an environmental court in Scotland? Do we really need it? To what extent do you agree with concerns raised in the written evidence by ERCS that the Scottish Government's consideration of this issue in the review did not meet the requirements of the continuity act, taking into account that the Government went on to publish a further briefing on this issue and extended the consultation period. Dr Pfeffield, you seem to want to answer the question first. I'm not sure if I should answer the question first because, of course, I am the chief officer for the Environmental Rights Centre for Scotland who raised the issue of the Government million breach of the statutory duty to properly consider whether or not an environmental court can enhance governance arrangements and, as you know, we sought senior council advice on that. The only reason we haven't moved to litigation is the irony of it because of the privilege experience of taking access to justice. Perhaps I'll hand over to somebody else to talk a little bit more about that. I think everything's done for you as far as I remember from when I was remote. They activate your microphone. They're usually quite good at making sure it's not when you're making a comment that you don't want to be heard, but I think they've done it for you, Jamie. No, thank you. I'm obliged, convener. In terms of the lower society's position at CETA in responses thus far on the environmental court idea, it's certainly commented in the past and then more recently in its recent consultation response, probably the headline point is that, whilst it very much acknowledges that a further briefing was provided by the Scottish Government on this idea, the lower society would have welcomed greater consideration into the benefits of having an environmental court because the lower society considers that a well-designed environment court could provide significant improvements to access to justice. Aside from that, some main point, other aspects of the lower society has suggested might merit consideration is the idea of specific court procedure for environmental matters. We have by analogy in the court of session a commercial court and procedure for commercial matters, but when one is dealing with aspects to do the environment and there are particular technical aspects that require to be dealt with, it may well merit consideration of having a system that incorporates that more fully. Maybe just a final point is that if taking such a notion forward, one of the very important things to embed in the system is ensuring that there's sufficient technical expertise within the judiciary, the legal system to be able to deal with matters that may come before the courts. That point around expertise is really significant. Also for communities and those bringing any challenge to know which direction to turn to, I don't know if you have anything more you want to say about that. It seems quite a clunky and cluttered landscape at the moment. Is the civil litigation's expenses in group proceeding Scotland Act 2018 relevant here? Is that making a difference in the here and now? I don't know if you want to add any more on that. Not only about the lack of expertise but, as you've already identified, we've written extensively on this in two different reports. The complexity at the moment on where you take environmental cases is so complicated. Having one place to bring all of that, those environmental cases together, would also increase expertise of the judiciary in a tribunal system. There's hundreds of examples across the globe and we've cited many of those in our reports. You've found that it's been more accessible. It's been cheaper because you've got all the experts together and you've got one place to go. It could have an outreach kind of model rather than just a one place in the court session to go to. The other thing as well is about how we can begin to think about merits. As you know, in the judicial view at the moment, we can't think about the merit of a case. We can also consider other areas of reform. Time and time again, when we've thought about how do we make access to justice more accessible and more affordable, we keep on coming back to a Scottish Environment Court model. It's not good enough, I don't think, to read in the report. Well, we don't have many cases, therefore there isn't a problem. We don't have many cases because it's impossible to get to access to justice. Sorry, Deputy Minister. I was very keen to come in, I think, on that point. I've opened the floodgate, but Sarah was sitting patiently. No, I'm not pushing to come in, but I'm happy to say a little bit because I think that an environmental court, the discussion around this has been going on for a long time and not just here. I was a missed opportunity in the report. I think that the Government could have said more about it and in more positive terms. It could have produced the additional briefing paper earlier or incorporated some of that. It could have suggested taking this forward with some further consultation around what a court would look like because it's very complex. The regulatory field is so complex. Is it just civil? Is it criminal as well? Is it just appeals? Is it first instance and appeals? All of that could have been an opportunity to take this area of consultation forward, linking it into some of those big strategic issues around biodiversity, but also thinking about your quality of life issues, what we used to call environmental insubilities, they make such a difference to people's lives and really do bring things close to home. I think that it was a missed opportunity not to be more positive about some form of specialist court, to be honest. I think that it would have helped the Government enormously if they had done that. That would be my thinking on it. I agree with Sarah in terms of the missed opportunities. I mean, in terms of whether or not the consultation met the legal requirements of the Continuity Act, I don't know the answer to that, although I note Shevali's reference to the council's opinion on that. I also note the irony of the fact that that question couldn't be addressed because of the problems of access to justice. It does kind of almost become a vicious circle in terms of that, but in terms of the big picture of environmental courts, Sarah also mentioned that the debate's gone on for a long time. There's an awful lot of material out there. When the debate started in Scotland back in the early 2000s, Scotland would have been ahead of the field in setting up an environmental court, but in the last 15, 20 years, there are now over 1,000 environmental courts or tribunals and jurisdictions around the world. If we went forward, we'd be catching up with the rest of the world rather than... Therefore, I think it is a huge missed opportunity. I think the report is quite weak in terms of the analysis of examining the evidence for and against and the assertions that are made against actions, as Shevali used the example of there not being very many cases. Well, we know why that is. That's the vicious circle again. I just wanted to draw your attention to something that was in Scottish Environment Link's response because we've strongly favoured this concept of an environmental court or tribunal for many years and we supported it in the last consultation 2016-17. The analysis of those responses said that a substantial majority of the respondents favoured the introduction of an environmental court or tribunal. The majority envisaged a specialist court or tribunal as a means to reducing costs and improving access to justice. I think the government's decision not to proceed at that time may well have been right in the circumstances of their time because, as the government said at that point, there was enormous uncertainty about the landscape caused by Brexit and they decided not to proceed at present. They didn't say that they were opposed to it in principle and therefore this consultation said a few years later and the Brexit issue has kind of settled down a bit and they've got time to move on. This could have been an opportunity to really do a proper analysis of the pros and cons, a proper analysis of the options of how to proceed, whether or not such a court is a new entity or whether it's an evolution of one of the existing entities, whether it's done under the tribunal system, et cetera, and look at the pros and cons of all those and therefore it's a huge missed opportunity and finally I just want to underline the merits point because one of the big issues that individuals and communities have is that they disagree with regulators or public bodies about often the merits of a case or an issue and yet if they challenge it both parties end up kind of dealing with those merits by proxy because the judicial review system means they have to attack each other on procedure rather than having a proper look at the merits and the idea of having an expert environmental court or tribunal where the court officers are experts in the environment to resolve those disputes on the merits would actually be hugely advantage I think to both parties, the public body party and the community party. This would be about building a mechanism for justice for the medium to long term, not just in the years ahead. Can you give an indication, you talked about the commercial specialist court earlier, how many years has that been in place to this juncture approximately decades? Certainly ever since I was a trainee which was in around 2000 so it was in existence before then so yes 20 I would expect it was certainly over 25 years and of course in terms of just that point that the Lloyd made about the ability to go into the merits of a case there are very strict rules in the court of session for example where there's this concept of planning judgment that the courts can't go behind what may have been decided by a decision making body and so there are limitations in terms of being able to look at the quality of an environmental decision and sometimes things will skirt through without being able to have been challenged effectively and in that context to me a real importance is to take a step back and ask the question about what's the underlying purpose that one's trying to achieve and if tackling the nature crisis and the climate crisis of your drivers coupled with an access to justice element that can benefit constituents then I would suggest it's important to look at that question in that wider context. Okay thank you does anyone else want to contribute on these points? Yeah well there were some supplementaries that were indicated might be required here Sarah you said you might want to ask a question on this and I know Mark Ruskell has definitely got one Sarah do you want to start I'm I'm trying not to say kick off because we don't want that in the committee but do you want to start with a question and then we'll go to Mark? Yeah well I was thinking about how it follows on to the upcoming human rights legislation which potentially is a new human right to a healthy environment and thinking about how you would deliver that in practice and having both an enforcement framework and different legal and non-judicial opportunities to get redress so just seeing how that relates following on from Ben's questions about an environmental court to linking into our who's compliance I'm seeing a couple of nods there I don't know which of you wants to kick off Sarah yeah I mean I also responded to the human rights book consultation as I think others have as well I'm for the record I am in support of a human right to a clean environment and indeed a human right to water and indeed incorporation of ESCR rights into domestic law so that that is my position but I do think well there's a huge of their huge issues around resourcing that bill and around the time that it will take and I also think as an environmental lawyer that it's a little bit sad that that's what we need to realise the right to a clean environment and a decent quality of life for people in communities I just feel that in a country like Scotland with lots of resources of different kinds and a well-established system of environmental law that it would be really nice if the natural environment and people's interactions with it were regulated and monitored in a way that didn't require an extra step of giving people a human right to enforce through some other set of mechanisms in order to achieve that so that's that's my thinking around that just now yeah so that point about getting it right in the first place you don't need the redress did you want to come in on that one as well so um as part of environmental rights centre um we are the only environmental NGO on the advisory board to the human rights bill and so that's been a real privilege and and and great opportunity so we've we fought hard to advocate for the right to a healthy environment to be part of the bills framework um and particularly the substantive right and those six features um but completely agree with Sarah but we shouldn't be in the case of having to put that into human rights framework as well um I think in terms of how the two um fit together is really important and a really important point so we've um again raised in two places the current breach of acts to justice in the ars convention and how the human rights bill addressed that and I think currently in the consultation document and we've responded to this in detail as with the environmental governance report although both acknowledge the current breach there's no clear um undertaking of how that breach is going to be remedied by the 1st of october 2024 deadline there are issues that have raised that the human rights bill will address reform of legal aid they will address issues of standing and the reasonable test in terms of judicial review but again we don't know how much that's going to be just on the human rights bill how much that will go into other areas of environmental governance there's also a number of different oversight bodies which are raising the human rights bill and thinking about different powers we assume and we've advocated for environmental standards Scotland to be that oversight body um whether you call it the regulator that regulates the regulators or the ombudsman function um that needs to be properly considered in terms of how you consolidate and develop environmental standards in the future but fundamentally what we're talking about in terms of the environmental court is an independent judicial route to remedy and that is different to anything else that we've been talking about to date in terms of access to justice on the environment and I think your point that deputy convener is really well made that how does how do we improve the judicial route to remedy so that when all else fails there's a credible threat of legal action because that in itself will improve regulation and enforcement and one of the things that we've noted and we we said it in our response to the environmental governance report as I've already mentioned we have some concerns about how environmental standards Scotland seems to be risk averse in in carrying out its enforcement powers because it has more enforcement powers at the moment than for example Scottish human rights commission and the human rights bill they're wanting to increase the powers of the commission so you have a body here that has these powers but they seem reluctant to use them and uh Jim Martin um the the chair of environmental standards Scotland said in in one of his speeches that one of the reasons for that is because the prohibitive cost of going to judicial review so we do believe that if we had an environment court or tribunal that would be one way of reducing costs and opportunity for environmental standards to reduce their costs on the public bus and actually follow through on enforcement action because they do have at the moment the right to judicial review but as I said I'm probably quite concerned about the cost to to to go to that extra mile if we needed to that's really useful anyone else that are coming on the back of that yeah Lloyd very briefly um Scottish environment links strongly supports the concept of a human right to a healthy environment and its inclusion in the proposed human rights bill I think our concern is that unless the governance questions are fixed the access to justice environmental court etc etc powers of environmental standards Scotland there is a risk that will have a human right to a healthy environment that is a human right on paper and not effective and enforceable one uh so you know I think the linkage between the two the governance debate and the human rights bill one is important and it's important that in order to make the human rights bill effective the governance questions need to be answered I I'd just like to pick return briefly to Sarah Boyack's point about getting it right up front rather than sorting things out by redress and I completely agree that that's the most desirable thing to do but I think that having spoken about a vicious circle just now I'd like to point out that you can have a virtual circle as well and actually if there is a right to redress in other words that if communities and individuals have a right to hold public bodies to account where they they may have failed that provides an incentive to a public body to get it right first so actually the incentive to getting it right up front is for that right to redress to be there but in the absence of that right to redress that incentive to get it right first isn't there and therefore there is a risk of errors being made and so on okay just just before we move on to March you made some comments about ESS there and I I'm not going to defend them I'm just going to ask the question of you they're a relatively new organisation they're bedding in they're finding your feet their feet sorry and trying to establish a pattern of work and we've had evidence from them in the committee and we we see a trend I think would be the right way to say so you were a little bit condemning do you think they're do you think in it's a little bit unfair to judge them at the moment as as they find their feet and move forward um yes and I apologise if I was condemning not at all I think I want to stress how much we welcome ESS and how um good uh working relationship we have and that as we've we submitted 11 representations to ESS um we're I suppose it's it's that it's that balance isn't it between um wanting ESS to be as strong and as powerful as they can be and I suppose again that's the advocacy around an environmental court and and everybody wanting to test their powers and just wanting the best for our clients as well so um no I suppose I yeah thank you and no overt criticism just an observation that if you want them to run and run as fast as possible they're going to have to learn the the process of of not tripping over their own feet as they do it if you excuse the analogy but I'm just worried that they're new and and we need to give them time but Mark you have some questions uh before I move to uh I think uh I've got a further question and then Bob say Mark yeah I was just going back to deputy convener's questions around you know the environmental court the case for that and also you know our lack of compliance with ours I'm thinking about how how do you see this debate moving forward because I think Lloyd you already mentioned that in the last session of parliament there was the the round table on environmental governance that was chaired by Campbell Gannel it feels like we've been going around this issue for some time so if you if you see it a way forward on that what what does that actually look like because I think there have been calls and evidence for a further governance review and I suppose I'm I'm interested in you know how how would that be different to to what we've already seen coming through and what Government has was already conducted itself Lloyd I think I was partly directed at me so yes I I I would agree it's it's been ongoing um I think the key thing is that actually the risk is that the with the report as it is there is a risk that there will be no next steps and I think the most important thing for the stakeholders and I hope the committee to try and achieve is that there is some form of next step so to move to mark's question what is that next step I I think the next step has got to be some kind of commitment to to do a proper analysis and look at the options and uh and to in relation to an environmental court and to that will need some kind of a we've suggested in in linker an expert working group of some type uh rather akin to the the way that Alan Verity's group worked in in terms of the uh small management question um now I completely accept that that actually sort of looks as though it's you know going round another review another process etc etc but the risk is that if you don't do anything like that then you actually do nothing which would be the worst case scenario so I think you have to do something of that type in relation to an environmental court in relation to access to justice I think the ball is in the government's court I think the the five processes that are outlined they can they could be clearer and firmer about how those processes are going to deliver access to justice and costs questions um and in terms of the wider governance review and the report from the last parliament that I I mentioned I think again the committee could put that back to the government and say um you you've taken forward environmental principles you've taken forward ESS in in the continuity act that's very good uh progress made tick uh but what about these other things that uh professor Gamble Gamble's group raised uh and again I think that's uh you know something that um the committee could discuss with the minister but those are things that um probably are in the government's court to decide whether or not they want to pick them up or not so sorry I I've slipped past the deputy convener who's got another question so back to you then thanks convener as it's related to what you've just said mr Austin it is so panel members have made strong arguments why in your view there should be an environmental court um but regarding the compliance with our house convention in terms of the Scottish government's review it it does accept that there is a need to consider improvements to access to justice in in principle uh and sets out a number of proposals in particular proposals to tackle the prohibitive costs of legal action mr Austin you've given some use just in your last answer on them but I just wonder if you or other panellists have any further views on the on the proposed reforms from the from the government in their in their response the yes in in the government's um paper they they put forward trying to find it you rather than in their response in their in their review yes absolutely they refer to um here it goes uh yes they refer to five current work that's on going to aid justice to aid access to justice and they include the reference to the human rights bill process but as as Sarah indicated earlier that the consultation on the human rights bill uh it doesn't actually indicate how it's going to get fixed so there's a sort of unanswered question there there are there are opportunities there but how it's going to come up they talk about the review of protected expenses orders being carried out by the Scottish Civil Justice Council our question there is we don't know what the council's doing what the council's going to propose we don't know if it will address the situation and um when we've asked for the council to consult with stakeholders they've they're not doing any form of public consultation they refer to an exemption from court fees for our whose cases in the court session well that is very welcome and that's what positive but that has a number of limitations first of all it doesn't address any courts or tribunals other than the court session and secondly actually court fees are not the most significant part of any costs associated with court cases it's a small but welcome measure they talk about legal aid reform which is again another positive idea but it doesn't actually give any pledge to deliver any reform or any resources and so on and then they talk about exploring means to provide further expert support to prosecutors and the judiciary well that actually is the expertise question and that is i think best answered by an environmental court because that leads to concentration of expertise in the same place so i think that all of the five processes that they refer to are all welcome and all positive and might lead to solving the problem but there's no clear demonstration that they will if you see what i mean so i think government has to to grip the the the activities and and deliver demonstrate how they will address those those costs issues rather than how they might i think jamie wittle wants to come in say if we went to jamie wittle first and then shavone if that's all right with you thank you convener i'm just picking up that point about costs if i may um and and really and loid noted a number of those i would particularly wish to highlight the importance from a law society of scotland perspective of the need for making sure that there is access to legal aid in civil environmental matters i would comment that it's it's a particularly difficult area for people to be able to obtain uh legal aid support to run an environmental case uh i note that the consultation there is looking at potentially extending into non-government organisations but just for individuals alone it can be a real challenge and so what that leaves people with is uh just thinking about the the costs of of environmental litigation and as a solicitor it's one of the inevitable costs one has asked that the the front end of potentially representing somebody and it's a very very difficult exercise to be able to carry out in part because one can never be certain about how long a case is going to run will it be appealed will it be appealed further um protective expenses orders are in my submission of an extremely welcome tool that the course of session have implemented into their practice it as was noted a moment ago that is really just focused on the course of session for the time being but that doesn't cover the a party's own costs for which if they can't get legal aid if they're not well resourced themselves they're having to crowdfund and maybe rely on restrictive fees from lawyers there i say or even pro bono work but those instances do come so there are a number of cases that i have seen personally which have never made it to the doors of court because even if a protective expenses order could be achieved the costs of a party's own party's own costs are just prohibitive in of themselves thank you can i just ask us up on that i talked about the civil litigation and group proceedings scotland act 2018 earlier has that had any meaningful positive impact in in these considerations um i in terms of specifics i need to go away and check um cross check that i'm afraid but um certainly i have i think probably is a general trend what i would say is that um i would have said in the last decade because of protective expenses orders we will have seen more cases come to the court of session for specifically judicial review than we might otherwise have seen and so there is a an increase in i would suggest in the number of judicial reviews that have come forward there aren't many um in terms of um other cases in my experience uh with the sheriff courts it's these environmental cases are quite rare for sheriff courts to deal with i think when a when looking at the timetable for cases it's uh a sheriff court will have its range of general matters civil and criminal and some of these quite detailed environmental cases can take time and and there can be challenges post-covid to fit them into diaries and and such like so um i think there's there's still a lot of work and analysis to be done thank you sorry just on that so i can clarify you i mean sounds quite terrifying the fees that could be racked up before you actually get to um to court if you in in fact decide to court so by the time you're taking maybe qc's opinion environmental qc's opinion probably a second one because the first one wasn't definitive enough and the lawyers that require all of that you're probably etching on to 30 000 pounds just to get it to court is that is that way out of scope or are we closer to 60 000 pounds to get it to court and then what is the fears that if you get it to court and you lose your case that somebody then tries to reclaim their costs against you just give us an indication of what we're talking about and and that would perhaps let us understand why legal support may be required jamie thank you convener no i i if i may i i think it's a very um uh accurate best estimate in my crystal ball gazing if i was to suggest to a client who was perhaps going forward on a on a restrictive fee basis if council was involved and solicitors involved and when i'm practicing because i'm based out of Edinburgh i need to include an Edinburgh based firm to deal with procedural work i would have suggested that to deal with up to a one day hearing at a judicial review a party's cost would be in the region of about 30 30 to 35 30 to 40 000 that sort of broad bracket um and um that would require a very focused judicial review now the judicial review process has uh changed in in the past number of years whereby we have a much more focused front loaded system so that parties are lodging written notes of arguments to the court which and the corollary of that is hopefully to reduce court time but you know cases can go on for multiple days uh i can think of one case that was down for four days and ran for 14 days and so there's a huge unpredictability of costs there um and picking up on your point convener just about other parties costs if one doesn't have a protective expenses order the broad rule is that expenses tend to follow success so if a party was unsuccessful they would be likely to face the costs of the government body they may have challenged and then if a developer for example third party is involved they may have uh legal expenses so one could come away from a one day exercise with a bill for you know in the region of 100 000 pounds that that's not out of the ordinary right well i've just decided i'm not taking any of these cases probe you want you want to uh come in and then i'll go to shabali convener can i apologise probably for a question back to mr whittle which is probably stating obvious but i think it's maybe important to put it on the record um debute convener mentioned a few matters that the government's taken forward to to address the issues of cost and i think it was mr that was mr austin or shabali that said that doesn't guarantee that this will resolve matters but that the government's looking at various issues can you understand why the government's may be trading very carefully in relation to this because of the exchange that mr whittle's hand with the convener the significant exposure of the public purse in relation to all of this has to be a concern i know it's not the concern that witnesses here today want to necessarily hear but there's a significant exposure to scotland's budget depending how we take some of these reforms forward is that a reasonable contention to put on the record mr whittle i would suggest thank you i would suggest that of course costs in all shapes and forms have to be considered properly in litigation i think with um i think costs in of themselves historically have been a deterrent to uh people being able to bring actions to court i have seen uh judgment from the court session which specifically referenced the fact that i think i may he may be that it was linked in with the um powerhouse committee that litigation in the uk is is considered to be generally more expensive than on the continent in europe as a process um i suppose in terms of perhaps um your your points are about the uh consideration for for Scottish government i mean with the protective expenses regime that one has at the court of session uh there are there is a sifting process so that it's there is a process for the the court to consider whether or not a case has sufficient merits and prospects of success before it is granted a protective expenses order and so there is quite a process to go through to be able to apply for one i mean i agree with everything others on that that was kind of i suppose an extensive answer to what i thought was hopefully going to be a relatively brief question i just put on record i did be given or talked about the government wanting to enhance the non-judicial routes to to justice and remedy the review of the protective expenses orders the exemption of court fees from july 2022 and legally reform i was merely just as part of that conversation do you appreciate the scotish government has to think about the cost on the scotish public purse as it takes forward potential reforms i think that that was quite a straightforward question i don't think i actually get an answer to that well i beg your pardon i i i i do appreciate i do appreciate that point and that is noted okay thank you justice costs uh shivalie i think a couple of things the faculty of advocates um have actually said that um that justice should be uh state funded and that the court fee should be removed so i think there is something around the human rights question here as well that when all else fails do we need to um you know do we should should everybody else have access to the court so i think that there may be a cost but hopefully as as Lloyd says as well if it's a virtuous circle just having the credible threat will up everybody's game and improve the quality of the environment and again if you think about different costs i suppose we would argue the balance between economic social and environmental costs as well so um i hope the reluctance isn't because only of cost hopefully if we get this right there'll be less costs as well if we get the administration right and an environmental court or tribunal and if a specialist committee was established to look into the um to whether that is the right way forward i mean of course we believe it is but i think only having that specialist committee to really consider all these arguments can we properly answer your question um i should maybe note that i spoke with government having to trade carefully because of the exposure of the public parts rather than a reluctance and that's maybe why there's a a bit of a prolonged period of consideration but i suppose time will tell in relation to that can i just very short on time and and i have to balance your right to give me an answer and the committee members requirement to ask questions so i'm going to go to mark and maybe you'll get a chance to answer it when mark asks his question mark i think you've got some questions have you have i wrong footed him or have we lost connection on the base if we've mark did you have a question a follow-up questions at all there no okay sorry i did wrong for you my mistake i was going to ask some questions on the our house convention but i guess we've kind of covered it i think the one concern that i've heard from today is making this more specialized once you make this more specialized you get experts once you get experts you get increased fees and once you get increased fees you you go into a circle about whether you can afford to get the justice as well i don't know if that's that's a problem sarah you want to tell me that that's wrong do you i would very much hope that an expert court would not lead to increased fees i think the aspiration would be in the evidence from many countries that an expert court because of its expertise would expedite matters and there's a much wider issue around access to justice generally and league laid and that whole pan a plate of justice that doesn't just affect environment even its broadest sense but i don't think that an environmental court or a specialist decision making body would see an increasing costs and i think ideally it would reduce costs by having that expertise built into it so you say the speed would save the fees perhaps well expertise is really really useful isn't it and if you have a system of bringing expert witnesses some of that can be reduced by having an expert sitting on the court both the judicial expert and and many environmental courts of tribunals there's a scientific expert in the court as well and i think that's that's one possible way ahead okay thank you bob i think you've got some further questions and reflection on an earlier question as well thanks thanks for the opportunity to do that i was really interested in the line of questioning around how does yes deal look at something as a systemic or systematic issue because it can't deal with individual cases and i got to be thinking a little bit more about how sepa or scotish water would do that in the first place because i could be wrong i would have thought that sepa see a pattern of complaints come in and investigations come in scotish water similarly and that those public bodies would do a significant piece of analysis on that and identify what is systemic and therefore that's really vital information to inform uss before anyone gets to uss because as we know complainants have to go through scotish water or sepa in the first place exhaust all appeals functions there and then to uss so what is that relationship developing because we must get to a stage where if dr ffeffield's got a community group that she's supporting that it becomes self-evident they are dealing with something that's systemic and that can be evidenced by work that sepa's done in advance or work that scotish water's done in advance of what is that relationship looking like that you want to start with first silence not against one i will do yes thank you so yes you're right we work constantly with communities and we understand how the impact of of how we regulate and it's having on the environment and on communities we work constantly with scotish government about improving what we do and very much we run along the lines that sarah was saying that it's better to get it right in the first place and we constantly work with those we regulate as well as scotish government and the communities to make sure that that we are having the right impact in terms of what's expected in terms of the legislation that we operate under so i think one of the things that we are learning about is having es s and the environmental rights centre now in the picture and as i said previously we are working much more closely with environmental rights centre it's that is at its very early stages but we are optimistic that that's sort of more informal resolution and the feeding in of the concerns from that the environmental rights centre pick out out out there in the community will help that process of constant evaluation and monitoring and improvement that that soup is involved in in terms of the way in which we approach our work so i'll just double check before professor parson's comes in because professor parson could deal with this when he answers it as well uh Bridget are you saying that you would anticipate in the near future there'll be a clear understanding of environmental issues that are clearly going to be systemic and while individuals and communities may have to go through your processes by the time it gets to es s there's an understanding almost before it gets to es s that something will be deemed to be a permissible case for further investigation and potential enforcement because of the data and the information and the expertise and the national trends that sepa or scottish water would see would that be anticipation going forward that would happen bridget i mean i think ultimately the call is always for es s about whether it's a systemic issue or not but but i think there is a closer working within the system of all the expertise and i think one area that has been touched upon in the evidence but not developed is around that evaluation and monitoring about what is happening in scotland's environment and so previously we would have been in a framework within the EU where that evaluation and monitoring was undertaken by the european environment agency in the commission and i think that that is still post EU exit an area that we need to focus on again as people with an interest in the environment to work out how we understand those trends and share our expertise and knowledge we do have information that is still available on se web but i do think there is more that we can do about evaluating and understanding what's happening in the environment which then and the trends which then makes es s's role easier that that puts into context some of the complaints that come through from the environment to right centre and help bodies like sepa understand how we can improve the interpretation of the law and and the powers that we've been given to make that greatest impact on the environment so there is i don't think there's as you suggest that it it will be straightforward but all of this is in the early stages of development and there is more to do and i think we need to do that collaboratively is largely my message today okay thank you for this part yeah just to build on that and try and burn get into a real a real example actually so um we talked earlier about river almond as as an example on that one and the big issue there is something called combined sewer overflows the overflows that are built into our sewerage system to provide kind of relief valves out to the environment so we are today we have licenses set by sepa and we are compliant with those licenses so we are our role is very much to be compliant with those we recognize and and we've heard from from others and in this committee previously um that sewer overflows are a growing issue across the the whole of the uk it's in the press very regularly so we we are very sensitive to that so what do we do if we we hear those and we have complaints or we have concerns raised by us we work very closely with sepa and the Scottish government to understand the current picture and provide then um you know a plan for improvement as part of that and that's exactly what we've done with what's called our improving urban water route map which sets out our improvements over time for both monitoring as Bridges talked about but also improvements into the environment um so that that process works incredibly well here in Scotland a lot better than anywhere else here across the UK but it has a really well structured approach about understand identify improve deliver as part of that process and you know for me success would be ESS don't actually have a role in that I mean because it's something going to ESS or the discussion we've just had about an environmental court would see would seem as a bit of it you know if something for us went to an environmental course we would view that as a failure that is our failure to interactive our customers our communities and key stakeholders before it gets there so I think there's you know for us you know it's how do we identify those issues how do we you know identify a plan for improvement as part of that without necessarily the need for a third party to do that but fully recognise you know the 250 complaints we've heard about earlier there is a need for a somewhere somewhere else for people to go and some opportunity for doing that and we should all welcome that okay we are quite pushed for time but as you'll the deputy convener then I will give way to you thanks very much and I think professor parson's important points there there are instances and I can think of at least one in my constituency where public bodies and agencies are having to interact with private landowners and is that not one of the areas of consideration where the use of legal mechanisms may be beneficial for the common good in certain circumstances. Can I limit the answer to signing on this and then come back to it to bob if I met him? 100% I think what you'll find across scotland and you'll be very aware of this is public bodies work very well together yeah our experience of working with we see per with nature scot with other organisations is we worked here towards the common good of improving environment for scotland and then yes in terms of you know in terms of the specifics in in your consistency and we do need to work with public body private organisations as well and the vast majority of those have got the same focus as well in terms of doing that but they're often commercial and issues that we would need to address as part of those the view that we'd need a legal route for doing that I think obviously that I think Lloyd user work to tear into earlier way I think is important but again I don't think those those private organisations would necessarily want to be going down ending up in a court to satisfy something that is probably in the public good to do so thank you bob can I ask you for your last question please okay thank you community I hope I get shot down in flames by witnesses here but having listened to the entire evidence session community it would appear as there's been a and I sit in the social security committee she understood the language I'm about to use there's been a safe secure and successful transfer of powers to a scottish level but they're clearly imperfect because they were imperfect before transfer and from what I heard any improvements have been modest at best I think that that's also a reason to say something trying to be balanced in approach but we did hear from I think Bridget Marshall at SEPA that there's actually additional scrutiny focus that's been brought forward by ESS and that there's a wider range of issues now being discussed and looked at and indeed more localised ones that would seem to be something really positive that should be captured in today's evidence session but we're not the only part of the UK grappling with this and I'm conscious that in England there's the office of environmental protection doing something similar I understand that's all I've got in the tank in relation to what they're doing I should seek their witnesses for England in Northern Ireland and in Wales I'm just seeing here there's an interim environmental assessor for Wales which apparently is an advisory role back to the Welsh Government so I suppose my question is and just for maybe one or two witnesses if there's something meaningful they can add would be where has Scotland done well vis-à-vis the other parts of the UK and where are they ahead of us where can we learn from them for what we have to do better because this isn't an isolation we should be learning from each other's experiences across the UK so does someone get something concrete and meaningful in relation to some of that that they could help our scrutiny today Mr Austin, nothing's trying to do. I think having gone through the whole EU exit process the two things that Scotland has done well has been the introduction of the environmental principles and the establishment of ESS but I think what we've been focusing on today has not been we've noticed that that's happened those are two things that NGOs collectively were very keen on and it's very welcome and a positive thing that has happened but what one of the reasons why section 41 was included in the continuity act in the first place was to be able to ask the question well that having been done was that enough and I think that's why we've been focusing very much on the access to justice and environmental court aspects but I think it's worth pointing out that those two things have been done and they've been done as you say in England in a slightly different way under the environment act 2021 they have the principles as well and they have the office environment protection which also covers Northern Ireland and in Wales there's a wee bit of a bigger governance gap than anywhere else but in terms of other places I think one thing that I would expect any next steps on the investigation of environmental courts to do would be to look at lessons from other jurisdictions and as I noticed earlier mentioned earlier there are over a thousand jurisdictions with environmental courts around the world and I think there are lots of examples in there and one of ERCS's reports from Campbell Gemmell did look at some of those examples and I think there is a lot there that Scotland could learn from in other jurisdictions where environmental courts have been established. I don't refer to any other of that in response exactly. I see Jamie Wittle's raising his hand. Thank you convener. Just to add to those last comments one thing I'd like to offer is that it's I think but there's two elements I think one is that there's it's it's particularly important to note that the Scottish Government has clearly identified through the withdrawal bill the importance of maintaining high standards of environmental protection and in my submission that should be applauded and recognised that that level of standard is the aim to be maintained. I think another thing that runs in parallel is really since devolution. One thing that has stood out for me certainly with legislation that has been created by the Scottish Government is that there have been forms of legislation that have not necessarily had a European background but which have been generated out of a desire to help protect the environment such as the Nature Conservation Act for Biodiversity which doesn't have in my knowledge a parallel south of the border. So whilst I appreciate that many of the points raised today have been ones of critique of the paper that has been presented I do think it's important to just remember that context of the the high pedigree of legislation there is in Scotland and and what that does is it then sets the strategic mark for environmental governance to follow and make sure that that law is maintained and upheld because we certainly have a vast array of environmental legislation there. Thank you and do you know I'm just going to say that's the perfect place to leave it because I saw everyone around the table nodding their head and and in agreement say it's always nice to end on a a note of agreement can I just say thank you very much for your expertise our next step will be considered the evidence we've heard and to take further evidence from ESS at our meeting on that I think it's the 5th of March and we'll then hold an evidence session with the cabinet secretary for transport net zero and just transition at a meeting in the near future after the government has published its response to the consultation. Now I am going to ask you witnesses just to stay put while we complete the very short next item on our agenda which is agenda item 6 which is the consideration of a negative instrument the bus services improvement partnerships local services franchise provision of information Scotland regulations 2003 the instrument is laid under the negative sorry laid under the negative procedure which means that the provisions will come into force unless the parliament agrees to a motion to annull it no motions to annull have been lodged to any members have any comments on the instrument I'm looking around the table I'm not seeing that so I'm going to invite the committee to agree that it does not wish to make any recommendations in relation to the instrument are we agreed we are agreed thank you very much that concludes our public meeting I'm now going to suspend our private session for five minutes before we move on to the next item so that concludes our part of the public meeting thank you