Public policy highlights: November 2023

Human Rights Bill

The Society responded to the Scottish Government consultation on plans for new legislation which would incorporate a wide range of economic, social and cultural rights into Scots law.

While supporting the proposal to enhance the legal protection of human rights, it noted a number of potential challenges, including the complexity of the proposals; potential issues in relation to international human rights and the existing national rights arrangements across UK and Scottish law; the need to be able to enforce those rights quickly and economically; and the resources required for proper implementation by public authorities. It highlighted a lack of sufficient detail in some of these areas, and in the practical effect which will be achieved by incorporation.

The response also highlighted the need for balanced and participative engagement and communication with affected stakeholders while the policy and legislative formulation of the substantive rights develops.

It welcomed the consideration of measures aimed at better securing and enforcing environmental rights, and also reiterated the importance of adequate funding for legal aid to support rights holders to claim their rights through the courts.

Find out more on the Society’s news page (5 October)

Energy performance certificates

The Energy Law and Property & Land Law Reform subcommittees responded to the Scottish Government consultation Energy Performance Certificate (EPC) Reform. The Government proposes to reform EPCs to:

• introduce sets of domestic and non-domestic EPC metrics to provide, respectively, a holistic reflection of performance of dwellings,
  and appropriate information about non-domestic buildings;
• make additional changes to ensure that EPCs provide clear and useful basic information about a building’s energy efficiency for current and prospective owners and tenants, and other stakeholders.

The response broadly agrees with the proposed reforms, and considers that there should also be an affordability test or utility test, such as where the efficiency upgrade costs more than 10% of the value of the building or space, and in terms of commercial lettings, where the EPC upgrade costs more than 20% of the rent payable. The committees also considered that a framework and/or a statutory obligation should be established for commercial landlords and tenants to collaborate in relation to EPC improvements, allocating a fair and reasonable proportion of the associated costs to any service charge payable by occupiers.

It is also fundamental that funding and grants are available to incentivise landlords and occupiers to make efficiency upgrades: without these, carbon savings will not be met. The response agreed with the proposal to improve signposting to further support and advice schemes on the EPC.

Find out more at the Society’s Energy law page

Environmental governance

The Society welcomed the publication of the Scottish Government’s report on Environmental Governance Arrangements and related consultation, highlighting in its response the clear need for consideration of the issues in this area.

Views were sought on a number of topics, including whether the current arrangements are effective and appropriate following the withdrawal of the United Kingdom from the EU, whether the law in Scotland on access to justice on environmental matters is sufficient, and whether establishing an environmental court could enhance governance arrangements.

The response highlighted various concerns, such as issues regarding the nature of appeals and the regulatory appeal structure, the cost of going to court in relation to environmental matters, and the related access to justice implications. It noted that even if the overall pattern setting the roles, functions and powers, executive oversight, and judicial bodies is broadly appropriate, these issues require more detailed attention and consideration.

It was stressed that effective access to justice in this area also requires attention to the earlier stages of information and education about legal rights and processes, timely access to expert advice, and a well funded and resourced legal aid regime.

The response recognised that there are a range of considerations in the question of establishing a separate court to deal with environmental matters, such as the importance of ensuring sufficient technical expertise and the potential improvements to access to justice in Scotland.

Find out more at the Society’s Environment law page

Find out more about the Society’s work in its research and policy section