This Bill aims to make sure that Scottish law can continue to align with EU law after 31 December 2020.
This Bill will help Scottish law keep up with future developments in EU law after 31 December. It will also allow changes to be made to EU laws which are already operating in Scotland. This could apply to areas that are devolved to Scotland, like the environment, agriculture and fisheries.
This Bill does 3 main things. It:
- gives Scottish Ministers power to keep devolved laws similar to EU laws
- ensures Scottish Ministers and public bodies pay attention to environmental principles when they make policies
- sets up a new organisation to replace the oversight of environmental law provided by the EU
You can find out more in the Explanatory Notes document that explains the Bill.
Why the Bill was created
The UK left the EU on 31 January 2020. This is often referred to as ‘Brexit’. As part of Brexit, the UK and EU agreed to an implementation period which will come to an end on 31 December 2020. During the implementation period most EU laws will still apply to the UK, like they did before Brexit.
The EU has 4 core environmental principles which it uses when it is making laws that affect the environment. These are being brought into Scottish law as “guiding principles on the environment”. This Bill makes sure these principles will continue to influence our laws and policies.
The Bill also sets up a new organisation called Environmental Standards Scotland. It will be responsible for making sure that:
- public bodies in Scotland apply environmental law
- environmental law in Scotland is effective in protecting the environment and our wellbeing
You can find out more in the Policy Memorandum document that explains the Bill.
The Scottish Government sends the Bill and related documents to the Parliament.
Related information from the Scottish Government on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Information on the powers the Bill gives the Scottish Government and others (Delegated Powers Memorandum)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
Stage 1 timetable
Committees involved in this Bill
Who examined the Bill
Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.
It looks at everything to do with the Bill.
Other committees may look at certain parts of the Bill if it covers subjects they deal with.
Who spoke to the lead committee about the Bill
First meeting transcript
Item 2 is evidence on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. The committee has been designated as a secondary committee for consideration of the bill at stage 1. We plan to report to the Finance and Constitution Committee by the end of September.
I welcome the first of two panels today. From the Scottish Government we have Emma Lopinska, who is a constitution policy manager; Francesca Morton, who is a solicitor; Charles Stewart Roper, who is the head of the environment strategy and governance unit; and Lorraine Walkinshaw, who is a solicitor. I thank you all for providing a detailed written response to the committee’s questions ahead of the meeting.
If we have signal problems or one of the panel drops out, I might suspend the meeting. I will take it as it comes. I might ask a panel member to fill in for another, but if that is not possible I will suspend the meeting and try to get the witness back.
I will address the first question to Emma Lopinska and Charles Stewart Roper. What are the intentions and rationale behind what the bill says about powers with regard to environmental standards and principles, and how will things work in practice? We are very aware that how European Union exit will look is a moving situation, and that the United Kingdom Government is introducing bills that might have implications for this bill.
Charles Stewart Roper (Scottish Government)
The overall rationale is that the bill should enable us to cope with the gaps that are left as we leave the EU, by providing, as far as possible, for continuation of the system of environmental principles in domestic law, and for a system of environmental governance to replace the arrangements that are in place in the EU.
I take the point in the question: there is a lot of uncertainty. We think that the arrangements in the bill are robust and flexible enough to deal with changes that might come forward. In operation, the system will need a considerable amount of flexibility. In particular, joint working by the new governance institution and the institutions of the other nations of the UK will be needed to make everything work effectively as a single system. There will need to be co-ordination between the Administrations across the UK to make the system of principles work, but we think that the measures are flexible enough to enable us to cope with changes that might come, as the new arrangements in the parts of the UK evolve.
Can you give me an example of how the flexibility that you mentioned manifests itself in the bill
Charles Stewart Roper
For example, we will, on the principles, flesh out the detail in guidance that we will bring before Parliament for approval. Scottish ministers will develop that guidance, which will allow us to be flexible in terms of how the Government and other public authorities bring the principles into effect. Through consultation and discussion with the other Administrations as necessary, we will be able to put in place a system that is coherent across the UK and which works well and robustly in Scotland.
Flexibility is built into the governance proposals. We have specified the powers and enforcement powers that will be needed by the proposed body, environmental standards Scotland, but in the strategy, which will be that body’s own document and functioning system, it will be able to develop flexible ways of working with other public authorities in order to achieve environmental gains. That flexibility will, in order that ESS can work on issues that cut across the UK, allow it to develop its own relationships with the office for environmental protection—the new UK institution—and with the institutions that will be put in place in Wales and Northern Ireland.
We feel that not being overspecific on the details of the system, but instead providing flexibility through the new body’s strategy and operation, will build an effective and robust system that can work—where necessary, in co-ordination and co-operation with the other new institutions in the UK.
Some of my colleagues have specific questions that we will come to later on ESS and its relationship with other bodies. Mark Ruskell has a supplementary question.
Mark Ruskell (Mid Scotland and Fife) (Green)
I note that the cabinet secretary’s written response to the committee used some strong words. For example, it talked about easing
“the path to EU re-accession”.
How confident are you that the bill will make us fully aligned with the European Union? There are some aspects of divergence. For example, it has been brought to the committee’s attention that there is nothing in the bill that would commit Scotland to high-level environmental protection. That is in the Lisbon treaty, but not in the bill. How do you know that the bill will help to lead to re-accession, and that we will be fully aligned with the European Union, going forward, if that is the bill’s objective? It seems that there are some gaps.
Charles Stewart Roper
I will talk about the environmental provisions, then I will hand over to my colleague Emma Lopinska to cover the general point about keeping pace.
On environmental provisions, it is not possible to have in the domestic legal setting exactly the same arrangements as exist in the EU. However, we believe—the Scottish Government’s contacts with the European Commission have given us some comfort on this—that we are putting in place a system that is robust, and which the European Union will be able to see is a commitment to maintaining its standards and to keeping in place the role of the principles. We believe that the arrangements will allow us to maintain confidence in, and international credibility for, our environmental performance.
Emma Lopinska will address keeping pace, because it is more relevant to part 1 of the bill.
[Temporary loss of sound.]
I think that broadcasting staff are having a wee issue with Emma’s microphone. We will give them a couple of seconds. We will come back to Emma, once we get her microphone sorted, for her response to Mark Ruskell’s question.
In the meantime, Stewart Stevenson has a question about the UK internal market.
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
I want to ask about what is in the white paper, “UK Internal Market”, and the bill, and would like to hear opinions as well as an objective response. The white paper talks about accepting and respecting standards that are set by other jurisdictions. Does that mean that Scotland’s being first to introduce legislation on a particular area of policy related to the internal market would legislatively force the UK Government to work within what Scotland had set? I am leaving aside, of course, the Westminster view of the overriding primacy of the UK Parliament and its view that it can basically do what it likes, and am focusing just on what the white paper states. Would the process work as I have suggested, or is it your view that we would, whatever we do, always have to fall in behind what the UK Government does?
Charles Stewart Roper
The internal market issue is more for Emma Lopinska to respond on, if her microphone is now working.
We have Emma online now. We will deal with Stewart Stevenson’s question first, then you can address Mark Ruskell’s question.
Emma Lopinska (Scottish Government)
Okay. I am not the best person in the Scottish Government to talk specifically about the UK internal market. Mr Russell made a statement to Parliament on that last week, and will give evidence to the Finance and Constitution Committee tomorrow.
However, I will say that, at the moment, the UK Government’s proposals are only proposals. We would have to look at the detail of a bill in order to understand how it would impact on what we can do, and how the Scottish Parliament might be constrained by UK legislation. I could not say that if the continuity bill is approved by the Scottish Parliament and enacted, that would force other parts of the UK to act; at the moment, I genuinely cannot answer that question. I do not know what would happen. We would have to wait and see.
However, I will say that the Scottish Government’s view is that a bill on the UK’s internal market proposals is not necessary. We think that properly functioning intergovernmental relations need to be established—relations that recognise that European Union exit has happened, and address the weaknesses of the current IGR frameworks. We would say that we should have agreed frameworks across the UK, where necessary, and that they should have recognised working IGR frameworks as part of that.
Mr Russell has made clear the Scottish Government’s view that the Government would oppose a UK internal market bill. If a UK bill was tabled that would legislate for the proposals as they are in the white paper, the Scottish Government would oppose that and would recommend to the Scottish Parliament that the bill not be consented to. Obviously, I would not like to speculate on what Parliament might decide to do, or on what the UK Government’s response to any decision on consent might be.
I do not know whether that has properly answered Mr Stevenson’s question on the UK internal market, but I am afraid that it is just a bit too early to say with any more certainty what would happen.
I did not expect much more from someone who is, of course, an official, so I am perfectly content with that response. In framing my question, I was not seriously suggesting that we would wish to get ourselves in a position whereby what we did would bind what other Administrations should do. However, it is interesting to turn the question on its head and to see how others might feel about it.
Francesca Morton has asked to come in—I imagine that it is on the point about legality. We will get her microphone on; she might have muted herself, and broadcasting might be having difficulty unmuting. It looks like the microphone is on now.10:15
Francesca Morton (Scottish Government)
I asked to come in in the middle of Emma Lopinska’s contribution, but she has covered the point that I would have made. Her main point was that it is too early to make a proper assessment: the UK Government has not yet published a draft bill. Although the white paper sets out its proposals, it does not make clear the legal effects of its proposed principles. That was the only point that I was going to add.
Before we go ahead, I point out that witnesses should not mute their microphones; broadcasting will do everything for you. We get into difficulty if we start pressing buttons. I think that we have all guessed that by now.
Mark Ruskell wants to come back in on his previous question. Do so briefly, as we have a lot to cover.
I am not sure whether Emma Lopinska will be able to answer my question, but Charles Stewart Roper mentioned that he has, in effect, had substantial reassurance from the European Commission that the bill will ensure alignment. Is it possible to share that with the committee? I would be very interested to see what reassurance and evidence you have had from the Commission that the bill will enable a smooth path to re-accession.
I have not had any such reassurance because, from my perspective, that is not to do with part 1. The power to align is obviously a discretionary power, so it is not about maintaining absolute alignment with the EU on every subject. We could not do that, because some EU law that comes in is in reserved areas, so the Scottish Parliament could not legislate to align with it.
Also, we have to recognise that a lot of EU legislation makes sense only for member states, so it would not make sense for us to legislate to align with it. There will always be that gap.
In considering EU measures that we might want to align with, several things would have to be considered, including the practical implications—the economic and social benefits, and the costs on resources, whether financial or parliamentary. We would also have to look at whether an alternative approach could deliver the same or better outcomes than the EU measure.
At the moment, there is no agreement between the UK and the EU, but should agreement be reached, we would have to look at what it would mean for areas on which we could align. Mr Stevenson brought up the UK internal market; we must wait to see whether the bill would face any further constraints in that respect. Areas for common frameworks might in the future be negotiated and agreed, so we would have to look at those, as well.
The bill is not about Scottish ministers having to align absolutely everywhere; many subjects in the bill’s competence are legislated for by the powers in section 2(2) of the European Communities Act 1972. When that legislation is lost at the end of the transition period, there will, in lots of areas, be no other existing power to regulate. The bill is replacing that power to regulate; it is not saying that we must use it. I could not, however, say that the bill will enable us to remain entirely aligned with the EU so that we could become a member state.
We need to pick up the pace, because we have an awful lot to cover. Finlay Carson has a question on common frameworks.
Finlay Carson (Galloway and West Dumfries) (Con)
In the feedback from our consultation, organisations such as Scottish Land & Estates say that they are concerned about there being substantial policy divergence within the UK, and about how that will impact on businesses and so on.
I am pleased that Francesca Morton cleared up the idea of the internal market. We do not have a bill yet. We have a white paper, the overriding purpose of which is to protect the really important internal market. We all know that it is worth more than any of our external markets. We need to be clear that it is just a white paper. There is no bill on the table at the moment.
The Law Society of Scotland also suggests that strong collaboration between the UK Government and the devolved Administrations is of considerable importance.
My question is about the common frameworks. The Law Society said that
“The development of common frameworks”
“future trade deals ... will have de facto impacts on how these powers can be exercised.”
Have we put the cart before the horse with the bill given that we are not clear what common frameworks we will be working within? When are we are likely to see them?
The Scottish Government remains committed to the frameworks process, which has shown that substantive progress can be made where the four Governments come together as equals and proceed on the basis of agreement, not imposition. We remain committed to that, but we have to wait to see what implications the internal market proposals could have for that process.
You asked about putting the cart before the horse. The Scottish Government has always been clear that it is for the Scottish Parliament, and not the UK Government, to determine how far we align with the EU. It is more than four years since the 2016 referendum and we still do not have clarity on so many things. As you have mentioned, we do not have frameworks and we do not have an agreement between the EU and the UK.
I do not think that our ministers would feel that it is for us to wait to see what other parts of the UK decide. The Scottish Government is looking at the powers that the Parliament has within the constraints of the current devolution settlement, and this is the Scottish ministers’ way forward to replace the regulation-making powers that will be lost and look at what will happen with environmental principles and governance.
We are putting forward a bill that we think is right for the circumstances that we are in. We cannot start to second guess what other constraints might be imposed on the Scottish Parliament or the Scottish ministers. We cannot keep waiting. I think that the Scottish Parliament has to legislate in the way that it sees as right.
Finlay, will you make your follow-up question very quick, please? We have to move on.
I will. It was back in October 2017 that the UK and the devolved Governments agreed that a set of common frameworks would be established. Why have we not moved forward? I presume that it is an issue between all the devolved Administrations and the UK. Where is the hold-up? We have discussed the matter in committee before and it appears that there is reluctance from all corners to move this forward, or that something is preventing it, even though there was an agreement back in October 2017 that the matter would be looked at.
This is not my area of expertise, so I hope that you will forgive me if I read out what I have been told about common frameworks.
The current public health emergency has meant that it will not be possible to achieve the original timetable for delivering all frameworks by the end of the transition period. The Scottish Government is working with its counterparts in the UK Government and the other devolved Administrations to prioritise key framework areas.
I am advised that a revised delivery plan has been agreed by all four Governments and that seven frameworks are expected to be finalised and implemented by the end of 2020. Provisional frameworks consisting of effective interim measures are expected to be in place for the remaining estimated 25 areas where final framework arrangements are not feasible by the end of the year. All four Governments consider the relevant delivery plan to be sufficient and the provisional frameworks to be robust and fit for purpose.
We will move on to talk about the environmental principles.
Claudia Beamish (South Scotland) (Lab)
Charles Stewart Roper has already highlighted the importance of international credibility and keeping the principles in place. For the record, I highlight that the core EU guiding principles are the precautionary principle, prevention, rectification at source and the polluter pays principle. Those are significant and important.
A number of stakeholders have argued for a widening of those principles. The Faculty of Advocates has highlighted the possibility of including principles that take into account
“environmental equity (in a redistributive sense)”,
and NFU Scotland has highlighted “proportionality” and “innovation” principles. There are also other principles, such as those relating to sustainable development.
I will not ask the witnesses in the time that we have today to go into why all those principles were ruled out. However, in order to reassure us as we go forward with the important issue of the guiding principles in the bill, perhaps you could say why only the four principles were chosen and whether they are enough.
Charles Stewart Roper
We consulted on the four principles, which replace the four EU principles, and there was broad support for them. There were not a great deal of responses about additional principles beyond the four, so ministers settled on bringing those four guiding principles into domestic law at this point.
Flexibility is built into the provisions to allow additional principles to be introduced by regulation in future if a consensus emerges that they are legitimate and wanted. However, the provisions that ministers decided to introduce included the four EU principles that we are losing on exit.
Thank you for that response. The committee would also like to know the rationale for including in the bill a duty to “have regard to” the principles rather than a requirement to act. Some stakeholders, including Scottish Environment LINK, have highlighted concerns about that. Client Earth has highlighted concerns about issues being
“siloed or split out from general decision-making.”
What conflict could there be? Given that the environmental principles must be upheld, why does the bill say only “have regard to”? Perhaps you could help us to understand that.
Charles Stewart Roper
We feel that the use of “have regard to” is proportionate because of the nature of the principles as guides to decision making. The principles do not represent outcomes or objectives for environmental policy; they relate to essential practice in the making of policy. We think that the “have regard to” formulation of the duty is proportionate and will put it alongside other important duties and considerations that regulators and other public authorities have. The four guiding principles are very important, but they should not dominate other factors in decision making, which is why we have gone for that formulation.10:30
You also talked about integration. We feel that integration is achieved in the way in which we have formulated the duty. It is clear that the principles affect all decision making where relevant, rather than just decision making for environmental policy. That is how integration is achieved—it is in the structure of how we have put into effect the duty to have regard to the principles.
Mark Ruskell has a question on the definition of the environment.
I will ask that question, but perhaps Charles Stewart Roper could reflect in his answer on why the integration principle is not in the bill.
My question is about environmental definitions. We have had quite a bit of evidence from Scottish Natural Heritage in relation to the birds and habitats directive and evidence from other commentators about the lack of an explicit link to climate and climate targets. Client Earth says that the environment definition should be based on the Environmental Information (Scotland) Regulations 2004.
Will you give us some background on why you have seemingly chosen quite a narrow definition of the environment, given those stakeholders’ concerns about whether it captures the full range of what we would recognise as environmental laws in Scotland?
Charles Stewart Roper
If I may, I would like to make sure that I did not create confusion earlier when Mr Ruskell asked about the reassurance that we had from the European Commission. We had an official-to-official reassurance that the Commission was quite content that our governance proposals would be robust. The question to Emma Lopinska about future standards and the nature of the keep pace powers concerned a different and more complex issue about future decisions as well as the proposals in the bill. I wanted to make sure that I had not created confusion there.
On the question about the integration principle not being in the bill, we think that it is there, but it is there in the construction rather than standing as a principle on its own. We achieve integration through the way in which we apply the duty to all decision making and not only a narrow range of decision making.
We will carefully think through the points that have been raised about the definition of environment that we are using. There is no intention to exclude issues such as birds and habitats or the creatures that live there. That is clear from the provision on how we define environmental harm. However, we need to think through whether that is clear and ensure that we do not create a problem regarding nature.
There is a deliberate intent to remove the strategic level of policy making on climate change emissions reduction, mainly because it already has a complex and well-developed governance and policy development issue of its own. It seemed that to overspecify it and bring it, as well as all the existing arrangements and the relationship with the Committee on Climate Change, under the purview of the new body would just create confusion.
Mark, do you want to follow up on that response before we move on to talk about the governance models around environmental standards Scotland?
I am aware that time is marching on, but I would like to hear a brief reflection from the bill team on the role of finance and budgets. I am aware that some of your thinking here goes back to the Environmental Assessment (Scotland) Act 2005, from which those aspects are excluded. We are now 15 years on. Has there not been fresh thinking about green recovery and the financial support for it that would perhaps put environmental thinking at the heart of budget processes?
Charles Stewart Roper
Mr Ruskell is clearly right. What we have in the bill reflects the Environmental Assessment (Scotland) Act 2005 and also the strategic environment directive. The guidance for the environmental assessments is more clear cut—it says that it excludes measures that are purely financial or budgetary. The proposal is essentially to follow that and ensure that, as with an application for environmental assessment, there is an application of the principles to the actual budget-making process. That has its own procedures, processes and relationship with the Parliament.
I take the point that you make. It is not to exclude from consideration the wider issues of how much resource should be applied to environmental issues or goals; it is about the specific processes for budgets and finance, which we see as not being within the purview of the new duty to have regard to the principles.
I will move on to some questions about ESS, and I know that other colleagues will want to come in.
I am trying to get my head around how ESS will work. I will use as an example the current complaint that has gone to the European Commission about the unlicensed use of acoustic deterrent devices—a matter that has come to the committee previously. That complaint might go so far, but be dropped in December.
When you consider complaints about Marine Scotland’s work in issuing or not issuing licences and concerns around compliance with the EU habitats directive, how do you see ESS dealing with such things? What might be the outcomes in relation to compliance notices or improvements? Will you take us through an example to show how ESS might work, in theory, under the structure that you set up in the bill?
Charles Stewart Roper
That is an interesting example. I am not an expert on that issue, so although I will take it as an example, you should not take what I say as an expert view on acoustic deterrent devices.
It is clearly a matter of concern to many stakeholders that, when ESS comes into being, even in its initial shadow form, such issues will be brought towards it. They may be about particular sites or the issue in general. We would expect, in line with the bill, that ESS would request information from Marine Scotland on its decision-making processes, the background to that, the way that it conducts its business and issues licences, and the criteria that it uses. We would then expect ESS to come to a view on whether there was a problem.
There are clearly two broad possibilities. The first is that the way that Marine Scotland was acting was somehow in conflict with the law as stated. This is where my expertise falls down, but I understand that there was not a decision to put in an amendment to explicitly ban such devices, so there would be a question of judgment as to whether the body was not acting in accordance with the law. In that case, ESS could start to move towards a compliance notice. We would expect it to discuss its concerns and issues with Marine Scotland and try to resolve them first, but that would be the route.
On the other hand, if the concern was more that the law was not properly taking account of the issue or that the balance between nature conservation objectives and regulation of the activity was somehow not in the optimal place, ESS could start to move towards discussions about whether the law should be improved. That would take it towards to the improvement report end of the process. It would discuss with Parliament, Marine Scotland and the Government whether there should be improvements to the law. It could then bring a report to Parliament with its recommendations on whether the law should be improved in the area, and ministers would have to respond to that.
The compliance notice is for narrower circumstances where the public authority is not working in accordance with the law. The improvement report route is for situations in which the law or the broader strategy is somehow not working to the overall advantage of the environment, or the correct balance between the environment and the activities.
Thanks. That is useful.
I will bring in Claudia Beamish, who wants to raise some issues on non-compliance.
I want to consider enforcement and non-compliance and my question is for whoever thinks it appropriate to answer on that subject. What will the endgame be in the unlikely circumstance that there are difficulties that cannot be resolved by ESS through the steps that it can take? In her letter of 31 July, the cabinet secretary said:
“The Scottish Government expects that the majority of matters that come to the attention of ESS will be resolved without any resort to its formal enforcement powers.”
That is positive. However, under the EU arrangements, where there are concerns about infractions there is also the threat of possible fines. What would be the endgame for the new body if it is established in the way that is currently envisaged? Will there be fines? What will its final powers be?
Charles Stewart Roper
I will pick that up. If we think of the example that we were discussing, if it is a narrower case, where the public authority is not applying the law correctly and no agreement can be reached, the new body would be able to issue a compliance notice. A compliance notice is appealable but would otherwise be binding and could force the public authority to change its practice. For example, the notice might say something like, “licences issued under these regulations must no longer have this condition applied.” Although the public authority could appeal that decision, it would otherwise be enforceable and it would have to change its practice in relation to the regulatory activity.
Where the new body felt that there were unresolved issues of strategic policy—that the law or policy was wrong and there could be improvements to make it more effective—and if it could not agree with the Government and public authorities, the end route would be for it to submit a report to Parliament. The system is set up so that ESS would submit an improvement report to Parliament and ministers would have to respond either with an improvement plan, stating how they were going to fix the problem, or by arguing that they did not see the problem in the same way. That could be voted down by Parliament. In a domestic setting, ministers do not think that issuing fines in relation to bigger issues is a useful approach. It is not clear where such fines would go. Ultimately, such issues are for Parliament to resolve. The most tricky issues in environmental policy always come down to some sort of conflict between different human activities and the natural environment. That means there are big societal choices and those issues are for the Parliament to resolve rather than the courts.
Thanks for that helpful clarification.
Angus MacDonald (Falkirk East) (SNP)
I am fairly content with the answers that we have had on governance issues but I have some questions about the interim body. I am keen to get more information on how the interim body is being established. I refer members to the submission from RSPB Scotland, which says:
“It is critical that the appointments process for the interim body is transparent and robust, as this Interim Board will form the first Board of the statutory ESS. Ministers should also indicate whether the interim body will be able to accept and investigate representations from members of the public, even if enforcement action, for all but the most serious cases, cannot be taken until the statutory ESS is operational.”
Can the officials expand on that and advise us whether appointments to the interim body are already being made?10:45
Charles Stewart Roper
We have advertised the positions for the first board appointments to the shadow body. We cannot begin a regulated appointment process because of the stage that we are at in the development of the legislation, but we are going through as robust and as close to a full public appointments process as we can in the circumstances. We are doing that in a robust way and, when ministers make those choices, they will be well aware of the need for a credible panel and for high quality appointments so that the new shadow body can start off in a positive way.
From 1 January 2021, we will have a facility in place for people to bring concerns and information to the shadow body, which will start to investigate those in its shadow form before it passes into statutory form sometime next year.
Can you be more specific on the timeline. By “sometime next year”, do you mean spring or sometime later?
Charles Stewart Roper
At the moment, we are optimistic that we will be able to establish the body on a statutory basis in the summer, but that obviously depends on the progress of the bill and on the Parliament’s consideration of it. Ultimately, sir, it is in your hands, not mine.
Stewart Stevenson has some questions about the independence of the new body.
A lot of feedback has been gathered in the committee’s consultation. I will pick up on only a couple of points, as I know that other colleagues will further develop them.
RSPB Scotland focuses on schedule 1 paragraph 1(1), which sets out that ESS is
“not subject to the direction or control of any member of the Scottish Government”,
and notes that paragraph 1(2) goes on to state that that clause is
“subject to any contrary provision in this or any other enactment”.
Professor Gemmell picked up on the issue of climate change policy and targets.
Where does the Government think that paragraph 1(2) comes in? From my point of view, it seems that Parliament and Government set things such as climate change targets and policies, but I wonder whether some of the respondents are suggesting that setting environmental targets of that kind should be transferred to ESS, although it seems that it should be a supervisory body, rather than one that initiates policy changes. Could we have some explanation as to the meaning of
“subject to any contrary provision”
An example of a prior provision might be the legislation on targets for climate change. Are there other examples that we should be thinking about? In the minds of the officials or the ministers, what could cause that secondary provision to kick in?
Charles Stewart Roper
There are two parts to the paragraph in the schedule that you refer to. First, there are things in the continuity bill, and ministers obviously have some role in that bill with respect to the new body, and secondly, there are other possible enactments. That part is there more for tidiness and legal efficiency, rather than because ministers have any other particular functions in mind. It is meant to give us flexibility, so that a piece of legislation passed by Parliament could give additional functions to the new body, without us having to go in and messily amend the act. Once the bill becomes an act, that ability for the body to take on an additional function would already be built in.
There are no specific additions in mind. If one arises down the line, it is more likely to be in the field of the thinking that is being done on the enjoyment of the human right to the benefits of the natural environment, rather than anything on climate change. The climate change institutional structure is already complicated enough, and we do not see that ESS will have a particularly strong role with respect to emissions.
Let me come back to make sure that I fully understand what I am being told. Clearly, there are existing bits of legislation, of which those relating to climate change would be but one example, are over which ESS will have oversight. Equally, however, paragraph 1(2) of schedule 1 leaves open that Government can bring forward, and Parliament can pass, legislation that will affect what ESS is responsible for, and, therefore, ESS is not master of its own destiny to the extent that some people seem to want. Is that a fair expression of what I have heard?
Charles Stewart Roper
In a sense. However, to say that something is fixed until Parliament passes legislation that changes it is an obvious fact—Parliament can always pass new legislation to change something. All the provision means is that if Government proposes and Parliament passes a change to it, they can do so in a more tidy way because there is already provision in the establishment of ESS for that to happen. The provision does not open up any new prospects for change; it only makes doing so more legislatively tidy.
I will close this discussion in a moment and allow others to come in.
Are you saying that such changes could be made solely by secondary legislation, or are you simply saying that secondary legislation can be exercised as a power under this proposal that gives effect to what is being brought forward in primary legislation in another bill that is laid? Is that the tidy legislative approach that you are talking about?
Charles Stewart Roper
On that detail of what enactment means, I have to ask my legal colleague to step in, because that is a technical question.
Lorraine Walkinshaw (Scottish Government)
Paragraph 1(2) is not a regulation-making power of itself. It would not enable ministers to make regulations to change ESS’s remit. Does that answer the question?
It does, thank you.
I want to further explore issues that Stewart Stevenson has raised. Some stakeholders have raised the issue of the independence of ESS. I will quote from Professor Campbell Gemmell’s submission to give a sense of their concerns. He said:
“The direct involvement of the government of the day in recruitment, reporting and operation as well as setting budgets and priorities, however, is inappropriate and weakens the body and its likely value and impact.”
There are one or two other comments in that vein but, because of time limitations, I will not quote them.
What is the view, of whoever feels that it is appropriate to answer, on that very important issue of independence? I appreciate that ESS would not be a ministerial body, but exploring that issue would be helpful.
Charles Stewart Roper
The minister’s belief is that the proposals will set up the body with a high degree of independence. The non-ministerial department is a strong model of independence, and the bill guarantees the independence of the new body. I think—[Inaudible.]
We appear to have lost the connection to Charles Stewart Roper and will just have to come back to him later. Mark Ruskell wants to come in on the precautionary principle, but that is probably a question for Charles. I do not know whether I can suspend the meeting to try to restore his connection, because we have only five minutes left. I have some questions around the budget as well, and the funding allocation and its impact. We will wait to see whether we can get Charles back, because more or less all the questions that we have are for him.
I see that Charles has rejoined us. Charles, can you hear me?
Charles Stewart Roper
Yes, I can. Apologies for dropping out again.
I imagine that that is not your fault. Did you hear the question?
Charles Stewart Roper
Yes, but I do not know how far I got into the answer before you lost me. The proposals will create a body with a high degree of independence, which is certainly ministers’ intention. We think that there are important guarantees in the bill on the key steps for that, particularly that the appointments and the strategy developed by the body will be approved by Parliament. There is no intention to set the body up as a creature of Government and ministers. We think that the proposed structure will give the body a high degree of independence and set it up as a non-ministerial organisation separate from ministers and Parliament. It will therefore have a status of its own, although it will obviously be accountable to Parliament, as it should be.
I am going to have to move things along very quickly. I will come back to Stewart Stevenson’s topic of gaps in governance for the last question. First, though, a couple of bodies have flagged up issues about potential additional costs to them from interaction with the new body and the resourcing around that, and whether the resourcing of the new body will be sufficient. You will have seen those points made in the written submissions from Scottish Natural Heritage, Scottish Environment LINK and the Faculty of Advocates.
Charles Stewart Roper
Yes. Ultimately, a judgment has to be made about how much funding there should be for the body. Our hope is that, like the European Commission in recent years, it will work effectively on a small number of cases and will therefore not incur large costs of its own or impose large costs on public authorities. The great effectiveness of the Commission governance system was due to its deterrent effect, as people did not want to get into trouble for non-compliance. If the system here is set up effectively, ESS should be able to work on a smaller number of exceptional issues with quite a light touch and not impose huge resource costs. We want to spend money on improving the environment and not on running institutions and casework.
Finally, I ask Stewart Stevenson to pick up on the potential that has been flagged up for gaps in competence between the OEP and ESS.
I am particularly focusing on the issue of where there are powers that might be exercised by either a UK minister or a Scottish minister, because it sounds like the first one to move gets the chance to exercise the powers. However, with regard to UK ministers exercising powers that would affect Scottish law, are officials satisfied that what is before us will give us the ability to have proper oversight of that effect, particularly via ESS?
Charles Stewart Roper
In general, such co-decision powers or powers that could be exercised by either Administration will be exercised with the consent of Scottish ministers when exercised by UK ministers, and we could inquire into that. That is obviously not a complete and full answer to your question, but we do not foresee there being significant gaps, particularly where there are regulatory schemes that work across the UK and Great Britain. The key thing will be for the new governance bodies to work closely together in order to provide effective oversight of schemes that work at the UK and GB level.
Right. I am not unduly bothered about the issue of consent, although I am not sure that it is co-decision making; rather, it is alternate decision making. I will let that one pass, though. The real issue is where a UK minister does something that affects a Scottish institution. I want to be clear that that would not deprive ESS of the ability to intervene in the operation of the Scottish activity that the UK minister had legislated for, even though the Scottish minister could have done so. It is not a question of consent but a question of how we would get a grip of what happened.
Charles Stewart Roper
The competence of ESS is defined by the law that could be made by the Scottish Parliament. If a law was made by convenience for a UK regulation, that would not affect ESS’s oversight of that law’s operation, because it would still be within the Scottish Parliament’s competence.
I am afraid that we are going to have to leave it there. Thank you for your time this morning. I suspend the meeting for five minutes to allow for a change of witnesses.11:01 Meeting suspended.
11:07 On resuming—
11 August 2020
Second meeting transcript
The Convener (Gillian Martin)
Welcome to the Environment, Climate Change and Land Reform Committee’s 17th meeting of 2020. We are taking evidence from two panels on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. I welcome our first panel. We are joined by Professor Campbell Gemmell, who is a visiting professor at the University of Strathclyde law school and a partner at Canopus Scotland Consulting; Professor Eloise Scotford, who is from University College London; and Professor James Harrison, who is from the University of Edinburgh.
Colleagues, if someone is answering a question and you would like to add to it, it would be very helpful if you could put an “R” in the chat box. You do not need to do anything else on your computer screen, because broadcasting staff will manage all of that for you.
My opening question is about how the continuity bill might work with the United Kingdom’s proposed internal market bill. We anticipate that the UK bill will affect the Scottish ministers’ decision to use the keeping pace powers. I draw your attention to what the Finance and Constitution Committee said last week. In its response to the UK white paper, the committee said:
“it is unclear, especially in the absence of robust intergovernmental institutions including effective dispute resolution mechanisms, what happens if agreement cannot be reached on harmonisation in specific policy areas. The Committee’s view is that there is a real risk therefore that the regulatory competences of devolved nations will be challenged either because regulatory standards are determined by UK legislation—particularly if necessary to comply with the UK’s international obligations under new trade deals—or because legal challenges in UK courts seek to enforce market access principles.”
That will have an impact on environmental considerations, too. Who would like to kick off with their views on what the Finance and Constitution Committee has said and on how the internal market bill might cause tensions between the two Governments?
Professor Campbell Gemmell (University of Strathclyde)
Other colleagues might be better placed to lead off than I am. It is right to observe that the position is difficult and unclear, particularly given that the office for environmental protection is not finally specified, although it does seem rather weak. It is extremely hard to determine how the various regulatory inputs are finessed into an overall position. Given that the long-term position is that the environment is more often viewed as a potentially tradable element, I am deeply concerned that the current arrangements are inadequate to protect the high qualities and standards that are expected in the Scottish environment. Sufficiently robust protections do not appear to be in place, but I say that in the absence of clarification. There are no explicit things that cause immediate concern; from my perspective, it is the lack of detail that is a concern.
Professor James Harrison (University of Edinburgh)
Campbell Gemmell is perfectly right in saying that it is very difficult to give clear answers because we do not yet have an internal market bill—we just have the white paper, which contains very vague indications of the direction of travel.
The bigger picture is that this is a pivotal moment for our constitution in the UK and the ways in which actors at various levels will be able to operate independently of each other. We have left the EU and we will be out of the implementation period at the end of this year. That means that a fundamental layer that has kept a common standard across the UK—EU regulations and other measures—will disappear.
There are arguments that something needs to be put in place; it is not simply a matter of not doing anything. The big question is about how you design that and ensure that there is some kind of compatibility between measures taken in Scotland and those taken in the rest of the UK and that there is sufficient regulatory space for the Scottish Parliament and the Scottish ministers to act when it is appropriate for them to do so. In the EU, we have the principle of subsidiarity, and it would be appropriate for there to be some kind of reflection of that principle in the new UK set-up.
It is worth bearing in mind that, before the EU was given competence over the environment, none of its early environmental measures were taken under the single market provisions with a view to promoting access. Inevitably, the environment will be tangled up in the internal market discussions, and we need a serious, robust conversation about what we want the future UK to look like.
Of course, what I have not mentioned is the issue of keeping pace with EU environmental standards, which the Scottish Government has committed to doing. That does not seem to have been echoed by anything in the UK proposals—or am I wrong?
It seems that the UK Government is proposing to take a different path from the EU and is less keen on keeping pace than Scotland is. That is a policy choice. In the future, the Scottish Government will be faced with a policy choice, because the provisions in the continuity bill allow the Scottish ministers to keep pace but do not require them to do so. There will be political choices about whether Scotland keeps pace with the EU, adopts similar standards to the rest of the UK or takes a completely different tack.
Professor Eloise Scotford (University College London)
I agree with Professor Harrison and the other witness. I will point out something that is probably obvious. If it turns out that there is an internal market bill for the UK that replaces some of the EU’s function in creating common standards, specifically in the environmental field, there will be a high risk that part 1 of the bill that we are discussing today will be incompatible with that and will therefore be struck down.
When you say “struck down” do you mean the continuity bill?
As James Harrison said, we are speculating. However, if we end up with an internal market bill that removes the Scottish Government’s discretion to keep pace, the provisions on that in this bill will be redundant and will not be able to be exercised.
Mark Ruskell wants to come in on that issue.
Mark Ruskell (Mid Scotland and Fife) (Green)
The prospect that the continuity bill could be struck down is pretty chilling.
I want to ask about whether there are particular areas where policies could be challenged under the proposals in the white paper. The white paper mentions a deposit return scheme. Are there other areas where there might be divergence?
A deposit return scheme is a classic internal market measure—it certainly is under EU law—so it would be appropriate that that would be within the scope of the internal market. James Harrison is right: it becomes a matter of how the UK wants to design its own internal market. It may decide that a lot of the areas fall under environmental competence, and there might be agreement between the devolved nations and the UK Government about sharing powers and it being a matter of subsidiarity. It might be that a lot of environmental matters get caught up in an internal market set of standards.
That is all to play for, but with no clarity it becomes very difficult to talk with certainty about the discretions that the continuity bill gives to the Scottish ministers to set or bring in regulatory powers to keep pace with the EU. It is great in principle, but it is a matter of sequencing. The bill brings those in before it is clear what the Government’s discretion to keep pace potentially is.
The internal market principles of mutual recognition and non-discrimination that are talked about in the white paper do not necessarily preclude each constituent part of the UK from taking its own actions; rather, they restrict certain types of actions that prevent products or services from other parts of the UK from accessing the market. Scotland is not necessarily precluded from going down its own path, but what can be done against products and services from other parts of the UK is restricted.
What happens might not be as extreme as striking down. If we go down the route of internal market reforms and there is a single standard-setting process across the UK, that could be the case, but what happens might not be that extreme. However, there will certainly be implications for levelling the playing field—to use a phrase that comes from another context—in the UK internal market.
We have such questions because there has not been an awful lot of progress on common frameworks to this point. That is why we still have a lot of question marks against how the four Governments will interact with one another and how they will reach agreements on any kind of divergence in policy or on keeping pace versus what will happen with any trade deals. Is it fair to say that?
Absolutely. It is terrifying that we are four months away from the end of the implementation period, when EU law will no longer be relevant. Actually, we still do not know whether that is true, because we do not know whether there will be an agreement, although that is looking incredibly unlikely.
Things are very uncertain. There is not much time left to figure out the basic structures. We are not talking about substance here; we do not know about the basic structures that will be in place, and that is worrying.
[Inaudible.]—are intimately connected. The two different dimensions of the implications of seeking to keep pace and the nature of the internal market and how regulatory arrangements work there raise a whole bunch of separate issues. On the first, it is important to stress that many of us would think that, from the Scottish Government’s point of view, that requires hardening up so that that is an explicit commitment rather than simply something that seems desirable.
For example, water trading internally within the UK market could become a very challenging issue if that resulted in the levelling down of standards for water quality in Scotland. That would have a series of follow-up consequences as far as industrial use and drinking water quality, for example, were concerned. However, there has been a long-term desire south of the border to—literally and metaphorically—tap into Scottish assets. The pricing model and the way in which that currently works could be seriously at risk.
That is a very important area, but it is just one of a number of areas in which a longer-term commitment to European standards would definitely help to secure, or at least indicate a desire to secure, that set of higher standards.
Finlay Carson has a question on that theme.
Finlay Carson (Galloway and West Dumfries) (Con)
We have heard concern from the likes of NFU Scotland that the bill will lead to divergence between Scotland and the rest of the UK. However, is there not also the potential in the bill for Scottish Government ministers to have free rein to align Scotland with the EU without scrutiny, which could potentially lead to a division in the UK?
It is worth noting that EU regulations have always been implemented separately by Scotland and the rest of the UK, so there has always been the potential for small divergences even in the implementation of EU directives. There has never been complete similarity on EU law across all jurisdictions in the UK. Therefore, the threat is perhaps a little exaggerated. There will be differences, and that is good. At the end of the day, the extent of those differences is a policy question, and it will be up to the Government of the day to decide how to align itself.
Claudia Beamish wants to come in on that subject before I go to Stewart Stevenson.09:45
Claudia Beamish (South Scotland) (Lab)
It is just a brief question. I want to ask what the status of the—[Inaudible.]—might be in relation to the internal market discussion that we are having and, of course, the acts that underpin the devolution settlement. It is, of course, enshrined in law. Does that have any relevance? It might be a very quick answer.
I do not know whether everyone picked that up, Claudia, because there was a little glitch just as you said what your question referred to.
It is about the devolution settlement and the acts that underpin it. Do those have a status in relation to the internal market and the position of Scottish ministers and the Scottish Parliament?
It seems an age ago that we were talking about the European Union (Withdrawal) Act 2018, but, if I remember the discussions correctly, the powers of the Scottish Parliament were changed and the restrictions relating to EU law were removed. I think that the principle now is that everything that was previously an EU matter is devolved, but there is a regulation-making power that allows the UK to reserve particular matters that have been repatriated from the EU. If I remember correctly, that is how the discussions about the competence of the Scottish Parliament were ultimately resolved. Therefore, it is possible for the UK Government to reserve certain aspects of repatriated EU law using the regulation-making power in the Scotland Act 1998.
Stewart Stevenson has questions on the same theme.
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
Since we are talking about a context determined by frameworks, I want to ask the academics a very simple question about them: does any of our witnesses know how they are going to come into being? Is it simply that a couple of ministers at Westminster will get together in a wee room, write something down and tell the rest of us that that is it? Or is there a process that involves the other nations of the UK? I invite Professor Campbell Gemmell to comment. I am asking only whether anyone is aware of how it is going to happen.
I am definitely not aware of a mechanism or model that is in place for that. It is an important question, and there has clearly been a lot of informal discussion, but I am unaware of what the formal meetings and process will be.
It is not as simple as saying that there is one way in which common frameworks will come into being. Some frameworks will be legislative. For example, the Fisheries Bill that is going through the UK Parliament involves the creation of a common framework in that sector whereby there will be a joint fisheries statement that will be commonly agreed by all the relevant Administrations, and then there will be fisheries management plans under that, which again will involve input. There are provisions in the UK Environment Bill for common regulation-making powers, sometimes with the consent of the Scottish ministers and sometimes in parallel.
It is complicated, and each common framework will differ, depending on the sector concerned. I do not know whether Professor Scotford has anything to add to that.
I do not know the details. I suspect that Professor Harrison is right in saying that it will depend on the negotiations in each sector.
I would have thought that, at the very least, it will be based on agreement and that, once there is a clear sense of how much reserved power the UK Government has and how much power devolved Administrations have over policy areas, there will be an agreement. The idea of common frameworks is that they are based on agreement, not on diktat.
This is not an uncommon problem in countries that have devolved power over environmental issues, and there are variations of such agreements in different countries around the world. Australia is a good example, and Canada has such agreements as well. Those countries have come up with a bespoke model of agreement that then carries some constitutional authority. They have created a new, higher-order agreement.
It will be interesting to see what the UK comes up with, but I would expect it to be based on agreement, otherwise it will not be a common framework; it will be the exercise of the UK Government’s reserved power, which is a different kind of instrument.
I agree entirely with what Eloise Scotford has just said, but it is interesting to reflect on the fact that, in the past year, the Council of Australian Governments arrangements within Australia have been dissolved by the current Australian Administration. It is pretty obvious that processes that have been designed in detail in some Administrations to allow component parts of the Australian Commonwealth to work together can also be overwritten by the Government of the day.
Although I absolutely hope that the approach that is taken is agreement, that is not guaranteed. Recent evidence suggests that it is an area that we should be watching carefully.
Finlay Carson has a supplementary question that relates to his theme.
I may not have asked my question very well. We have heard from Professor Harrison and Professor Scotford that these things are often done through joint agreement or consent. We have seen that in relation to the Environment Bill. One issue is that there appears to be a reluctance on both sides to produce these common frameworks.
My first question, to which I did not quite get an answer, was about the Scottish Government wanting to align Scotland with EU laws, without scrutiny. As the Law Society of Scotland has suggested,
“neither the UK nor Scottish Governments and stakeholders would have had the opportunity to influence those proposals or even to become familiar with them”.
Is that not a risk for the bill?
Who are you addressing that question to?
Professor Harrison, who answered the question in the first instance. The issue is not necessarily about differences across the UK, because that is ultimately what we want through devolved settlements, and it is quite likely that there are retained and devolved issues that we deal with in different Parliaments. Specifically, if the Scottish Government were to align with the EU, would that not cause problems right across the UK, because we would have very little or no influence over the direction that the EU might want to take when we were aligned with it?
There are two answers to that question. In the policy memorandum to the bill, the analogy is given of the powers under the European Communities Act 1972 to implement EU law. In a sense, there is an attempt to say that we will need similar powers in the future.
However, I think that there was a fundamental difference with the powers under the 1972 act, as the UK had been directly involved in the negotiation of those instruments. It was able to influence the development of EU law and it had obligations to implement the instruments within particular timeframes. None of that will be true once we are out of those decision-making processes—we are already out of them, even though, this year, we have an obligation to implement the instruments. From 1 January next year, it will be the Scottish Government’s choice whether to align itself, and it will not have had any chance to influence the rules. That is an interesting position to take.
Obviously, there is a political undertone. The documents that accompany the bill make it explicit that it is intended to help Scotland to become a member of the European Union again one day, and to ensure that its laws are ready for that day. That seems to be the policy of the current Scottish Administration, and that is for it to decide. At that stage, we will be implementing measures that have been decided by a foreign legislature, which is an unusual position to take.
Angus MacDonald (Falkirk East) (SNP)
I will look at the reciprocal and related proposals in the UK Environment Bill. Would the panel members care to compare the UK and Scottish Governments’ proposals, especially around whether there are areas where the UK Environment Bill is stronger or better defined than the Scottish proposals? If there are such areas, what might the implications be?
That is a difficult question. Do you mean “stronger” in the sense of stronger environmental protection?
It is hard to unpack that. It is easier to compare just part 1 of the UK bill with the Scottish continuity bill, because the UK bill has lots of provisions that relate to specific policy areas, such as air quality. However, in relation to environmental governance, there is much in the Scottish continuity bill that is stronger. It would be good to go through the things one at a time.
For example, two things are stronger in the UK bill: the first is the definition of the environment, from which a lot of consequences flow in relation to the compliance mechanisms; the second is the retention of the integration principle, which is an important distinction although it might get filtered down in the way that those principles bind ministers in the UK bill. There is much that is stronger in the mechanics of the continuity bill.
Are you happy with that, Angus?
Yes. Do other members of the panel want to make a contribution?
A broader point to make on the interesting decision to frame the Scottish bill as a continuity bill is that the emphasis is on filling gaps left by the departure from the EU. That gives the whole rationale for the proposals in the Scottish bill, whereas the UK Government has decided to take a slightly different tack with the UK bill, which addresses environmental governance much more broadly. It is not just about the institutions; there are some great things in there about environmental targets and long-term environmental plans, so the UK Government has thought about environmental governance in the round. From an environmental law perspective, it would have been nice to see some of that broader thinking in Scotland. We have an environment strategy for Scotland but, at the moment, it is non-statutory, although there was an opportunity in the bill to give it a statutory underpinning. We have climate change targets in Scotland; would it be useful to have other environmental targets such as those that we will see south of the border? There is a strategic choice about the framing of the bills that makes them difficult to compare.10:00
[Inaudible.]—point is quite obvious. James Harrison is quite right about environmental improvement plans, which are strong. We could spend a lot of time talking about the target-setting provisions, because they are a mixed bag; there is good stuff and bad stuff. I will make the obvious point that, in the latest revision of the UK Environment Bill, the OEP has powers over climate change targets. That is a big difference to the continuity bill.
It is apples and oranges. The two bills are clearly being designed for the two different domains, but there is scope for some cherry picking back and forth between the territories. I am glad that Professor Scotford raised the issue of powers over climate change targets, because that is an important distinction as those powers are clearly lacking in the current Scottish proposals. The way in which the regulatory oversight will work cannot be automatically concluded from what has been described.
Overall, there is some very encouraging breadth to the UK proposals, but how they will be operationalised is not yet completely clear. The way in which improvement plan-type thinking is applied is encouraging, and, depending on how environmental standards Scotland develops, that would take us down an interesting path in relation to the difference between higher-level strategic analysis of policy and practice and what happens around individual cases, claims and complaints. As always, it is helpful to look across the border to see whether there is anything that might be beneficially adopted into any revision of the Scottish position.
The two bills highlight, in a sense, the continuing divergence of paths and are, therefore, tailored to their particular context.
We will move on to environmental principles. Before we do so, Stewart Stevenson has a short supplementary question to ask. Can you tell us who it is addressed to?
It is not for anyone in particular, but it is short. We have twice heard that the intention is to adopt EU law into Scots law without scrutiny. However, I have the bill in front of me, and it says:
“The Scottish Ministers may by regulations”
make provision and, equally, if I read it correctly, the Parliament may reject those regulations. So, there is a place for scrutiny. I just wanted to give you the opportunity to tell me whether there is or is not an opportunity for scrutiny as the bill is drafted.
Does anyone want to come in on that, or is what Stewart Stevenson is getting at self-evident?
Stewart Stevenson is, of course, right that there is opportunity for scrutiny. Usually, that would take place under the negative procedure, but, for certain regulations laid, it would take place under the affirmative procedure. That opportunity is there.
Mark Ruskell will kick off talking about environmental principles.
I am looking at the Charter of Fundamental Rights of the European Union—I have a little souvenir copy here. Article 37, on environmental protection, states:
“A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”
It appears that none of those three principles is included in the bill, although we were reassured by the bill team last week that the bill is written in a way that ensures policy integration. What are your reflections on those missing principles, on the principles that are in there and on what the practical implications might be of missing certain principles out?
That is a very good question. I have spent a lot of time thinking about the environmental principles in the EU treaties—as well as being in the charter, they are contained in the EU treaties.
The lack of an objective in the Scottish bill and in the UK bill to indicate that a high level of protection drives environmental governance and supports the environmental principles is a glaring oversight. It is particularly glaring in the continuity bill, given that section 9(2) of the bill states that the guiding principles “are derived from” article 191.2 of the Treaty on the Functioning of the European Union, which contains the high level of protection commitment.
The environmental principles are quite flexible and open-ended notions of environmental protection—they are policy ideas that can be applied in slightly stronger or slightly weaker ways—so there is a distinct advantage in setting an explicit commitment to a high level of environmental protection.
On the integration principle, I take the point that the Government officials made about the construction of the bill being such that regard must be had to the principles across different policy-making areas, but I am not sure that that fully addresses the challenge of including, for example, the integration principle. The TFEU has an integration principle whereby environmental protection requirements should be integrated across all policy making in the European Union. It puts that principle up front in article 11.
The integration principle has a history of creeping up from just being within environmental competence to covering all aspects of EU policy making and becoming stronger in the formulation. The integration principle in article 11 of the TFEU says that environmental protection requirements
“must be integrated into the definition and implementation of the Union’s policies and activities”.
That is a higher and stronger duty than that of having regard to the principles in the bill. Therefore, the integration principle in the EU sense puts a stronger and higher-order obligation on the integration of environmental protection requirements. There are a series of such integration principles in the EU treaties, and the environmental protection one is the most mandatory and of the highest order in terms of the obligation that it sets that there must be integration of environmental protection. It provides a stronger commitment.
I would be interested in hearing other reflections on the principles.
Professor Scotford has given a really good answer, and I fully agree with everything she said. She is the expert on the principles.
Last week, members of the bill team pointed to section 12, on the purpose of the duties, to explain why they had not included a high level of protection and why they had not included sustainable development as a principle. However, although section 12 refers to
“contributing to sustainable development”
“protecting and improving the environment”,
that is different from saying that there must be a high level of protection, so I completely concur with Professor Scotford that there is something missing here. If the aim is continuity with the EU approach—which is how the Scottish Government has chosen to frame the bill—that would seem to be lacking.
That is exactly the supplementary point that I wanted to make. I completely agree with what Professor Scotford and Professor Harrison have said. I think that the full set of principles should be present in the bill.
I also think that there should be additional clarity on exactly how the Scottish ministers would advance the various elements and on the extent to which they become duties rather than areas to which mere lip service could be paid.
As Professor Scotford has said, the principles that there is a duty to have regard to are derived from equivalent principles that are provided for in the European treaties. That has to be read alongside the duty to have regard to the guidance that has been adopted by the Scottish ministers, which can include how the principles should be interpreted. It does not necessarily require the Scottish ministers to follow in detail the prescriptions of the European courts, for example; they have to have regard to those interpretations but they can adopt their own view. The guidance that is developed by the Scottish ministers will be critical to understanding what the impact of the principles will be in practice.
Mark Ruskell wants to ask another question.
I will be brief, as I know that time is marching on. Is the bill compliant with the requirements of the Aarhus convention?
Who would like to take that question?
I see that James Harrison wants to answer, so we will go to him.
I did not realise that smiling counted as an indication that I wanted to answer the question.
The bill will do no harm to Scotland’s prospects for compliance with the Aarhus convention. Whether it will bring us into full compliance is a separate question.
I agree with James Harrison that the bill will do no harm in that respect, but it certainly does not aid the cause—it will not do anything in particular to improve compliance.
The exclusion in section 39(2) of
“disclosure of, or access to, information”
from the definition of “environmental law” seems strange. There are similar provisions in the UK Environment Bill, which I also find strange. I guess that there are reasons for the exclusion, but it is strange in the context of environmental law because access to environmental information is one of the three pillars of the Aarhus convention. It seems odd that the bill will not be a mechanism for compliance with that component of the convention, which is a big aspect of environmental law.
Mark Ruskell is happy to move on, so we come to Claudia Beamish, who has some questions on the principles in the bill.
I will ask both my questions at once, given that we are short of time. With regard to the principles specifically, the Faculty of Advocates says:
“These principles make no mention of environmental equity (in a redistributive sense), and/or human rights”,
and highlights that the bill does not refer to the
“protection of human health”
Are there any comments on that? As I understand it, those aspects are enshrined in EU law.
My second question—which we have touched on already—concerns the implications of having a
“duty to have regard to”
the principles in the bill, rather than a requirement to act in accordance with them. That issue was mentioned in quite a lot of submissions, which I will not go into now, but perhaps we could explore it a little further.
Time is running away from us, and we have a number of areas to cover before half past 10, so I will ask only one panel member to answer that question. I see that Eloise Scotford wants to come in.
On the point about principles that are not included in the bill, the question of which principles the Scottish Government wants to include and sign up to is—as I said in my written evidence—a political choice. A case can be made politically as to whether or not the principle of equity should be in the bill, although it is not a strong principle in the EU with regard to how it has been constitutionalised.
With regard to Claudia Beamish’s point about the protection of human health, it is interesting that, as I note in my evidence, the bill refers to:
“the precautionary principle as it relates to the environment”.
I find that odd because in EU law and policy, the precautionary principle very much extends to human health. That might be something to reflect on, and I have included a few notes about it in my written evidence.10:15
Human rights are a different bag. They are not principles, but legally enforceable rights that you can choose to construct, create and defend. They are conceptually different from principles.
I agree that the
“duty to have regard to”
the principles is weak. The UK Environment Bill was challenged on a similar point, and the wording of the duty in that bill has now been upgraded to “have due regard to”. The UK bill is therefore stronger on that point, but it is still not that strong. The Scottish bill could be stronger—if you really wanted to embed the principles in policy making, you could go further by using alternative formulations such as “take into account”, “must be integrated” or what have you.
We have a lot of questions about the bill’s purpose and the proposed environmental standards. In the interests of time, we will move on to questions about environmental standards Scotland, starting with Angus MacDonald. If we have time, we will come back to any issues around the environmental principles that we might have missed, but I am worried about time.
With regard to the purpose of the bill, I am keen to hear the witnesses’ views on whether the bill will, through the proposed new body, ESS, provide for continuity of governance after Brexit. If it will not, where will the gaps be? Are the proposals in the bill, including the ESS model, the most effective solution?
To a degree. The commitments are positive and well received, but the weaknesses in the bill as it is currently drafted are a concern. As I said in my submission, the fact that various mechanisms are included is good, but the way in which improvement reports and plans would be deployed is definitely a weakness. The bill does not have the robustness that would be desirable in that respect.
To answer your question explicitly, I would say no—the proposals are not an adequate or fully sufficient substitute for the current arrangements. As I pointed out at some length in the Scottish Environment LINK report, it is essential that we view the existing arrangements as a fairly complex system of checks and balances and components. The proposals in the bill focus on the European Commission-type element of the system, without seeking to do anything either through existing governance in other parts of the system or through the inclusion of a dedicated environment court.
Even in focusing on the Commission element specifically, the bill does not have the required robustness. For example, it does not pursue matters at the level of an individual case; it looks only at the more general and strategic aspects. That is a very big gap.
The argument for that approach seems largely to be that we are all terribly fearful of being overwhelmed by a large number of cases. If there is a large number of failures in the system, perhaps there should be a large number of cases. However, the experience in respect of the existing Commission model, and in other jurisdictions where similar arrangements apply, suggests that, through proper triage and the provision of dedicated advice and support in advance, the numbers can be winnowed down quickly to a certain amount of priority cases.
The main proposal is a good step, but it is flawed in a number of ways. That is my overall comment; I am happy to come back on any details if that is required.
In some ways, the proposal in the bill goes beyond what the Commission could do. The Commission’s procedures apply to compliance with EU environmental law, whereas the proposal in the bill would apply to any Scottish environmental law. It is to be welcomed that we will finally be getting robust compliance mechanisms that do not rely on judicial review in order to ensure that our public authorities comply with all forms of environmental law.
I agree with Professor Gemmell’s comments about the larger system, which echoes a little of what I was saying earlier.
The proposed body has roughly the right set of powers, but how it decides to use them will be critical. The strategy will be really important.
I am not sure that I entirely agree that individual cases will be outwith the new body’s remit. Certainly, the formal enforcement powers which relate to improvement reports and compliance notices cannot be used in individual cases. However, a lot of the European Commission’s practice in resolving complaints about environmental law has been very informal. It has not relied on going to court or formal decisions. That shows that issues can be resolved.
In schedule 2 to the bill, which deals with the strategy, there is an emphasis on putting in place a similar system, whereby issues should be resolved as quickly and effectively as possible without necessarily having to rely on the hard-hitting powers that are contained in the body of the bill.
It will be interesting to see how environmental standards Scotland develops its strategy and priorities for looking at different types of complaint. It will have to do all those things. The devil will be in the detail.
I agree with pretty much all of that. However, I think that, in some respects, the bill’s definition of
“a failure to comply with environmental law”,
in combination with the use of improvement plans, will mean that big systemic breaches of environmental standards might not be subject to enforcement by ESS.
I find the concept of
“a failure to comply with environmental law”
—which also appears in the UK Environment Bill—really odd, because a failure to comply with the law is exactly that. However, there we have it.
There are some good aspects of the definition—for example, it will potentially make a broader sweep of authorities that might have contributed to a failure to comply with environmental law. However, given the way in which the concept is defined, it might enable public authorities to say that they have taken all the actions that they might reasonably take to achieve compliance—for example, on water quality or air quality standards—but nonetheless the standards have not been attained. Under EU law, there is a mechanism to enforce compliance by ratcheting up the pressure to achieve those standards. I do not think that the definition of
“a failure to comply with environmental law”
would capture the type of case in which there is ultimately a failure to achieve standards despite best efforts being made.
The compliance notice power is a strong provision. What is great about it is that there is a sanction for failing to comply with a compliance notice, which the UK Environment Bill does not have. However, such a notice cannot be issued where an improvement report has been issued, which might apply in a strategic or more complex case—for example, where more than one public authority is involved.
The evidence from Government officials to the committee last week indicated that the improvement report route would apply only where the law needed to be improved. In fact, it would also apply to compliance, where there was a failure to meet environmental law. If the improvement report route was chosen, the compliance notice route would be knocked out.
Environmental issues such as water quality and air quality are often complex to resolve, and require different Government departments to work together. I worry that, on complex questions of compliance with environmental standards, cases might go down the improvement report route and would therefore not be fully resolved. For example, in a case in which standards were ultimately not attained under the definition of
“a failure to comply with environmental law’,
there would not be an ultimate compliance notice route to try to bring about compliance.
Claudia Beamish has a question about the independence of ESS. I see that Campbell Gemmell wants to come back in on the previous point, so I will bring him in after the question has been asked.
Last week, we discussed with the bill team whether ESS will be sufficiently independent and resourced to enable it to deliver its environmental governance functions.
I would appreciate the panel’s answers on an issue that the committee highlighted last week. The appointment process for the interim body, the permanent ESS board and the first chief executive will involve nominations by Scottish ministers. Is that appropriate? How do the witnesses see the process developing?
I will bring in Professor Gemmell to make the point that he wanted to make and to pick up on the question from Claudia Beamish. I will keep an eye on the chat box for indications that any other panel members wish to contribute.
In addition to agreeing with Professor Scotford, I will say that, although we are currently moving quickly, we are rather late in doing so. I hope that there will be considerable flexibility in the final specification for the duties of ESS before the body reaches statutory status. There is quite a lot to work through, including issues to do with case typology and the way in which individual issues might be handled—for example, the difference between a complaint and a more egregious failure to comply with the highest element of the law.
As I set out in both the reports that I was involved in producing, and as I have recommended, the independence of ESS and the nature of it as a parliamentary commission would certainly require ministers not to be directly involved in the specifics of recruitment and engagement. That would give ESS a much clearer locus as a body that would be genuinely independent but empowered on a cross-party parliamentary basis.
It is clear that any arrangements can be made to work at a provisional level in order to get the body established. As long as there is a transparent process, I do not think that it would necessarily be a fundamental flaw to have ministers make appointments. However, that would raise interesting questions about the power locus in the longer term. I continue to believe that there should be a genuinely independent and parliamentary locus for the body, rather than a governmental locus or any such perceptions in that regard.
As no one else wants to come in on Claudia Beamish’s question, we move to a question from Angus MacDonald about gaps in the powers.
The committee has pursued the issue of what the Law Society of Scotland has referred to as
“a potential lacuna in environmental governance”.
Any action that Scottish ministers may take by using an executive devolved power in a reserved policy area would be excluded from the remit of ESS, while UK ministers exercising powers in areas of devolved competence would be excluded from the remit of the OEP.
What issues might arise if UK ministers exercising powers in areas of devolved competence and Scottish ministers exercising executive powers in areas of reserved competence fall outwith the remits of both the OEP and ESS?
Other colleagues probably feel as cheery as I do about entering that space.
That is an area that clearly needs to be worked through. It will help once we know, finally, what the OEP will look like. Getting involved in devolved or non-devolved territory at the other end of the jurisdiction would be a potential challenge. I do not have any clever observations to make, other than to say that, if we are to make the system work properly, there should be no gaps. There is a complex set of arrangements in place now, and there will be in future.
Anything that relates to policy and practice in Scotland should be within the scope of ESS’s oversight capability. However, it is difficult to be definitive about how that would be achieved, given the nature of reserved arrangements and the potential changes in that regard. It would seem odd for Scotland to be the subject of environmental policy without being able to influence or oversee it. The issue that Angus MacDonald highlights is still to be determined, and it is not straightforward.10:30
James Harrison wants to respond, but we have an issue with his microphone. It is back on now.
All that I would add is that the two bodies will have to work together. From a citizen’s perspective, we require the process to be smooth and seamless. If an individual makes a complaint to ESS that does not happen to fall within that body’s remit, one would hope that ESS could forward the complaint to the OEP to ensure that the matter was resolved. We would not want to make the system too complicated to operate from a layperson’s perspective.
We have time for a final question from Mark Ruskell, who wants to go back to some issues that he raised earlier in the meeting.
I have a wrap-up question about the scope of the bill, which is tightly linked to the provisions on strategic environmental assessment and plans and programmes to do with that. It is also linked to particular public bodies, and there are some exclusions in relation to budgets, for example.
Do the witnesses have any final thoughts on the scope of the bill? Is it correctly drafted in that respect, or could the scope potentially be broadened? Does anyone have any thoughts on exclusions?
I included some detailed paragraphs on that subject in my submission. It is welcome that the scope of the bill is broader than that of the UK Environment Bill, in that it applies to public authorities other than ministers.
When it comes to having a strategic policy-making power that is based on principles, having a link to the Environmental Assessment (Scotland) Act 2005 is neat and elegant, but the downside to that is the huge legislative complexity. We will have such complexity anyway, because that is what leaving the EU results in, but that approach will create a bit more obscurity in the legislative landscape with regard to understanding the extent of the scope of the bill.
As I said in my written evidence, there is one part that could be extended, which the committee might like to consider. The role of the principles should extend to all decision making by public authorities on areas to which they may be relevant. There are good reasons for doing that. The EU principles tend to work in that way, and it would ensure that very large planning applications, for example, would be captured. However, there are other reasons for not doing it, such as the fact that it might create a lot of complexity. I will leave the committee with those thoughts.
On finance, a debate is raging about the greening of budgets and whether the bill could be used as a mechanism for having a greener approach to budget setting. That is a political argument.
As no other members of the panel want to comment, I will round off the session by thanking everyone for taking part. We had a lot to discuss and there was probably not enough time to enable us to cover everything, but the evidence that we have received has been very helpful.
I suspend the meeting to allow for a change of witnesses.10:34 Meeting suspended.
10:40 On resuming—
Welcome back. We continue to take evidence on the UK Withdrawal from the European Union Continuity (Scotland) Bill, and I welcome our second panel of witnesses. Isobel Mercer is from the governance group at Scottish Environment LINK, Alison McNab is policy executive at the Law Society of Scotland, and Dr Viviane Gravey is from Queen’s University Belfast, and is here on behalf of the Brexit and Environment Network.
I assume that the witnesses listened to the evidence from our first panel; we will cover similar themes with you. My initial question theme is concerns that have been raised with the committee by the Finance and Constitution Committee, and by witnesses in their submissions, about the Scottish Government’s desire to keep pace with the environmental standards and laws of the EU, about the emerging internal market bill from the UK Government, and about a possible lack of compatibility between the two bills. If panel members want to come in with their thoughts on that initial theme, they should indicate that in the chat box.
Dr Viviane Gravey (Brexit and Environment Network)
I do not necessarily see incompatibility. The problem is more that the internal market, as it is promised in the white paper, would include Scotland’s being able to keep pace with EU rules, and to adopt more ambitious rules, while products from the rest of the UK—England and Wales—that did not follow those rules would be available in Scottish shops. There would then be issues for Scottish businesses in terms of their perhaps being held to higher standards than their Welsh and English competitors. It would be perfectly possible to do that, but it would come, potentially, at a very high economic cost.
There is then the question of pitting high environmental ambition against business competitiveness. That would be very problematic, especially in terms of Covid recovery.
Another aspect is that, while the Scottish Government wants to keep pace, Northern Ireland will have to keep pace in some areas, but that is not taken into account well in the internal market proposal. Potentially, Wales, Scotland and Northern Ireland could keep pace with EU rules, whether by political will or because of the protocol, with England being the only part of the UK to diverge from them. That might lead to different economic consequences.
In any case, we have to remember that with England being the much bigger market, there would still be pressure and the potential problem of English products undercutting Scottish products in Scottish shops.
Alison McNab (Law Society of Scotland)
Dr Gravey has raised some interesting points on the practicalities of the internal market arrangements. At this stage, of course, we have only the white paper. What an internal market bill will include remains to be seen.
The internal market provisions—whatever they might look like, in due course—on-going development of common frameworks and future trade and other international agreements will all impact on how the power to keep pace can be used by the Scottish Government. The bill provides for that, I suppose, in that the Government “may” introduce regulations—it is not a requirement that it do so. Of course, there is no requirement to maintain or exceed EU provisions in relation to environmental standards.
The answer is that we need, to some extent, to wait and see. However, the continuity bill provides a degree of flexibility to accommodate whatever the arrangements might be.10:45
Isobel Mercer (Scottish Environment LINK)
These are excellent questions. All the panellists this morning have made interesting points about the topic.
I reiterate what Alison McCabe has just said, which is that the system has many moving parts and uncertainties, at the moment. We see what is in the bill, but it is difficult to comment on some of its provisions, just now.
Scottish Environment LINK is obviously mainly concerned about what the environmental outcomes of the proposals will be. We are most interested to ensure that there is, in the internal market, a shared set of common standards that will ensure that there is no race to the bottom across the UK countries, and no cap on the ambition and ability of any devolved Administration to go above and beyond the requirements, where it chooses to do so.
The question is how that will interact with the continuity bill and the keeping pace provisions. Scottish Environment LINK hugely welcomes the ambition to keep pace and to have dynamic alignment with EU standards. However, we would like the bill to go further, and we would like a firmer commitment to non-regression of environmental standards. That could be done by a formulation that would ensure that the keeping pace powers are actually used to achieve high environmental outcomes, perhaps through the powers having a kind of overarching purpose.
There are a lot of unanswered questions, but we feel that it would be excellent if, in the midst of all the uncertainty, the bill could make even firmer the ambition that we have seen to align with EU standards, so that it will achieve a high level of environmental protection. Provision, in the bill, of real clarity about the ambition from Scotland’s perspective would help to do that.
The white paper on the UK internal market has to be compared with what we already know about it and how it works. The EU internal market is able to go beyond common environmental rules, and every part of the UK was previously able to go beyond common EU rules.
The UK internal market white paper is quite funny, in that the UK Government states that it is ambitious on plastics, although we know that Wales and Scotland have, using the same provisions in EU law, been more ambitious on plastics than the central UK Government.
We also already had the principles of non-discrimination and mutual recognition in the EU context, but we were always able to go beyond them to pursue objectives in public health and environmental ambition. The UK white paper proposals do not have similar strong environmental exemptions to those principles. That is where there is a lot of tension: on paper, you might be able to continue to be ambitious, but it will cost you. In the current EU context, it does not cost you.
In the background, as is mentioned in the Finance and Constitution Committee’s report, is the prospect of trade agreements that could influence environmental standards thresholds across all the devolved nations. How does that fit into your thinking?
I would not say that there could be an influence
“across all the devolved nations”,
because I think that Northern Ireland would be protected by its protocol. The aspects of environmental law that we are considering and those on animal welfare are covered by the protocol, but it does not cover all environmental policy. Regulatory dealignment from the EU is one of the aims of Brexit, which is partly about being able to do things differently. Among the drivers for doing things differently are the striking of new trade deals and, perhaps, moving closer to American ways of regulation. That is definitely part of the picture.
Something that comes across very clearly from the Scottish Government’s response to the UK internal market white paper is that this is not about only the Scottish Government; the rules will have to be dealt with by UK and Scottish Governments for the foreseeable future. Even if we have political commitment from the current UK Government not to downgrade certain standards, the proposed rules would still allow such downgrades, and a future Government would not be bound by the same commitment.
It is important that we look at the white paper, but this evidence session is about the continuity bill, so we need to scrutinise potential issues in that. We have touched on the principles of mutual recognition or whatever, but my concern about the keeping pace powers is potential lack of scrutiny. My colleague Stewart Stevenson suggested that the Scottish Parliament could accept or reject conditions, but that would not give us the ability to influence policies that might come down from the EU, if we were to keep pace. The Law Society of Scotland highlighted in its written submission that neither the UK Government nor the Scottish Government would have the opportunity to influence proposals or to become familiar with them before they were put in place.
What are the witnesses’ thoughts with regard to the direction that the Scottish Government is moving in, which is, potentially, to align far more closely with the EU than it does with the UK, and with regard to potential issues with legislation that we are unable to influence?
The question raises some interesting issues. Policy divergence is, of course, a natural consequence of devolution, and there are already examples of policy divergence within the UK in environmental matters. That sets something of a backdrop for the continuity bill’s provisions. However, it is recognised that the powers in the bill are, as I suggested earlier, discretionary, so that it would be within the Scottish Government’s gift to decide whether to align with the EU. There are benefits to doing that, but EU provisions might come forward with which the Scottish Government does not wish to align, and instead decides that it would be better to align with other UK jurisdictions.
In terms of scrutiny, the keeping pace powers in the bill are very wide secondary legislative powers. The Law Society’s view is that those powers are inappropriate unless there is some overriding justification and that, even then, there are opportunities for enhanced scrutiny.
The earlier witness panel referred to what would almost be the default position, which would be use of the negative procedure for scrutiny—other than in some scenarios in which the affirmative procedure would be used. There are opportunities to strengthen that by, for example, in effect reversing the position, so that the affirmative procedure would be used except in minor circumstances, or ensuring that the super-affirmative procedure would be used. The earlier legal continuity bill provided for use of the super-affirmative procedure; that is certainly worth further consideration.
I will build on some of Alison McCabe’s points. A lot comes back to the question of the aim of the powers—going beyond thinking just about the aim to remain dynamically aligned with EU law and thinking also about what outcome you are trying to achieve. That goes back to my earlier point: if the bill was clearer about the powers being used to achieve a high level of environmental protection, that would clarify matters.
Coming back to the scrutiny powers, I note that Scottish Environment LINK is concerned that the way in which the powers are currently drafted means that potentially regressive changes to environmental law could be made through the negative procedure. For example, if the EU were to pass legislation that represented a regression in environmental standards, and the power to match Scots law to that were to be used, that could be done through the negative procedure, with limited scrutiny by Parliament. Therefore, were the bill to state clearly that the power is to be used to ensure a high level of environmental protection, that would resolve some of the issues that we have.
I would like to come back in on the issue of people not being aware of what EU law would be coming into effect. The EU legislative process is quite transparent, and the process takes quite a bit of time. Therefore, you would not end up in a situation in which directives would be developed overnight with which the Scottish Government would have to keep pace.
The ability definitely exists for the Scottish Parliament, through its committees, to survey what is happening in Brussels. If you are interested in what the Government might want to keep pace with, or you want to influence what the Government decides to keep pace with, it is in the gift of the members of the Scottish Parliament to set up a committee to do that.
In any case, it is important to remember that all parts of the United Kingdom have played a huge role in developing EU environmental rules, and it is unlikely that there will be radical shifts in how the EU handles environmental policy. That means that what you would be keeping pace with is the latest update of a policy that you played a key role in developing. Although the formal ways of the UK influencing EU decision making will have gone, there will still be informal ways to do that, and there will be ways in which non-governmental actors—environmental non-governmental organisations, think tanks and so on—that have played a huge role in designing the EU’s environmental rules, can play a part. The fact that we are outside the EU does not mean that there will be no UK voices influencing the shaping of EU rules after Brexit.
I understand that Stewart Stevenson would like to ask a supplementary question on that matter.
I would like to follow up on the issue of scrutiny, with Isobel Mercer. I understand that there is difference regarding when and how negative and affirmative orders come into effect, but I am completely unaware of any constraints on how Parliament may scrutinise one or the other. What constraints do you recognise with regard to the scrutiny of negative orders? When I was in Opposition, I successfully opposed negative instruments.
I apologise if I was not entirely clear in my previous answer. I was mainly referring to the fact that, although there are exemptions that mean that some regulations would be subject to the affirmative procedure and some would be subject to the negative procedure, there is no clarity about whether the powers would be used to achieve high environmental outcomes, or about the powers being discretionary, which means that ministers would not be required to follow changes in EU law if they chose not to. That is what I was principally trying to get across. I apologise if that was not clear.
I whole-heartedly agree with what Dr Viviane Gravey said about informal processes and the ability to continue to engage with development of EU environmental protections. Maintaining those informal processes and engagement will continue to be extremely important as we move forward.
Stewart Stevenson, would you like to continue your questions about common frameworks?11:00
Yes, I would.
Obviously, the common frameworks will sit around everything that might be done under the bill if it becomes an act. Do the witnesses have concerns about how we should get to those common frameworks? Clearly, there is an agreement between all the Administrations that common frameworks should exist—that is not a matter of contention at all—but there is not going to be a process for producing the common frameworks that reflects the needs and aspirations of the various Administrations and the need for flexibility. For example, tomorrow, in one of my other committees, we will discuss the Fisheries Bill that is going through Westminster. That looks like a good piece of co-operation, where the process is working well. However, in other areas, the situation is less certain.
Perhaps we could start with Dr Gravey, because of her focus on Brexit and, hence, perhaps, on this matter. It would be useful to get some feedback on the common frameworks, how they should be created and what constraints there might be. That is all that I want to ask. I will listen carefully to the answers.
The common frameworks process has been a long time coming. We had an agreement in principle on common frameworks in October 2017, and there was already a lot of flexibility at that time. Common frameworks could be everything from a political or legal agreement all the way through to common standards or even just common objectives. However, what we are seeing is that very little has been confirmed. Only a few common frameworks will be in place by the end of December, and there will be a lot of provisional frameworks in other areas.
A lot of work has been done behind the scenes between officials of the four Administrations on common frameworks, but that work has been to do with specific issues such as radioactive substances or the emissions trading systems. Those are important elements of environmental rules, but we are missing the glue and all the horizontal issues. That is why there is some value to the discussion about the UK internal market, but the biggest missing piece of the jigsaw is the reform of the intergovernmental relations that govern how the four nations of the UK work together. As you rightly pointed out, one of the key issues around the common frameworks is how they are agreed. What happens if one of the nations stops abiding by the common frameworks? What are the procedures to make sure that the frameworks are updated and implemented and that any tensions between the four nations are addressed?
At the moment, there is slow but steady progress on some of the technical aspects of the common frameworks, but not a lot of work is being done on the governance of the common frameworks—if it is, it is being done behind closed doors and we are not hearing about it. That is completely the opposite of the process that we had at the EU level, where we started with the rules around how we develop and implement policies together and then decided on the policies. At the moment, in the UK, we are starting with common policies and trying to figure out the rules around how to agree and implement them afterwards. That is a weird way of proceeding.
Dr Gravey has highlighted that we are coming up to the three-year mark since we started out in the common frameworks process, and it appears that we will not be in a position in which we have agreed a significant number of common frameworks by the end of the transition period.
The Scottish Government’s response to the internal market white paper last week indicated that six common frameworks will be fully developed by the end of this year, with 25 or so being provisionally agreed some time after 2020. Some 21 policy areas have been identified as being subject to more detailed discussion in relation to whether legislative common frameworks are required. A number of those concern environmental matters. As Dr Gravey has indicated, although work appears to be going on behind closed doors between officials and, perhaps, between ministers, not much is evident in the way of outward facing material or detail so far. Consultation, particularly with those who will be affected by the frameworks operating in environmental and other markets, will be key to their success.
The governance of frameworks is an interesting issue. Mr Stevenson referred to the Fisheries Bill. That is a good example of a common framework in respect of which, on the face of it, things seem to be generally quite well agreed. However, there is, of course, no provision in the bill for what will happen if a joint fisheries statement cannot be agreed by the respective authorities. There may need to be some further consideration of what will happen in circumstances in which agreement cannot be reached or there is some kind of dispute.
The points that have already been made are excellent. I will add two brief supplementary points.
The first is about stakeholder engagement with the development of common frameworks. We understand that phase 3, which is the next phase of the Cabinet Office process for developing common frameworks, is to reach out and engage in a process of stakeholder consultation. That has not really happened yet with most of the common frameworks, and we are keen to ensure that it does happen and that the process is transparent.
My second point is about the areas in which common frameworks are being developed. Our understanding is that nature conservation-type issues, such as the protection of species and habitats, cross-border protected areas and migratory species, currently fall outwith some of the analysis of the areas in which formal common frameworks will have to be agreed. Greater clarity about arrangements in that area as we move forward would definitely be much appreciated and very important.
What do the panellists think the issue is with getting the common frameworks together? Is it simply that some of the common frameworks are very complicated? We have heard that the fisheries one is progressing well, but what is behind the lack of progress in the work on the other common frameworks?
If anyone has a view on that, they should indicate that they do, please. I guess that an answer to that would be a bit speculative without knowing what is going on.
As no one seems to want to come in on that, we will move on to questions from Angus MacDonald. I am sorry—Dr Gravey would like to answer Fin Carson’s question.
I agree that the complexity is part of the issue, but there is also uncertainty. A number of civil servants who have worked on common frameworks had to start work on no-deal preparations, and they were then put back on to common frameworks. They have gone back and forth. With Covid, a lot of strain has, of course, been put on Government officials in their respective ministries. If we add to that the fact that ministries such as the Department for Environment, Food and Rural Affairs were completely understaffed at the time of the referendum—they had lost around two thirds of their staff since 2005—we see that there is a huge strain on the civil service.
It is much harder to unpick and decide what to keep from EU rules than it was to go into the EU and start negotiating rules together.
The panel will have heard me ask the previous panel about the proposals that are reciprocal and related to the UK Environment Bill. Will you compare the UK Government and Scottish Government proposals? In particular, are there areas in which the UK Environment Bill is stronger or better defined than the Scottish proposals? If there are such areas, will you discuss what the implications might be?
That is an excellent question, and there were some really good responses to it from the previous panel. Professor Scotford highlighted that, in some ways, it is quite difficult to compare the two bills, because they have quite different objectives and scope with regard to what is included.
I reiterate the excellent points that were made about environmental improvement plans and targets. Scottish Environment LINK would like to see a commitment to introduce legislation in future that includes binding nature recovery targets and places the environment strategy on a statutory footing. Those two things should be linked in a future bill, if they are not in this bill. We would like to see a commitment to introduce such legislation at a future date.
Professor Gemmell commented that the legislation, policy and governance mechanisms create a system, or a framework that allows high environmental outcomes to be achieved. Although the bill does some good things and plugs certain gaps, putting Scotland on a good pathway, other pieces of the jigsaw are missing. Those pieces would allow Scotland to be an environmental world leader and to play a leading role in tackling the climate and nature emergencies. We know that that is urgently needed. Principally, targets are one of those missing pieces.
If we look at the two regulators, we can see that there are some areas where ESS is better, some areas where it is as bad as, and some areas where it is worse than the OEP.
ESS is better because there are more direct enforcement powers in the Scottish approach. The principles themselves, not just the guidance on the principles, must be heeded by ministers and public authorities. ESS is slightly better when it comes to independence, although that is not perfect and I am sure that we will discuss that.
Where ESS is as bad as the OEP is in removing environmental information from the remit of the final arbiter role. For a continuity bill that claims to build on the EU approach, that is completely against the EU approach. Access to environmental information and justice is not only in the Aarhus convention; it is part of the EU acquis.
ESS is worse than the OEP in the idea of having regard to the principles. We have had so many discussions in Westminster about the UK Environment Bill that I would have hoped that that would have been picked up by the people drafting the bill in Scotland. The obligation to “have regard” to the principles is not strong enough. There is also no climate change, which is outwith the remit of the bills. That is problematic. We had a lot of discussion about that in Westminster.
As the bill has come after the Westminster bill, there were opportunities to learn from the mistakes made in England and to do it better. That has happened in some areas but not in others.
Finally, as Professor Scotford said in the previous panel, there is a lack of an integration principle. To conclude: they are very different bills. We know that there is no advisory role for environmental standards Scotland and there is no big environmental strategy with any legal basis. That may also be something that you could do in another bill, but it must be done if Scotland is to remain ahead of the game regarding environmental ambition in the UK.
There is not much more for me to say about the principles that has not already been addressed by other members of this panel or the earlier one.
Regarding environmental governance and ESS, there are some similarities between ESS and the provisions in the UK bill for the OEP. It is clear that there are opportunities to strengthen what is there, both in independence and in matters of resourcing and of funding.
The devil will be in the detail as to how the body operates and how its strategy is set under the provisions of schedule 2 to the bill. To some extent, this is a “wait and see” matter, but there are opportunities there to strengthen the provisions.
I want to pick up on Dr Gravey’s point about the duty regarding the principles. We feel strongly that the framing of the duty should be strengthened. When the House of Lords select committee was investigating the effectiveness of the biodiversity duty in England, it found that the wording “have regard to” was weak and ineffective. I know, and Dr Gravey already pointed out, that there have been many discussions about that at the UK level. At a minimum, however, we think that that wording should be strengthened to say “have due regard” or “have special regard” to the principles. Much stronger wording could say “act in accordance with” the principles.11:15
Thank you. Continuing on the theme of principles, Mark Ruskell has some questions.
The witnesses have perhaps touched on some aspects of the principles discussion, reflecting the earlier panel. Do you have anything more specific to say about the principle of integration and the principle of the high level of environmental protection?
I completely support the discussion in the first panel. We need high environmental ambition and integration added in; that would be the very least.
When we were first talking about principles a few years back in the Brexit process, we were talking about whether this is an opportunity to increase the number of principles and to look at international environmental law. There are questions there about avoiding transboundary harm. That should definitely be in the provisions if we are thinking of a four-nation UK. It should not just be in a Scottish bill; it should go across the UK. If there is divergence, we should make sure that it does not cost our neighbours.
The detail that is provided in the guidance on the environmental principles that will be proposed in due course is key here. There are a significant number of principles within EU laws, not just those that relate to the environment but in those relating to a number of other areas. It will be important that the guidance sets out clearly how the environmental principles in the bill are to sit alongside and work with or be interpreted alongside other principles in EU law. That will be key.
We might come on to discuss further the “have regard to” requirement in relation to the principles. There is of course some precedent in that, as established practice requires ministers to have regard to matters. To some extent, it will help to ensure that environmental concerns are taken into account when decisions are being made, but it is equally limited. You could “have regard to” something but attach little or no weight to it. The phrase is, by its nature, limited in scope. A high-level environmental aim or goal would help to strengthen the provisions on environmental protection, and that might be one of the other options that could be taken.
Mark Ruskell, do you have any more questions on that? We have covered principles quite a lot.
I have some questions for later.
Well, carry on Mark. Are your questions on principles or do they go beyond that?
They are on the scope of the bill.
You might have seen that, at the end of the first panel of witnesses, I was asking a range of questions about the scope of the bill. It is quite wedded to strategic environmental assessment, looking in particular at plans and programmes rather than individual decisions. Do you have any reflections on that?
I am happy to come in briefly on that. As noted by the earlier witnesses, the provisions around essentially not dealing with individual cases mean that the provisions in the bill are not entirely in line with the current provisions under EU arrangements. I suppose that there are arguments for and against ESS dealing with individual cases as opposed to taking a more strategic approach.
What is important is the provisions that enable the body to take steps, including producing improvement reports and compliance notices and instigating judicial review proceedings, where there is an alleged failure in relation to environmental law. Those provisions will be key and there is some degree of strength in them, compared with the provisions in the UK bill. For example, there are direct enforcement powers, and the provision for matters to be taken back to the Court of Session if a notice has not been complied with is—I hope—a fairly strong power to compel compliance. That will be important. ESS must have sufficient teeth to enable it properly to take action where necessary.
The point about whether ESS’s remit and powers will cover individual decisions is important. I agree with a lot of what has been said so far; the provisions in the bill as drafted and the exemption that we are talking about do not achieve equivalence with the current EU arrangements.
It is not entirely clear why individual decisions are exempt in relation to some of the powers but not others. My reading of the bill is that a citizen or NGO could submit a complaint to the body about a failure to apply law in an individual decision and the body could then request information and try to resolve the issue informally but could not issue an improvement report or compliance notice. However, it could make an application for judicial review if it thought that an individual decision constituted
“a serious failure to comply with environmental law”
and could cause “serious environmental harm”.
It is not quite clear why there is an exemption in relation to the middle portion of the enforcement powers but not the powers at the other two ends of the spectrum. Potentially, that will increase pressure on the court system, because, if members of the public make representations about decisions that they think have serious implications for the environment, the body might make more applications for judicial review. That is an outstanding issue.
In general, although Scottish Environment LINK supports the remit and function of the body to consider systemic issues and failures, which absolutely makes sense and fits with the existing governance framework in Scotland, we think that the exemption of individual decisions overlooks the critical role that individual decisions have played in setting precedents in the past. Various landmark cases at the Court of Justice of the European Union have involved individual decisions and set important precedents, for example in the context of how the birds and habitats directives are interpreted and applied across member states.
Let me quickly add something to the great points that have been made. It is also all about having the ability to review the powers, perhaps by starting with a wider approach that allows individual cases to be taken up. Once ESS has been up and running for a time, it will be easier to focus on more systemic issues. It is better to start with a very wide scope that potentially could be made smaller, gradually, than to establish a brand new regulator that ends up being unable to address the key problems of today.
I will add a quick point. We wonder whether there could be a form of sifting mechanism, so that the body would not become overloaded with individual decisions. If the body’s remit were widened, there could be some sort of screening process to ensure that lots of individual cases that did not potentially have significant environmental implications were not taken on.
I will ask an additional question about environmental principles, then move to the wording regarding having due regard to the principles or going further than that. I highlighted to the previous panel that the Faculty of Advocates’ written submission stated:
“These principles make no mention of environmental equity (in a redistributive sense)”.
One of the panel members said that that might not be a principle. I would like the panel to comment on whether the principles should address the issues of human health in the environmental context and worldwide environmental problems in terms of equity.
Also, does the panel have any further comment on whether the wording of the bill should be to “have due regard to” or “act in accordance with” the principles? I note that Dr Gravey has already commented that she does not believe that the bill as drafted is strong enough. Have I got that right? I would value comments on that.
On the point about the Faculty of Advocates’ mention of additional principles, I go back to my earlier comment that there are a number of principles in EU law that require consideration. The guidance is probably key to addressing how the environmental principles in the bill are to be balanced and interpreted alongside the wide range of other matters, including other principles and existing substantive law and duties in relation to, for example, climate change, biodiversity and so on.
In terms of the “have regard to” duty, my comments have already covered that.
The big equity issue is the fact that financial matters and budgets are not covered in the scope of the bill in relation to the environmental principles. In terms of building back better, the green recovery and all those important debates, the bill does not help.
More generally, however, it goes to show that what we are doing is actually quite impressive, because we are talking so much about environmental principles. Of course, those principles, particularly the precautionary principle, are not just environmental principles but general principles. What we are talking about is plugging the environmental governance gap, perhaps forgetting that the principles play a huge role in public health. It is quite worrying—Professor Scotford picked this up earlier—that we are talking about the precautionary principle only in relation to the environment, but it is a wider principle. We need to be careful about how we copy and paste from EU legislation to ensure that we do not narrow the scope of the principles to be just environmental, because they actually infuse the whole body of EU legislation.
Thank you. Mark Ruskell has a further question.
I think that that last answer partly covered my question, but the other witnesses might have views about the issue of exclusions from the bill, particularly the exclusion of financial budgets. I remember that that was discussed when the Environmental Assessment (Scotland) Bill was going through the Parliament, when the debate was around why, if we already had a plan or programme that captures policies, we would need to include financial budgeting within that. That was 15 years ago, so I am interested in other views on where financial budgeting sits at the moment and whether it should be excluded from the bill.11:30
That is an extremely interesting and relevant question, particularly in the current context, in which we are talking about a green recovery from the coronavirus crisis. We keenly welcome the Scottish Government’s commitment to that.
That raises questions about whether the principles should be applied through the budget process. A number of them are very relevant, in particular the preventative principle, whereby we think about the cost of cleaning up after environmental harm has happened as opposed to spending money on prevention up front. For example, in the context of the spread of non-native species, the cost of implementing biosecurity measures is far less than the cost of cleaning up once species have spread throughout Scotland.
This is a matter on which we require greater clarity. In the bill, there appears to be a blanket exclusion in relation to financial and budgetary matters. My understanding from the Scottish Government is that the intention is that that will apply only to matters that are exclusively financial or budgetary, but we need further clarification on that.
As Isobel Mercer said, given that overall exclusion, there appears to be some disconnect with the discussion about the importance of a green recovery and a green economy, particularly in the context of Covid-19.
Angus MacDonald will ask about the purpose of the bill in the context of environmental standards Scotland.
Do the bill’s provisions on ESS provide for continuity of governance after Brexit? If not, where are the gaps? Are the proposals, and the ESS model, the most effective solution?
I have referred to the fact that the role of ESS in individual cases is somewhat limited, which means that the new arrangements will not be fully comparable with the current EU arrangements.
On whether ESS is a good model, compared with other options, I think that having matters dealt with by a single body brings certain advantages over an approach in which additional powers are separately given to existing bodies. There are opportunities to strengthen the ESS model, particularly with regard to independence, membership and funding. That would strengthen the approach and make it more comparable with the current EU model, which takes a more arm’s-length approach to some degree.
I agree with Alison McNab that, if we are talking about how the proposed approach does not achieve equivalence with the current EU arrangements, the two issues that stand out are independence and the exemption of individual cases in the context of various powers of the proposed body.
It is worth mentioning that LINK commissioned extensive research from Professor Campbell Gemmell—I think that Professor Gemmell mentioned it in the earlier part of the meeting—the outcome of which was that a parliamentary commission model was advocated. Therefore, the proposed model falls short of LINK’s hopes for the bill.
However, in general, the functions and most of the powers that are given to the body are sensible and largely match functions that EU bodies carry out.
There is also an outstanding longer-term question about environmental reports in Scotland—as the committee knows, there has been a live debate about that over many years. Campbell Gemmell’s report sets out that, even with a parliamentary commission model or a watchdog model, which environmental standards Scotland would go some way towards achieving, ultimately a dedicated environment court is needed to work alongside it. That would address some of the issues to do with access to justice and the fact that the judicial review process can only take a narrow procedural perspective, rather than looking at a merits-based argument, as the European Court of Justice is able to do.
As it stands, we consider that a couple of strengthening provisions need to be added to the bill, particularly in relation to independence and the exemption for individual decisions. We would also like there to be a dedicated environment court in Scotland to work alongside ESS. That would create a strong platform of environmental governance to help it to be a world leader in achieving high environmental standards.
I throw into the mix the discussions around the role of ESS when it comes to international law and the agreements to which the UK Government is a signatory. Where should ESS sit in that regard? Should it have any locus at all?
The first point to remember is that ESS is trying to replace the Commission and the European Court of Justice. Those are not environmental regulators but general regulators that cover the whole remit of public policy and all EU competence. That means that there will be cases that the ECJ and the Commission might have picked up in which the environment is an element but not the core of the matter, and ESS will not necessarily be able to pick those up.
There could be cases involving the environment on the one hand and internal market rules on the other. It would make perfect sense for them to go through the Commission and the ECJ, but they might not go through ESS. We are not replacing like for like, and not just in independence terms. The only way to have similar levels of independence would be to have a four-nations regulator with members and funding coming from all parts of the UK in which none of the Governments could limit the powers of the body. That is not the direction that we are taking. Consequently, as the previous witness demonstrated, issues arise because the UK is acting in devolved areas—and vice versa—where issues fall through the gaps.
In terms of patching the gaps, do we still need a UK-wide level on top of the OEP for England and Northern Ireland and ESS and the proposal in Wales to deal with cross-border issues and instances when ministers are acting in areas that fall within the competences of others? ESS is not a like-for-like replacement and we will still have lots of gaps but, in many ways, it is stronger than the OEP for England and Northern Ireland.
My question is for Isobel Mercer—I ask that you be as brief as possible at this stage. How would ESS and the environmental courts work in parallel? Could that cause confusion and difficulty? Along with many others, I have been involved in that discussion for many years.
My second question is about the independence of ESS, which is for all the witnesses. As I asked the previous witnesses, do you think that the fact that the Scottish ministers will be involved in making the appointments to the interim body will jeopardise its independence? The Government might be tempted to proceed to the next stage with those who are already in place.
I see the environmental court operating in cases where ESS has perceived a serious failure to comply or where there is the potential for, or there has been, serious harm to the environment. Rather than applying for judicial review, there might be an alternative process under which ESS could apply to the environmental court for a merits-based review of the case, rather than a procedural review. I hope that that clarifies committee members’ questions on that matter.
LINK thinks that the independence of the body could be strengthened if there were a role for a parliamentary committee to identify areas of expertise that should be covered by the board and perhaps to appoint rapporteurs to aid in the appointments process. At a minimum, there should be more parliamentary involvement in the appointments process in order to improve its independence. Those are just some ideas about how that might be carried out.
Rather than simply highlighting issues of importance, can you tell us what sort of powers the environmental courts would have?
My point was about the ability of dedicated environmental courts to undertake merits-based reviews rather than simply looking at the procedural issues. By having dedicated specialist experts and technical staff, environmental courts tend to be better equipped to deal with the technical issues that come up in environmental cases. It is worth highlighting—as was said earlier—that the Court of Justice can currently undertake merits-based reviews of the interpretation of pieces of environmental legislation, whereas judicial review is more narrow in that it looks at whether the process or procedure has been carried out within the law.
Isobel Mercer has already referred to one option to strengthen the provisions on the independence and membership of the body, but other options may be for the bill to provide a fixed term for membership and for the provisions on consultation where a member may be removed from the body to be strengthened.
Our hands are probably tied in relation to the interim arrangements, given that the timing of the bill means that there is likely to be some time in the early part of next year before environmental standards Scotland can be established as a statutory body. To some extent, there may be scope for strengthening the arrangements, but it is a natural consequence of the timing that interim members who are appointed to the non-statutory body will feed into the statutory body at such time as it is established. That is probably a better solution than having a gap without a body. There may be some means, albeit not statutory, by which the Parliament may engage with the process to ensure that it is as robust as possible.
Do you see ESS having a role in relation to climate change? We have the UK Committee on Climate Change.
In the Westminster discussions on the Environment Bill, the UK Committee on Climate Change said that it did not make sense for the OEP not to have a remit in respect of climate change and that any potential overlaps could be dealt with by the two regulators talking to each other. If that works and the UK Committee on Climate Change can talk with the OEP to work that out, it can do it with ESS. It would be extremely odd for something with such a cross-boundary impact, such as climate change, to be covered by the OEP but not by ESS.11:45
I agree with that. It also comes back to some of the points that were made earlier about the definition of “environmental law” in the bill. To reiterate some of the points that have already been made, that definition is quite narrow at the moment and the Aarhus definition, which is in the Environmental Information (Scotland) Regulations 2004, would be preferable.
I agree that some sort of efficient working arrangement between the UKCCC and ESS could be achieved that would mean that the exemption on climate change could be removed from the bill.
Angus MacDonald will expand on the gaps between the two agencies.
We have heard from the Law Society of Scotland—I presume that the submission was authored by Alison McNab—about
“a potential lacuna in environmental governance”
in that an action that the Scottish ministers take using an executive devolved power in a reserved policy area would be excluded from the remit of ESS while the UK ministers exercising powers in devolved competence would be excluded from the remit of the OEP. Does the panel envisage that the UK ministers exercising powers in devolved competence and the Scottish ministers exercising executive powers in reserved competence will be outwith the remits of the OEP and ESS?
I cannot claim authorship of the whole of the Law Society’s submission, but we have certainly commented on the potential gaps that are of concern. For the system to operate fully, it needs to be able to cover all matters and, at least on the face of it, it appears that those two issues are not covered by either ESS or the OEP. However, they might simply need to be resolved further down the line.
I agree with the point that was made by the earlier witnesses that, for citizens making complaints to those bodies, it will be crucial that the bodies can work together to make sure that something that is passed to one body but is in fact within the remit of the other can be passed back and dealt with accordingly.
This is about the transboundary aspect again. If we end up in a position in which the action of a public authority in Scotland would have a negative environmental impact in England, or vice versa, we will need to make sure that there is good communications between the two regulators so that such transboundary harm is mitigated.
[Inaudible.]—touched on enforcement powers and I would like to ask the panel for further comments on those for ESS. Are the compliance notice and the improvement reports sufficient for an environmental governance body and, if not, what would you like to see?
We have touched on that issue, but we could expand on it.
I will make two brief points. In relation to information notices and compliance notices, there are powers in the bill to take forward an intimation to the Court of Session to report on a failure to comply. I think that that will assist in compelling compliance.
In relation to improvement reports in particular, there would be benefit in having clearer reporting requirements so as to monitor how the improvement plan is being implemented; that would strengthen those provisions.
I will be brief, because we have covered these issues sufficiently. We largely feel that those powers are sufficient if the exemption on individual decisions is removed. Other than that, it creates a tiered approach that, in some ways, replicates the current European Commission infringement process. We know from that process that the deterrent effect of a range of powers gets stronger with the ultimate backstop of recourse to the Court of Justice. In this instance, recourse to the Court of Session if a compliance notice or an improvement report is not complied with, or an application for judicial review in serious cases, works to resolve issues early on in the process. That is quite a good feature of the bill.
We probably have time for Mark Ruskell to ask the question that we skipped over when we were talking about principles. Mark, would you like to ask that question now as a final question to the panel?
Thank you, convener. The question was about the definition of “environment” in the bill. We have already talked about climate change, but I am aware that the current definition does not include plants and animals, which seems a bit odd. What are your reflections on that?
I will go to Isobel Mercer because she was nodding while Mark Ruskell was asking his question.
No problem; I am happy to come in on that point. To reiterate my earlier point, there are some issues with the definition of “environment” and “environmental law” in the bill. We would like to see the bill use the Aarhus definition, which is in the Environmental Information (Scotland) Regulations 2004.
I agree with Mr Ruskell’s point that animals, plants, other living organisms, biodiversity and ecosystems are included when defining “environmental harm” but not when defining “environmental law”. That could just be an oversight in the drafting, but we would like to seek more clarity on it.
We have asked you many questions and thank you very much for the time that you have spent with us this morning. It has been very useful to us.
We will now end the public part of our meeting. At our next meeting, on 25 August, we will take further evidence on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.11:53 Meeting continued in private until 12:13.
18 August 2020
Third meeting transcript
Agenda item 2 is to continue taking evidence on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. We have three panels. I welcome our first panel: Robbie Kernahan, director of sustainable growth at NatureScot; and Terry A’Hearn, chief executive of the Scottish Environment Protection Agency. Good morning to you both.
I will get stuck in with a direct question about the proposed organisation, environmental standards Scotland. How do you envisage working with ESS? What are your general feelings about what your potential relationship with the new agency will be?
Robbie Kernahan (NatureScot)
First and foremost, the creation of a new body with oversight of environmental governance is quite exciting. The bill clarifies the powers that the body will have, which, broadly speaking, we welcome. There are still a few questions about the nature of the relationship that we will have with it. A lot of the interaction between us will be about where ESS’s focus will be, how it is set up and the types of cases that it will explore.
The bill’s policy memorandum explains that to a certain extent. The model will, I think, be focused on prevention and remedy in a supportive style, working very much in partnership with NatureScot.
Of course, ESS will have quite a lot of discretion over how it investigates cases. Our expectation is that it will investigate only a handful of cases annually, where there is high-profile, significant environmental risk. That will very much replicate the way that cases are referred to the Government now. I am looking forward to establishing that relationship once ESS is up and running.
Terry A’Hearn (Scottish Environment Protection Agency)
It is a new organisation. The question is whether, in the way it is set up, the way it works and the way organisations such as SEPA work with it, it will add or detract value. We think that the way it is being set up is promising, because we think that it can play a positive role.
I imagine that the sorts of conversations that I will have with the chair and the chief executive of the new organisation in the early days will cover the fact that we are already overseen by various other bodies and processes. We report to this committee on various issues, for example; people can hold us to account by testing our individual regulatory decisions by court and other review processes; and the Scottish Public Services Ombudsman reviews other ways in which we administer things.
What particular role can ESS play? The focus on strategic issues and whether we and others are getting it right on particular matters in a strategic sense is promising. I will give a practical example. Probably the two most contentious areas that we regulate, given the comments that have come from a variety of people, are the Exxon-Shell site at Mossmorran and aquaculture. A regulator will always have some areas to regulate about which there are different views in the community and, quite rightly, questions about whether we are discharging our responsibilities properly. What we think is promising about the bill and the policy advice around it is that there will be strategic questioning of whether we are doing the right thing. In both those cases, we are putting a big emphasis on thinking about how we can bring the parties together—we will do that wherever we find a difference of views. As some committee members know, because you have been involved in both issues, that can be very difficult.
Given how the body is to be set up, it seems to be envisaged that there will not be early intervention, as Robbie Kernahan said. That will allow us to do our regulatory-role work with—in the Mossmorran case—residents who are very concerned, businesses and other regulators. It will not help us if the body intervenes early and does not allow us to do our job. However, if at some point it is able to ask, “Are you really regulating major industrial facilities in the right way, strategically?” when it comes to flaring, for example, as seems to be envisaged, we think that it will have a valuable role that will fill a gap—given that individual regulatory decisions can already be questioned and tested through other legal processes.
We envisage that it would add a lot of value if another oversight body were able to say, “This is a big issue for the environment. Are you getting it right or wrong, strategically?” The body could then work with us, and—if we had got it wrong—give us guidance on how we should fix things. That is the nature of the relationship that we envisage, from the discussions that we have had with officials who were involved in drafting the bill and from our reading of the bill.
You will not want any overlap in responsibilities or confusion about who does what. A few people have expressed that concern and asked where SEPA and ESS will sit and what gap ESS will fill. You said in your submission that you have concerns that the name “environmental standards Scotland” is potentially misleading.
I guess that the name is the gift wrapping around the present. Maybe it makes a difference and maybe it does not. What is important is that people understand the role.
Let me take that practical example again. The people who are concerned about Mossmorran have lives to lead and kids to raise and so on, and we do not want them to spend a lot of time thinking about whether to go to the ombudsman, another oversight body, a parliamentary committee and so on. I would not live and die by the name, but other names might more accurately describe what the body does—that probably was not a great thing to say, because you might now ask me to suggest another name.
I will bring in other members.
Mark Ruskell (Mid Scotland and Fife) (Green)
Mossmorran is a useful example. Do you envisage ESS having a role in relation to the joint work that you do with the Health and Safety Executive? I am aware that a lot of your regulatory functions are shared with other bodies.
You have been personally involved in this issue. If we are reviewing a flaring incident and ESS tries to come in too early, that will not be helpful. However, at some point ESS could ask whether the connection between the two organisations is working well, that is, whether health and safety regulation and environmental protection legislation are knitting together well or clashing. Let me use Mossmorran as a case study again: we think that we should be held to account for the individual regulatory decisions and it seems to me that the new body should be saying, “Okay, when we look at one or more regulatory decisions, it seems that something is not quite working here; can we come in and have a look at that and work with you on it?”
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
May I ask about the remit of ESS with respect to the responsibilities of SEPA and NatureScot? There are two elements in that regard. Obviously, it is not just the two bodies that are represented on the panel today that affect the environment; transport agencies and others do, too.
It is important that we understand whether NatureScot and SEPA think that the remit of ESS as it is currently defined sufficiently covers the work of those two bodies, or whether they think that it needs to be extended. You are not speaking for anyone else, but do you think that ESS’s remit as it is currently defined sufficiently covers the wider responsibilities that the Government might have to discharge in other parts of the Government that are also environmental responsibilities?
As far as our responsibilities are concerned, for a start, what is proposed goes further than what we have in Europe. That makes sense, because the European system involves a set of nation states, whereas the arrangement that is proposed in the bill is for one jurisdiction. For example, we do not get the direction that we might get through a direction notice from the proposed new body. We understand that, because it is filling a different gap.
It would seem that that ability of ESS would apply to a wide range of things that SEPA does. I am comfortable with that. My concern is more about whether it will act at the right time, with the right focus. If the new system operates well, we will be held to account and held to do our job properly across a wide remit. Because I have been thinking about how the proposed new system would apply to SEPA, I have not thought as hard about how it would apply to other agencies, bodies and parts of Government in the context of their responsibilities.
Let us take the example that Mark Ruskell raised. If ESS was looking at industrial facilities and how the Health and Safety Executive and SEPA worked together, there would be nothing to stop it saying, “If the planning system worked like this, it might be easier to discharge the joint health and safety regulations and environment protection regulations more effectively.” Certainly as it relates to SEPA, the scope of ESS seems to be very broad, but I have not turned my mind as much to the scope of ESS as it relates to other bodies. We can come back to the committee on that, but I think that there is some scope there.
From our point of view, the scope of ESS is really helpful on a number of bases. The new body will provide reassurance to the Scottish Government on the extent to which European legislation, primarily, has been complied with. There are still some questions about whether the scope of ESS will be restricted to providing oversight on European Union-derived legislation or whether it will look at domestic environmental legislation, and it would be helpful to have clarity on that.
With regard to how ESS will operate with not just us but other public authorities, it is interesting to reflect on what Terry A’Hearn said. We want to establish a relationship with ESS on the nature of our functions and ensure that we are operating to the highest possible standards. We are reassured by the fact that ESS will provide a bit of additional independent oversight and will be able to take other public authorities to task and scrutinise what they are doing in relation to land management, housing and transport. For example, it will be able to make sure that local authorities discharge the expectations that are placed on them as public bodies in complying with European legislation. ESS’s provision of such oversight will be a welcome addition to the landscape in Scotland. It will be able to do that in a way that is tailored to the Scottish context.
However, we need to be reassured that we do not end up with a wide-ranging environmental watchdog that is not clear as to what type of cases it will investigate. We are keen to ensure that, when we talk to ESS, it will operate proportionately and will focus on some of the key issues, which we know are systemic, rather than operating on a case-by-case basis. I think that it will take a bit of time for the criteria by which ESS thinks about what types of cases it will look at and how it will work to bed in.
I have a brief final question, which requires only a short answer. Is the exclusion of finance and budgets from ESS’s remit right, particularly in the context of a green recovery?
There are still questions about the budget and staff complement for ESS. Although there is a modest staff complement and an estimate of limited budgets, because some of the areas that ESS will explore are fairly specific, we have concerns about to what extent it will begin to rely on expertise from our SEPA colleagues and from NatureScot in discharging its functions. However, broadly speaking, we are content with the approach.10:00
If I have understood the question, we do not have a particularly strong view on the finance and budget issue.
That is fair enough. We will move on to questions from John Scott.
John Scott (Ayr) (Con)
Before I turn to my questions, which are on international obligations, I declare an interest as a farmer and landowner.
In written evidence, Scottish Natural Heritage stated that the functions of ESS as currently described in the bill would
“rule out oversight of obligations set out in international conventions, such as the Ramsar Convention and the Bern Convention”.
What should ESS’s role be in relation to international law and obligations to which the United Kingdom is a signatory?
That again comes back to clarity on what the bill means by “the environment”. There are questions about whether the term even includes the habitats and birds directives as defined in EU law. We are keen to continue to explore that issue to ensure that we get absolute clarity on the definition of “the environment”. Our interpretation is that, currently, the bill would probably rule out oversight of some of those international obligations. There are questions about whether we want to tidy up the bill to ensure that it includes the Ramsar and Bern conventions. There are other issues that are perhaps worthy of further consideration in a Scottish context, such as whether the definition of “the environment” includes landscape. There is scope to be a little clearer about the term “the environment” and the legal obligations to which it pertains.
I agree with Robbie Kernahan. There will be a fair bit of international law that is translated into Scottish law that we administer. Most of the environment protection laws are based on EU directives. I know that this is a slightly different point, but a fair bit is translated into Scottish law and, if we are administering that, the new body would have oversight of it. I take the point that there will potentially be some grey areas.
SEPA supports replicating the strategic approach taken by the European Commission to enforcement and therefore you “strongly agree” that ESS should not be able to take formal compliance action on individual regulatory decisions by public bodies. However, others do not take that view. What should be the role of ESS when an individual regulatory decision by a public body appears to contravene environmental law?
I have a couple of points on that. First, if we make a regulatory decision that seems to contravene law, there are existing appeal processes. A system works well if bodies are clear about their particular role. We think that that should be the route. If a business that we regulate or someone else thinks that we have made the wrong decision, they have appeal rights. If ESS looked at the matter and thought that we had got it wrong, even if that was not the case and the issue was not in ESS’s jurisdiction, we would want it to raise the matter with us and chat to us so that it understood where we were coming from and what the court had decided. The issue would then go on to ESS’s radar so that, if it had a strategic review at any point, it would be well informed.
To be clear, we stick to what we said in our written evidence. It sounds as though we disagree with some other evidence, but we think that we should continue with our existing processes for individual regulatory decisions and that it will not help anyone if that line is blurred strongly.
ESS can play the role of saying, “Hang on. There seems to be something strategically not right that might have been given rise to by one or more decisions.” That is the point at which it can come in and add value.
I agree entirely with what Terry A’Hearn has suggested. In the Scottish context, there are existing appeal mechanisms for individuals or organisations to make representations or challenge individual decisions. Although uncertainty still exists about the exact nature of the cases that ESS will investigate, our hope and expectation is that it will not necessarily consider what we might consider to be run-of-the-mill complaints or individual cases. For the majority of our functions, appeal mechanisms already exist. Our plea is that ESS remains strategic and focuses its energies on the underlying issues that seem to crop up time and again.
Angus MacDonald has some specific questions about appeals and compliance.
Angus MacDonald (Falkirk East) (SNP)
SEPA’s written evidence implicitly suggests concern that the sheriff courts will not have the expertise to deal with an appeal against a compliance notice that is issued by ESS, and it points to the Scottish Land Court as an alternative. Should appeals and judicial enforcement of compliance notices be heard in a specialist judicial forum, such as the Scottish Land Court, as opposed to the sheriff court?
A couple of mechanisms could be used. Appeals could be taken to a specialist court or, if they are not taken to a specialist court, members of the judiciary could have particular training and expertise on such issues. We have said in our submission where we would prefer such cases to go. The key point is that it is important for SEPA, whoever has raised the case, and for ESS that the case is heard by people with the expertise and experience to be equipped to deal with it. We have a preference for where such cases should go, but there are other mechanisms to achieve that.
People can appeal decisions that NatureScot or others have made through a range of routes, including through a public local inquiry, the Scottish Land Court, the sheriff court or judicial review. If ESS issued a compliance notice to a public authority in order to correct a failure to comply with environmental law, our expectation is that we would continue to work in partnership with ESS in order to reach a mutually acceptable solution. That is the steer that we have been given. The conversations that we have had with officials have shown that it is very much a case of working in partnership to deal with such situations.
Liz Smith has questions on issues that might arise with cross-border working.
I am particularly interested in the relationships that SEPA and NatureScot have with their counterparts in the rest of the UK. Do they share the same objectives as you? Can you point to specific challenges relating to divergence from a common purpose?
We work very closely with our counterparts in the other parts of the UK. We have also maintained very strong relationships with our counterparts in Europe. I apologise if committee members are not football fans, but the analogy that I make is that we are the referees—Parliaments set the laws and we administer them. If there are similar laws, we work very closely to try to take common approaches that suit our jurisdictions.
For example, we have regular contact with the chief executive officers of the four UK environment protection agencies and meet a couple of times a year. There are working groups on nearly every topic that we regulate. I have staff with, for example, farming interests who know how the Environment Agency, the Northern Ireland Environment Agency and Natural Resources Wales regulate farming issues. We try as much as possible to have common approaches. Where our approaches are not common, we try as much as possible to understand where we diverge, so that we can make matters as easy as possible for the people who we regulate.
It is not just about the black and white administration of law. As new issues come up, we keep strong relationships with the other bodies, so that we can try to understand, for example, the best ideas and evidence, we share resources and we do not necessarily all do the same science.
The final piece of the jigsaw is that we work closely with the relevant trade bodies. We have a strong relationship with—to pick just one body—NFU Scotland, which also, obviously, has close relationships with its counterparts in England, Wales and Northern Ireland, so that we can identify divergences and problems, and try to take common approaches as much as possible.
In a sense, whatever the law is, that approach is critical to administering the law well. That is a past theme, it is a big asset and we will continue to maintain it.
Broadly speaking, our position is similar to that of SEPA. We have good working relationships with nature conservation bodies in England, Wales and Northern Ireland, and we meet regularly to compare and contrast notes. Although there are, obviously, legislative differences in the detail of how our functions are discharged, broadly speaking, we are fully aligned in what we are aspiring to do in raising the awareness of and promoting nature across the UK.
We share similar objectives with the tools that we are provided with in terms of protected areas and licensing, and we share similar customers and stakeholders, including local government and non-governmental organisations. We work fairly closely together, as far as we can.
As a statutory nature conservation body, the other element from which we benefit is the Joint Nature Conservation Committee, which allows us to have conversations about where we can work more closely together and set common standards in, for example, monitoring protected areas and species. We work as closely together as we can, recognising that there are differences for legitimate reasons, but we try to ensure consistency.
Will the new body enhance those relationships? I ask for a yes or no answer.
I am not entirely sure that ESS, because of its geographic remit—it will be solely based in Scotland—will make much difference to our relationship with colleagues at Natural England and Natural Resources Wales, for example. I do not really see it having a significant impact.
I probably agree with that. All the organisations will have oversight bodies. An obvious point is that whether relationships work well is based on how people operate. For example, if we have a big divergence between the oversight body in England and Scotland on particular issues, that might make it more difficult for us to get common approaches with our counterparts. That might be appropriate, because the laws might be different and they are different jurisdictions making different decisions. That is why, for us—we emphasise this in our submission—the relationship that we need to quickly establish with ESS is key, so that we can raise such issues.
I think that Robbie Kernahan is right that it probably will not make much difference, but we need to ensure that how the relationships are set up means that there is an open door and an understanding of the variety of issues that need to be considered, so that we can avoid that being a problem, where it occasionally might be.
We will move on to questions about environmental principles.
I am sure that the panel is aware of the previous evidence we have heard and that there are different views on the adequacy of the principles in the bill. Concerns have been raised with us on two areas that have been omitted from the bill: the principle of the integration of environmental policy, which is reflected in the EU treaties; and the principle of a high level of environmental protection. What are your views on those two principles? I expect that, as regulators, you are instinctively in favour of a high level of environmental protection, but could you explain the basis for your views?10:15
In our act—the Environment Act 1995—there is a principle that economic, social and environmental objectives are integrated. Some people have questioned how that is worded, but it says that there needs to be integration and that if there is any conflict, the environment takes priority in the way that SEPA discharges its responsibilities. Given that most of the laws that we administer come from being based on those principles, we think that there is—I do not think that safeguards is the right word—adequate guidance set through the current processes to ensure that the laws we administer adhere to those sorts of principles. Again, we perhaps have a slightly different view to some of the submissions and views that have been expressed to the committee.
I followed the discussion last week and the previous week with some interest. Like Terry A’Hearn, I think that the principle of integration is already reasonably well embedded in some aspects of legislation in Scotland. I take on board what officials said about trying to ensure that the key principles in environmental governance—the four principles that are in the bill—are those that we need to see sustained and embedded.
Of course, we want to see a high level of protection in Scotland, but NatureScot does not have a firm view on whether that needs to be embedded as a principle in the bill. As Terry has said, certain aspects of the two principles you mentioned are already embedded in various bits of legislation that we and others regularly use. In summary, although we have noted the discussion, NatureScot does not have any firm views about the need for additional principles. We note that there were opportunities in the consultation to include more, but I can understand the logic of focusing on the four principles that exist in the current provisions.
I take on board your point that the integration principle is embedded in existing laws, but does that ensure that integration will happen in future laws that are being constructed? Is there a danger that over time that principle of integration could start to wither? I am also interested in Terry’s view on the principle of a high level of environmental protection—I do not think that you commented on that.
There are other options for applying the principles, such as through strategic environmental assessments, which mean that the principles can be considered when you are making key strategic decisions. In relation to a high level of environmental protection, again we do not have a strong view, but the laws that we administer tend to be based on that. Whether or not they will be in future is a matter for speculation and consideration. As an administrator of EPA, I do not feel constrained by that, but I can understand the other side of the argument.
I have a question about the duty to “have regard to” the environment, as it is articulated in the bill. We have heard evidence that there are other ways to frame that requirement, and it has been framed in other ways in the UK Environment Bill, which uses both “have due regard to” and “take into account”.
Do you have a view on the different legal phrasings of the requirement to “have regard to” the principles? Which one do you prefer? Do you like the one that is in the bill, or do you think that it could be stronger? What is the difference between “have due regard to” and “take into account”?
The issue will always come down to what interpretation administrators and, in particular, the courts will take. I would probably have to check with my legal advisers to what extent they think that a different form of words would make a difference and come back to the committee with a supplementary answer. Intuitively, I am not sure that which particular form of words is used will have a huge impact. What is important is that a phrase of that sort is included in the bill.
I am sorry—I cannot really comment on the specific phrasing, but I could get back to the committee if it would like us to provide further information on that.
Our doors are always open for supplementary information from anyone wants to send it to us.
Do you have anything to add, Robbie?
I do not think that NatureScot has any strong views on the extent to which different variations of “have regard to” or “have a duty to” make a meaningful difference. We have experience of existing wording in legislation, whereby all public authorities have a duty to take biodiversity into account, and we have seen that manifest itself in a number of ways.
Whatever formulation is chosen—whether it is that authorities should “have to regard to” or “have to comply with” the environmental principles—we must guard against the danger that we merely create a reporting regime for public bodies, or an audit requirement for them to show how they have met that duty in case of challenge. We do not think that there is a need for another reporting duty, particularly as we carry out our role appropriately.
Although we already follow the guiding environmental principles, I get the point that it is important that we ensure that those principles are embedded as strongly as they possibly can be and that all public authorities embed them when it comes to projects and new legislation. It is important that we get it right, but I do not think that NatureScot can help to advise the committee on the specifics of the wording. Environmental lawyers would need to look at that.
I have a question about NatureScot’s submission to the committee, which drew our attention to a “contrast” between the proposed duty and the existing statutory duty on public bodies in relation to biodiversity. What did you mean?
I will build on that point. There are already statutory duties on public bodies, one of which is that public bodies must take into account biodiversity in discharging their functions, as far as that is relevant. However, the firm placing of that duty on public bodies by the Nature Conservation (Scotland) Act 2004 has not delivered the recognition of biodiversity that we would have liked to have seen in how that duty has been discharged and, in our submission, we referred to that in relation to the embedding of the environmental principles. Fundamentally, the trick here is to ensure that those principles are transferred into clearer guidance on how public bodies and all relevant public authorities need to take that duty on board and discharge it.
Although the legal basis is important, the issue really manifests itself in how these things are discharged in practice. We have some questions about how successful that has been, even when a formal duty has been placed on public bodies. That is the point that we were trying to make.
I have a further question for both of you. If the applicability of the principles was extended beyond strategic environmental assessment to all public sector decision making, would that make it easier for SEPA and NatureScot to meet their environmental protection and natural heritage obligations in responding to the climate and ecological crises that we face?
Yes. Our reading of the embedding of the principles is that all Scottish ministers will have a duty to have regard to them in relation to a broad range of policy and decision making. That is really important for us. It is not just about the remits of SEPA and NatureScot, it is about the broad sweep of policy making, including the development of much wider legislation.
In summary, we would see it as really helpful for all public bodies to have a duty to have regard to the principles. That would help us to deliver the nature-rich future that we envisage.
I have reflected a little more on the previous question about the wording “having regard to” or “taking into account”. I have worked in different jurisdictions. Sometimes the wording of the law is absolutely essential and sometimes it does not make quite as much difference. Whatever it says, I do not think that the phrasing will really affect decisions.
Often, when duties and responsibilities are placed on a wide variety of public bodies, ministers and so on, an official just has to write a report saying, “This is what we’ve done to comply”. The more important thing—this is the pleasing thing about the way that the body is being set up—is to have the right relationships.
An example is for us to get a strategic relationship with Transport Scotland with regard to how to build an integrated transport system that will reduce environmental impact. That is about not just construction, which is what we have traditionally looked at, but how the system operates to reduce carbon emissions through encouraging the right sort of travel. A duty can play a role in that, but it is more important for key decision makers to be aligned strategically, with the right partnerships, working together in combination with communities and the private sector.
As we come out of the Covid situation, which we all hope that we will eventually, the thing that will reduce transport emissions will be employers, employees, transport bodies and local councils working out how we will do our work differently. A duty might help with that to some degree, but I do not think that it will be the key thing. It is the relationships and the strategic alignment that are critical.
My next question, which partly relates to the question that Stewart Stevenson explored, is about the exclusions. A budget for transport, which is the example that Terry A’Hearn used, would not be included under the provisions in the bill, because budgets are excluded, but plans and programmes would come under that scrutiny.
Do you have any further thoughts on budget processes? For example, is it possible that individual budget lines might not be part of plans and programmes and would therefore not be captured by the provisions in the bill?
I know that you might sometimes feel frustrated when an official says that something is a little beyond their remit, but I am really thinking about how SEPA will do its job under the proposed legislation. We would not have a strong view on that issue of budgets.
My answer is much the same. NatureScot cannot offer a strong view on the rights and wrongs of including budget settlements and how that ties in with the bill.
Okay. I want to ask about another exclusion. Defence is an overriding concern and it is excluded from the provisions on strategic environmental assessment. What are your thoughts on that? I am particularly interested in NatureScot’s view. Would it be appropriate, for example, for the Ministry of Defence to be required to have due regard to the impact on whales and dolphins of military activities? How otherwise are we meant to deal with the environmental impacts of defence operations?10:30
The bill, like existing legislation, makes exemptions for certain activities. Defence is an interesting example where there is an overriding public interest, or a perceived overriding public interest. We see in both domestic and European legislation a recognition that, although there is a policy intention, certain things can override the legal mechanics of what a piece of legislation is trying to do.
What can I say about defence in this situation? To what extent will a public authority comply with environmental law? We would hope that the Ministry of Defence will be cognisant of the principles, certainly on the land that it manages, as far as it is able to do so in discharging its functions. I return to the comments that I made about the biodiversity duties, which apply to public authorities as far as they impact on those authorities’ plans and projects.
That is the aspiration. How the duties will subsequently be meaningfully discharged in what public authorities do, including those in defence, will largely depend on the nature of their actions and the specifics of what they are doing.
Part 1 of the bill deals with keeping pace with EU environmental standards. You have both supported that in your submissions and our discussions. Alongside that, there is the white paper on the UK internal market. Are those two things compatible? Are there potential problems between the keeping pace powers and anything that might happen as a result of the UK Government’s internal market legislation?
You have seen our response. We welcome the intention behind the bill, which is to align devolved Scottish legislation as far as possible with EU legislation. We support that policy intent.
You heard last week and a fortnight ago just some of the uncertainty that surrounds governance and the internal market implications. Your witnesses spoke about the complexity of that and some of the speculation and second guessing about what the white paper on the internal market might mean.
It will be difficult to comment meaningfully until we see some detail and draft provisions emerge from the discussions. The arguments have been rehearsed at previous meetings and I cannot add much more on behalf of NatureScot.
What involvement has your organisation had in the establishment of the common frameworks that you hope will give you some clarity?
NatureScot sits on an EU programme board that is convened by our colleagues in the Scottish Government environment and forestry directorate. We are doing everything that we can to make sure that we keep abreast of things and prepare, and to ensure that we are sited and aligned as well as we can be for exit from the EU. We are not directly involved in any of those discussions, but we are working very closely with officials in the Scottish Government to make sure that all the common frameworks that impact on our remit are adequately dealt with.
As you have heard from previous witnesses, some framework discussions, such as those on fisheries, seem to be making progress, but with others, it is difficult to know exactly where the stumbling blocks are.
I alluded to the fact that we have experience of setting common standards and frameworks through the Joint Nature Conservation Committee for things that directly affect our remit. We know that we can do that. However, that is probably as much as I can say, because NatureScot is not actively involved in negotiating any of the frameworks.
Would you have expected the common frameworks to have been nailed down by now?
Yes. I think that it goes without saying that, the closer we get to the end of the calendar year, the more nervous everybody is, and it—[Inaudible.]—that we are in this position.
Terry, will you answer the questions that I put to Robbie Kernahan, from your perspective at SEPA?
I support what Robbie Kernahan said. I will not repeat it, but I will emphasise a couple of points from our perspective.
Scottish Government officials have been extremely good about involving us in the technical development of the frameworks and other rules and systems that are needed. Obviously, it is for parliamentarians to work out the issues around the internal market across the jurisdictions. From a technical point of view, I add that there are some areas, often involving products, in which it is more important to have commonality and ensure that things are easy. Examples include chemicals and the emissions trading system, which needs to apply across the market.
It is beyond my remit to say what the ultimate framework should be at the overall level. However, at a technical level, it is critical to have technical input in order to make sure that things work as clearly as possible so that it is easy for people to work out what to do. We have been providing our input at that level, and the doors have very much been opened by Scottish Government officials to make sure that SEPA’s expertise is well harnessed and used.
You say in SEPA’s submission:
“a mechanism will be needed to assess provisions that come out of the EU in the future and determine whether and how they fit with Scotland’s ambitious environmental agenda.”
How do you see that working? Are there other models or arrangements around the globe where you have seen that working?
In a discussion about keeping pace, it is important to consider the current set of EU environmental laws and directives. Originally, environmental protection—as distinct from nature protection and enhancement—was about management of specific issues such as standards for factories and run-off from farms. Later directives have been about the circular economy and trying to get the system to use the environment more sensibly.
A couple of committee members, including the convener, were on the ecological footprint earth overshoot day webinar that we had last night at the parliamentary reception. Earth overshoot day is about the overall economic and social system. For example, we regulate the water environment, and a lot of energy is used in protecting it—for instance, in treatment plants. We need to not reduce water quality outcomes but to find a way for Scottish Water not to use as much energy in the way that it reduces impacts on water bodies.
We could have a situation in which people said that, under the rules of keeping pace and integration, we must reduce greenhouse gases and get to net zero but allow a bit more pollution of rivers and lochs. We do not want that to happen. We want the future of keeping pace to be about changing the whole system so that we can reduce greenhouse gases and find innovative ways of meeting what is currently in the water framework directive. I do not want there to be any sacrifice of water quality in order to meet another environmental objective.
In keeping pace, the best frameworks will be ones that pick up the later focus in Europe on the circular economy directives and green recovery, which will enable bodies such as SEPA to work with businesses, communities and others on integrated environmental management.
I have a related question about the water industry. Terry, what are your impressions of how the water industry in the UK might change as a result of common frameworks and the internal market proposals? Do you see a shift in the way that we publicly own and regulate water in Scotland?
Again, I note that some questions are outside my remit. Ownership decisions are for parliamentarians.
We have a publicly owned water monopoly, but the critical point is that, whether it is publicly or privately owned—people will have strong views about that—the Water Industry Commission for Scotland as the economic regulator and SEPA as the environmental regulator sit down with Scottish Water and talk about the broad outcomes that the Parliament and Government have asked us to jointly achieve. That is what I like about working in Scotland.
I refer to the example that I gave a moment ago. Some people will say, “We’ve got to reduce greenhouse gases and we could put up with a bit more water pollution.” I sit at the table and say, “No—that’s not going to happen.” We will not need to use as much energy building and running water treatment plants if the next housing development is built so that it does not have any waste water. We can stop building in the old style, which wastes water.
I have been quite impressed by Scottish Water. Sometimes we take enforcement action against it, so the relationship is sometimes a difficult one. However, when we had a workshop with Scottish Water recently at senior level, we said, “We’re both trying to achieve net zero and we’re both trying to protect Scotland’s precious water—how can we achieve both objectives?”
I keep coming back to the point—I might sound like a broken record, but that is because I believe this so strongly—that we must have a clear platform of law that sets minimum standards, and then strong partnerships with a variety of people to consider how we can go beyond that and achieve multiple outcomes.
Scotland is abundant in water and we have a lot of expertise and some good relationships, so we can really make our mark. That is the way to keep pace with where the world needs to go. I would like us to be a pace setter and not just a pace keeper.
I have a final question for both of you. The UK Government’s Environment Bill is in its early stages. Scotland does not have an environment bill, but we have our green recovery and various iterations of the climate change plan. Do you see it as a potential issue that we do not have an environment bill? Could there be an issue if environmental targets are advanced more effectively by the UK bill? What are your general views on that? It is mentioned as a potential issue in some of the submissions.?
I am not sure that the statutory basis is the key thing. To me, it is more important that targets are set in relation to the economy and society. I refer again to the example that I gave. Scotland has 90 per cent of the UK’s fresh water, so we could say that we do not need to try too hard. However, the whole world is going to overuse water and we have to be a great steward of it. I turn that into a strength and ask not just how we can protect water quality in Scotland, but how we can use it to build a better economy and society and one that can take ideas to the world.
I do not think that SEPA has a strong view on whether such targets should be set in statute. For us, the critical thing is that they are set well, are owned by people and are implemented well by bodies such as SEPA.
NatureScot’s view is probably broadly similar. The environment strategy that Scotland produced recently provides us with the vision and ambition. On how that translates into targets, we have a similar view to SEPA. Having targets in statute might not provide the flexibility that we need. We need to have the tools and resources to deliver on the vision, and the collective desire to make it happen. That will require a collaborative, co-produced approach to setting ambitious targets that we can realistically achieve.
I broadly agree with Terry A’Hearn. Having targets in statute could cause problems for us.
John Scott has a final question.
What need to be done to move the common frameworks issue forward? I gather that some are better developed than others. You are both practical men, and I am interested to know what you believe needs to be done in order to get some meat on the bones of the frameworks, so to speak.
As you say, we are practical. It is not complicated. The people who are involved just need to keep on rolling up our sleeves and get on with it. There is not a lot of time to do it. That is all that is needed—it is as simple as that.
There is perhaps not much to add. There is a willingness to make it happen. As Terry A’Hearn said, we need to roll up the sleeves and make the best of the time that we still have available.
I thank you both for your time this morning. As always, your evidence was very informative. If there is anything else that you want to add or follow up on, our door is always open and you know where to find us.
I will suspend the meeting until 10.55, when we will hear from our second panel.10:46 Meeting suspended.
10:55 On resuming—
We continue to take evidence on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. I welcome our next witness: Karen Ramoo is a policy adviser for Scottish Land & Estates.
In its submission, SLE states:
“We are concerned about there being substantial policy divergence throughout the UK and the likelihood that this could impact businesses which currently operate seamlessly throughout the UK”.
Will you outline your concerns?
Karen Ramoo (Scottish Land & Estates)
Thank you for that question. I should highlight that part 1 of the bill is being dealt with by one of my colleagues, so we might need to provide a bit more supplementary information.
Our concerns relate primarily to the potential negative consequences of significant—[Inaudible.] It goes back to the points that people who have given evidence previously have made on the unknowns relating to internal markets and the development of the proposals in the UK white paper into a bill. We accept that, with devolution, we naturally get divergence, but common frameworks will play a critical role in ensuring that any divergence that is likely to happen is not large scale and will not have a negative effect.
I know that you said that one of your colleagues deals with part 1 of this bill but, in general, the keeping pace power is to allow us to uphold the EU’s environmental standards. As a result of the internal market bill or UK trade arrangements with other countries, is there the potential for a lessening of environmental standards in the rest of the UK while Scotland continues to keep the same standards? Is that your primary concern?
At the moment, we do not know how the four different jurisdictions will work together and implement the environmental principles. On the environmental and agricultural side, common frameworks are still slow in coming. We do not know enough to know what the impact will be. We have a general concern that, because of the unknowns, there is the potential for significant divergence. That might not be the case but, until we have the full details, it is difficult to comment further.
So you are just flagging up the issue.
My colleague John Scott has a question on common frameworks.
Scottish Land & Estates has said that it has concerns, but I would like to hear the positive side. Notwithstanding those concerns, are you reassured that the common frameworks relating to food, agriculture and the environment can allow for shared ambition across the four nations of the UK? Tell us about the upside.
The upside is what we have seen from the UK Agriculture Bill, which has progressed through the House of Lords committee stage. That stage has increased the focus on the need to share ambition across the four nations. We are glad that the issue is being raised to ensure that important reserved policy decisions do not disadvantage Scotland. We therefore have some comfort in how that bill and the discussions on common frameworks are progressing.
I think that it is recognised that a four-nations approach is needed, that joint thought processes are needed on how common frameworks work and that the frameworks should not just be implemented by one body but need the buy-in and input of others. We are moving in that direction, so we are feeling fairly comfortable.11:00
I declare an interest as a farmer. The interconnectedness of all agriculture and food production across the UK is intrinsic to supporting our society. There is an absolute need for commonality of purpose and working in that regard, with good will all round. Do you agree with that?
I absolutely agree with that; that is key. I do not have much more to add.
I know that you want me to focus on the reassurances, but I will raise one of our concerns. At the moment, it appears that some conversations on common frameworks are happening between England and another nation, rather than as all four nations jumping in with their input. As you said, collaboration and co-ordination are extremely important—they are the only way that common frameworks will work.
Thank you very much.
I want to come in briefly on the back of that issue and ask whether concerns are primarily focused on outcomes. Across the four nations, we will mostly share a view about outcomes, but we will have divergences on means. The issue that comes to mind in which there are different policies across the different parts of the UK is genetically modified foods. That does not seem to cause great problems for the internal market of which we are a part at the moment, or for the smaller internal market of which will be a part in the future. Is our focus on outcomes, or is it on something else?
It is the mechanisms that are used to reach the outcomes that are key.
I will stop there rather than dig myself into a big hole. As I have said, that topic lies with another SLE colleague, and I would feel more comfortable if we could provide a bit more detail on our concerns and thinking on that question in writing.
Will you talk us through the additional environmental principles that SLE has proposed and your rationale for doing so?
Like everyone else has said, we very much support the four key principles in the bill—those principles are fundamental to environmental law. We consider that the bill could be strengthened by the inclusion of additional principles—particularly, as highlighted by many others, the principle of integration, which is key.
Given our conversation about a potential divergence in the four nations, I think that the principle of integration would help to bind things together. We do not consider that the current commitment that the European Union offers is honoured in the bill, because it lacks the integration principle. The bill could be much stronger by making that commitment. The integration principle is also key to binding the other principles and how they work together.
We have also suggested that principles relating to sustainable development be included, as that would recognise the socioeconomic factors involved. Particularly in light of the green economic recovery and recovery from the Covid crisis, that is a really important principle. We recognise that it is supported in the proposed purpose of the bill, so we are not too precious about seeing that included as a principle.
With regard to the other principles we have suggested, non-regression is self-explanatory in the sense that we do not want to see a backwards step in how environment standards are upheld. We want to see Scotland move forward and achieve the gold star of matching the current EU environmental thinking.
The other principle that we suggested is one for appropriate spatial and temporal scales. The thinking behind that is that it is very important that environmental issues are addressed at the appropriate scale.
Key to all of our suggestions is that, once we have the guidance on the principles, we will better understand how they interact with one another, what they mean and how they interlink with other policy. Once that is documented, how to interpret the principles that already exist will become clear.
On the duty to “have regard to” the principles, you will have heard that there are various suggestions on how that can be interpreted. SLE has suggested the wording “act in accordance” with the principles. Can you flesh out that idea a bit more?
The suggestion came on the back of discussions on the UK Environment Bill, which we have been watching carefully as it moves forward. We have picked up on conversations around the wording that is being used there. Like other organisations, we feel that there is an opportunity to strengthen the approach in terms of the wording that says ministers should “have regard to” all the principles.
Whatever the wording is, it is important that there is transparency in the decision-making process in accordance with the principles to allow effective oversight by ESS.
We are not necessarily precious about the wording that we have suggested. We fully take on board suggestions that have been made by others, in particular Scottish Environment LINK when it spoke to the committee last week. Our approach is about ensuring that we live up to the duty and the high environmental expectation. We are not massively precious about the wording, but we feel that it can be strengthened.
Do you have a view on the definition of “environment” in the bill? We heard concerns from NatureScot that it does not necessarily include landscape or birds. I do not know whether your members would have a view on that.
In general, we felt that the definition of environment was adequate, but we accept that concerns have been raised. We would be open to recognising that there have been omissions and that the definition could be strengthened. Also, the definition of environment in the UK Environment Bill has just been amended to incorporate climate change targets, and in essence we would welcome a joint approach.
I wish to follow up on the guidance on the principles. In your submission, you state:
“we believe the requirement for Scottish Ministers to ‘consult relevant Public Authorities or other appropriate persons who are subject to the principles duty prior to laying’ should be expanded to also include ‘persons appearing to them to be representative of the interests of local government, industry, agriculture, fisheries or small businesses’ and should also include consultation with the OEP”.
Could you explain to us why the list of those who should be consulted on the development of the guidance should be expanded beyond those to whom that guidance applies?
We support the process that is set out in the bill, which places a requirement on the Scottish ministers to consult on the guidance. The environmental principles will affect all of us in our daily lives and, if they are to succeed, it is really important for people to have a clear understanding of what the principles mean and how they can be implemented.
In referring to the list of stakeholders, we were trying to say that, essentially, there should just be a public consultation on the guidance. I do not feel that it should be restricted to a select group of people. It is important that the guidance on the principles is coherent and that everybody should have an opportunity to input, so that we are as clear as possible on what the principles mean and how they can be implemented.
Okay—that is a valid point.
I want to explore SLE’s views on the structure and staffing of the new environmental standards Scotland body. In particular, what kind of people should be appointed to the board of ESS? Do you think that the board should primarily be led by people with skills and knowledge that are relevant to environmental issues, or should it be representative of different interests? That is not to say that it must be one or the other, but which of those would be the higher priority in the view of SLE?
It is really important that ESS is made up of representatives from a breadth of different areas. It is important to have environmental, land management, business and environmental law expertise in there. The key is to make this independent body as strong as possible, armed with the best expertise that is needed to do the job. There are potential options to seek advice outwith the body on certain issues, but our preference is to have mixed expertise and a balanced organisation.
I notice that one of things that you have not mentioned is the necessity of having people who understand the law relating to the environment. ESS is not the regulatory body with oversight of the day-to-day operation; it is the body that is holding other parts of the public domain to account on implementing the law. I take it that you would agree that it is important to have people who understand environmental law and how it works.
Yes—apologies: I perhaps went through my previous answer too fast. I did mention environmental law, and I think it is very important to have somebody or some bodies within the organisation with an understanding.
That is fine—my apologies if I missed hearing you say that. That sometimes happens.
There is another thing related to ESS, and you used this word in the answer that you gave to me: “independent”. It is probably important for it to be independent of ministers and able to act impartially because, in a sense, ESS is holding the bodies that are responsible to ministers to account. How do you in SLE think that that can best be achieved?11:15
I am probably building on what has already been said by others, but we feel that it is incredibly important that the body is independent of ministers.
Part of ensuring that would be for the recruitment process and suggestions about expertise to come from the Scottish Parliament, not the Scottish ministers. At the moment, the underlying perception seems to be that the Scottish ministers are quite involved in the process, that they would benefit from taking a step back and that the Scottish Parliament should be more involved. One thing that would help is the employment of rapporteurs who could assist in the recruitment process.
The ESS needs teeth to do its job so, alongside independence, it needs to be adequately funded. We would like ring-fenced funding to be put aside for the body. We would also like it if, perhaps at the end of the year, the ESS reported on whether it had sufficient funding to do its job adequately. Those are some of the key issues.
I refer to paragraph 1(1) of schedule 1 to the bill, which states that, on one hand, ESS will be very much independent of the Scottish Government and ministers. On the other hand, the following subparagraph almost contradicts that independence. That has been highlighted by others. We would support the amendment or removal of that subparagraph. If it is amended, we want some clarity on when the mentioned exemption could be used.
Are you, in effect, saying that this body should be appointed and paid for by the Scottish Parliament and not the Scottish Government, as one or two others are, and that the Parliament’s committee that looks after public appointments should be involved? I am having a brain fade, but we have a committee that looks after public appointments.
Our key thoughts are that it definitely needs greater Scottish parliamentary input. We would welcome that approach.
I will develop on the points that Stewart Stevenson and Ms Ramoo made. Are you saying that the structure should be equivalent to that of an ombudsman, such as we appoint in the Scottish Parliament? If so, who would hold the ultimate position for decision making—would it be ESS, the Scottish ministers or the courts—if there were a disagreement between this new body and the Scottish ministers?
In essence, we are saying that we welcome the independent body that is being set up. We feel that it meets the requirements and is fit for purpose to some extent. Some minor tweaks need to be made, including a step back to ensure that it has sufficient independence. A lot of the issues relate to funding and the recruitment process.
We are not looking for a completely revised and new model. We are fairly content with the proposed suggestion of the ESS, but we would like to see the areas that I previously touched on strengthened slightly.
Those are all of our questions. I thank Karen Ramoo for her time this morning.11:19 Meeting suspended.
11:25 On resuming—
We will continue taking evidence on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. I welcome our final witness this morning, who is Dr Annalisa Savaresi, a lecturer in environmental law at the University of Stirling. Thank you for joining us once again, Dr Savaresi. You have been in front of us quite a few times, and it is nice to see you back.
I am aware that you are working with our colleagues in the Scottish Parliament information centre on a briefing that explores UK trade agreements and the potential impacts on environmental protection. Will you talk the committee through the background to your work and any emerging themes that you have found?
Dr Annalisa Savaresi (University of Stirling)
Thank you very much for inviting me to talk to you again.
Together with my colleague Filippo Fontanelli from the University of Edinburgh, I have been working with SPICe on a briefing that aims to support members’ understanding of how on-going trade negotiations, particularly with the EU and the US, are likely to impact the exercise of regulatory powers over environmental matters within the UK. The briefing consists of a number of parts that deal specifically with examples of how trade agreements affect the exercise of regulatory powers at national level. At the same time, we try to understand the implications for Scottish lawmakers of the internal market rules and the proposals that are being put forward by the UK Government. We do not know a lot about those proposals yet, but the briefing tries to unpack some of the underlying issues for environmental standards and protection in Scotland.
One question that we all have is about what will take precedence or primacy in the process—will it be the trade agreements or the internal market? It is almost as though there are three pillars or potential moving parts that could affect environmental standards across the UK. There are many unanswered questions at the moment, but what are your immediate thoughts on that? Am I correct in my assessment that there are three potential divergence issues?
It is important to understand that, with EU exit, a very fluid scenario is materialising before our eyes. On the one hand, we have the external element, which is the constraints that come from the outside that are associated with trade agreements. As a matter of course, trade agreements affect the way in which a country exercises its regulatory powers in general. In particular, in talking about the environment, there are implications that are associated with trade in products. That will happen more as a result of the new situation associated with EU exit. On the internal side, however, the UK is in a very peculiar situation that is associated with the fact that, as you will know, devolution occurred in the context of EU membership. With EU exit, the uniting frame of EU law is being removed, which means that the elements that make the UK—[Inaudible.]—are likely to move further apart. The measures that the UK will take in order to ensure that that does not affect trade internally are yet to be seen, but we can anticipate that things will happen on that. Therefore, we have that moving landscape in front of us right now.
Do you see the continuity bill as a potential solution to what we are talking about?11:30
I think that the continuity bill is trying to do what the Scottish Government—almost from day 1 after the EU referendum—has said that it wants to do, which is to enable Scotland to keep pace with EU environmental standards after exit. However, the truth is that the capacity of Scotland to keep pace with the EU will be constrained by external trade agreements that the UK might make and is in the process of negotiating with the EU and the US, as well as, internally, by any rules that are developed to ensure the internal market’s integrity.
Thank you. Mark Ruskell has more specific questions.
I will ask about specific examples of where there is perhaps a lack of clarity about how internal market arrangements will operate and how they might dovetail with trade agreements.
When the committee took evidence from him, Professor Campbell Gemmell talked about the water industry and the market for utilities and whether those will be carved out of internal market arrangements or international trade deals. I am interested in your thoughts on that specific example that has been raised with us. There have been other examples, such as the deposit return scheme operation across the UK, and there might be further examples.
The briefing will go into detail on many of those examples, which are either extant or fabricated, in order to allow members understand the various scenarios. I will keep to the examples that Mark Ruskell has mentioned.
I was thinking of what Professor Campbell Gemmell suggested in relation to water. I see that as an important area, because, presently, there is clear divergence within the UK on the level of compliance with EU water standards, which could be an issue. However, the areas where we are likely to see more tension are around things that are traded, such as chemicals and agricultural products. For example, if Scotland were ever to adopt a ban on pesticides, that would have a significant impact on the internal UK market and on the external relations of the UK. Therefore, from now on, a measure like that would have to be assessed for its implications. That is where measures adopted by the UK might affect the exercise of regulatory powers in Scotland.
We do not know much about the UK Government’s proposals regarding that issue, but it has talked about market access and mutual recognition. The implication of such principles is that Scottish producers might have to abide by a ban on the use of pesticides while producers in other parts of the UK would not and would still be able to sell their products freely within the UK. As you can imagine, that would create tensions and disadvantages for Scottish producers, as well as issues of control and enforcement in Scotland.
Although those are all new issues, they have materialised in the past—for example, in relation to genetically modified organisms, which were mentioned earlier. However, the issues have now become more pressing and more likely to arise.
Where do you see the roles of corporate interests and mediation in the process? A company such as Bayer, which sells pesticides across the UK, will want free access to the Scottish market. Will the route for challenging market rules and regulation be enhanced or weakened by the UK internal market arrangements? How does what Bayer might do now, within the European Union, to challenge a decision or directive on the use of pesticides compare to what might happen in the future, outside the European Union?
As you have mentioned, the EU single market is a good proxy for us to use in anticipating what might happen with the adoption and implementation of the rules for the UK internal market. Over the years, the EU has developed a large body of law concerning measures to protect the single market. Legislation that was adopted in Denmark for recyclable bottles is an old example but it is clearly relevant to the present context—not because the law is still relevant, but because it is an example of how legislation that was adopted in Denmark was challenged by the European Commission on the ground that it had obstructed free trade in the single market. That is an example of the sort of issue that might arise increasingly were there to be policy divergence within the UK. The adoption of some rules for the internal market would be helpful in clarifying which organisation would be in charge of which rules should issues of coherence arise.
As you know, in the EU, the European Commission is the guardian of the integrity of the single market and, if necessary, it has recourse to the courts to adjudicate on matters of compliance. A similar mechanism could be developed in the UK if there was an appetite for that. However, it is important to note that the EU is not the only single market—other countries have developed systems to protect their internal markets. I am aware that the Finance and Constitution Committee has commissioned research on that, and, last week, Professor Gemmell mentioned Australia as an example. It is important to look at those models carefully to understand how they ensure divergence in environmental standards and how any such issues are tackled.
I will explore the issues that taking a wrong turn might stop Scotland being able to address.
Different environmental standards in some areas are baked into the law north and south of the border. The targets for greenhouse gas emissions are an obvious example, as the timetables are different north and south of the border. The Scottish Government’s aspirations—although they cannot be legally enforced—for propulsion systems for cars also differ from those south of the border.
Those are just two examples to get us into the issue. What areas might Scotland not be able to take a different view on, which would affect our environment?
I will perhaps repeat myself. Chemicals regulation is a large area in which divergence is unlikely or would be ill advised because it is very complex. It is currently addressed by the EU through the registration, evaluation, authorisation and restriction of chemicals—REACH—regulation. A whole-UK approach to such a complex matter would seem advisable. That does not mean that Scotland should not consider going its own way on specific chemicals, but regulating chemicals in Scotland independently and separately from the rest of the UK would not make any sense.
When it comes to specific areas such as the banning of pesticides, it is important that a systemic analysis is done of compliance and logistical costs associated with regulatory divergence within the UK. That matters more now than it has done in the past. If the UK does not align with EU standards and Scotland wants to do so, I imagine that a paramount consideration will be how much it will cost Scotland to enforce different standards. It will also be important to establish how Scotland will ensure compliance.
Let us discuss a specific example, then. You referred to pesticides. Scotland is further north than the rest of the UK, so our biology—what is in nature, and particularly our insects and so on—is a different mix from that of England. That is just a natural phenomenon related to where we are and the climate.
When you put a pesticide into the environment, you do so because you are looking for some positive benefit, but almost invariably there will also be a negative impact. Will Scotland be able to ban a pesticide that would have a differential impact on our native species—our insects, for example—or on species that we want to protect? Perhaps those insects are not as present in England, or perhaps they are present in such great numbers that it does not matter. I use that as only one example.
I hate to sound evasive, but the truth is that, given the lack of rules concerning the UK internal market, it is almost impossible to tell. In the EU, the European Court of Justice has developed case law requiring reasonable flexibility on the part of EU member states. There is a rule for divergence, and the principle of proportionality is also important. As you mentioned, there is an issue of divergence in habitats and the different needs of the four nations, which might be paramount considerations.
To go back to the example of Denmark and the bottles, the court was very careful to distinguish the principle of proportionality and the exercise of the protection of legitimate interests vis-à-vis the rights of foreign manufacturers to use containers that were not those that the Danish Government had authorised for trade within Denmark. A balance of that kind will need to be struck, which is why I cannot emphasise enough that having rules on who is in charge of scrutinising what, and according to which criteria, is a good thing, not a bad one.
Again, I declare an interest as a farmer.
Before I come to my main question, I pick up on Stewart Stevenson’s question about the banning of insecticides. If a ban on insecticides, particularly neonicotinoids, were to be implemented by the Scottish Government, that could—as you referred to earlier—put Scottish farmers at a competitive disadvantage compared to other UK farmers. Would you expect the Scottish Government to compensate Scottish farmers for that?
Again, it is a very hypothetical scenario that we are discussing. It is important to appreciate that all this is speculative, but, as you will see from our briefing when it is published, there have been several examples in practice of how discrimination between producers has been addressed. There are rules in that connection that have been developed internationally and applied to the external dimension that I referred to at the beginning of my presentation, and there are rules that have been developed internally.11:45
We know next to nothing about the internal dimension now. Adopting mitigating measures could definitely be one way of dealing with that, but we have to consider the impact of subsidies, because they are normally also an issue for the protection of free trade. Rules that pre-empt subsidies of that kind could be developed at the expense of the Scottish Government, if you see what I mean. Again, that is entirely speculation. I do not know how the UK Government will address the matter in legislation. We will have to wait and see what it proposes.
I will come to the question that I was invited to ask, which is about the development of frameworks. How is the slow pace of development of common frameworks compounding the issues that you have raised?
I hear that many of the other expert witnesses have already expressed regret about the slow development of common frameworks. The area was highlighted from day 1 as an urgent concern. We are clearly running against the clock here and I do not want to repeat the obvious, but there is a need for clarity in so many areas. It is of great concern.
You are obviously well informed on the subject. What do you see as the pinch points that need, shall we say, political pressure to get the common frameworks to move on?
To be honest, I am an outside observer and I do not know what the dynamics are inside the rooms where these matters are discussed. The pandemic has clearly affected progress at the same time as there being obvious political tensions, which has not helped progress. That is partly because constitutional questions tend to take primacy over technical questions at times, and that is where we are.
Stewart Stevenson wants to come back in before I go to Liz Smith.
This is a matter of principle that I want to put on the record. John Scott thinks that farmers should be compensated if banning neonicotinoids had a negative effect on them. Neonicotinoids are known to affect bees, wasps and other insects that are part of the fertilisation process of many of our plants. If banning neonicotinoids improved things for farmers, would he expect them to return that benefit to the Government for spending in other areas of policy?
I just make that observation—it is not a genuine question, convener. However, John Scott ought to think carefully about the principle behind what he has just said, because I suspect that he would not agree with the proposition that I have just made.
Your comments are on the record, and I imagine that the two of you will have a vigorous conversation about the matter when you next see each other in person.
I will now go to Liz Smith.
I want to ask what might be a bit of a leading question. Irrespective of our party politics, I think that we all agree that the key message is to ensure that we get better economic growth and more jobs and investment, and that Scotland and the UK can feel comfortable with whatever arrangements are put in place from the economic perspective. From your considerable legal expertise, do you feel that the key issue is that the UK Government has not given sufficient information about how that could be progressed? There has been criticism that the Government has not taken on board some of the considerations of the devolved institutions. Alternatively, are there fundamental issues at stake that might create difficulties because of the legal networks that will be set up? Is it a question of not having enough information or detail just now, or are there fundamental problems in the proposed structures?
The committee has previously considered the peculiarities of the UK’s constitutional set-up. This is definitely not a good time to enter into a grand design exercise—I appreciate that that would be unwelcome, given the pressures that the Scottish Parliament and the UK Parliament are under. At the same time, it is true that all the technical issues that we have been raising and addressing are affected by great uncertainty concerning a set of constitutional questions that are not clearly answerable. It is not just me saying that, as it has been said at length by several experts before this and other committees.
The lack of clarity in the constitutional set-up means that clear solutions that are the result of existing arrangements will not happen immediately, and that is where the difficulties concerning the development of common frameworks are. At the same time, the UK is not alone in the log-jam because of the pandemic. It is a subjective issue, but there has been so much delay everywhere with legislative work across the board because of the pandemic, so we are definitely not in a helpful or auspicious set of circumstances.
That is helpful. My second question is based on some of the concerns that we have heard already and is about the relationship that Scotland has with some of its key partners, one of which in the UK is Northern Ireland. Can you tell us a bit about the situation there, as I understand that you have some expertise in the area?
You heard last week from a colleague—Professor Gravey from Belfast—who touched very well on some of the key issues there. Northern Ireland has to align with EU standards, which raises internal market questions concerning the position of Northern Ireland vis-à-vis the rest of the UK. However, that also raises issues for Scotland because there are competition tensions with Northern Ireland and Scotland being in the same markets for certain products. Northern Ireland will have to align with EU standards and might get special treatment within the internal market in the UK. What Scotland’s position will be is unclear but, for sure, Scotland will not get that freedom to align all the time with the EU; in all likelihood, it will be aligned with the UK internal market.
Members do not seem to have any more questions. Is there anything else that you would like to add, Dr Savaresi, that you think that you should draw to our attention and that we should bear in mind, particularly as we will have the cabinet secretary in front of us next week?
I just suggest that the committee take a look at the briefing that I prepared with Dr Fontanelli and, indeed, consider having an evidence session with him, because he has been advising the Scottish Parliament on the trade implications of EU exit for a long time. A conversation on environmental standards is definitely important in that specific context, which is why we prepared the briefing in the first place. It definitely needs to be taken under control. As I said, there are logistical implications of regulatory divergence within the internal market that are associated with environmental services and products, so it is important to keep a close eye on those issues going forward.
Thank you for your time this morning and for your evidence, which as always was very informative.
That ends our session today. Our next meeting is on 1 September, when we will hear from the Cabinet Secretary for the Environment, Climate Change and Land Reform and the Cabinet Secretary for the Constitution, Europe and External Affairs on the UK Withdrawal from the European Union (Continuity) Scotland Bill. We will also consider the Greenhouse Gas Emissions Trading Scheme Order 2020, which is made under the Climate Change Act 2008.
That concludes the public part of our meeting.11:55 Meeting continued in private until 12:12.
25 August 2020
Fourth meeting transcript
The Convener (Gillian Martin)
Good morning, and welcome to the 19th meeting in 2020 of the Environment, Climate Change and Land Reform Committee.
Today, we continue to take evidence on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. With us, we have the Cabinet Secretary for Environment, Climate Change and Land Reform, Roseanna Cunningham, and the Cabinet Secretary for the Constitution, Europe and External Affairs, Michael Russell. The cabinet secretaries are joined by their Scottish Government officials: Emma Lopinska, constitutional policy manager, and Charles Stewart Roper, head of the environment strategy and governance unit.
My first question is probably for Michael Russell. The Scottish Government has not set out the criteria for deciding which measures it would or would not choose to align with. Why is that? Would the principles of agreed common frameworks also apply to keeping pace?
The Cabinet Secretary for the Constitution, Europe and External Affairs (Michael Russell)
Thank you for the opportunity to be here this morning.
It is a good central question, and the answer lies in two parts. First, I would point to a mix of things that are involved here, as we cope with leaving the European Union—which we did not vote for and which inevitably complicates the legislative and procedural landscape. We are not in a simple mix of possibilities; we need to do lots of things in lots of ways in order not to lose many of the advantages that we have had for the past 47 years. The continuity bill fits into that, but it is not the only part of it. You mentioned the frameworks, and we have a range of arrangements within those, such as the memorandum of understanding and formal and informal arrangements. We also have the unwelcome intervention of the internal market white paper and the problems that it will create. No doubt, we will come on to those problems later.
The continuity bill goes back to a strategy that we developed early in the seemingly endless process of Brexit, which was to find a way in which we could continue to have the high-quality regulations that we thought were most important for Scotland, primarily in the area of the environment but not exclusively so. The bill is a second attempt to put that into place. The first continuity bill was challenged by the United Kingdom and taken to the Supreme Court. Virtually all of the bill was found to be within the competence of the Scottish Parliament; a very small part was not. Of course, by then, the UK had changed its laws—in what one might call a sneaky way—in order to make the bill impossible to operate. We have come back with an operable bill, which the Presiding Officer has said is within the powers of the Scottish Parliament. That allows us to look at and choose those areas that we think are most important.
One size will not fit all. If we lived in a neat world, one might expect a clear and published list of criteria that would apply, but European legislation is large in scale and varied, so we have to approach each issue on its merits. The committee has heard evidence on the issue, and we have tried to present a matrix of issues, which would allow us to decide which of the regulations we felt it was important to continue and to keep pace with. The matrix would consist of things such as the practical implications of doing that. Would it be too difficult to do that? What about the economic and social benefits and costs? Are they things that would be good for us, just as membership of the EU is good for us? Would taking the regulations on be good for us? We do not have unlimited resources, either financially or in terms of personnel, so could we do that within our means? As the Government has made it clear that its ambition is for Scotland to return to the EU, are there things that we should we hold on to because they will be important to us in the process of accession? If any of the factors mitigate against aligning, are there alternatives, such as the frameworks that you mentioned, which are another way to go about it?
We are clear that it will require decision making of a varied nature, depending on the issues that we are considering, and consultation with others. I do not think that the Government has all the answers. The landscape is wide ranging, so we may look at certain issues and not be sure what we should do, but somebody else might say, “That’s really important.” We hear that in the debate as to whether there should be a duty to align. It will not be neat, but I hope that we will bring our intelligence and our judgment to the matter and that we will be keen—as any Government should be—to consult on and discuss it with the Parliament. It will involve the sunsetting of the power, which is an issue to address later. The power may fall out of use because we have re-entered the EU. The best reason for ending the provisions of the bill would be that we no longer need them. We should look at the matter from time to time and ask whether we are still using the right tools.
I am sorry that that was a slightly lengthy answer, but it is a complex area and I wanted to lay out all the issues so that we have a chance to discuss them.
I am glad that it was a lengthy answer, because there was a lot in there. You mentioned the Parliament’s role. As complex decisions are made, including those about common frameworks, what will the Parliament’s role be in scrutinising them? Where will the Parliament’s committees sit in that regard?
As you know, we are bringing frameworks to the Parliament as they come to their final stage, so that they can be consulted on and looked at closely. We want to finish that task, but one of the threats to our doing so lies in the UK Government’s internal market white paper. As long as that threat is withdrawn, as I hope it will be, we will be able to complete the framework process, and in so doing the Parliament will have a clear role at the beginning, middle and end. At the beginning, there will be consultation with the Parliament and others about any decision that we make about keeping pace with powers. The middle part is the secondary legislative process. I am sure that we will have a debate about what that process should look like and whether the procedure should be negative, affirmative or even super-affirmative. That is a debate that we have about every single instrument, and we will, no doubt, have it again.
Section 7 of the bill allows for a reporting process so that we are able to report on what we have done. As you know, I have taken on the reporting process under the coronavirus acts. I have learned quite a lot—and I am grateful to my officials for learning a lot—about the reporting process, including what we should bring to the Parliament, how we should do that and what feedback we should expect. The Parliament will be central to the process. There are functions for each part of the democracy—the Government has some functions and Parliament has others, but the interface is quite clear. I am also open to considering whether we need to publish more on the issue, so that there is an even bigger sense of ownership—[Inaudible.]
My next question is for both cabinet secretaries. Mr Russell flagged up the potential for the proposed UK internal market to have an impact on the Scottish Parliament’s ability to legislate on high environmental standards, which is a live issue, particularly this week, given some of the comments about animal welfare and food standards that are out there. What is the potential for the internal market to effectively cut off the Scottish Parliament or Scottish Government in that regard?
I am happy to address the point more widely, and Roseanna Cunningham can perhaps follow up on the environmental side.
It is a very serious threat. We have been working in good faith with the UK Government on the issue of frameworks. Out of the whole sorry Brexit process, it is perhaps the one thing on which we—working as equals, which has been important—have been able to come to some conclusions with the other parts of these islands. I think that seven of the frameworks are ready to be decided on, one of which does not relate to Scotland. The rest will come in during the next few months and into next year.
I made a commitment that we will not do anything outwith the process that would damage relationships. Then, suddenly, virtually out of nowhere, came the internal market white paper, which takes two European concepts, misunderstands them—perhaps deliberately—and creates a set of circumstances in which Scottish regulation, in virtually every area and not just the environment, would be undermined. It would not matter what regulations we passed, or decided to pass, because they could be undercut by decisions of the UK Parliament, probably operating without Scottish input and under the English votes for English laws process.
It is difficult to underestimate the damage that the internal market white paper proposals would do to the frameworks process. We have made it clear that we cannot accept the proposals, and the Scottish Parliament made it clear when it voted two weeks ago, 92 to 31, that it is against the proposals.
Even considering the absurdly short consultation period of less than a month that has been dictated by the UK Government, a substantial opinion in Scotland from a wide range of organisations is that they just do not want what is proposed to happen, that they do not consider it appropriate and that they suggest that the frameworks process be concluded.
The internal market white paper forms a significant threat to all that the Scottish Parliament is talking about. It undermines and, indeed, destroys the ability of the Scottish Parliament to make choices for the people of Scotland in the devolved areas of competence. It is as serious as that. We cannot, and will not, accept the proposals.
Does Roseanna Cunningham want to address the same question from an environmental point of view?
The Cabinet Secretary for Environment, Climate Change and Land Reform (Roseanna Cunningham)
I am not sure that I have much to add to Mike Russell’s points.
The problem with the level of the conversation around the internal market is that it rather indicates an intention or a desire to override completely those pesky devolved Administrations, which might be coming—quite rightly—to different views on issues.
The internal market idea—the notion that there is an internal market that can override everything—is clearly designed to bring into line the devolved Administrations acting perfectly properly in their competencies. It looks as though it is just a way of coming at the devolved competencies by slightly other means.
It creates uncertainty for us. We could go through all our perfectly proper processes, including all the parliamentary scrutiny in the world, and discover that that does not amount to a hill of beans as far as Westminster is concerned and that what we decide could get overridden completely. That is the real concern about the proposals.
The proposals are likely to impact not only across the environmental scene, but particularly on our friends in the rural economy more widely. The issue of animal health and welfare standards has already been flagged. Those are just some of the policies on which we presume we can make decisions, because the Scotland Act 1998 says that we can make those decisions, but the whole internal market debate is in effect about being able to set those decisions aside.
Finlay Carson (Galloway and West Dumfries) (Con)
We have heard a lot about the issues with the internal market white paper, but, unfortunately, we have not heard very much about the huge positives of having a smooth internal market with no barriers and how important that is to the rural economy and thousands of businesses across Scotland. It is unfortunate that we are hearing about the division that it might create rather than about how we can benefit from using the size of the United Kingdom to enable everyone to move forward and improve their environmental strategies and so on.
I am very pleased to hear that positive progress has been made with the common frameworks. How hopeful are you that they will be concluded by December 2020—I think that that was the expected conclusion date—and what role will the Scottish Parliament have in scrutinising them? Also, can you tell me whether there are any potential restrictions on environmental strategy? Given the environment bill that is coming forward and so on, might the continuity bill constrain or restrict the ability to set policies in bills that will come up later?09:45
I am not sure that I understood that final question. Perhaps Roseanna Cunningham will want to respond if she understood it.
As far as the first question is concerned, I am absolutely committed to freedom of trade within these islands. Unfortunately, however, that cannot and will not be assisted by the internal market white paper, which will create new difficulties and barriers and will impoverish Scottish businesses—particularly smaller ones.
I was impressed by NFU Scotland, which made it very clear that it does not believe that the internal market bill is required and commended the frameworks to the Parliament. The Scottish Council for Development and Industry takes the same view.
Mr Carson’s view of the white paper is very rose-tinted and it is not shared by those with whom he would normally agree. Of course, he is entitled to his opinion, but I cannot find within the white paper anything that says that there is a threat to the existing single market. What I can find is a lot of false assertion about, for example, the operation of the European market. That is not the same thing, and it is not operated in the same way.
On how the frameworks will be completed, I think that the committee has had information that the first group will be completed by the end of the year, and work continues on the others. It has been delayed by the Covid pandemic, but that should not concern people, because I have made a clear and binding commitment that we will operate as though the frameworks were in place, as a result of which no insecurity will be created by their not being finished.
Indeed, if they are not proceeded with, it will be because the UK Government has killed them because of the internal market white paper. They could not work in co-operation with the regulations and the law that is anticipated in the internal market—that would simply be an impossibility. It would be foolish to spend all that time and effort and be completely overridden on every occasion by decisions that were made elsewhere.
There is a clear choice, and I have made that clear to Michael Gove. I wrote to him on the matter earlier this week, and I will make the point again at the joint ministerial committee meeting that will be held on Thursday. The ball is in their court. If they wish us to work with them to finish the frameworks, we are very happy to do so, and that will provide what they are looking for, what I am looking for and what Mr Carson is looking for in terms of security.
Of course, the insecurity will continue through the Brexit process. We do not even know what the arrangements will be by the end of the year, because that process is being so badly handled, and it is such a misbegotten adventure in any case. However, if the UK continues with the internal market proposals, the frameworks will essentially be dead.
In the evidence session that follows this one, we will discuss with the committee the particular common framework around the emissions trading scheme. It is really important that that is in place by the end of December, but there is a question mark over whether it will be. Indeed, there is a plan for an alternative way of managing the situation if that is not in place, and that alternative is not something that we would agree with. We will have a longer conversation about that in the second part of this morning’s proceedings.
I think that, at the end of Finlay Carson’s question about common frameworks, he asked very generally about the continuity bill and what is legislated for there. In effect, what we are doing in the bill is enabling ourselves to align with high standards. That is what this is all about—it is about using our devolved competence on the environment to choose to align with high standards. Our concern about the internal market is that it might enable the United Kingdom Government to prevent us from doing that.
I do not know whether you want me to move on at this point to your final point, which was, I think, meant to cover a much wider environmental picture, or to come back to it. However, as I have indicated, the power to align will be an important part of fulfilling our commitment to maintaining and enhancing environmental standards and, where possible keeping aligned with developing EU standards—there has been a discussion about that.
In general terms, the objective has been to address in the bill any gaps and risks to standards that are created by EU exit. We also have a strategy document that was published earlier this year, which will give us guidance for the future. That strategy looks beyond purely environmental goals and sets out ambitions to increase the contributions of nature to the wellbeing of people in Scotland and the strength of our economy. We are developing a monitoring framework for that at the moment, which will provide a means of measuring progress towards its long-term goals.
We think that that strategy, alongside the proposals in the bill, will provide a robust framework for environmental policy outwith the EU. It will ensure that we can keep our standards high and comparable with those of the EU. Although it is not within the portfolio, I flag up work that is continuing in the human rights task force on the proposed right to a healthy environment. A lot of things are going on beyond the part of this bill that we are discussing today, which is perhaps the wider point that Finlay Carson was referring to in the final phrases of his question.
Mark Ruskell (Mid Scotland and Fife) (Green)
I want to pick up on a point that you made about concerns around environmental standards, food standards and animal welfare. Are there other examples of areas where cabinet secretaries have concerns? Professor Campbell GemmelI raised with the committee the issue of diverging water quality standards. Is that a concern? Is there a wider concern about the ownership of water and whether that could be challenged under the single market proposals?
I must leave the environmental issues to Roseanna Cunningham but, in general terms, I point out that the internal market white paper, given the way that it is drafted and its intentions, would affect all areas of devolved competence including water privatisation and, for example, health service procurement. Interestingly, in responding to a question in the House of Lords just after the internal market white paper was published, Martin Callanan—Lord Callanan—drew attention to the role of the courts in enforcing those matters.
That has opened up the distinct possibility that the Scottish Government could say that it was against certain types of contracts in the public sector—for example, in health service procurement—but that, as a result of a bad trade deal, because the internal market white paper is also being driven by the UK’s desperation for trade deals at any price, a company coming in from elsewhere, such as an American private health company, could say, “Sorry, but the regulations in England allow us to do this and we now insist on doing it in Scotland”. My reading of the white paper is that it would mean that companies could do that, which would have an impact right across Government. It is difficult to envisage any area where there would not be an impact.
Extraordinarily, the internal market white paper mentions building standards, which have been different in Scotland and England since time immemorial. There is a different climate and there are different materials. The idea that those should suddenly be drawn into consideration when there has been no difficulty with them since long before devolution and membership of the EU gives a hint as to what is going on. It is partly the most elaborate and desperate power grab and partly because anything and everything must be subordinated to the bad trade deals that the UK needs to do.
I do not have much to add to that. The potential for problems arising is widespread across many portfolios beyond my own. That includes the neighbouring portfolio, which is the rural economy. Transport will also be heavily impacted, and there could be impacts on other portfolios.
People need to understand that the concept of the internal market runs counter to the ability of the Administrations to do what they are legally obliged and entitled to do. It is an entirely contradictory approach, which can be seen in almost any area. The threat to Scottish Water is one example, but there are many other things that I would question in an internal market, such as whether absolutely everything will be done under the English legal system and the Scots legal system will be cut out. Once we pursue such notions, those things will snowball and we will find that an enormous area of Scottish Government policy in the devolved settlement is effectively being set at nought.
When people ask what the problem is, I liken the issue to the notion that, if you have a happy marriage, there is no problem, but that does not mean that you want to remove the right to divorce. Issues are likely to arise in many areas, and they will be a huge problem for us in the future. There is no doubt about that.
I will move on to some of the detail in the bill, and particularly the environmental principles. The committee has heard a lot of support for inclusion of the integration principle and for having an overall principle of achieving a high level of environmental protection. Professor Scotford said that the omission of a high level of environmental protection is a “glaring oversight”. Do you have any reflections on the evidence that has come to the committee and the impact of including or excluding those or, indeed, other principles?
In answer to the question about calls for an integration principle, I agree that the integration of environmental policy into other policy is critical. However, other policies have important contributions to make to protecting and enhancing the environment and achieving a net-zero economy. We see that throughout what we do in Government. Obviously, a natural environment that is healthy contributes to individual wellbeing and to the health of communities and the economy.
My view is that the proposals achieve integration through the framing of the duty to have regard to the environment—which applies to ministers’ development of policies, including proposals for legislation—across all areas of Government. The duty is not limited to policy-making in the environmental field; it applies across Government. Similarly, it will apply to other public authorities in their consideration of policies and programmes that will have a significant effect on the environment, and not only policies that have specific environmental goals.
In respect of the principle of high environmental protection, I note that the duty is given context by section 13 of the bill, which sets out that the duty is to be applied with a view to protecting and improving the environment and contributing to sustainable development. We can all agree with those goals. However, being a cabinet secretary has taught me that pursuing such a goal involves a wide range of actions, resources and delivery partners. I am not sure that legislating for that high-level policy goal as a principle would be very meaningful. It would be good if it was as straightforward as that, but the reality is that putting that into practice requires more than simply the statement of a principle.10:00
Is the point not that we have already put it into practice, because we already have that commitment to EU environmental principles, and we just want to retain that for the future? Why does it not work now?
That is what the bill does: it takes the principles that we operate under with respect to the EU and replicates them in our legislation. Trying to put something higher and overarching over that—it feels like that is the intention—does not improve anything, in my view, because we are taking the four principles that we want to replicate and we are doing for Scottish devolved competence what the EU does overall.
The point that I am trying to make is that the commitment to high-level environmental protection is already in EU legislation. I am trying to understand why we would not want to retain that in future. I get the principles that are in the bill, but I am not getting why we would want to drop that commitment.
The bill is not about dropping anything. That is a ridiculous question. We are not dropping anything; the point is that the principles in the bill will deliver that commitment. The high-level principle that Mark Ruskell is talking about is what Government is doing on a daily basis, and the four principles that we are legislating for—the ones that the EU operates by—will deliver that.
Claudia Beamish (South Scotland) (Lab)
I want to pursue that point a little further with Roseanna Cunningham in relation to what the Faculty of Advocates has highlighted regarding the principles, and particularly the principle of environmental equity, as enshrined in the Treaty on the Functioning of the European Union.
In view of how important it is, the faculty has highlighted
“environmental equity (in a redistributive sense)”.
I understand what you are saying about the high-level principles, but I would have a concern if that high-level principle was missed. You will recall, as will Mike Russell, that Mark Ruskell and I were both positive about the four environmental EU principles. Will you comment on that point about environmental equity?
I am not sure that I have much to add. We needed to produce the bill this year. As I think I have indicated before, there is no reason why other principles could not be considered and added. Beyond the four, there are at least another three or four potential additional principles. Right now, the bill is aimed at closing the gap, and I think that people are losing sight of that. As for other, additional principles, we have no clear consensus on the addition of individual principles to the four that everybody understands. That is why we have stuck pretty firmly to the four that we have.
We need to close the gap. There is nothing to prevent us from adding principles in the future, and I would imagine that there will be an on-going discussion about that. No bill can do everything, and the bill that is before us is trying to ensure that, at the end of December, when the transition period is over, we will be in a place that is as near as possible to where we have been within the EU.
I suppose that that is why I highlighted what the Faculty of Advocates said about that high-level environmental principle and how important the human health aspect is in relation to the environment.
If the convener agrees, I will move on to discuss the duty either to “have regard to” the principles or to act in accordance with them. Both cabinet secretaries will be aware that the committee has received quite a lot of evidence on that. Perhaps Roseanna Cunningham could comment first, followed by Michael Russell if that would be appropriate, on the concern that Scottish Environment LINK and others have expressed that that duty is not robust enough. That will open up our next line of discussion.
I am well aware of the debate on the issue, which goes back to last year’s consultation on the principles. The principles are guides to decision making, but other statutory duties exist and we need to ensure that the duty does not conflict with them.
Ministers and public authorities have a really wide range of statutory duties and other relevant factors to consider in any decision-making process. That is important because, if a minister or a public authority is alleged to have failed in a statutory duty or in relation to the guiding principles—that is to say, they have failed to have them in view—they will be open to legal challenge.
The stronger formulation of the duty could constrain ministers’ ability to take other legitimate considerations into account when they are developing policy. The same concern would apply to public authorities. If the duty was made even tighter, it could lead to perverse effects or even hold up decision making, which we would want to avoid.
There are other issues around defining what the duties are in comparison with others. We use the word “duty”, but in some areas it will mean something slightly different. For example, policy interventions that are aimed at preventative action or rectifying pollution at source have consequences for resources such as money and land use, and they also cause carbon emissions. Therefore, although it is important that environmental principles are taken into account in decision making, our approach on that cannot be so specific that it dominates all other duties and objectives. Using the words “have regard to” therefore strikes the appropriate balance.
Can I come back on that, cabinet secretary? I find your answer puzzling. I respect your point on resources, but I find it hard to understand how there could be conflict with the guiding principles, which have been enshrined in the treaty and which we have followed throughout our time as part of the EU. If the principles were robust, they would be a way of protecting our environment in the same way as the EU does.
I will talk about that using the example of my experience of taking the Flood Risk Management (Scotland) Bill through Parliament in 2009. At the beginning of the process, Michael Russell was the responsible minister and I was convener of the Rural Affairs and Environment Committee, but I became the Minister for Environment during that time and I had to take the bill through stages 2 and 3, which was an interesting experience.
One of the discussions that we had at the time concerned the potentially competing interests of two EU directives—the flood risk management directive, which we were putting into legislation, and the water quality directive, which also emanated from the EU. There was a vigorous discussion about how we could make those two directives work together in practice. That is the kind of discussion that has to happen at a specific level, and a decision had to be made about how to manage those competing interests.
That is the kind of thing that happens in real life. If we make a particular duty gazump everything else because we cannot make that necessary balancing decision, we will run into difficulties.
We must agree to differ, but then I am not a lawyer and I have not been in Government. There we are.
Michael, do you have any comment on the duty issue?
No. I think that Roseanna Cunningham put it very well with regard to everything having to fit together.
In every piece of legislation that I have engaged with over the years—there seem to have been rather a lot of them, unfortunately—balances have had to be struck between the new legislation, the existing legislation and the priorities. In every committee, people have said, “Are you taking this seriously enough? Shouldn’t you make this a duty rather than something that ministers must have regard to?” However, we have to recognise how the bits fit together.
I do not think that there is the slightest weakening of commitment to the principles. To ensure that they are part of the matrix of legislation rather than sticking out and perhaps being difficult to manage is the right thing to do, and I think that Roseanna Cunningham expressed the situation well.
I do not know whether we have to agree to differ. I expect that we find ourselves on the same side. We all agree that this is an important issue and I do not think that it is being diminished in any way by the language that is being used.
I thank you both for those comments. The committee will reflect on them.
On—[Inaudible.]—the principles and the issue of having regard, does that apply in the same way that you have asked public authorities to take the principles into account only during their strategic environment assessment processes, rather than during all decision making around, for example, planning and budgets? Does what you have said apply to that reasoning, too?
I lost the sound during the first part of your question. Could you repeat that, please?
You have just explained why you are taking an approach that involves ministers having regard to something rather than having a duty placed on them. Is that also the reason why public authorities have to apply the principles only in a strategic environmental assessment rather than in all decision making on things such as planning and budgets?
Perhaps. I would not want to be quite as specific as that—I used a specific example in response to the previous question.
The current direct effect of the EU environmental principles is on policy making in the EU. The purpose of this bill is to close the gap that will otherwise arise at the end of December, when we come out of transition. In the EU, laws are made that reflect the environmental principles, and those laws drive the design of regulatory schemes. Some directives and regulations had a more direct copying of the principles into their provisions and then, obviously, into Scottish regulations. However, I think that I am right in saying that the EU principles at that level had no direct effect on individual regulatory decisions in Scotland. The principles guide the policy making, and then, out of the policy, you design the regulatory system that has to apply.10:15
I am trying to preserve the effect of the environmental principles, and I have therefore applied the duty to the level of policy making. In that, I have gone beyond the UK Environment Bill provisions, which apply only to ministers, by choosing to apply the duty to strategic decisions that are taken by all public authorities. That decision was made in response to the consultation exercise and the feeling that was expressed that those principles ought to apply much more broadly.
If we were to try to apply those principles to individual decision making, such as individual grant funding decisions and individual regulatory decisions, the process would become wholly impractical and disproportionate. The principles are strategic by definition—the way in which they are framed and written makes them strategic in scope. Trying to apply those strategic-level principles to individual sites, licence applications and grant funding decisions would be difficult. It would create a lot of uncertainty and inconsistency in decision making and would make the process take a lot longer. Information would be required from applicants, and the processing efforts of regulators would be wholly disproportionate to any possible gain arising from any individual decision.
The way in which the EU has done things, and the way in which we have operated—in effect, making the principles guide the policy design—will ensure that the regulatory schemes will reflect those principles and their application. That is why we have chosen to do it that way. That circles back to the question of what we are trying to do in this bill. We are trying to prevent the disruption of our systems at the end of 2020, when the transition period is over. That is what this bill is about.
Mark Ruskell and Finlay Carson have some final questions on the principles before we move on to talk about environmental standards Scotland.
I want to ask about the rationale behind the exclusions to section 10, particularly those relating to finance and budget. It strikes me that there might be some things in the budget that are not part of plans or programmes—the climate challenge fund, for example—and which, therefore, will not be included in that kind of assessment. It has been put to us in evidence that budgets are increasingly becoming preventative, in that they are concerned with the causes of problems, which means that there could be benefits to budgets being captured by the provisions in the bill. What is your response to that?
The intention of the provision is basically to remove the purely financial and budgetary processes from the scope of the duty. If that is not done, the process will become extremely complex. It is basically reflective of the provisions in the Environmental Assessment (Scotland) Act 2005.
The intent of the exclusion will be explained in guidance, in a similar manner to what was done in relation to the 2005 act. I do not think that those exclusions will have any impact on the achievement of environmental objectives. A lot of significant environmental policies will have some financial consequences, and the intention is not to exclude policies on that basis, in the same way that policies are not exempt from the requirements of the 2005 act.
I think that this debate arises from a lack of clarity around people’s understanding of section 10(3).
I have a brief question on the guidance. You have touched on how new policies can be developed after the legislation is in place, but what options are there for increasing the scope of organisations that should be involved in developing the guidance in relation to these principles?
At the moment, the provisions require us to consult other persons that are considered to be appropriate. We intend to consult extremely broadly on the guidance before laying it before Parliament. If the committee strongly feels that particular individuals or organisations should be consulted and might perhaps be overlooked, we would be happy to hear about that.
We will now move on to a discussion of environmental standards Scotland. We probably received most evidence about that issue.
Liz Smith (Mid Scotland and Fife) (Con)
The vast majority of witnesses were comfortable with the idea of environmental standards Scotland, but there was quite a range of views about how robust it can be unless its roles and functions are clarified. Roseanna Cunningham, do you accept that criticism, and how might you be able to clarify its roles?
I am not sure that I accept the criticism. At the risk of sounding boring, I repeat that we are trying as far as is reasonably possible to replicate the current enforcement system that applies via Brussels—doing so is forced on us out of necessity. I know that there is a vigorous debate about what could be put in place, and that there has been for a long time. My intent in the bill is to ensure that there is something in place as of 1 January that will allow us to do in as expansive a way as possible what has been done in terms of oversight via Brussels.
A lot of the proposals that I see and discussions that I am aware of concern some much more expanded ideal version of the body, which might be established down the line. There are two discussions going on. One concerns whether, as much as is humanly possible, the body will do what is already being done; and the other seems to be about what things would look like if we were in an ideal world and had a blank sheet of paper. I am sure that this committee’s successor committee in the next session of Parliament will want to come back to some of those issues in the longer term. However, the bill that we are discussing is about what happens in the short term. It is about getting us through the exit from transition and into the new world with a system that, as far as possible, mirrors what we currently have.
I accept that, and it is an interesting perspective but, obviously, there is a long-term view to be taken. Groups such as WWF, the RSPB and—I think—the National Trust for Scotland are flagging up concerns about the possibility that the new body might be a bit too close to the Government, and they point to some aspects of paragraph 1 of schedule 1 to the bill, where they think that there is a bit of a contradiction. Is the new body too close to Government?
Obviously, at the end of the day, a view will be taken. It is difficult to see, in our system, another way in which the body could be constructed. We have chosen a way of doing this that distances us in so far as is humanly possible from the workings of the body. We have to create it and set it up and, ultimately, there will be some accountability along the line. However, in so far as is reasonable and possible, the model that we have chosen has been proven to work already in respect of some other things that we have done, and that gives us the confidence that it will be independent.
Believe you me, I have no interest whatsoever in getting involved in the decision making that this body would have to be involved in. I cannot imagine that anybody would, at any Government level.
My last question is about what relationship you feel the body would have with the commissions or whatever other bodies other jurisdictions in the UK choose to set up. How do you foresee that working?
This is about matters that are within the power of the Parliament in Scotland. The new body will have oversight over those and it will not have oversight over what is not devolved. Nevertheless, if decisions are taken elsewhere that are about devolved matters, it will be able to follow that through. I imagine that there will be times when it will do that. Different bodies will be set up within the UK; the Welsh are in the process of thinking about setting something up and there will be the OEP—office for environmental protection—as well as ESS. When they are set up, I expect that they will have strong working relationships in the same way that the Scottish Environment Protection Agency and the environment protection agency in England do already. That is fairly standard. The body will develop strong working relationships.
We do not want one body sitting over them all. That is what we do not want to see. In terms of relationships, we would want to leave it to the body itself to make that decision about how much and how far it wanted to set up working arrangements with other bodies. My feeling is that it would be in their mutual interests to do that but it would be for the bodies to choose how they would then carry that out.
My question is about the definition of the environment within the bill. NatureScot—previously Scottish Natural Heritage—has highlighted concerns that the bill’s definition of “environment” omits habitats and species and it raises some concerns that ESS will not be able to ensure compliance with
“the Birds and Habitats Directives and associated domestic Regulations.”
Has that been an oversight or is there another method to ensure that the birds and habitats directives are abided by and complied with?
In general terms, we are trying to use language in the bill that is understandable so that people—and ultimately, and potentially more importantly, courts—know straight away what it applies to. We do not want people to look at the definition of the environment in the bill and just read it in isolation. There is a danger that that is what is happening here. However, it is part of a much wider set of definitions, which include environmental law, environmental protection and environmental harm. They are comprehensive when one reads them all together. In my view, it is clear that the work of ESS will include consideration of how successful environmental law is with the protection of our species and habitats.10:30
You will surely agree that it is concerning that SNH raises that concern. Can you give us some comfort that there will be better guidance or information to ensure that it is clear that the bill as it stands will ensure compliance with the birds and habitats directives? We are talking about the concern not just of someone off the street but of an organisation that we would expect to understand what you have explained. Are you comfortable that the bill will ensure compliance and that that message can get out there?
Indeed. By answering the member’s question in the way that I have, I have put on the record that the definition in the bill encompasses the protection of species and habitats. We can provide a fuller explanation to SNH. I am grateful to NatureScot—we should probably stop calling it SNH—for its serious consideration of the provisions. I am happy to provide that comfort on the record and in any other way that I can, because it is absolutely our intention that the bill covers the protection of species and habitats.
I have a question about the bill’s definition of environmental law. It excludes
“disclosure of, or access to, information,”
which is relevant to our commitment to the Aarhus convention. Is that intentional? Is the issue covered elsewhere within the suite of definitions that you mentioned? Why is it excluded under the definition in the bill?
I am not sure which definition is considered relevant here. We were not sure that it was practical to lift the definition from the Environmental Information (Scotland) Regulations 2004 in its entirety and apply it to the purpose in the bill. However, I will ask officials to compare the definitions in those regulations with the set of definitions in the bill and we can come back to the committee with a more detailed view on the matter, if that would make Mr Ruskell content.
Yes, it would.
Angus MacDonald (Falkirk East) (SNP)
I want to follow up on Mark Ruskell’s question. We know that the definition of environmental law in section 39(1) of the bill does not include parts 1 to 3 of the Climate Change (Scotland) Act 2009, which means that climate change targets are excluded from ESS’s remit.
Given that the role of the UK Committee on Climate Change is advisory rather than regulatory, do you not think that climate change should explicitly be part of ESS’s remit and reflected in the definition of environmental law?
Our decision was not entirely or solely based on the UK Committee on Climate Change’s advice. Although that is a relevant consideration, there are other things that we have to consider, including the particular relationship between the Scottish Government and the Parliament in setting and monitoring climate change targets and the nature of strategic emissions target setting across the whole economy.
I am not sure that there is any need for an additional institutional voice in that process, nor do I think that it will be effective or even proportionate for the new body to have to gain expertise in that area of policy. The exclusion would not apply to the regulation of individual measures in environmental law in pursuit of emissions reduction targets. For example, peatland restoration and woodland creation are the kind of things that we would expect ESS to consider. Therefore, there is perhaps not as much of a gap there as people might imagine.
Thank you. Another point that I want to explore is the fact that concerns have been raised that there would be a governance gap, as the Scottish ministers exercising executively devolved powers and UK Government ministers exercising powers in devolved competence would not be covered by the office for environmental protection or ESS. What is your view on that gap? How could it be resolved?
In some of my earlier comments, I began to stray into that area. This committee of all committees knows that the boundaries between reserved and devolved responsibilities can be extremely complex, not least in instances of executive devolution. I have said repeatedly this morning that the bill can provide only for matters that are within the competence of the Parliament. I am clear that it would be inappropriate for the Scottish ministers to be under the oversight of a UK governance body, as that would cut across the lines of devolved competence and our accountability to this Parliament.
It is clear that, where the Scottish ministers consent to actions or regulations by UK ministers in areas that are within the legislative competence of the Scottish Parliament, those matters nevertheless remain within the scope of ESS’s governance role. ESS’s function is to monitor the effectiveness of environmental law that is within the legislative competence of the Scottish Parliament and how it is implemented. It can therefore take steps to secure improvements in the effectiveness of that law, including through an improvement report. There might be a need for some additional measures to clarify responsibilities and ensure that there are no governance gaps once the UK and Scottish Government systems are in place, but I think that we need the frameworks to be in place before we can actually take those measures.
We have already had a lengthy discussion about how likely that is in terms of timescale. The management of all that is going to be complex and will require—to go back to one of the previous questions—an equal and honest discussion among the various governance bodies in the UK.
We go now to questions from Stewart Stevenson.
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
Liz Smith covered some of what I wanted to ask about, but there are one or two aspects that I still want to pursue. There is the whole issue of independence and how ESS compares with other bodies that need to be independent of Government, particularly in relation to the powers that ministers have to change functions and control budgets and, of course, appointments. The power to change functions is perhaps the most fundamental one. Is that a proportionate way to deal with things? How do we ensure that ESS remains independent?
Somebody has to decide what money it gets to run its operations. Ultimately, in truth, there is no way round some of that. What we are trying to do is provide that, when ESS performs its functions, it
“is not subject to the direction or control of any member of the Scottish Government.”
In that regard, I referred previously to the position of the Scottish Fiscal Commission, and I think that Revenue Scotland is in a similar position. The aim is for us to be able to provide that independence in the best way possible. There is a standard provision in the bill about the independence provision being
“subject to any contrary provision in this or any other enactment”,
but that is just a standard provision that goes into a lot of legislation.
We want to ensure that the accounts of the new body are subject to appropriate directions from the Scottish ministers. That is because they have to conform to the “Scottish Public Finance Manual” et cetera. Those are absolutely technicalities, which I am obviously aware of, but I would not want to be intimately involved in them in any way, shape or form. That is all about setting up a body that functions properly and effectively, and has more general accountability.
The powers of the Scottish ministers in that respect are to be subject to parliamentary approval. That is contained in the bill. Changing functions and membership is not just about ministers; it also about Parliament. In that way, independence from the Government will be retained.
All of that is a way of trying to ensure that the body stays independent, in so far as that is possible. We have, in effect, presented a model that provides for a high degree of independence. The body’s constraints are more to do with confirmation by the Parliament and, indeed, the subjection of its strategy to the Parliament.
You have referred to other pieces of legislation that touch on ESS and other bodies that it will interact with. Do you want to draw our attention to any of those in particular, or would you like to write to us to let us know of some of them?
I have referred to one or two. There is a fairly standard provision in the legislation. If the committee wishes to see a more detailed list, we can certainly write to it and set out that detail. The provision does not really confer a power on ministers to direct or control ESS in itself, but it acknowledges that other legislative provision, which will also have been subject to parliamentary oversight, may do so.
Accounts have to be audited, and there are all sorts of other things that require to be done. Parliament would require them to be done. We can certainly set out that longer list, but my understanding is that there is a set of fairly standard provisions, which are included in quite a lot of pieces of legislation for a very good reason. It is mostly about accounts and ensuring that the money is dealt with properly.
I want to explore the issue of appointments to the interim body. Will the Parliament be involved in those? Do you have any concerns that people who are already in place could affect in any way who is on the body when it comes to fruition as a full one?
We intend to seek parliamentary approval for appointments to the shadow body through a motion. I will ask my officials to consider with the committee’s clerks the best options for the involvement of the committee prior to that motion. We will come to the committee on that.
On the shadow body looking as though it will simply roll over into the longer-term body, decisions on individual appointments will be made at the time. There might be people who will not necessarily want to stay on for the longer-term body, but there might be others who do. All sorts of matters will require to be considered. Some people will not necessarily want to put their name forward until they see what the body will look like, what its work will be and so on. I cannot second-guess all that. All I can say is that our intention is that the committee and Parliament will be involved in the process.10:45
That is useful information, for which I thank you on the committee’s behalf.
I want to push you a little further on the final body. My understanding is that there will be an open appointment system. Is that correct? I appreciate what you say about whether people might or might not wish to stand, but there will be a fresh start with open appointments. If people who are already on the interim body wish to apply, they can do so. Is that how the process will work?
That is certainly my understanding. As you will appreciate, following my decision, it might not be me who makes the subsequent decisions, but it is certainly my understanding that we will reopen the process. Those who wish to apply can do so; I anticipate that some—if not all—of those who are on the existing body will want to apply, but I cannot say for sure whether that will be the case.
I am conscious of time—[Inaudible.]—go back to my colleagues. My question is on complying with international obligations, and whether there will be any movement on environmental obligations that come from the European Union. In effect, will ESS have the role of monitoring what goes on with regard to environmental law internationally and in the EU, or will that be for individual bodies such as NatureScot and SEPA? What is your view on that?
The sound cut out at the start of your question, convener. Which cabinet secretary is your question directed at?
It is directed at you, Ms Cunningham. It is about keeping track of international obligations and the direction of travel in the EU. Will ESS be tasked with that, or will it be down to individual bodies such as SEPA and NatureScot?
My colleague Michael Russell will probably want to come in on that. My understanding is that the Government as a whole will monitor developments in EU law. We do not anticipate that ESS will have to do that—it would put a burden on the body, which would find it difficult to monitor developments routinely. Members will know from their own experience that the development of EU law can be a fairly lengthy and time-consuming process.
ESS will be able to consider examples of EU law and look at implementation in member states to inform a judgment on how effective Scottish environmental law is. I anticipate that that is what it will be interested in doing. However, more generally, it is the Government as a whole that will monitor developments in EU law.
I anticipate that NatureScot, SEPA and other bodies would probably be fairly relieved not to have that specific burden placed on them. Apart from anything else, effort would be duplicated across a whole set of institutions, and the burden would be difficult for them to manage. It would, in effect, mean that many different groups would be doing exactly the same thing.
As I said, my colleague Michael Russell might have some comments on how we will approach the issue more generally.
I will make two points. First, we should remember that this is about continuity. It is Government policy that counts here, and the Government’s policy will be to keep pace with EU law in those circumstances in which we believe that it is reasonable, and in Scotland’s interests, to do so. At the beginning, I laid out some possible criteria that the Government might bring to the process. However, I do not expect that those matters will be considered without suggestions from others, if I may put it that way. A range of third sector bodies and others will want to keep pace with a variety of European regulations.
Although the responsibility should and will lie with Government, because this is about continuity of policy and regulation, there will be plenty of scope for input from others, and I am sure that there will be such input, including from the new body.
We will move on to questions from Liz Smith about the role of ESS in individual cases.
I want to go back to the question of the oversight responsibility that the Scottish Government’s body, ESS, will have. Obviously, it will have to engage with other bodies across the UK on specific cases related to reserved environmental policy. Several of the committee’s witnesses have said, rightly, that the environment does not respect geographical boundaries. I am still not entirely clear about the relationship that ESS will have with other bodies in specific cases where there is a reserved issue. Can you say a bit more about that, Ms Cunningham?
We are back to the issue of reserved versus devolved. In my view, if the UK Government enacts something that is properly within the competence of the Scottish Parliament, that will bring it into the scope of ESS. However, ESS cannot follow an issue across the border and have a view about the same activity south of the border, because that would be the responsibility of the UK Government body properly carrying out its reserved function. If that body carries out a function in Scotland that is objectively a devolved function, I believe that ESS will have the duty to include that in its consideration. I do not know whether that is what you are trying to get at.
I am trying to drill down into issues of reserved policy. Obviously, all parts of the UK want to do their best by policy making, and therefore co-operation and engagement are vital. It is the process by which that happens that I am interested in. I am clear about the cases that would be the Scottish Government’s responsibility under devolved policy. I would like to hear how the co-operation would happen.
That is where the joint working will be involved, including through conversations and, sometimes, the common frameworks. I remind Liz Smith that the vast majority of environmental law is devolved, so there should not be many such issues. ESS cannot follow UK ministers, but it can consider how decisions accord with the devolved competence and responsibility of the Scottish Parliament. That has to be considered. The only alternative to that would be the OEP coming to Scotland to look at something that was in the devolved competence of the Scottish Parliament, because the devolved competence had been overwritten by Westminster.
That is why we need the common frameworks, but it is also why we need the different bodies—ESS, the OEP and the Welsh body—to work together. They need to set out their working arrangements and how they will manage what I hope will be only occasional instances when there might be a slightly tricky interplay—let us put it that way.
The vast majority of ESS’s work will be about devolved competence, as directed by Government, Parliament and all the rest of it, and looking at whether things are happening the way that they should be.
I think that the cabinet secretary is right to say that; obviously, the vast majority—
I will bring in Michael Russell, because he wanted to come in on the back of what Roseanna Cunningham said.
I did not want to interrupt Liz Smith; I wanted to add a point about the template for making decisions and resolving difficulties. The intergovernmental review is at the heart of this. If there was a working dispute resolution procedure within the IGR, at the very least one would expect other bodies to take a lesson from that and to be able to operate it. There is no such dispute resolution procedure in place, and I am not holding my breath for there to be one very soon.
I want the intergovernmental review to come to a conclusion and to provide a means by which people can operate. We thought that the successful template for that might be in the frameworks because, until now, for almost the past three years, the frameworks, which have been voluntarily negotiated, have had within them a variety of dispute resolution procedures. If the frameworks are to be assassinated, essentially, by the UK Government as a result of the internal market bill, that rather puts us back to square 1.
Liz, do you have a follow-up question?
I do not accept that last point, as you would expect. However, both cabinet secretaries are absolutely right that the vast majority of the policy making that we are talking about is in a devolved area. That is very clear. That said, there are important issues on the environment that are reserved. Because they are so important, I am anxious that we have clarity on how policy making would engage with the new set-ups. That is what I was asking for, and I think that it is what a lot of the witnesses were asking for, too.
I would be interested to hear Ms Cunningham’s view on whether, if an ordinary court is to be the mechanism for appeals against a compliance notice, a sheriff court is the appropriate level, or whether she thinks that a specialist forum such as the Scottish Land Court, which would have more knowledge and expertise, should be used.
I am slightly taken aback by that question. That is not within the confines of what we are proposing; we are not proposing to interfere with the current process at that level. That would be a different matter, and we would have to be very careful about doing that.
Given that the continuity bill is about fixing a problem that we face imminently—that of Brexit—that level of decision about what court might be involved need not be a big concern here. We are replicating what we currently do. Decisions about what might or might not happen in the future will be for further down the line.
That is a fair comment.
Michael Russell mentioned the internal market bill and its potential effect on the common frameworks. The issue of the progress of the common frameworks has come up a great deal in our work in the past four years. Bodies want the common frameworks to be sorted out; they want the difficulties to be ironed out.
You talked about the common frameworks being “assassinated” and I think that, earlier, you talked about them being “killed”. What effect could that have on the Brexit process?
Who knows? Who knows what the Brexit process is or where it will end up? At present, as far as we know, it is heading nowhere—it is heading for an exit with no deal or with the worst of low deals because, in the end, that is all that the UK Government is asking for.11:00
As far as the relationships between the various parts of these islands are concerned, one could say only that they have gone from bad to worse. The internal market white paper is a totally unnecessary intervention. The situation is byzantine in its complexity, but we should remember that the frameworks arose out of the first withdrawal bill—the European Union (Withdrawal) Bill. They were agreed as a means by which to manage the shared competences—that mythical list of powers that are coming back to the Scottish Parliament. It was about how to manage those areas of shared competence in the absence of one part of that shared competence.
The frameworks were a way to resolve that. We went from identifying 150-something areas—of course, they were identified by the UK, and that was not entirely agreed—to a much smaller list of areas that required something to be done, which ranged from full legislation, in the context of aspects of agriculture and fisheries, right down to a general ability to work together without having even a formal memorandum of understanding.
The question then was about how to formalise that, and painstaking work was done. Eventually, two years ago, we agreed a set of principles on which the frameworks would be based, which included full respect for devolution and the devolved settlement. Our officials have been working painstakingly to build the arrangements, working with outside bodies and consulting as required. They will form a new network of voluntary arrangements—their being voluntary is well known to the UK Government, because Michael Gove, in his present position, signs off, every three months, the work that has been done in a report that says, “This has been done without enforcement.” Enforcement is possible under the withdrawal bill, but we have said that, if anything is enforced, we will not take part.
That is something of a success. We have made a commitment to the common frameworks. We have said that they will operate and they are designed to do exactly what the UK Government says its objective is, in the internal market paper. We knew that stuff was going on in the background, but then suddenly that paper appeared—we did not see it until hours before it was published. It is a product of people who do not want to come to a voluntary agreement, and now we have to say, “No, I’m sorry—we have the frameworks working and we have made guarantees about them, and that is the way forward.” Wales is saying that, too.
It would really be for the best if the UK Government decided that it has made a bit of a gaffe with its internal market paper and promised not to talk about it too much. What it really needs to do now is to agree the frameworks with us, to get them working.
I thank both cabinet secretaries—one of whom is remaining with us for the next item. This has been a lengthy session, so we will have a brief break. I thank Michael Russell for his time.11:02 Meeting suspended.
11:06 On resuming—
1 September 2020
11 August 2020
18 August 2020
25 August 2020
1 September 2020
What is secondary legislation?
Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:
- bring a section or sections of a law that’s already been passed, into force
- give details of how a law will be applied
- make changes to the law without a new Act having to be passed
An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).
Finance and Constitution Committee
- the costs of the Bill
- whether there has been enough information provided about the costs
The committee held an evidence session on 19 August 2020:
The committee held an evidence session on 9 September 2020: