Representations: Frequently Asked Questions
How independent are you from the bodies you are investigating?
ESS is completely independent of the bodies that we investigate, including government. Our governing legislation makes clear that we have been established as a Non-Ministerial Office and that we report to the Scottish Parliament – not to Ministers.
What do you mean by ‘representation’?
Our governing legislation uses the term representation. In simple terms, we consider representation to mean any instance where a concern is raised directly with us about the following:
- whether a public authority is failing (or has failed) to comply with environmental law; and/or
- the effectiveness of environmental law or how it is (or has been) implemented or applied.
What if I’m not sure about the relevant environmental law at the heart of my concerns?
If you are unsure about the environmental law relating to your concerns, our team are more than happy to assist and can be contacted at: firstname.lastname@example.org
What do you mean by public authority?
Public authority is defined extremely broadly and means any person carrying out any function of a public nature. What this means is that organisations such as councils, water companies and government agencies fall under our jurisdiction.
If you are unsure of whether the organisation you are concerned about falls under our jurisdiction, please do not hesitate to contact us.
What is the difference between compliance with environmental law and the effectiveness of environmental law?
In practical terms, compliance relates to whether or not a public authority is taking proper account of environmental law when exercising its functions or is acting in a way that is contrary to (or incompatible with) environmental law.
The effectiveness of environmental law relates to whether the law is achieving its intended effect in protecting the environment and contributing to our international obligations relating to environmental protections.
When should I raise my concern with ESS?
We normally expect that the relevant public authority will have first had the opportunity to respond to your concerns before you contact us. What this means is that we will generally not deal with a representation until the public authority has responded to your concerns. If you have received a response and you continue to have concerns that the public authority is not compliant with environmental law or is not applying if effectively, it is open to you to submit your representation to us.
Are there any areas of the law you can’t look at?
Our governing legislation sets out a small number of areas which we cannot look at, which are called ‘excluded matters’. These areas are:
- disclosure of, or access to, information;
- national defence or civil emergency; and
- finance or budgets.
If you are unsure of whether your concern is an excluded matter, please do not hesitate to contact us.
What will happen if you can’t help me?
There are a number of other bodies who have oversight powers. Our governing legislation expects us to respect the role of these bodies and avoid overlap. What this means is that, when we receive your enquiry or representation, we will assess carefully the nature of your concerns and evaluate whether there are any other bodies or appeal routes which are better suited to helping you. Whatever we decide, we will write to you setting out our position and provide you with signposting where appropriate.
Will the Board personally deal with my concerns?
The Board is ultimately responsible for the way in which ESS carries out its work. However, like other similar bodies, we operates a scheme of delegation to ensure that our performance is efficient and effective. We have in place robust processes and reporting mechanisms to ensure that the Board is involved in key decisions (including any enforcement action taken) and fully aware of the work of the ESS team.
How long will it take to investigate my concerns and will I be regularly updated?
As the nature and complexity of each investigation will be different, providing a general timescale is difficult. Having said this, we will endeavour to work as quickly and efficiently as possible and will keep all relevant parties updated on our progress Our updates will include our estimate of the completion date of each investigation.
What action can ESS take?
Our governing legislation gives us significant powers to bring about positive environmental changes. All public bodies are under a duty to co-operate with us and we are able to issue compliance notices requiring public bodies to take steps needed to address environmental failures. Compliance notices must be implemented by public authorities and we will ensure that the actions required, including any follow-up actions, are carried out. Where a body does not take the required steps we may report the matter to the court of session, which has powers of enforcement and can class failures to comply as contempt of court. In certain circumstances, we also have the power to apply for judicial review or intervene in civil proceedings.
Can ESS overturn a public authority’s decision?
No. Our governing legislation is clear that we cannot take enforcement action in relation a failure to comply with environmental law arising out of any decision taken by a public authority in the exercise of its regulatory functions in relation to a particular person or case (for example, a decision on an application for a licence or a decision on regulatory enforcement in a specific case). Essentially, it is not our role to overturn individual regulatory decisions made by public authorities.
Whilst our investigations may take into account the way individual cases have been handled, this will often be to evaluate any wider or systemic issues arising from these cases.
Can ESS take action while you are looking into my concerns?
Our governing legislation requires us to set out how we intend to engage with the public authorities we investigate with a view to swiftly resolving matters without recourse to our formal powers (what we call ‘informal resolution’). As informal resolution can be a relatively quick and efficient way of securing appropriate outcomes, we will actively consider this option throughout the life of an open case.
It is highly unlikely that we would take any enforcement action whilst an investigation is ongoing.
Will I receive a decision from ESS?
Yes. Whatever decision we take, we will write to you setting out our reasons for this.
Can the public authority not comply with your decision to take enforcement action?
Our governing legislation allows a public authority to appeal only our decision to issue a compliance notice. Public authorities have 21 days from the date of us issuing a compliance notice to appeal to a sheriff. In the absence of an appeal, the compliance notice must be implemented by the public authority.
Can I send ESS the evidence I have?
Yes. We welcome any evidence or information you may have in support of your representation.
Will the information I send be secure?
Yes. Our systems are fully secure and only authorised team members can access the information you send us.
Will you share my data with the public authority?
As we generally expect that the relevant public authority will have first had the opportunity to respond to your concerns, we may wish to contact the public authority to confirm this during our consideration of your representation. We may also wish to request any relevant paperwork which the public authority holds in respect of your contact with them.
If you have any concerns about us contacting the public authority, please do not hesitate to get in touch with us to discuss.
Will you name me or my organisation publicly?
In line with our value of operating openly and transparently, we intend to publish the outcome of our work; however, we will not name you or your organisation without first receiving your consent to do so.
Why does ESS collect equality and diversity information and do I need to fill in your equalities monitoring form?
Whilst you do not have to fill in our equalities monitoring form, equality and diversity data collection and monitoring allows us to assessing the impact our policies and practices have on different people. By collecting and analysing equality and diversity data, we are able to assess if our policies are providing fair access and opportunities for all and reducing inequalities.
How can we help you?
If you want to raise a formal concern over how environmental law is being applied by a public authority in Scotland, please see our pages on How to raise a concern.
For Freedom of Information and Subject Access requests, please see our Freedom of Information pages.
Otherwise, if you have a general query, please contact us by completing this form. If you are unable to send us a message through this form please leave a message on 0808 196 4000.
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