Continuity Act concerning ESS

Introduction

Shorthand for the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 – the legislation passed by the Scottish Parliament in 2021 creating ESS and setting out its functions, powers and obligations.

Compliance Notice

A notice, which ESS can issue under section 31(1) of the Continuity Act, setting out the steps a public authority must take in order to address its failure to comply with environmental law.

Environment

Section 45 of the Continuity Act defines the meaning of ‘the environment’. This means (a) all, or any, of the air, water and land (including the earth’s crust), and ‘air’ includes the air within buildings and the air within other natural or man-made structures above or below ground, and (b) includes wild animal and plant life and the habitats of wild animal and plant life.

Environmental Law 

Section 44 of the Continuity Act defines the meaning of environmental law in relation to the functions of ESS. Pursuant to this definition, environmental law is any legislative provision that is mainly concerned with environmental protection, and is not concerned with an excluded matter. Excluded matters include: access to information, national defence or civil emergency and finance or budgets.

Failing to comply with Environmental Law

It is defined under Section 43 of the act, and it arises when public authority - 
1. fails to take proper account of environmental law while exercising its functions
2. functions in a way that is contrary to, or incompatible with, environmental law.
3. failing (or having failed) to exercise its functions where the failure is contrary to, or incompatible with, environmental law. 

Systemic failure 

An identified problem which goes beyond the actions of a single public authority, and reflects a pattern of conduct across multiple public authorities pointing towards a structural flaw in the system. 

Consequences in the event of failure to comply

When a public authority fails to comply, without reasonable excuse, with a notice issued by the ESS, the latter can report the matter to the court of session. And the court may make such order for enforcement as it considers appropriate and could also deal with the matter as if it were a contempt of the court.