 Rhaid i gael i'r gael i'r 9 ymwneud gyda'reth cyflawn Fenergiol i Llanscor Cymru i 2024. Felly, mae'r fwyaf i gael i'r combeinau Edward Mountain, Greim Simpson yn ddigonadu i ddechrau yn ei ddechrau i'r Gweithgfriedd Ysgrifffredig Ion Ddy o'r Porthoedd Cymru. Rhaid i'r Gweithgfriedd. Ysgrifffredig ym 1, sy'n ddigonadu i ddechrau yn ei ddechrau i ddechrau i'r Gweithgredd, Mr Simpson, yn ymateb yn y wrth cyfnod, a'r unrhyw o y bydd yn ymddiannu Grym Simpson a'r hyn o bwysig i fynd i eithio rhaglenu. Yr rhaglenu ymddiannu, Maes jagelwyr? Thank you. A gendag, rhai raiordiwr y Fath yma, maes eich Fath yn cyfaradol eich Fath 7 yn y cymdeithasol? A'r fath 7 erod i'r ymdegwyd yma, maes eich Fath 5 ar gyfer teimlo codi gilyniadau yn y Fel Plynedd ysgolon ddod, maes eich Fath 7 yn y cyfanydd? Yn eistedd i gychwyn i dda iawn i ddafod yn cymryd o'i siwr – tynnu'r gyffinigau trefio amser, mewn nesaf erigolodraeth, IMS and the National Bus Travel Concessions Schemes, Michelinia, and the strengthening of the Stroke of Scotland's Order 2024. For that session I am pleased to welcome Jim Fairlie, the Minister for Agriculture and Connectivity. This is the first time you have appeared before us in your new role and may I take this opportunity to congratulate you on your appointment I look forward to working with you. The minister is joined by Dorothy Cohen, lawyer in the Scottish Government, Gary McIntyre, economic adviser for Transport Scotland and Bettina Ceasland, director of bus accessibility and active travel at Transport Scotland. Welcome all and thank you for joining us today. The instrument is laid under the affirmative procedure, which means that it cannot come into force unless the Parliament approves it. Following this evidence session, the committee will be invited at the next agenda item to consider a motion for the committee to recommend the instrument to be approved. I remind everyone that officials can speak under this item, but not in the debate that follows. I now invite the minister to make an opening statement. Good morning, and thank you very much, convener, for having me along. I am very pleased to take on my new portfolio of minister for agriculture and connectivity, which includes bus and concessionary travel, and thank you for inviting me to discuss the draft national bus travel concession scheme, miscellaneous amendment Scotland, order 2024. The order sets the reimbursement rate and cap level of funding for the national bus travel concession scheme for older and disabled persons in 24 and 25, and the order also sets the reimbursement rate for the national bus travel concession scheme for young persons in the coming financial year. In doing so, the order gives effect to an agreement that we have reached in January with the confederation of passenger transport, which represents Scottish bus operators. The objective of this order is to enable operators to continue to be able to be reimbursed for journeys made under both the older and disabled persons and the young persons scheme after the expiry of the current reimbursement provisions on 31 March 2024. It specifies the reimbursement rates for both schemes and the cap level of funding for the older and disabled persons scheme for the next financial year from 1 April 2024 to 31 March 2025. The models to set reimbursement rates for the older and disabled persons scheme was established in 2010, and due to developments in the wider bus operating market since then, it was necessary to review the analytical assumptions that underpinned the model. A new model has now been developed for the older person and disabled persons scheme, which considers the latest available data and evidence on industry costs, passenger demand and travel behaviours. In relation to the young persons scheme, the evidence required to produce a refreshed YPS model is still emerging, and as the scheme is still in its relative infancy and travel behaviours are continuing to develop. Accurrently, it was agreed with the CPT that reimbursement rates for the young persons scheme for 2024-25 will be retained from the current year. For the young persons scheme, the proposed reimbursement rates are 43.6 per cent of the adult single fare for journeys made by passengers at age 5 to 15, and 81.2 per cent for journeys made by 16 to 21-year-olds. As in the past year, a budget cap has not been set for the young persons scheme in 2024-25. The proposed reimbursement rate in the financial year 2024-25 for the older and disabled persons scheme has been amended from 55.9 per cent to 55 per cent of the adult single fare, and the cap level of funding will be £203.5 million. That was set at a realistic level, which takes into account patronage levels and recovery in the scheme since Covid-19. Those rates are consistent with the aims set out in the legislation establishing both schemes, that bus operators should be no better and no worse off as a result of their participating in the scheme, and that they will provide a degree of stability for bus operators. Freebus travel enables people to access local services and getting from the health benefits of a more active lifestyle. It should also help to strengthen their response to the climate emergency, support in a green recovery and by helping to embed sustainable travel habits in young people. The order provides that those benefits continue for a further year on a basis that it is fair for operators and affordable taxpayers. I commend the order to the committee and I am happy to answer any questions. Thank you for that, minister. I will now move on to questions from members. The first is from myself. Considering what you have just set out and the content of the order, the reimbursement rate for the older and disabled persons scheme has been reduced by 0.9 per cent. Can you reassure the committee that you offer this in a way that is a level of payment that is sufficient to cover the costs that are incurred by operators in providing concessionary travel? Yes, I can, because this rate was done on the modelling based on the fact that there hasn't been in the last year that we didn't use all of the funding that was put forward for it. The model has been set to reflect the usage and the predicted usage from years gone by, so that the cut was in line with what the anticipated usage is going to be. Thank you for setting that out. The next question comes from Graham Simpson. Hello, ministers. I also want to welcome you to your new role. I personally look forward to working with you on the bus aspect of your role. In relation to the order, you have cut the reimbursement rate for the older people scheme, but not the younger people scheme. Why have you set a cap on it? The cap was set based on the predictions of what the usage is going to be. There is pretty good modelling based on the fact that it has been done since 2010. As a result of that, we have got a pretty reasonable idea of what the expected requirement will be for this year. What do you expect the use to be? The use will be whatever it is that has been set out in the modelling. Will you tell me? Right now, I need to come back to you with that figure. I don't have it to hand. If any of my officials have that to hand, then I'm quite happy to get it. Yes, so we're working on the assumption that there's a range of uncertainty around any demand-led scheme like this, but under the older person scheme, we're working on the assumption that patronage could average around 80 per cent of pre-Covid levels in the coming financial year. Right, so you're basing this decision on something that you don't know? No, we're basing this decision on the fact that the patronage level has been what it has been since Covid. We've come out of Covid, and it hasn't reached the same levels as prior to Covid. But we are seeing passenger numbers bounce back on buses, which is a great thing, so presumably we would want to see that continue whatever age group is using the buses. So I'm looking at you, Mr McIntosh. I should be looking at the minister. If numbers can continue to bounce back, is there not the possibility that you could reach the cap that you've set? Well, if you do reach the cap, there is no provision to go above that, so yes, that is a consideration. However, it will be reviewed on a monthly basis to see what the level of usage to the level of cap is going to be. However, it is based on the current modelling, which has given pretty accurate figures to say that it's running at about 80 per cent. If you'll see that there is no cap on the young person scheme on the basis that we don't know what that modelling is in order to make sure that that one, which will encourage more young people to be using the buses, and I think I'm right in saying— officials will correct me for all—that the increase in the usage is as much to do with the fact that we've got more young people, far more young people, using buses than had been previous. Which is a really good thing. Yes, which is exactly what we're trying to encourage. But you don't know—basically what you're telling the committee is you don't know how many young people will use the young person scheme. Not at this moment in time, no, because we need more modelling, we need more data. Right, we've also said you don't actually know how many older people will use the scheme. Yes, but we've got much better historical data for the older person scheme. But we want more older people to start. And if we can encourage more people to use those buses, then that's exactly what we'll try to do. But currently, the funding model is based on what we think we're going to have. And if that increases in years to come, I'm quite sure we'll have a look at it in years to come. But right now, given the budget constraints that we have, and given the fact that we have a better idea for the older person scheme than the younger person scheme, that's why the cap was set. Minister, you alluded earlier in our previous answer that you will be reviewing this on a monthly basis, not that point. Bob Doris has a supplementary, Mr Simpson. Are you happy for me to just let him in on this just now, before you come into your next question? Yes. I think that in that line of questioning, perhaps, it was lost on what the purpose of a cap is. I appreciate that there's pretty sophisticated modelling work, given that this has been happening for a decade plus. That's reasonable. My understanding was, and I'm a happy convener for the minister to tell me I'm wrong, that a cap, which wasn't exceeded in the last financial year, so no bus company lost out, is actually to protect the public purse. That's pretty important, so can you just confirm, Minister, that without a cap, we wouldn't be protecting the public purse, and the purpose of a cap with older people, the concessionary scheme, is to get modelling work about what that usage would look like, but we're not in a position to administer a cap for the younger person scheme yet because the data that we have is still relatively speaking and it's infancy, but at the heart of it, convener, is the purpose of a cap. Yes, that's exactly it. It's to protect public funding, but I should also add that before the Covid, the reimbursement rates for the oldest was set using the economic model that was agreed with the CPT, and they're relatively happy with where we are at the moment. Nobody likes to get their budget capped. Nobody wants to lose money, and I absolutely accept that, but we are incredibly difficult financial straits at the moment, so the Government is taking the right approach and making sure that that cap will protect funds on the basis of the modelling that has been done. That's really helpful, Minister. I said a lot of pedant here, and I apologise again, convener. In terms of losing money, that's a phrase that's open to interpretation, because if passengers weren't using the buses, the bus companies wouldn't be getting any money, so rather than losing money, as we're talking about not maximising their income, rather than losing money, is that an appropriate way of using the terminology? If that's the terminology that we like to use, I'm happy to let you use that. I'm just going to bring Monica Lennon on this issue as well. Grateful, Deputy convener, and welcome, Minister. Congratulations on your appointment. I'm just interested to know what happens in the scenario where the cap is reached, what would the impact be on the bus operators, but also the impact on bus users? In terms of all the modelling that you've been talking about today, what are the risk factors around that? How likely is that scenario that the cap could be reached within the financial year? If we meet the limits on the capped amount, if monitoring in-year suggests that the claims are likely to exceed the cap, claims for the latter part of the year are paid at a lower rate and then set out in the legislation so as to keep the total payments under the scheme within the statutory cap. If that was the case, Transport Scotland would write to operators as soon as possible so that they would know what the indication would be for the year to come. That's the procedure, but what are the likely consequences? Could that involve a bus operator saying that it's no longer viable to provide a certain route or a service? Is that what we're talking about? Individual bus operators will decide whether or not they want to be part of the scheme. We will have to deal with that issue as if it arises as we get nearer the end of the scheme. I'm a little bit concerned because we talked earlier on about we want to get more people on to bus and sustainable transport and we want to make sure that that's sustainable, but there is a situation where we could reach the cap and we continue to be successful in getting people on to busses, but we're asking the operators to provide the concessionary travel at a much reduced rate to them so they could come back and say, Minister or Transport Scotland, we can no longer run this service, it's not commercially viable. I just wonder if that's part of your modelling and if you've got any reassuring answers on that for people in my area in central Scotland, but for all of us I would imagine? No, I can't give you any reassurance that there'll be any more funding because there won't be. The funding will be split out, the cap is set as what the cap is. If we do get to the position where the cap is being reached, then Transport Scotland will communicate with the bus operators. I emphasise that the modelling has been done on the basis of figures that we know over a very long period of time and currently we're sitting at 80 per cent patronage from prior to Covid and there's no indication that it is going to increase to the level where we are going to have to do anything with the budget cap. Okay, so you're saying confidence, so can we see the modelling after this meeting? Can that be shared with the committee? Yes, that can be shared with the committee. Thank you, Deputy Cabinet. Thanks. Monica Lennon. Will Doris you add another supplementary? I think I've been kicked out of this Parliament too long because we're having this conversation at Member Stuart Stevenson and a previous incarnation of the role that you currently have Minister outlining the situation. I just wanted to clarify something. First of all, thank goodness there is a cap because we have to protect the public purse. That's a positive thing, not a negative thing, but my understanding is that if we reach that cap and we have the data, no service is impacted, what happens is we'll get the data for the next round of negotiations for setting the next budget for the next concessionary travel scheme. What it does is it informs the data for the next discussions that we have with bus operators rather than any bus service anywhere at all by that risk. Is that the situation? Yes, it is. Thank you. Mr Grim Simpson, do you have anything further that you want to ask before we move on? Yes, I would like to continue on that. There are some very interesting questions there. So, just to be clear on this, just so that I understand this, if we are getting near to the cap, you're saying, Minister, that the reimbursement rate will be reduced. What will it be reduced to? A lot of anyone is depending on what the levels of the cap are and what the use is. You're asking me to answer hypotheticals, Mr Simpson. It's not hypothetical. It is a hypothetical because right now we've set a cap on the basis of the modelling that has been done. We have a relatively good idea of where it's going to be. If that changes, we will have to adjust accordingly, given the information that we have at that time. So, I can't tell you where it's going to be because I don't know what's going to happen in the future. Is it not written down anywhere in legislation? Is what not written down in legislation? What the cap would reduce to? The cap will reduce to whatever... I think I've already explained it. Let's say we can find it and write it so that it makes sense to you. So, if monitoring in-year suggests that the claims are likely to exceed the cap, claims for the latter part of the year are paid at a lower rate than that set out in the legislation so as to keep total payments under the scheme within the statutory cap. If this was the case, Transport Scotland would write to operators as soon as possible during the financial year to let them know. The minute, could you just detail what you're reading that from? I'm reading that from a briefing that I have from my officials. Okay, thank you. So, this isn't mentioned anywhere in the order. This is completely new information that this cap could be reduced to some figure that we don't know. The reimbursement rate will be reduced. Thank you. So, the cap has been set at a reasonable level based on the data that we have. Unfortunately, older persons' scheme and older persons haven't come back to us from pre-COVID at the levels that we anticipated. So, 80% is what we anticipated. And it's been sat at there at below 80% for quite a long time now. We've been monitoring the data monthly. We make payments on a four-weekly basis. So, we understand both what the levels of patronage is but also what the levels of payment are. We did have a situation in 2018-19 where we did breach the cap. And what we did was we wrote to industry and we agreed a bit more budget to cover some of the costs. But the cap is set there to make sure that we're being financially prudent, that we are protecting the public pass and that it means that bus operators are not raising their fares too much because that way the money will get used up much more quickly. So, everybody acts in a reasonable way. But the point of the reimbursement rate based on the very detailed modelling that we do is to ensure that bus operators are no better, no worse off in terms of the journeys that are made. Given that the reimbursement rate could be reduced if we get near the cap, there's therefore no incentive for certainly operators to grow the number of older people using the buses, is there? Because if they do, if they get near that cap, they're going to get less money. Well, we're in a situation where we have affected budget. We've got budget constraints. Those budget constraints have allowed us to set a cap at the level at which we think the usage and the patronage will be. So, that's where we are. Okay. I've got one other question. Mr Sims, I think Mark Ruskell wants to come in on a supplementary on this matter first. Well, I was going to ask about how long the old disabled person scheme has been in place and how many times that cap has actually been breached and what happened, but I think between Saisland. Sorry, I couldn't hear what you said. Okay, I was going to ask about how many, for how long the ODPS has been in place and how many times the cap has been breached during that time. But I think Ms Saisland has already kind of answered that. Does any more detail about that you want to get on the record, it'd be useful to know? So, you've asked how many times, that was the only time that it's been breached. Yeah. And that was the at the time. I'll just follow up then. That was at a time when patronage was growing substantially, was it, or was that predicted? Because I think we are in a position now where we're growing back very slowly from Covid. That seems to be the modelling that I've seen and in discussion with bus companies, they're not expecting a huge surge in older people to be back on the buses, but what's the trend that's led up to that breach of the cap in a single year in 2018? So, patronage was growing, but the issue on 2018-19 was operating costs were rising. Final question, Mr Simpson. Yeah, thanks very much, convener. I've got a question that relates to the under-22 scheme, and apologies that it doesn't relate directly to the order, but I just thought, I'll just ask it anyway. I led in December a member's debate on the minority of under-22s who are abusing the scheme, and Fiona Hyslop agreed to look at how that might be tackled. So, I just wonder if you could give us an update, if you can't give us an update now, perhaps you could write to the committee on how that work is progressing. You come in there, given that the item in front of us today is the SSI, if you could just give an undertaking to write to the committee. I think that that will suffice. Okay, no problem. We will write to the committee on that. Thank you. Thanks, convener. Also on the young person scheme, Jackie Dunbar has a question next. Yeah, which I think has already been answered really, really well. Can I take this opportunity to congratulate you in your new position and welcome you to the role? I think the subject has already been asked about why the young person scheme is not subject to a payment card, you've answered that. Can I say, do you think that that could be something that would be considered in the future? Well, I can only assume that we will get to a topping out point, I would guess. Where that topping out is going to be, I have absolutely no idea at this stage. We want to do as much as we can to encourage as many young people on the buses, so that becomes their habit-forming way of travelling, and that's part of what we're trying to do. So, that will be reviewed once we've got more data in front of us, allowing us to make decisions as to what that's going to look like in the future. I do realise that I was asking a crystal ball question there, asking you to look into the future. So, I do appreciate that answer, thank you. Thank you. Thank you, Jackie Dunbar. Mr Ruskell, and then Monica Lennon. If you could stay with your crystal ball minister for a minute. Have you managed up to now? I know, I started a bit. Obviously, the young person's scheme has been really successful. There are a few teething problems at the beginning, but now we're seeing some substantial uptake of young people under the age of 22 that now have the card. I'm just wondering if there's any kind of modelling or targets for how you want the percentage of those card holders to go up in the next year. I mean, are we at some point going to reach a bit of a plateau in terms of the numbers of people and their families that actually want a card? Or do you still think there's a bit of a gap there which councils and schools could encourage young people to take up the card in greater numbers? Are we currently at the limit now of the uptake of the card? Or do you think there's still a little way to go in terms of getting the last folk on board? No, I think there's definitely scope for us to get more people on to buses. I think that's what your question is alluding to, is how many people are we going to get on. We're going to encourage as many people as we possibly can, and the young scheme has definitely been hugely successful from a number of points of view. It's allowing young people to go to take jobs that they wouldn't earn. I'm hearing of a young girl who lives in my own constituency who's travelling to Edinburgh to work in a job in the arts that she would not be able to do without this scheme. They're able to go to education facilities that they wouldn't normally be able to attend. More importantly for me is they're seeing family, because families are spread all over the country now. So young people are able to jump in the bus to go and see their granddad. To me that's an absolutely fantastic thing, but it encourages that use of public transport. So we always want to make sure that there are more people getting the opportunity to use buses as much as we possibly can. So that's the benefit of the scheme, but to answer your question, it is a crystal ball question, I don't know. I don't know what the top line is going to be. I don't know what that's going to top out at. The more people the better, as far as I can say. Yeah, as far as I would say. And in some ways, I mean Scotland's really trailblazing here. There aren't, to my knowledge, any other countries in Europe that offer this specific type of scheme, free travel for young people. So we are trailblazing. Can I just ask you then about another potential extension to the scheme? And that's to people who are in the asylum system now. We've heard about the benefits that young people have, young people who are asylum seekers who are currently using young persons scheme and also people who are eligible using older and disabled persons scheme. But there was that commitment that the Government made to extend concessionary travel to everybody who's currently languishing within the asylum system in Scotland. And I'm just wondering if it's maybe a bit early to say yet, but would those people fall under an extension of one of these concessionary schemes? Or would it be a bespoke card or something very separate to the concessionary travel legislation that would enable those people to get on the bus? I don't know if it's too early to say yet, but I think the commitment is around every asylum seeker regardless of age, disability, being able to access free travel because of the absolutely crushing circumstances in which they find themselves. Yeah, no, you are at... Will you respond similarly to the previous related question by Mr Simpson? Happy for you to answer as you wish now, but if you want to fall up and writing that would be perfectly reasonable. We will probably fall up and writing because I'm aware that we are kind of going off topic here, but just to say that there is officials at an early stage of developing a new commitment to asylum seekers, but we will write to the committee with further details on that. Thank you. Monica Lennon, do you still have a supplementary procedure? Yes, thank you, Deputy convener. I'm listening with interest, minister, because you're clearly very passionate about the opportunities for young people to use the concessionary travel and the fact that you've talked about your own constituent able to travel for education purposes into the city. This is a really live topic across Scotland right now because I think we all want to be enthusiastic about the potential of the under-22 bus pass, but in many local authorities, school bus transport is being cut right now. Unfortunately, the young people can't use their under-22 bus pass or they've been told that they can't use their school bus pass on the service buses. Is there a potential when you're looking at this to have more flexibility so that young people who want to use the bus and need to use the bus to get to school for essential purposes can do that, rather than have to, like my young constituents, walk almost three miles to get to secondary school on quite unsafe routes and also that parents are saying that they're actually going to have to start using the car to drive young people to school and that's going to cause more issues around emissions and poor air quality. Given the levers that you have and given that the Education Act of 1980 is actually older than me, do you think that it's maybe time to look at that now that we have this potentially trailblazing young persons bus pass and actually prevent people from giving up on public transport and car sharing and using private cars when they don't actually want to do that and would you be willing to come and speak to some of those young people and their parents in Lanarkshire? Absolutely. This is one of the problems of being a new minister. You've just told me something that I didn't actually know, so if you can leave that with me, we will come back to you. Yes, I'll be happy to come and meet your constituents. Just for clarity, if there are issues within that question that relate to the business of the committee as a whole, if correspondence can happen with the committee and the Government, of course Monica Lennon can write to you, minister, in her capacity as a regional MSP. Douglas Lameston, you had a supplementary question. Thank you. Minister, when I talk to bus companies, one of the big concerns that they have is the erosion of the reimbursement rate for older and disabled persons. We've seen that over the last 14 years going from 73.6 per cent down to 55 per cent. Do you see any unintended consequences of that rate being cut? No, because we're back to 80 per cent of usage, but what we're also seeing is the number of card holders. There's an awful lot more card holders and that's reflecting the percentage, because if you bear in mind that the bus company should be no better nor no worse off, there are more people using it, so therefore the concession rate is going down. If it is going to get to a tipping point, then those conversations won't be hard with bus operators to make sure that we can continue with the scheme. Do you not think there's a fear, though, when you say that bus operators have to be no better or worse off, that the way they actually maintain their funding when the rate is being cut is actually to increase the prices, which affects everyone else? Say that to me again. Okay, so if the rate is being cut and the operators have to be no better or worse off, so the way they maintain their funding stream from this scheme is to actually increase the fares, which impacts everyone else? But they've got more people using the bus, so their funding stream shouldn't be dependent on Government support. It should be dependent on people using the buses, therefore people using the buses. If the numbers have gone up, and the rate has gone down, it balances itself out, and if I'm wrong in that, then Bettina will correct me, and I'm happy to be corrected. So it's based on the data and the modelling, and that's why the rates change every year, because we look at the patronage levels, we look at the fare levels. The most important point is that we agree this with industry every year, the reimbursement rates, and they agree that because they know that they're no better, no worse off. If you like shadow modelling, we then get together and look at the different factors that go in to make sure that they're no better, no worse off, but we're also protecting the public purse. But minister, I thought you said that the patronage had gone down, that's why I'm slightly confused there. Gary, you're going to highlight something for me. I think just around the point of this lower reimbursement rate giving operators the incentive to raise commercial revenue from fare paying passengers, so the reimbursement rate set in such a way that if the fares are increasing that actually depresses the reimbursement rate, so it's kind of a balancing act between operators in that sense. So there's not really an incentive for operators to increase commercial fares because that would depress the reimbursement rate. Sorry, how does that work, Mr McIntyre? If the prices go up, the rate comes down. That's correct, yeah. So the reimbursement rate modelling is kind of a balancing act, it's trying to reimburse operators from the revenue that they would have received from passengers. Where are they paying fares if the scheme did not exist, plus the additional costs incurred? But we'd have some operators increasing their fares, some wouldn't, but the reimbursement rate is the same for everyone, so I'm confused with that comment. Yeah, so there's a single reimbursement rate applied to all operators in Scotland, so if fares were higher in the absence of the scheme, fewer people would be paying for the bus and taking bus journeys. The reimbursement rate is set to take account for that kind of behaviour, so if fares were higher in the absence of the scheme, fewer commercial journeys would have been made by those now concessionary passengers, so the reimbursement rate is depressed through the model and we can share all the detail of the modelling to explain that in more detail to the committee. That's helpful. So I think we've covered some of this already, previously committee. Mr McIntyre Minister has given an offer there to write to the committee with modelling it so that your discretion, whether you want to do that. The biggest point was really to, you know, back to the unintended consequences, because the comments I hear from a lot of my constituents is bus fares are actually increasing quite considerably. Are they, is this happening because operators are trying to maintain the level of funding they're getting? Because the reimbursement rate is going down, they need to have a different tool to make sure that the funding stays the same. As you said, no better or worse off. If they're running the cost of bus companies going up, they will manage that as an operator and I'm quite sure their costs are going up because the cost of fuel and everything else is going up through the roof, as you're well aware, alongside the electricity and everything else. But if you look at the 2006-07 numbers, there was 900,000 car holders. The 23-24, there's 1,618,128 car holders. So people are using the buses, they're getting on public transport, which was the purpose of trying to do it in the first place. So I get that everybody's juggling finances, Mr Lamesthan. Life's difficult right now, there's no question about it. But the government cannot allow rates to just keep on going up and up because, again, coming back to Mr Doris's point, we're trying to protect public funds as best we can, while at the same time encouraging people on it. And it's a balancing act. It's not easy. These things are tricky, but we are doing the very best job that we can. But we're also trying to attract more people on to public transport. Yes, we are, which is one. And the fares are increasing because operators want to maintain the money they're getting from this cap. Obviously, the reimbursement rate's going down, so a way of doing that is to increase the fares. Is that not going to disincentifise people that are actually paying to use public transport because their fares are increasing by so much? Well, bus companies will take their commercial decisions as to how much they're going to increase their fares, and they will then work out what the ratio is going to be. But in terms of increasing the numbers of people that are getting on buses, we just talked about the fact that we have got so many young people on now using buses, and we are creating that habit-forming mode of transport for a generation who will then go on to be the next generation, and we will hope to continue that, so that bus travel becomes an essential part of Scotland's ability to stay connected. Thank you, minister. Could I make Jack Hood allow you between it and make one final point, please? Sure. So with regard to that, it is a commercial deregulated market, but the concessionary travel scheme is not the only scheme that supports, well, it supports patronage and passengers. We also have the network support grant, which is a grant that goes directly to bus operators. We pay bus operators 14.4p per kilometre for every kilometer that journey that they provide, and that is there to ensure that services and fares are kept at a reasonable level. So there are other sources of support to operators to protect against the impact of operating costs and other factors that are outside their control. Okay, thank you. Jackie Dunbar. Thank you. It's to go back to what Bettina said earlier in regards to the industry agreeing the reimbursement rates. Have they raised any concerns, or was it a total agreement? It was a total agreement. The concerns were raised on YPS, and we agreed that we would do this year to look at the YPS new model with them and the discount factor as well. So we're going to do more work on the discount factor that goes into the modelling for the older person scheme, and we're also going to look at YPS. Okay, so for both schemes, there was no concern. The rates were great. Okay, thank you. YPS young person scheme, for the record. Bob Doris, a question from yourself if you still want to? Yes, yes, yes, of course. I was just thinking there, Ms Lennon was talking about not being born when that particular education act was enacted. Unfortunately, I was certainly born at that point, but glossing over that. In my head, I've got the no better off, no worse off mantra, which we've heard a lot today. This budget for £24.25 has got £370 million to get into concessionary fairs for private bus companies. There's also the network support grant that we've just heard about as well. There's a massive investment from the public purse into private bus companies. That's important, convener, to put on the record. Of course, it's incumbent upon us to ask, is that the most effective way of using that investment? I suppose my question to the minister is, if we could guarantee, with the undermining eligibility of the current concessionary schemes that exist, if there was a better way of using that quantum of cash more effectively to better run the Scottish bus network, is that something that the Government would give consideration to? You'll have to let me think about that one, because that's a left field. The schemes that are in place right now are doing the job that we're trying to get them to do. We're trying to get more people using public transport. We're trying to cut down their emission costs. We're trying to get that habit forming in the younger generation. Right now, that's the schemes that we've been putting in place. We can see the numbers of young people who have increased. I'll try and give you some figures here if that helps. There's been over 116 million free bus journeys made by under 22s across Scotland. It's a landmark policy that's helping young people and families with children to cut the costs of the river they travel. There's now over 700,000 card holders. It's a scheme that's working, is getting people on to buses, it's saving them money. They reckon that the Child Poverty Action Group have reported that free bus travel can save a total of £3,000 in the lifetime of a child in Scotland. It's touching on poverty, it's touching on emissions, it's touching on that desire to get people using public transport. For all those reasons, the schemes that we currently have seem to be working. If you want to come up with a better scheme to use that quantum of money, I'll be interested to look at it. I might just do that at some point in the future, minister, but I generally wasn't trying to throw a curveball. I could simply have asked the question, is this an exception of good news to public funds? I think that that would simply have been yes for all the reasons you've just outlined, minister. I think the point that I was making is that there's such a massive investment of public money into the bus network going forward without compromising any of these entitlements. There might be a more effective way in the future to use that investment. Minister, you're not close to that, but you are currently, as you should be, wed to the current system. The fairs fair review is looking at all the systems and all the agreements that we currently have in place. When that reports, then we'll have another discussion about it then. That's helpful. I feel like you'll have a question of that shortly. Just to say, minister, if there's anything that you want to elaborate on in terms of what Mr Doris has asked, you've already given an undertaking to write to the committee for on this session on a number of points, so you can add to that if you wish. Final question, Monica Lennon. That's a perfect segue, because I wanted to ask for an update on the fair fairs review. You said when that report, can you give an indication, minister, when that will be and how that might impact on concessionary fairs in the future? I think that the commitment was given back in December, and the publication is coming out in the next couple of weeks. In coming weeks? Oh, in the coming weeks. In coming weeks. Let me rephrase that in coming weeks. Okay. Is that more than a couple of weeks? We'll be able to tell you more when we get closer to the publishing. Okay, you can tell. We're very excited. On that, it's great, because obviously you're new in your post and you can look at things with fresh eyes, but are you able to say without telling us what the recommendations will be or likely to be? Do you anticipate those recommendations would be implemented before the end of this parliamentary session, or are we talking about things that would happen longer into the future? Once the review is done, we will be able to give you more detail. Okay, and just a final question on that, because we've talked a lot today about the cap on the older and disabled person's scheme and the reasons for that. I'm looking forward to seeing some of the homework and modelling behind it, but there's been a lot of discussion in Parliament, outside Parliament, about the age and population, some of the challenges that we have with demographics. Are you, in terms of the role that you have with bus, are you protective of the current age limit, or do you see that that could be raised? Is that something that you've been involved in discussing with officials or colleagues, and are you able to give any reassurance today that the qualifying age for the older person's bus pass won't be raised as long as you're the minister? I will give you no commitments at the moment, and, again, I would have to come back to you with the details of that, because it's not something of the... That's not a red line for you. I haven't looked at it, if I'm going to be absolutely honest. No, I haven't looked at it, so you'll just need to give me some time to get into the brief better. Okay, well, I hope we haven't worried lots of people now that their bus pass could be. I think that, minister, if I interpreted you correctly, you were stating that you will wait until the fair fairs review is published and the Government will comment then on its considerations. On the specific point, it's not something that I have looked at directly, so I will take that specific point and I will go and have a look at it. Okay, perhaps a confirmation in your writing correspondence. You're going to get a boot back from me after this session, aren't you? Okay. That concludes our questions from committee members. Agend item 4 is a debate on the motion calling for the committee to recommend the approval of the draft national bus travel concession schemes, Michelinus amendments, Scotland Order 2024. Just a reminder that only the minister and members may speak, and it's a debate, not a question session, so I invite the minister to speak to and move the motion. Minister, just in case it's of assistance, you are entitled to say that you simply move the motion. Yes, I was about to say I don't think I'll get anything else to add to what we've already spoken about, convener, so I move the motion and recommend the draft order to be approved. I now invite any contributions from members in the debate. Graham Simpson. Yeah, thanks very much and kind of thank the minister and his officials for their time. It's been a very full session. He's probably had questions that he wasn't expecting, but that's a good thing. I am comfortable to accept what's before us, given that it's been agreed with industry. However, I have to say there were some answers during that session that concerned me, particularly in relation to the reimbursement rate. If fairs go up, that might come down. If we get near the cap, that would come down to levels that we don't know yet. There is, it seems to me, an inherent unfairness in the way that we're dealing with both schemes. Both schemes are very positive. However, just to conclude, because I don't want to extend this session any longer, I will be voting for it. Thank you, Mr Simpson. Bob Doris also wants to contribute to the debate over to you. Just very briefly, convener, I found it strange that Simpson is actually very helpful, minister, because it reminded me of the complexity that sits there in relation to the scheme that exists. However, there has to be complexity to it, because we have to protect the public purse, and we have to recognise that effectively bus operators are valued partners, but there are also commercial operations that will seek to maximise the yield that they can for their business, but I'm pleased that they have come to an agreement with Government. It's also important, I think, convener and minister to put a record that, on the one occasion where the cap was exceeded, there was a real politic and the bus companies and government around the table triggered a way forward that was reasonable for first, not just the public purse, but also to the bus company. I was very reassured with the modelling work and with the data, particularly the older person scheme, which has been going for some time now. The data is also very precise, convener, because one of the things that I think happened previously was when new technology was putting all the buses across Scotland. We realised that it might be put delicately, convener, that there wasn't as many journeys taking place as we first thought was taking place across Scotland. That technology gave us exact data and allowed Government to have a much better negotiating position with bus companies at that point in time. I think that we're in a good place with bus companies that are valued partners in relation to the scheme. There's a very balanced discussion that takes place with very sophisticated modelling work. I'm sure that the committee would welcome a briefing in relation to how that works. It is complex, and not all members will get that at the first time of asking. I think that the committee would appreciate that. Underpinning that is the hugely valuable concessionary scheme, not just for older persons but for younger people. It's a massive investment from Government into the public sector and the private sector for a public deliverable bus system. I'll say that I'm supporting this this morning. Thank you. That was a really good session. Thank you, minister, for your responses. I will support this today, but just a couple of points that will be kept in mind. We need to make sure that there's some flexibility built in here, particularly around the young person's travel scheme, because there are challenges not just in Central Scotland but across the country around school transport. Is it making sure that different systems can work together? I'm reassured to hear about the engagement with bus operators and with business, but I would reiterate the point about the wider engagement that we need to see with our communities, those who already use bus but those who want to use bus and face many barriers. We've talked before in this committee about bus deserts across Scotland areas where people just can't get a bus any longer, and that is a worry. I appreciate the commitments made by the minister today, particularly for engagement with MSPs who have challenges in our areas at the moment, but I will support this today. Thank you, Monica Lennon. Do any other members wish to contribute to the debate? I now invite the minister to sum up and respond to the debate. Thank you very much for all your input. I will definitely take on board a lot of the comments that have been made. I am new to the role and the stuff that I am learning as we go along, but I will give you an absolute assurance that I am committed to making sure that Scotland delivers a world-class bus service that helps with all the things that have spoken out in this debate. The question now is that motion S6M-11994, in the name of Fiona Hyslop, be approved? Are we all agreed? We are all agreed. The committee will report on the outcome of this instrument in due course. In the convener's absence, I invite the committee to delegate authority to me to finalise the report for publication. We agreed. Thank you, minister, and thank you to your officials. I will now briefly suspend the meeting before our next agenda item. Welcome back. Our next item of business is an evidence session with Environmental Standards Scotland, abbreviated as ESS. This will be a wide-ranging session touching on ESS's first annual report as a statutory body and other topical issues for ESS as Scotland's new environmental watchdog. We will also discuss ESS's views on environmental governance in Scotland in the post-Brexit landscape. This follows our 16 January evidence session with environmental stakeholders when we discussed the Scottish Government's report last year on that matter. I am very pleased to welcome Dr Richard Dixon, deputy chair of Environmental Standards Scotland and Mark Roberts, chief executive of Environmental Standards Scotland. Thank you very much for joining us this morning. It's appreciated. I note that Jim Martin has intimated his regular designation as ESS's chair. On behalf of the committee, I put on record our thanks to Jim Martin and we wish him all the best in his future endeavours. Before we move on to questions, I invite Dr Richard Dixon to make a brief opening statement. Thank you very much. Thank you for inviting us today. Good morning. I'm the deputy chair, but when Jim Martin steps down at the end of the month, I will become the acting chair and I'll do that until the public appointments process has produced a new chair. That process involves a candidate coming in front of you for your approval. I'll talk a little bit about our impressions of the Scottish Government's review of environmental governance, but before that, I wanted to say a little bit about recent progress in Environmental Standards Scotland. We are now two and a half years old. We're no longer a new organisation. We're a young organisation. In the last six months, as summarised in the letter from our chair to the committee, we've produced five informal resolutions with public bodies. The informal resolution is our first approach to a problem. When someone brings us a problem or we think there's a problem, dialogue with a public body or a set of public bodies is the first way to try and fix that problem. We've managed to do five of those resolutions during the last six months, ranging from how official bathing waters are recognised in Scotland through to getting a proper assessment of the Government's infrastructure investment plans as they relate to climate change targets. In December, we laid in Parliament an improvement plan, an improvement report. This is the second improvement report that we have done. This relates to local authorities' climate change duties. We raised a number of issues with the Scottish Government and we were able to come to resolution on almost all of those, so very good dialogue, good progress, but on one we could not. That's on the issue of local authorities reporting on their wider emissions, the Scope 3 emissions. In some cases, that could be quadrupling the emissions that they would report if they were including those Scope 3 emissions. That's what East Renfrewshire found when they did that exercise. The Scottish Government, we are talking to them about what they're going to do, but they will formally respond to us by the end of May. Last month, we published a research report on air quality focusing on particulate matter and the new guidelines that have come from the World Health Organisation. The European Union is agreeing new standards on particulate matter and also on nitrogen dioxide. In terms of honouring the Scottish Government's commitment to keep pace with environmental developments in Europe, it's very likely that change will be needed. We're discussing that report with the Scottish Government and, again, we would expect to see a formal response from them in due course. That's some of the highlights of the organisation. In terms of the Scottish Government's review of environmental governance, as you discussed at your session on 16 January, that review was in part about ESS and the Government was pretty positive about ESS, which we were pleased to see, but we did also note that it's quite early in our existence to come to a very fixed view about both how we're doing and whether we are filling all of the gaps that leaving the European Union has left. Overall, we felt that the review missed the opportunity to look at those outstanding accountability gaps in a systemic way, particularly including monitoring reporting duties, where a lot of data had to be reported to the European Union or the European Environment Agency, and it's not clear whether and how some of that data will be collected now in the post-Brexit world. That's monitoring and reporting. Also, a weakness we felt was that, although the report acknowledged that there was a problem with access to environmental decision making and justice in terms of our compliance with the ARHUS Convention on Access to Justice, it really only talked about one of the two problems there. It talked about the cost one. It proposed a number of measures that might address that. It was not entirely clear that they will address the cost problem, so if you're a community or an individual, it's very costly for you to go to judicial review and there are some measures that may make it cheaper or may not. It didn't address the other one, which is a live discussion at the ARHUS Compliance Committee, which is looking at the issue of merits-based review. So, if you take a judicial review of a decision in Scotland, that will look almost entirely at the process. Was the process followed correctly? It won't look at the substantive issues of is this actually the right place for a landfill site, for instance. The ARHUS Convention says that every nation that is a signatory should provide for its citizens a process that is able to look at both the process and the substance of the decision that they want to challenge, and at the moment that's missing from Scotland. The Government's consultation didn't really touch on that at all. Finally, on environmental courts, we felt that there should have been a much more robust examination of the issue of whether an environmental court would make progress for environmental justice in Scotland. I've just mentioned that there's a problem, and an environmental court might be the answer to that problem. But, instead, the consultation brushed off the issue entirely, saying that we don't think there's a need for this without presenting any evidence, and then very late in the process, there was a briefing paper published which contained some of the reasoning that supposedly made up that decision. So, ESS considers that unfinished business. There needs to be a much fuller discussion of an environmental court or tribunal, how that would work, what it would achieve, where it would fit in the whole system, and, of course, how it would relate to ESS's functions. Finally, thank you very much, Deputy Convenor, for saying your kind words about Jim Martin. I would also like to pay tribute to his time as chair. He led a new board to create the organisation from nothing during Covid, which is quite some trick, and he's guided us through the process of getting to vesting, creating the staff team and building that up, and to becoming what I think is a successful organisation that we currently are. So, thank you again for your thanks. Thank you very much, Richard Dixon. That was a very helpful introduction, and yes, I absolutely endorse what you said about Mr Martin at the end there. I'm just elaborating on what you've said. ESS published its first annual report and accounts in October last year, 2023. Building on what you've said and anything else that you want to add, can you summarise what your main achievements have been in this period and what impact interventions that you've undertaken have had? Perhaps most importantly going forward, what have been the key challenges during this period for the organisation and to consider in the period ahead? Mark might want to list our achievements and I might come back to the challenges coming up. Mark Robertson, thank you. Good morning. In terms of our achievements, as Dr Dixon mentioned, sort of we've moved from being a new organisation to becoming a young organisation. One of the key elements of doing that has been building up our staffing in terms of the scale of the team at the point of which we vested on 1 October 2021. ESS was a team of 10 people, but we're now a team of 23 people. One of the big successes has been attracting and recruiting a really diverse and talented team of people. As Richard has listed, we've started seeing the conclusions of some of the informal resolutions that we have undertaken. We have completed two improvement reports, as Richard mentioned, one in relation to air quality and nitrogen dioxide targets and one in terms of local authority climate change duties. We published our first strategic plan, which was approved by the Parliament in the end of 2022, which really set the scene for what we were doing. Some of the priority areas that we identified within that were based on extensive baseline evidence reviews that we took by way of preparation for that. That gave us a very broad overview of what some of the issues were in different environmental sectors. That allowed us to set what our priorities for analytical and monitoring work could be over the duration of that strategic plan period. That was another key success in us enabling to say that our remit is very, very broad across the whole scope of environmental law, but we will prioritise on the following issues. We've launched our first investigations, so we are working through those processes in terms of getting to grips with how those are going to work. I think also that we've started to establish ourselves as a new public body within the environmental governance landscape. I think it's worth putting on record that the situation now is very different to how it was pre-Brexit. Prior to the UK's exit from the European Union, the Commission had the oversight of the implementation of environmental law, and the focus was on the member state level. Environmental Standards Scotland is here. We're much more immediate in terms of our accessibility to the public and to communities. We're able to respond relatively quickly in comparison to the European Commission. That's also a real difference for the public bodies, the Scottish Government, CEPA, NatureScot and local authorities who are dealing with. There is a process of us establishing ourselves. To be candid, we've got some of the way there with those public bodies in terms of how this is going to work post-Brexit, but that is still an ongoing process. I think that has been an important achievement that we have established ourselves as a new body within that wider landscape of environmental governance. I'll pause there and let Richard enumerate some of the challenges that we face in the future. Thank you. Just in terms of the internal processes, obviously I will be acting chair, so there's the challenge of recruiting a new chair. We are coming to the end of the first term for some of our board members at the end of March next year, so it is time to think about who will put themselves forward to be considered to continue and what new board members in terms of skills we need to go and look for. The strategic plan, we are already beginning the internal discussion about the next strategic plan and we would hope that Parliament will sign that off towards the end of next year, so there's a job to be done to get that running. In terms of the external challenges, I would mention two to you. One is the public finance climate. What I mean by that is that our job is to say to public bodies we don't think you're implementing this piece of legislation correctly, let's have a talk and see if we can resolve this. As public finances become more difficult, we may find that a public body will turn around to us and say, well, we'd love to do that, but we've got all these other statutory duties which we can't afford and so the environment looks like a bit of a luxury and so we can't do that. So I hope we never get into that situation, but that is a danger we might head towards and the challenge for us is that we must be pure. We must have sympathy for the public sector and the difficulties they face and we are part of the public sector after all, but we must not blunt our resolve that our job is to say that this piece of legislation says that this must be done and let's talk about how to get it done. If that becomes a problem, if we cannot in dialogue or through our enforcement mechanisms make the right thing happen on the environment, then it becomes a political decision about resources and that comes back to Parliament and to the Scottish Government about how do we, in a situation of scarce resources, deliver best for Scotland on all of the obligations that our public bodies have, including those that we will be pushing. That's a challenge that I hope we don't see materialised but which could be there and is on our minds. The other one that I'll mention is keeping pace. Things move very quickly in Europe. I've always mentioned that the European Union is adopting new air quality targets. They've just agreed to amend a directive to introduce something like an ecocide crime, and Monaco is obviously very interested in that issue. Member States have two years to implement that, so if Scotland is aiming to keep pace, we should be looking at what does that mean, but it's a very big field, so one of our challenges is to keep up with what's coming in Europe, not just what has just been published but what's coming six months, nine months, two years down the track. We've set up an international advisory group to help us to do that, and we have a board member who works for the European Commission, so we have some very good intelligence, but it's still a big field to keep an eye on. That's a conversation then that will no doubt come to this committee, but also we have with Cabinet Secretaries about how do we keep pace and what are the things that are coming that we need to keep an eye on. Those are the two big challenges that I see. Thank you both. That was very helpful to hear those significant achievements listed out and to highlight those important considerations and challenges going forward. In terms of your reporting documentation, Graham Simpson has a few questions now, so hand over to you, Graham. Thanks a lot, convener. Just before I get into that, there was something you mentioned right at the start, Dr Dixon. You mentioned that you had this issue with councils reporting on wider emissions, which you said was scope 3, and I just wondered if you could explain a bit more what that is. Yes, so if you're a council or a householder or a business, you have direct emissions, you buy coal or oil, you use electricity, you can account really quite easily for the carbon consequences of the choices you've made there, but you will also buy stuff that you use in your business, and if you're the NHS, you buy a lot of stuff. You will contract people to do services for you. They have some carbon consequences in what they do, so scope 3 is all about looking at that wider impact. A large part of it is about procurement, and many local authorities already look at some of that, and for instance, when we were looking at our environmental strategy, we decided that in counting our carbon, we would include the commuting that staff do to get to the office, so many organisations just do business travel, but we include commuting, and so it's about where you draw that boundary, how widely you draw that boundary, and the wider you draw it, the clearer an idea you have of your real impact as a public body, and therefore, where the big hitters are, where are the big bits of carbon that you might do something about. Okay, so was the issue about how wide you draw that boundary? Yes, and so most local authorities are currently drawing it quite narrowly. East Renfrewshire did an exercise where they looked at procurement, and so they got a much bigger number, four times bigger than they would by looking at the very narrow boundary, and so that's the kind of scale of what's being currently ignored, is probably adding three times more to your emissions. In Scotland, there is a public duty to report, as you all know, and in the last reporting that I looked at, which was 21-22, 17 public bodies plus East Renfrewshire reported on their procurement emissions, and there are lots of companies which are looking at this. The Scottish Government's reluctance, when we suggested that this should be something that we required of local authorities, was that the methodologies are in development. So at the moment, East Renfrewshire's numbers are quite crude in terms of impact, so they do help you look and see, well, that service provider for transport, that's actually a big part of our carbon footprint, so let's do something about that, but the numbers are quite crude, and so their objection was that we would be asking people to do something that gave numbers, which were a bit hard to interpret, perhaps. But, of course, if they proceed, the timescale is quite long, so their guidance, which will suggest to local authorities that they must do this, will not come out until 2025, and so it will be 2026 probably before local authorities really start doing this. So there's actually two and a half years to work on an appropriate methodology that they can all share to produce some numbers that are at least quite meaningful. So if we wait until we have the perfect methodology, we'll never do this. So now is the time to say, right, let's get on and do the best we can in the current circumstances. Have you spoken to COSLA about this? Yes, we have spoken to COSLA, and you'll have seen that COSLA have written a letter in response to our improvement report. It's generally a very helpful letter in terms of how they would need to do things and the resources they might need to do that, but they're quite negative about scope three. They take the government line that the methodology isn't really developed enough for it to be too meaningful, and so it's a waste of resources to do it. So we don't agree, particularly because of that timescale point, that if we all agreed today we were going to do this, no local authority would actually be doing it until 2026, and so that's plenty of time to work together to get the best methodology we can, and because lots of authorities would be doing it and perhaps more widely in the public body sector, the costs of doing it might come down because we would get a good deal from a consultancy or academic unit which would do the work for everybody. Okay. I was reading the letter that Jim Martin sent just a few days ago actually, and he says that since you began operating on 1 October 2021 you've had a total of 45 representations, so that didn't sound an awful lot to me. Would you accept that? That's not very many representations in that time period. Representations can take quite a long time to deal with, so in terms of our workload, that's a fair amount, but also we do lots of other things, so the first improvement report came out of an investigation into air quality that we as an organisation decided we should do, so no-one said to us, this is a problem, please have a look at it. We decided this is obviously a problem, let's have a look at it. So there are investigations that we may start on our own initiative. There are reports like the one that I mentioned on particulate matter, which are research reports looking at the state of play, and there's another one coming on sewage in waterways, which again, that's a state-of-the-play kind of assessment report which may lead to some kind of enforcement action or may lead to an investigation of certain aspects. So there's quite a lot of things we do that aren't just about the stuff that people bring to us, but even when people do bring us things, some of those can take, as the Environmental Rights Centre for Scotland complained to you, they can take quite a while for us to work through because there's a lot of things to talk about. I wanted also just in that context to mention a frustration that I have, which is with section 40 of the Continuity Act, which talks about confidentiality of correspondence. So when we ask a local authority or another public body for information, or when we use a formal power of an information notice, we are not allowed to disclose the information that they've given us or to share that notice. And so one of our values is transparency, we want to be transparent, we want to be accountable, but if you make a representation to us saying there's a problem with this public body, we may have a very lively correspondence with them, we may have lots of conversations, but we can't tell the person who's made that representation what the content of that discussion is or potentially even that we're having that discussion. And of course when we write something up it will become transparent again because we will say, well we discussed this and we've agreed this with the public body and this is the action that's going to happen, but there's a period which could be some months when there could be very lively activity internally in the ESS with public bodies, but which actually we can't tell the person who's made the representation that's happened, so that's one of my frustrations with the process when we get a representation it may appear to go rather quiet when actually it's quite a lot happening. Yeah, that seems pretty restrictive and very frustrating. I mean it is well motivated, the idea is that if this is all confidential the public body will have a much more frank response to us about why something is going wrong and knowing that that will never end up in the public domain they will tell us things, they might not tell us if it's going to go on record and of course it would all be subject to freedom of information requests, so that's the motivation but it's quite a backward non-transparent way of doing things so that's been one of my frustrations. That's the European Union Continuity Scotland Act 2021. Yes, section 40 is the one that's about confidentiality of information. Thank you for that clarity. Mark, I don't know if you wanted to say a bit more about whether 45 is a good or bad number of representations. Well before you do because that's not a criticism by the way, it's just an observation and my observation is well maybe yeah maybe it is a good number I don't know but maybe it's just because you're new and people don't know about you, maybe there's a challenge for you to get yourself known better. That's certainly part of what we're doing and Mark will say something. I just want to say one more thing which is in your session on the 16th of January you had Bridget Marshall from SEPA sitting in front of you saying oh yes we are dealing with a lot more things now because they're coming either people are coming to SEPA first and then referring something to us or someone has brought something to us and we are then engaging with SEPA. So in terms of how is it compared to before Brexit when people might take a complaint to Europe and eventually something might happen three years later things are much more rapid and there's more stuff happening so in that sense I think we should be pleased that people are able to raise their concerns in a way that they were not before Brexit and although some of it takes some time to deal with there is a clear process and some legislative teeth to help resolve those issues that they're raising with us sorry Mark. Just in terms of whether 45 is a good number of bad none but I agree I'm not sure whether there is a right number that you might expect by this stage put it in context we've had almost double the number of actual inquiries from members of the public from communities from NGOs and the like some of which we've directed to other other organisations as they're a more appropriate way of dealing it we will also work with people who come to us with representations to help them kind of shape and form that representation so there is a kind of bonus process of us working with people to develop a representation I think that's your observation that sort of perhaps people don't don't know who we are on what we're about it's something that we're very keen to work on and trying to raise our profile that will come with time I think as we said we're now two and a half years old we've done some of that I think we need to continue and renew that effort we are undertaking a programme of community engagement trying to to reach out to different groups in order to try and raise our profile of of a who we are on what we do and what we don't do and also how people can come to that so again I think reflecting Richard's opening statement about where we're now a young organisation we're still developing that wider understanding and of course there's yourself and the SEPR and members of the public might not know the difference and you know who does what I think this is going back to the points about the sort of wider environmental governance landscape this is quite a complicated picture for the members of the public and I think there is something for all of us of public bodies in this area to to ensure that it's clear what the respective roles of different organisations are because it is confusing okay I know there's lots of other questions but just before I finish if I could just ask are you seeing any early early trends in the kind of questions that you're being asked to the kind of issues that are coming up so we're one of the things that we we obviously look at lots of individual cases and we're trying to look at through our analytical and monitoring work at the sum of those priority cases what we're starting to do is think about Cain and what are the themes which span multiple cases multiple areas that we're seeing and that's a very active subject for discussion at the moment inside the organisation I think one of the key things is around the availability and accessibility of data and the transparency of it I think that's something which we're seeing coming up in a number of places and that relates back to the wider question of environmental governance in terms of you need to have it available and accessible data to enable performance to be assessed and accountability to be realised so I think that's the theme that we are seeing in a number of situations and it's probably something which we'd long to comment on more generally at some point in the future once we've probably got a little bit more evidence to support that. Thanks I've got other questions convener but I know other members will want in. Thank you. In terms of the strategic plan and annual report and the six month updates, do colleagues have any further questions they'd like to put? Graham, sorry, Mr Simpson, were they in this area or later in the session? If colleagues are content I'd like to move on to the area of environmental governance and the review. As you'll be aware concerns have been raised by stakeholders about how the Scottish Government approached the 2023 environmental governance review and ESS also said in its response that the review was too narrow so I appreciate you touched on this in your opening statement and first answer but what was missing from the review and why have you described it as a missed opportunity and have you had discussions with the Scottish Government about potential next steps and how are those discussions going? I'll start off. The Scottish Government interpreted the requirement from the continuity act very narrowly in terms of what they needed to look at and so they looked largely at whether ESS is filling the gaps left by leaving the European Union and specifically they were asked to look at the issue of an environmental court. They didn't look at the overall picture of environmental governance in Scotland, they didn't look at how does CEPA interact with nature is the regime for SSI is working, they didn't look at the wider picture of governance and how it all fits together they looked at a very narrow scope so that was disappointing and of course whilst they acknowledged that there's a problem with compliance with the arhwas convention again as I said they looked only at a very narrow part of that and said well here are some things we're doing so it'll probably be all right in a what seems to me rather unconvincing way and so you know there is a international convention it's not a European convention it's an international convention beyond Europe they were signed up to that we say we're serious about we've been persistently told that we are not complying with it on one issue the cost issue and there's a live discussion about the substantive review issue and yet the consultation didn't really take that serious take didn't take second one seriously at all and didn't I think take the first one particularly seriously on an environmental court you know if you think about the arhwas problem a problem that if you're a community something happens you don't like it you want to challenge that decision there may be an appeal process for you to go through but then your only option after that given that you can't anymore go to Europe is to judicial review and that has very severe problems in terms of actually dealing with the issue that you want to be dealt with and whether you can possibly afford to do that and you had evidence at the previous session saying that a day in court in a judicial review might cost a community or an individual 30 to 40 000 pounds and if they're landed with someone else's cost the total bill might be 100 000 pounds so that's you know for an ordinary individual unless you're going to mortgage your house it's probably pretty hard to think you will go down that route so there's definitely a problem with access to justice and an environmental court might be the obvious answer to fix that a well constituted environmental court well designed well run might be the answer to that and you heard some enthusiasm at your January session about an environmental court but we don't think that the Scottish government looked at that seriously at all they just dismissed it and then came up with a briefing very late in the day which was partly cobbled together from Wikipedia and from material that they produced in 2017 so that didn't appear to be very serious so you may wish to ask the cabinet secretary when she appears in front of you whether they're going to look at this a bit more seriously but as I said at the start that seems to us a piece of unfinished business that the government really needs to return to because that may be a way to solve the very big problem of access to environmental justice in scotland for communities and individuals you asked about in terms of sort of next steps and what's the Scottish government going to do so my understanding is that and this the the review was framed in in these terms that the potential human rights bill that the Scottish government is is developing is very relevant to to environmental governance as it's as it may contain a right to a healthy environment so I think what the Scottish government is doing is bearing in mind that how those two things are going to to interact so their their response to the consultation on the review of environmental governance I think is being cognisant of the fact that there is kind of wider developments in environmental governance in terms of this proposed right to a healthy environment being considered and that's being worked through within government we are actively involved in sort of engagement with the government about that because obviously that could be something which fell within our remit in the future and that would be quite a significant shift and expansion in terms of environmental law for us if that was to be the case just in that space one of the governance gaps you cite is around monitoring reporting on the state of the environment and by comparison part of the role of the office for environmental protection is to assess the UK government's progress against environmental targets and against goals in its environmental improvement plan so I'm just wondering is is this something that Scotland could or should consider as part of its overarching monitoring that could be undertaken potentially by ESS I think yes as I said in response to Graham Simpson kind of that the there's a really important element to be played in the making sure that environmental data is is available is accessible is subject to to effective scrutiny and monitoring prior to Brexit some of that function was provided by the European Environment Agency and I think it's reasonably widely recognised that that is part of the governance gap that has not been filled following the UK's exit from the EU it's something that we identified in our response to the review of environmental governance as a gap we think it probably is something that ought to have been addressed during the court course of that review and it would give this Parliament and it would give the public a much better understanding of the overall state of the environment if there was a more coherent way in which that data was was presented and subject to scrutiny you made reference to our partner organization in England Northern Ireland the office for environmental protection who have a duty to comment on annually on progress against the the UK government's 25 year environmental improvement plan we don't have that duty in our legislation but what we are doing is where we are doing individual pieces of monitoring and analysis work we are looking at what data it does exist and we're going to report on progress against that data so we are doing it kind of against our priorities that we've identified rather than doing what our colleagues in OEP do which is do an annual state of the nation's stop take of progress against all environmental targets so it's it's a subtle difference within the the two ways in which the two organizations have been established thank you that was very interesting um Mark Ruskell you have a question in the next can ask you then about the line between taking on individual cases or multiple individual cases that get presented to you and the work that you do to to really look for you know systemic change systemic analysis of issues now i think Richard you said earlier on that you know there's some evidence that that we've certainly heard that CEPA are taking on perhaps more individual cases now whether whether that's as a result of increased awareness around the existence of ESS or referrals or whatever i'm not entirely clear but but if the bodies are primarily responsible for individual cases are picking up more casework how is that then starting to influence the themes and topics that you're then looking to do further investigation on with a view to addressing what might be underlying systemic issues that that need to be addressed it feels that there's a bit of an interplay a bit of a grey line between the two yes um so as Mark Ruskell will remember very well there was a very lively discussion about individual cases and whether ESS should be responsible for those or whether that should be excluded which is how it ended up so it was very lively discussion during the discussion of the continuity bill the Scottish government view was that there are already appeal mechanisms so if you don't like something about a regulatory decision a licensing decision planning decision there's somewhere for you to go to appeal and so ESS shouldn't set it up sets itself up as a parallel appeals body and there were others who said well if you are if you've done that and you're still dissatisfied before brexit you could go to the european commission with your individual case and they might or might not do something for you so we if ESS is there to replace the functions that the european union were giving us and the european commission then that's a gap as we've discussed scotland is not complying with the arhus convention so there was a problem with access to justice and so that that means if you do have an individual case you probably don't have anywhere to go because you can't afford judicial review which might not look at the thing in the way you want anyway we have had individual cases brought to us by members of the public and organisations and when we see them we always look at them and ask is there a systemic failure here that this is illustrating so someone complains about sewage in their river from our sewage treatment works is that a one-off which we are not allowed to look at or is that potentially a systemic failure because planning or guidance or law isn't working to protect those people and other people so we always think about that and an example of where someone has brought something to us and we've taken it to look at the systemic issue is in terms of habitats regulations where it is required to do an assessment and the case that was brought to us was about beaver translocation and someone was suggesting that nature scot had not looked properly at the impact on other species they hadn't done the correct assessment of this translocation proposal and so as an individual case legislation forbids us from acting very directly on that but we looked at the assessment regime under the habitats regulations and we discussed that with nature scot and we agreed improvements to the guidelines which they used to implement that assessment regime so an individual case was brought to us which we couldn't help in any meaningful way on the spot but it's led to a systemic change which means that kind of case will probably not come to us again because that thing has been fixed so I think we've being restricted on individual cases might be a limitation but I think we've made the best of it in terms of always looking for the systemic angle on things but I think the wider picture is that we need to fix the access to justice problem in the whole system and looking at that and fixing that and that may involve an environmental court or it may not but or tribunal but when we fix that that will help us to define well what is the role of ESS in relation to individual cases is there a need for us actually to take those on or is the system now working so that we don't need to and we continue just to look at the systemic issues okay so is that missing bit of the jigsaw puzzle at the moment but in terms of the current situation then so individuals are coming to you with individual issues you then it sounds that you're needing to kind of screen those and work out whether there's a systemic issue that underlines that is there are there you know multiple individuals multiple organisations that are coming with similar complaints and saying look actually we've got a similar complaint in our area so we'll come as kind of a kind of combined complaint which maybe points to a systemic issue and are you discussing with SEPA and other organisations the volume of their individual complaints so that they say to you look you know we have got a problem here with noise monitoring or environmental assessment or whatever because we've had 30 complaints in this area you know are you aware of this like i'm interested in what that conversation looks like so in terms of you are specifically about the reference to to SEPA having a kind of increasing number of complaints i think that's partly a reflection of the the way that the new system is is working so we always take the line that that anyone coming to us has had to have gone through the the standard complaint process with the the public body that they're concerned about and that's a well established principle in complaints handling that it is best dealt with as close to source as possible so i think what is happening is SEPA is now seeing an increasing number of complaints and that sort of thing with individuals or organisations knowing that they then they have to have exhausted that before they can come to ESS so i think that's um i think SEPA made reference to this in january is one of the almost unintended consequences of the way the legislation is is working um so again i think this is all part of the kind of settling into the way this is now a new way of of operating for all of us um in this area in terms of the individual cases and and sort of their relationship with wider systemic issues as richard says we will always have a look to see whether um an individual case as presented to us does give any indication that there is a wider issue i think there's also a time factor involved in here as we sort of build experience and a greater range of individuals or organisations coming to us we'll build up intelligence around around sort of certain systemic issues and not wishing to repeat myself but i think this issue of of data accessibility of transparency and availability of data is something which we we see at a lots and lots of places but is actually a kind of really significant overarching issue um it may be that we will see multiple cases of you gave the example of of noise whether we see lots and lots of sort of representations coming to us about how noise legislation is being implemented that's not happening yet um that may lead us to say well there must be a systemic issue if we're seeing it in lots of different parts of the country. Mr Bob Dorris do you have any questions in this area? I think actually i mean a question part answered in the exchange with Mark Ruskell but Dr Dickson was talking about SEPA getting much more traffic towards it whether that's ESS having to discuss matters that are being raised directly with your organisation or indeed more more complaints coming to SEPA than getting access to TSS and there was a question there about whether they are suitable resource given the greater scrutiny role that they now have and just in general not just SEPA but other public bodies how your relationships developing is an organisation with them so may a wee bit more about do you very consider the resourcing of those organisations and how those relationships going? We meet with the bodies who we engage with who we scrutinise with on regular basis as a variety of levels so and as an example i'm meeting the chief executive of SEPA this afternoon so but also my team will meet with the relevant teams whether it's around water quality air quality on a regular basis we engage on a regular basis with a range of teams within Scottish Government which reflects the breadth of our remit all the way through from biodiversity all the way through to climate change air quality and so on and so forth so i think there has has been regular engagement and continues to be the relationship between any scrutiny body and the bodies who it organises there is always a bit of an inherent tension in that and i think that that's real but i'm i'm very clear in my mind that you have to engage on a regular basis to understand the body in which you're you're scrutinising so that is is really important in terms of the finances um Dr Dixon made reference to sort of the longer term concern in terms of the pressures on the public finances and will that mean that um there is a squeeze in terms of what public bodies are able to do in terms of environmental protection and and improvement i don't think that is is certainly the in terms of the the budget that the parliament has agreed for for next year for SEPA and NatureScot that sort of did have real terms increases if i'm correct in remembering that for that for those bodies but they like every other public body are going to be under under pressure so in in the future and there is a concern that that um that may reduce the their ability to cover as many things as they are currently doing my observation and is only an observation we've not done any work is that's probably particularly acute for local authorities in terms of where their pressures are going to come in terms of their environmental services responsibilities yeah i think that's important that you put that on the record so it's right thank you for doing that and i think both dr tix and mr robert will understand what these questions are coming from the previous evidence session that we've heard held in relation to this some have suggested that perhaps yes s haven't quite into the swing of things with using your full range of enforcement powers informal and agreements can be better something that your full range of enforcement powers and whether there's sufficient expertise as yet with this young organisation is i think both witnesses have put it whether did yes is fully resource so have those comments previous to this your opportunity is supposed to respond to some of that i think if we have more resources we would always do more so i mean i think that that's a statement of fact in terms of kind of our approach to enforcement our strategic plan is very clear that our first port of call will always be to try and resolve things informally through through dialogue and discussion and i think it's really important to to recognise that that is is a part of of the regulatory toolkit that that we have and and we would like to do that we have issued improvement reports and two cases as we've mentioned previously around air quality and climate change duties for local authorities that requires a response from the bodies involved which then has to be scrutinised by the parliament and in all likelihood by this this committee so i think that that's kind of an additional kind of level in terms of us trying to to use our our enforcement powers the other two elements to our enforcement powers are compliance notices and our opportunity to position for judicial review we have not used those those powers powers to date um the our strategic plan sets out that there are really are quite high bars for us to to have to use those those powers um we retain budget um which would allow us to take a judicial review if we deemed that necessary that would obviously be a decision for our board to take um we you asked about the kind of resourcing in terms of expertise um we have a in-house lawyer who has joined us during the course of last year we also retain budget for commissioning of external legal advice so i don't have any concerns about the legal resources that we have available to do us should we deem necessary but what i would stress is i would expect the overwhelming majority of the cases that we deal with to be resolved but through informal resolution um as i think if we look at the longer longer history of um ESS as we move from being a young organization to a more mature organization um then i would expect that there may be the odd case where we go to that some of the most stringent enforcement tools. I think the points we all made that use of enforcement powers isn't necessarily a sign of success there's other ways to get the outcomes that the ESS are looking for so that that was interesting for myself to hear but i think Mr Roberts he did also talk about some of those powers there's a very high bar before you can you can use those handle i have no idea whether that's something that you believe is appropriate that the bar is is that high so is it set is it set at a reasonable level for ESS or again are you still taking account your embedding and as an organization for you can determine that we have we have set those those criteria in terms of things like the seriousness of a breach of environmental law or a risk of serious environmental harm and that's something and we have we have criteria for ourselves in terms of what would constitute a serious breach or serious in environmental harm i think that's something that with experience we will have to keep under review we will as Dr Dixon mentioned we'll be reviewing our strategic plan over the course of the next 18 months for the the forthcoming period and i think kind of the learning from the first three years of ESS's existence what will obviously play into that in terms of whether that was was pitched right or whether it wasn't thank you my given example on that um so the improvement report that we produced on local authorities duties to report on climate change is a good example it was raised as a representation someone said to us we don't think this system is working effectively it's not really making a difference to what local authorities do into their emissions overall it's a mixed picture some authorities doing great some really not doing anything very much so that was what was brought to us we investigated that we came up with i think it was five recommendations that we wanted to discuss with government we had quite a long discussion a lot of progress on four of them we came to an agreement that we thought was entirely satisfactory but on the fifth one the issue of scope three emissions and with our local authorities should be mandated to look at those we couldn't agree so it was a long discussion understanding of positions on both sides but we didn't agree and so that ended up as an improvement report so that that also has a high bar and that got to that high bar to say the way to make progress on this is to produce an improvement report and that report acknowledged very fairly that all four of the first issues was something we'd come to an agreement on and things were going to change and we felt that that was satisfactory although of course we'll monitor what changes do occur but the final one we couldn't agree on and so we were producing an improvement report to compel the government to come back and say what it's going to do about this issue whether it was going to do what we said or whether it was not going to of course that will come in front of you and you can judge whether what they've said is fair and reasonable or not very helpful thank you thank you one of clenin has a supplementary on whether you have sufficient technical expertise to fulfil your statutory role and complete records? Yes, I have a supplementary on this point about judicial review because we've heard today about the prohibitive cost of judicial review to communities but also to organisations so just to follow up from what Mark Roberts was saying to Bob Doris are you able to tell the committee how much budget is set aside for judicial review and other sort of legal costs? Is there a cap on that? You talked about your strategic plan but if you're able to give some indication of how much is set aside for that that would be helpful. So we protect £100,000 a year for it? 100,000 okay because I think early on when Dr Dixon said that communities might face a bill of around £30,000 to £40,000 for judicial review that seemed like a lower end of the scale. I know in my region communities have been advised previously to think more about 50,000 to 100,000 so maybe you've got access to good value lawyers but is would that you know how many cases could that fund in? Is that talking about maybe two or three cases at the most? I think it'd be absolute most I would be thinking I would agree with the numbers that you're quoting that probably it may even be one so okay so maybe cap's not the right word to use but you know the reality could be that that could be one case a year and that would mean if you had a few cases in front of you you would have to choose which one was the more serious out of the cases. I don't see it as a cap I think what would happen is if we ended up in what I think would be the very unusual situation of having multiple cases at one time then we would obviously be looking at sort of elsewhere within our budget and other things that we would have to pair back on in order to to deliver that if we decided that was the most important thing to do. Our experience of looking at judicial review cases has over the last decade has been there have been very very few in the environmental space which of course may reflect the fact that it's very expensive to do so there haven't been there aren't that many examples to draw on in from history but we do protect that amount of money if in the unlikely circumstance that we had to take on more cases and take more judicial reviews we would obviously be wanting to raise that concern about our overall resourcing with the Parliament. Okay thank you. Thank you and that moves us on well to the next area of consideration which is our house compliance and calls for environmental court terms of considerations around better access to environmental justice potentially and Graham Simpson you're going to open this. Yes thank you very much convener I was reading your response to the Scottish Government consultation on their report into the effectiveness of environmental governance arrangements that's a bit of a mouthful and you say in that that Scotland's been found in breach of the arhous convention in 10 consecutive findings since 2014 which seems like a pretty poor record to me what are the consequences of that for the Scottish Government? There are no real consequences except public shame so there is an arhous convention compliance committee which meets every year and considers the cases in front of it and so for quite a number of years they have continued to say Scotland and indeed the UK is out of compliance because the route to remedy is too expensive and some things have changed so it's better than it was but it's still the scale of costs that Monica and I were mentioning still prohibitive for most individuals or community groups and just the risk of other people's costs mean that even if you can afford to go you might not be able to afford to finish it off or it might finish you off. So I've stopped you there. From a Government point of view no consequences slap on the risk from a committee too expensive to go to court for ordinary individuals therefore from a Government point of view let's just leave things as they are which seems to be the stance. To be fair in the consultation the report that they produced and the consultation they did on it they acknowledged that those judgments from the compliance committee and so they acknowledged that there is a problem and they proposed a number of things that they are doing which might or might not make a difference. I'm not sure that many people in the sector are convinced that those things will make enough of a difference they might you know reducing court fees or even abolishing court fees makes a small difference but it's not the big cost in going to a judicial review so there are some things the way they might make a small difference but probably won't fix the issue and then they ignored the other issue which is of substantive review rather than just looking at the process that was carried out so and of course they used the fact that there haven't been very many cases that go to judicial review as part of their argument for not needing an environmental court because it didn't appear to be a demand but if the thing that's stopping a demand is the shockingly high cost of going there and the risk of facing a huge bill at the end of it then it's not surprising there aren't very many many cases. Okay and you said earlier and I just want I would certainly raise my eyebrows you said the Scottish Government's response was cobbled together using Wikipedia. I urge you to have a look at I think at Scottish Environment links response which analyses some of the detail in the in the Government's paper on courts and it says that it shows a couple of diagrams and says that these appear to have come straight from Wikipedia as well as a description of that court system. There's a diagram that the paper says is about courts and tribunals but it's only about courts it doesn't include the tribunals and there's quite a bit of text in there which is either copied straight or paraphrased from information that was produced the last time environmental courts were reviewed in I think 2017 so their analysis is that it's pretty shoddy cobbled together thing to make people go away and it was quite hard to find you had to look at the consultation page and right down the bottom there's a little link saying additional court paper so they didn't wave it loudly at people to say here's an additional thing you might want to read so the overall impression you get is that they wanted the whole thing to go away yeah so that's my personal view that's not the organization's view okay I mean that's that that is really concerning if that if the government has gone to wikipedia and copy and basted diagrams or text some things on wikipedia are great but yes it's strange if that's what they've done I think as a committee we will look at environmental links response and consider from there do you have any other questions in this here Mr just one just one more do you consider the Scottish government's position on this is because they are actually rather likely to be as little comeback as possible I'll just say one thing on this I think there's a whenever environmental courts are raised when they've been raised in scotland and when they're raised in other places there is a fear that this is an extra layer of bureaucracy it will slow everything down and it will be expensive and the experience around the world is that a well-designed environmental court or tribunal actually speeds things up because it deals with issues before they get to the final stage so instead of a developer putting a proposal community's object it gets to go ahead there's an appeal there might be a public inquiry etc and then there might be a judicial review that very long process before the developer can actually get on with it or knows that they can't environmental court might be in the gauge right at the start of that process or at least early on so that it is very clear that this thing is in trouble or actually it's probably going ahead so people who have a good environmental court or tribunal will tell you this is actually short circuiting huge delays through planning systems and for regulatory decisions because it's getting all the views together at the start so but I think that fear remains that this is all extra system bureaucracy delay instead of seeing it in a positive light which is actually this can short circuit some of the delays we already have in the system so that a thing will be killed off right at the start of a process if it's really not appropriate or it will have a green light to go ahead because everything's been sorted out and would a court in your view give greater impetus for compliance yes and I think the other lesson is that if you're in a country which has one of these courts or tribunals and you're a developer you know that court's there so you will try a lot harder to deal with any issues that you suspect might come up right at the start so you will engage more fully with the community you will do a better bat survey etc because you don't want to get to court and be told well your application was shoddy you didn't talk to the community you didn't do the work you need to do so I think yes that actually just the fact that there is an environmental court or tribunal can concentrate the minds of an industry or a developer to do a better job at the start and talk to everybody right at the start. Monica Lennon, you have another question this evening. A lot has been said already particularly in Dr Dixon's very helpful opening remarks early on but sticking with the same assurance are who's complying so ESS has said that in principle a court tribunal or other judicial measures would help support better access to environmental justice for Scotland so I wonder if you might give some examples of what other judicial measures could mean and I think planning's been mentioned a couple of times now and Graeme Simpson and I were on the local government committee together in a previous session we looked at the planning bill and opportunities to make it more democratic and have maybe rights of appeal because you did say that you know merits based review is important in terms of our compliance but developers have that right now through the planning appeals process but communities in that horrible phrase third parties don't so yeah what is meant by other judicial measures and something like tweaking the planning system to get more equality around appeals is that something that could be looked at to help towards access to environmental justice. Yes, I don't think ESS has a menu of things that we could do but I think community right of appeal is certainly one of those areas where you might think he is a thing which would make the system fairer and again incentivise the developer to do a good job at the start because they know there might be a problem if they haven't. The bottom line for us is the AHUS convention and whether people are getting access to justice as that requires the answer is clearly no on two significant counts so it's how do we fix that and environmental court looks like if it or tribunal looks like if it's done right it would go a very long way to doing that but there might be other ways and so hence that sentence that there might be other ways but and as you say community rights of appeal might be one of those things which would address in that specific circumstance address that access to justice and do you agree with Scottish environment link and others that there needs to be an independent review of the case for environmental court or tribunal my personal view is that that's a good idea but it's second best what should happen is that the government should actually do a proper review of environmental courts rather than throw it to an external group which will think about it and make a report in three years time the government will ignore that as well so I would rather that they gave up on what they've just done in terms of environmental courts and redid it properly with the participation of others so that we get the right result rather than agreeing to throw it into a process which actually puts it in the long grass for a while no matter how well they do that group does the work okay I just want to then briefly touch on the human rights bill because there's obviously high expectations around right to healthy environment now I wasn't able to be here in January for the session on environmental governance but looking at the official report I know that Lloyd Austin on behalf of Scottish environment link said that there is a risk that we will have a human right to a healthy environment that is a human rights on paper and is not an effective enforceable one and I went on to talk about the linkage between this governance debate and the human rights bill and for you know in order to make the human rights bill effective the governance questions need to be answered I mean it is quite frustrating so what we've heard today and from others is that perhaps the Scottish Government is not being serious enough about this issue we'll leave the Wikipedia issue for others to investigate I know my Wikipedia page is not accurate at all I don't know how we fix that but I'm a planner not a surveyor it's been in there for a couple of years now and I can't seem to get it sorted out so how does government demonstrate that they are serious about this and what is the timeline to get this right because we've got the human rights bill coming to Parliament I think in terms of this compliance committee there are a deadline of later this year to demonstrate what government is actually going to do so is this time critical? I think so and to be fair to the government the discussion they've had about the human rights act the right to a healthy environment came up very early on in that discussion I was part of some of the discussion groups and I kept track of the process and that has been a firm part of the proposals and we are told that will be in the bill so at the top level should we have this right the government is absolutely doing the right thing doing something that many countries have not done so that's great and if it's done right it is potentially the most important thing that's happened on the environment for a decade because it's giving you a right to a healthy environment and that's really important but that's only useful if you can do something with it in law so can you take someone to court because they're breaching your right to a healthy environment or is it as link suggested might end up as something on paper but not actually with any teeth so it's a really important issue it's when we're watching we've discussed and obviously as mark suggested mark robert's it's a very interesting discussion about how it relates to ESS would we be part of monitoring enforcement would we some of our functions go away because the right encompasses them and someone else is dealing with them so it potentially quite a big change for ESS but a very important potential development in terms of access to justice and so something we are enthusiastic about and as a board we've discussed this and expressed our enthusiasm but mark have I missed something out or just just to sort of drop down to the level below that I think sort of we're actively involved in discussions with colleagues from Scottish Government about how this might might work and what that might mean for us as a scrutiny body in relation to other scrutiny bodies in the human rights area so obviously if there is going to be a right to a healthy environment that would likely fall within the definition and environmental law that would therefore fall within ESS's remit what would that mean for individuals wanting to exercise that right then coming to ESS and I think a lot of that thinking remains to be worked through but the reason that the government is sort of trying to sort of bring the environmental governance discussion and thinking together with the human rights discussion is is I think they are inextricably linked so and I think that is genuinely really challenging to do for government it's the right thing to do absolutely but at a practical level and me thinking about what would that mean for ESS as an organisation and what would my staff be doing that becomes becomes a really kind of quite challenging issue in the context of our existing powers and what we already have to do thank you thank you very helpful I'm now going to move on to the issue of sewage discharges Mark Russell yeah thanks very much so obviously an issue of you know great public concern and I know the you know the number of submissions you've had primarily I think focused on you know seepers discretion and the control activities regulation to to regulate in this area to take enforcement action can you can you just sort of give us the top line then from from what your investigations have shown there and maybe spell out what you see as the next major steps for regulators and others to be to be taking in this area so in in terms of the representation that came to us around controlled activities regulations that was one of the ones which we referred to where we reached an informal resolution with seeper and what we wanted to get to there was much greater clarity much greater precision as to what constituted significant as a set out within the controlled activities regulations as a result of that informal resolution seeper hers updated its guidance for its staff on what would constitute significant in terms of whether it was sewage-related debris or so forth and we think that's a small step forward in terms of of improving the regulation of sewage discharges we are also as Dr Dixon made reference to kind of in the latter stages of completing a wider piece of work in terms of combined sewer overflows and spills from that we currently have a final draft report and we aim to publish that later on in the spring I'm hoping next month that we'll be able to publish that and that will not only I think make make certain recommendations to to the public bodies involved but also identify a number of areas of further work potentially investigatory work that we want to look at it's a really complex area of legislation a complex area of regulation and I think that we're going to have to have several bites of the cherry in terms of looking at different aspects of that to make them make that manageable we also are keeping an eye on what is happening on the european scale in terms of the revisions the urban wastewater treatment directive we've made reference to the government's policy around maintaining alignment where it deems that appropriate for Scotland with what's going on in europe so that's a kind of really important piece of context that we're looking at we're also conscious of that the government is currently consulting on um sort of future plans for wastewater um and sewage and that's that's that's positive in that it recognises some of the challenges that climate change is going to face for the wastewater network and also sort of wider population and and sort of behaviour changes which which are going on so all of that is going on simultaneously so we have done to sum up done an informal resolution around one element of legislation we have a report coming out in the near future looking at some of the data around combined sewer overflows and I think it's very likely that that will generate further work for us in terms of what we want to do and finally coming back to what I said by way of our priorities for our sort of some of our analytical work we want to start looking at later on in this year the system of river basin management planning in the round and how well that is operating with an eye to knowing that beyond 2027 there will have to be a new regime coming into place so we want to start working contributing to that discussion as well okay um that all sounds very substantial and I'm sure will be great help to the committee when those reports are published and we can go back and and look at this um did I take it then from your answer that this will then feed into ministerial objectives around scotch waters investment and that this report will be timed in a way that that it can help to to inform some choices and thinking around that I don't it's to be honest I don't think we're trying to time it in terms of sort of ministerial setting of objectives I think that's not not sort of our attention and sort of um what we want to do is um is to say well this is the state of of where we see the um the data on combined sewer overflows this is how the legislative framework operates and this is where we think that there may be potential opportunities for improvement um again I suspect there are issues around sort of the availability of data accessibility of data which are going to be really really important so um all of those things will will come out sort of in due course yeah sorry is that you mean the monitoring cso monitoring yes so I mean and that's obviously that's a there is a programme of increasing the amount of cso monitoring which is is ongoing we've had updates from Scottish water in terms of their progress on doing that and we will we will report on that as and when we see fit yeah okay thanks for that and just then on this particular issue is is this something that you you work with the OEP in England and the equivalent Welsh body as well because obviously there's a there's a huge debate and and you know there's been some pretty pretty worse bad worsening you know water quality in England so is is that a kind of a shared approach that you're taking to look at that or is it very separate work streams um I think the unhelpful answers that is probably both um so we we share a lot of lots of kind of information in terms of what we're doing with with colleagues in the rest the rest of the UK the OEP has a major investigation that she's in the midst of in terms of responsibilities for wastewater across off-watt deffra and the environment agency um so they keep a surprise of what they are doing and vice versa but in terms of joint work we're not doing anything but we're very conscious of kind of the direction of their investigatory work um and Richard and I are meeting kind of leadership of OEP tomorrow so so I should imagine that we will be sharing notes on that and also it's an operational level there are regular conversations going on yeah thanks it's just very helpful answers there and I think the the report that you spoke about that's forthcoming will be extremely important for clarifying the position in Scotland where the similarities are to elsewhere in the UK but also where the any differentials are and it will be important that the the public and our constituents understand that so we await that report with interest thank you I'm now moving to the issue of biodiversity and bringing my colleague Jackie Dunbar thank you good morning panel looking ahead to the proposed natural and environmental bill how do you expect to engage in the legislative development and I'd be interested to hear of any views you may have at this stage on what the priority should be for the bill so we're actively involved in discussions with with Scottish Government and with other stakeholders about the kind of the thinking that is going on behind the bill so I think it's worth picking on record I think it's very incredibly positive that a system of statutory targets for for nature restoration and biodiversity are being put into legislation akin to what we already have for climate change we are kind of monitoring what's going on engaged in discussions I think the most sort of pertinent element of this for ESS as an organisation comes back to the point about the monitoring and independent scrutiny of progress against those targets the consultation on the Scottish biodiversity strategy delivery plan made reference to an independent review body who would report on this I think that there is potential that ESS could take on that role I don't think we would would shy away from that role but obviously conscious that that would be an additional demand on our resources that we would need to to have resourced if we were going to be able to do that but I think us as an independent body that reports to this parliament is potentially a very powerful way of doing that I think we have seen over the last decade and a half how effective the climate change committee has been at the UK and at the Scottish level and I think having something which if not identical but but similar would be effective again coming back to the point about improving accountability and scrutiny of environment performance in regards to establishing the review body you've said that you can ask if you've had any discussions with the Scottish government about becoming it and also are you actively considering what expertise and resource would be needed to fulfil this role should you be should you take on that so yes we are actively having conversations with the Scottish government and yes we are actively thinking about what scale and range of expertise we would need to do that so and how we would access that so yes that's very much a live discussion at the moment so do you think that you've got the expertise in house just now or would you have to go out further fields to try I think we've got some of the expertise in house whether we've not got the scale of the expertise that we have then that's something which which we are actively thinking about some of that expertise we could seek to recruit some of it we could commission from external bodies and trying to work that out is very much quite high on my to-do list at the moment okay thank you thank you convener thank you very much and now move on to the issue of air quality and back to Mark Ruskell yeah thanks Gavina so i'll move from water to air obviously the committee you know did an inquiry on the back of your first air quality report but interested to know that you've now produced a subsequent air quality report which is recommending the adoption of WHO for a stringent limits for particulars now that wasn't an improvement report on the Scottish government so i'm interested a in what what the you know the headlines were from from that what are the top asks but also what that conversation with government now looks like given that you know you've actually produced an advisory set of recommendations with a slightly different status to the to the first report into air quality so in terms of the headlines i think you've you've you've captured it precisely in terms of where we're recommending the Scottish government looks at those revised world health organisation air quality guidelines and revises the the Scottish limits for particulate matter in in the light of those it's worth putting on record i think achieving those those targets would be very very challenging very very demanding but the certainly the public health evidence is very increasingly clear that that's sort of even at very low levels of particulate matter there are significant health risks so which is why the world health organisation has gone that far you're right to pick up on the fact that that report has a different status we can make recommendations to any public body including the Scottish government under section 20 of our act the missing bit i guess in in terms of that act is that there's no requirements on the Scottish government to to respond to that and we've asked them to do so we will actively engage with them and talk to them about what their intentions are we see a potential vehicle for considering this to be the review of the cleaner air for Scotland strategy which which the Scottish government will be undertaking we were slightly disappointed to see that the date for that review had been pushed back but we will continue to engage with the Scottish government on that okay what changes do you think are needed sort of practically on the ground i mean is this greater regulation of traffic wood burning stoes i mean is there a is there a lot more work to be done in terms of government coming up with stakeholders with an action plan to actually try and make progress towards a much more stringent WHO target or is it pretty clear where the next steps would be i think i think the difference that will be needed is over recent decades there has been significant improvements in improving air quality and a lot of the focus there has been in in the transport sector in terms of emissions from vehicles i think to move to move towards the more stringent targets that we're we're suggesting in the future what that will mean is that there have to be more focus on on wider range of sectors you mentioned the residential sector i think that there's there's been a kind of expansion in sort of residential burning so over recent years we also mentioned the need to sort of move into the agricultural sector in terms of looking at agricultural sources of emissions so i think the the change that will be needed will this is no longer primarily just a transport related issue and that that will continue to be important but it will have to be a wider range of policy areas brought into thinking about air quality in perhaps ways it hasn't been so much of a priority in the past yeah okay um and then another related issue uh which we've had correspondence about is in relation to the retained EU law um bill and there was certainly you know one piece of EU legislation that was that was revoked um as part of that bill which is the national mission ceilings regulation 2018 so i know at the time that you raised concerns about that whole framework about how we report um and develop plans around around air quality kind of going over the brexit cliff edge um but what what do you see now coming forward do you have any any more intelligence as to as to what what how that gap can be filled um because i think it went in autumn last year and and to my knowledge there hasn't been a a replacement that's been announced yet between any of the governance working in that area that's correct and that was another observation that we made in the report that we published um at the start of last month was that was was one aspect of retained EU law that was was lost and that kind of raised concerns in terms of accessibility of of information on air quality and about also the requirement to to take action if if necessary a precisely similar point was was made by our colleagues in the office for environmental protection so um i don't have any um newer intelligence in terms of of what governments across the UK are thinking in terms of whether or not there's going to be anything that's going going to replace that i suspect the fact that i don't know anything suggests that there's been no news is there a practical implication to that right now if if an organisation wanted to challenge whether government is you know meeting its air quality standards or not or wondering if there's an immediate gap there which is a problem i think i think the the point that we made sort of when we we wrote to the committee about our concerns about it was about the sort of the availabilities to the public of of information around emissions um there was also a requirement in the regulations where if um if targets were not going to be met then an action plan had to be set in place to do some something about it i'm not clear about i would have to come back to you in terms of the timescales for that could the Scottish government fill this gap you know laterally or would it have to work within the UK i think the um one of the challenges is sort of the sort of the capacity of the Scottish government to operate on its own this was something which was run on a cross UK basis um and from memory i think the cabinet secretary wrote to the committee kind of noting that it would this was quite challenging for scotland to do this on its own so um what i'll undertake to do is to to follow up um and come back to you um with regards to what sort of progress has been made but as i say it was we highlighted in our report from last month um as as an outstanding area of concern yeah thanks thank you and just for clarity mart robert's if you could write to the committee and your your correspondence would be shared with all members thank you and uh otherwise um okay i thank thanks mart rascol and now moving to questions on climate change more broadly and hand over to Douglas Lamston thanks community um last week you published a report finding that the previous climate change report sorry climate change plan update did not fully meet the requirements of the climate legislation can you expand a little bit more what the key issues were around that and what could be done in the future to make it better so the report flowed from a representation that would received um which highlighted um a i think 166 recommendations from previous parliamentary committees from the climate change committee um and also from Audit Scotland around the governance of of climate change and what the representation was was seeking to get was was some kind of assurance that for for the next climate change plan which was is due to be finalised by march next year all the requirements of the 2009 climate change scotland act would be would be completed because i think it was widely recognised that that one of the elements was was missing in terms of a clear pathway from individual policies proposals and plans through to the level of emissions that were going to be produced by those or reduced by those sorry that felt like the gap that was a point in which the climate change committee has previously made it was a point that some of the predecessor committees of this committee have made so the scotland Government in preparing a draft plan what we are wanting them to do is say here are all the activities that we plan to do and quantify how much that will reduce emissions by so you can see a clearer pathway from the individual actions through to the overall emissions reduction so you don't feel that that pathway is is set just now and that pathway is not set do you think the scotland Government are going to meet their emissions legal targets that they've set for themselves so i think it's in the past 12 years in eight of those years annual emission reduction targets have not been met and that's a matter of record which we and a number of others have said what we're really keen to see is that that requirement in the 2009 act to quantify how you're going to get into those targets and break it down more specifically is actually fulfilled so i guess just now the target is set it's just a headline one yep and you're looking for far more meat on the bone really how each organisation are going to feed in and contribute to meet and actually meeting those targets it's less each each organisation more each sort of area of policy and how that's going to go into contribute so that actually underneath if you're planning to achieve a certain reduction by a certain time how is that reduction actually made up in terms of activity okay that's that's helpful next question was around the mo you that you've signed last april with the climate change committee and obviously that's up for review fairly soon just to get an idea of how that's working and what changes you might have around that going forward i think it's working relatively well so we have regular conversations with colleagues within the climate change committee there's a forthcoming discussion around their work on climate change adaptation which we're going to have with them their outgoing chief executive came to speak to our board and team to talk about their work and how it interface with our work earlier on this year i don't see any real need for any significant changes in terms of the mou real we're required by our 2021 act to make sure that we minimise duplication with their work and that's something which we're very conscious of just to make sure that we're we're not doubling up in terms of their areas of expertise and our areas of expertise and that's entirely pragmatic and i guess you just avoid that duplication by having good dialogue with the climate change committee absolutely okay thanks community thank you very much and final questions on keeping pace with the environmental standards monoclinic thank you deputy community and again it's been mentioned a few times in this session today so very much on the radar of esas and the Scottish Government so yeah just looking for more of an update on what esas has been doing to assess whether and to what is in scotland is keeping pace with euw environmental standards dr dixon you hopefully mentioned the example of ecocide law and there's been big developments even in the last week i'm just looking at my notes now the european parliament presially some of its six days ago talked about environmental crime now being the fourth largest criminal activity worldwide so there's no surprise that the EU has been taking action to prove new rules on environmental crime crimes that are comparable to ecocide and there's new related sanctions so the Scottish government is aware of this and has told me that they are continuing to monitor this but that's now coming to into force so is that is that an example where there is live discussion between yourselves and esas and the Scottish government we're also seeing proposed legislation in the house of lord as well as a private members bill on ecocide so is that an example where we're seeing a bit more activity it's absolutely an area that we're discussing with the Scottish government in terms of obviously your own work miss lennon and also sort of what the development which is happening kind of in europe so yes that is very much a conversation that we're having with government more more broadly in terms of the the Scottish government's policy around maintaining alignment wherever appropriate i mentioned in answer to mr ruskell earlier on the revisions to the urban wastewater treatment directive there are obviously revisions to the ambient air quality directive which is relevant to the air quality reports which which we've published and more widely kind of in europe the the brets of the green deal which the european union is considering is is really quite significant and one of the challenges we face is as as we've touched on a small organisation trying to kind of keep an eye on all of that is really really quite challenging so what we are tending to do is to focus on where we are doing a priority piece of work that's where we will concentrate our effort while also trying to keep a background watch on sort of the wider developments which which are going on which meets our statutory obligations to to monitor international environmental developments which is is in our act just on that i think your annual report talked about an advisory panel on international developments has it been progressed with that so yes we have we have progressed with that that that panel has met it is made up of members of experts from a range of different sort of backgrounds policy regulatory legal political all of whom have have experience in different ways of the european setting we have also one of the members has come from the institute of european environmental policy who are actively monitoring kind of divergence at the UK scale with with EU policy and even they for whom it is their full-time job find it very very hard to do and very challenging to do given the scale of what's going on that panel will meet meet again probably on the other side of the the next european parliamentary elections when we see what the kind of shape of sort of european developments is post those elections that's helpful i don't know if Dr Dixon wants to add anything but i was also struck by the european parliament pressure as i talked about MEPs have also ensured that member states will organise specialized training for police judges prosecutors and prepare national strategies and organise awareness raising campaigns to fight environmental crime and it seems to be very much linked to the earlier discussion today about environmental governance and access to justice as well so are you aware of such similar commitments to really embed that that training and ongoing um upskilling of people who are on the front line trying to do these difficult jobs at the moment is that something that you have any kebab involvement in um it's not so far so the ecocide is a really good example where it was being discussed in europe and scottish government said we're keeping an eye on it it is now going into law and there's now a deadline on it because it's supposed to go into national legislation for every member state within two years so there's quite a tough deadline but as you suggest there are things to do before that so training might need to take place before it goes into law so actually now is the time to really start doing something and just more generally on keeping pace this is something the board are extremely keen on so we asked lots of questions about keeping pace and we're assured that whenever any piece of work has started whether it's looking at a representation doing a report on a particular research topic the first one of the very first questions is what is the keeping pace angle of this so the sewage report for instance looking at combined sewer overflows one of the first questions was well what's the keeping pace dimension to this and of course it's the urban wastewater treatment directive being revised in fact that one of the motivations there were several motivations one of the motivations for doing that piece of work was because there was a change coming from europe so i can assure you from the board's perspective this is something we're really very keen to keep track of and as mark suggested because we think about that for every piece of work although we don't do a haven't so far done a big assessment saying this is where we're at on keeping pace if you look at across our reports you will get a picture in those areas on how we're doing or what the challenges are going to be on keeping pace that's really helpful and i should have said earlier on to add my thanks to Jim Martin as outgoing chair and just to thank mark robert's and the staff team and the board for all the amazing work you've done in the last couple of years so thank you thank you very much and it's a good note to end on to conclude today's evidence session thank you very much dr Dixon and mr robert's for your time reflections and insights and i will now very briefly suspend so thank you our next item is the consideration of the negative instrument the roadworks scotland roadworks register fees and miscellaneous amendment regulations 2024 the instrument is laid under the negative procedure which means that its provisions will come into force unless parliament agrees to a motion to annul it no motions to annul have been lodged do members have any comments on the instrument members are indicating there are no comments therefore i invite the committee to agree that it does not wish to make any recommendations in relation to the instrument are we agreed thank you colleagues and that concludes our public meeting we will now go into private session