Local Government and Communities Committee

Meeting date: Wednesday, December 16, 2020

Official Report 578KB pdf

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Hazardous Substances Planning (Common Framework)

The next agenda item is evidence on a common framework for hazardous substances planning. The committee has the opportunity to question the minister on the outline framework in advance of writing to him with our observations about that framework early in the new year.

I welcome back the Minister for Local Government, Housing and Planning. I also welcome Euan Page, who is the head of the UK frameworks unit in the Scottish Government constitution and UK relations division, and Neil Langhorn, who is head of development delivery in the Scottish Government planning and architecture division.

We have allocated up to 40 minutes for the session. There is a pre-arranged question order, so I will call members in turn to see whether they have any questions. Members who have questions should aim to complete them within six minutes, although there might be some latitude.

I invite the minister to make a short opening statement.

I thank the committee for inviting me to assist in its deliberations on the provisional common framework for hazardous substances planning. The framework is one of a number of provisional common frameworks that will come before Parliament, and is part of a programme that my colleague the Cabinet Secretary for Constitution, Europe and External Affairs has co-ordinated for our interest.

I am supported today by officials from the Scottish Government planning and architecture division, and the constitution and UK relations division. They have been involved in production of the framework and have worked with their counterparts in London, Cardiff and Belfast. This has been a collaborative effort that has demonstrated genuine co-operation and engagement between the UK Administrations. It has included a successful stakeholder engagement session and scrutiny of the draft framework by the review and assessment panel.

On those occasions, only minor issues were raised and considered. It was felt overall that the provisional framework raises no contentious issues, and that it can be operated without restriction of devolved powers. All the Administrations also agreed that there is little scope for a market impact in this policy area.

The outline framework was published in July 2019 as an example of how common frameworks are being developed. The framework continued to make progress through the project board. The joint ministerial committee on European Union negotiations approved the framework in September, which makes it one of the first frameworks to have come before a Scottish Parliament committee.

The framework follows agreed protocols for framework development, including agreed UK processes for making policy recommendations to ministers, as well as governance and dispute resolution arrangements.

The framework has been developed in accordance with the principles of the JMC(EN), which were agreed by all Administrations in 2017. Those include the principles that United Kingdom frameworks should ensure the functioning of the UK internal market as well as acknowledging policy divergence, and that they should respect the devolution settlements and the democratic accountability of the devolved legislatures. On that basis, we consider that the framework delivers against the principles that were agreed in 2017.

I will be happy to answer the committee’s questions, although I might have to defer to my officials on the more technical aspects.

The common framework is a very technical matter. I am sure that it must have taken a bit of work to get the four Administrations to agree on it. How did they go about that?

As you will be aware, in many areas of government officials from across the four Administrations have been considering proposals for such frameworks. Most have involved legacy arrangements that are connected with the UK’s leaving the EU. I have not been directly involved in all the discussions, but I am sure that Neil Langhorn or Euan Page can provide detail on how they have gone about the process with their counterparts in the other Administrations. Perhaps we could hear from Mr Langhorn first.

The process has been collaborative. It is probably fair to say that this has been one of the simpler frameworks. It is not an area in which there is divergence among the Administrations, so it was relatively simple to reach agreement on it. There have been only minor changes made to its wording, along the way.

There has been a series of engagements, and the framework has gone through a number of stages including, in March 2019, a technical round-table meeting with stakeholders to check that they were all content and, in August 2019 and January 2020, review and assessment panels involving officials from the four Administrations. We have been feeding into the framework process through the planning area of the Government.

Euan Page might say a bit more about the frameworks process more generally.

As the minister and Neil Langhorn have said, it has been a collaborative process, the substance of which, for us, has been planning. There have not been significant issues such as how new arrangements might manage significant divergence among the Administrations.

The frameworks process was instigated in autumn 2017, when the JMC(EN) reached agreement on a set of principles to which the minister has alluded. We have seen a gradual reduction in the number of overall framework policy areas that are under consideration, which now total around 30. The process has been marked by a commitment to proceed by agreement and not by imposition by one Administration. The Scottish Government points to that as a productive way forward and a model for future co-operation on the practical and constitutional implications of EU exit.

Why have the Administrations gone down the route of having a concordat as opposed to legislation? I will put that first to Mr Page—if I may, minister—because he is still on screen.

That is fine.

Early in the process, an assessment was made of whether there was a need for a statutory underpinning in any particular common framework area. In this case, it was recognised that, beyond the necessary fixes to current legislative arrangements to ensure continuity and a functioning statute book, there was no need for a new legislative underpinning to the hazardous substances framework. My colleague Neil Langhorn might wish to say more on the policy detail and the rationale.

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As Euan Page said, there was early consideration of whether a legislative underpinning was necessary for each of the frameworks. For the hazardous substances framework, it was decided that that was unnecessary because it is, essentially, a continuation of the current arrangements. It was therefore considered not to be necessary to have a legislative framework, because what was required would be possible through a common framework.

That is great. Thank you. Minister—do you have a point to make on that?

No. I think that most of it has been covered. According to the JMC principles, legislative provision should be considered only when absolutely necessary. We are clear about the devolved responsibilities and powers, which is why the way that the work has been done has created an appropriate forum for matters to be addressed. Also, we have to acknowledge the fact that the powers lie here.

I will pick up on monitoring. The outline framework states that

“relaxed hazardous substances standards would not bring a significant enough benefit to operators to influence which administration they set up business in”.

I would like to hear a bit of the background to that conclusion and the evidence behind it. Once the framework is in place, what monitoring is intended of what happens on the ground in planning applications?

On monitoring, it has been agreed that there will be meetings of officials every six months after the framework is passed so that we can keep in touch on how things are working. We receive details of planning applications and statistics on how many cases there are. A formal review process is scheduled for two years after the framework comes into force, to see whether changes are necessary at that point.

Throughout the stakeholder engagement on whether there was scope for divergence, no concerns were expressed by Administrations or stakeholders—from the industry and local authority sides—to the effect that there was appetite for change and, therefore, scope for divergence. That has been the only conclusion, as it has been confirmed throughout engagement that that is the situation.

As Neil Langhorn has just pointed out, stakeholder engagement confirmed that there was no appetite to change the current process and to amend limits. It is important that I point out to the committee that the UK will still be party to relevant international agreements in the sphere, such as the United Nations Economic Commission for Europe’s Convention on the Transboundary Effects of Industrial Accidents, and its Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, as part of the Aarhus convention.

That cements many of the requirements of the current regime that operates in international law. Any stripping back of the hazardous substances regime would result in a breach of those international obligations. That limits what the UK, as a party to the conventions, could do, but it also constrains the devolved Administrations, of course. It is right that we have signed up to all those treaties, and that we have stringent regulations in place. We must and will, by means of the framework, ensure that we continue to meet those international obligations.

I have a follow-up question. Clearly, it is for the civil service policy lead to make sure that the framework is monitored and implemented, but will there be reporting to Parliament about what is happening with the legislation and whether there are any key issues that members need to be aware of or concerned about? Is a system in place to deliver that?

I am, as always, more than happy to keep the committee informed of any developments, proposed changes, or anything else about the framework that arises from, for example, meetings at official and ministerial level. It is absolutely imperative that we get all that right—not only for the framework, but for other things, too—and that we live up to our international obligations.

Thank you. That is helpful. I am thinking about our constituents’ safety and of the transparency of environmental standards, which are really important.

Is the informal dispute resolution process sufficiently robust to deal with fundamental disagreements between Administrations on hazardous waste?

Euan Page has been working at the coalface on the frameworks, so it would be useful for him to come in on dispute resolution.

As was alluded to earlier, the foundational approach in respect of common frameworks is to manage divergence by dialogue and agreement between Administrations and not by imposition by one Administration. As the minister and Neil Langhorn have said, assessment is fairly robust that the practical scope for policy divergence in this area is limited, so arrangements will rest on the existing commonality of approach across the UK.

As the minister said, we will continue, even after EU rules fall away, to operate in a shared framework and set of constraints that have been provided by obligations under international law. Observation of and implementation of international obligations are devolved responsibilities. In those circumstances, when it comes to the policy matter that is under consideration and the general approach that has been taken to common frameworks, we are satisfied that the dispute resolution process will be sufficient.

However, there is a wider question about how frameworks will operate in a reconfigured system of intergovernmental relations, and questions need to be answered about potential escalation routes if a dispute in a common framework area cannot satisfactorily be resolved.

I add that the working group to discuss issues and share learning on that issue has been in place for several years and will continue, as a requirement of the framework agreement. That process has worked well, and I hope that it will continue.

However, as I have already said to Ms Boyack, if anything should change in that regard, I will be more than happy to let the committee know about it. We must recognise, though, that the matter is a devolved competence and that we have international treaty obligations to live up to and adhere to.

Does Alexander Stewart wish to add anything?

I am content with those responses, convener.

As the minister has said, we have international obligations. As Mr Page has said, implementing international agreements is a devolved competence. However, compliance with and accountability for meeting international obligations are, of course, responsibilities of the UK Government. Breaches that might have been identified in the past would have been unlikely to be significant because we were living within the framework of EU law. However, we now do not have that legal framework.

How would the process of negotiating and ratifying amendments to such treaties be handled, given that the UK Government would lead on that and the UK Parliament would be responsible for ratifying them? Is a procedure for consultation of the devolved Administrations in that scenario built in to the framework, or is one being contemplated?

I will ask Mr Page to come in first, then I will do so—if that is okay, convener.

Certainly.

Mr Wightman has raised an important point. The frameworks process was instigated with recognition of the need to address a range of cross-cutting issues that would bear on the development, implementation and operation of common frameworks—for example, the UK’s future trading relationships, its future economic and regulatory relationship with the European Union and how the UK, as a state party to agreements that have been made under international law, would fulfil its obligations under those and demonstrate its compliance.

The matter of how, precisely, the cross-cutting issue of international obligations is reflected in common frameworks across the piece is still to be finalised in the common frameworks process. However, there is strong recognition that there needs to be clarity that, although international relations is a reserved matter, the UK will be the state party to existing and future international obligations in this framework area and others. The devolved responsibilities on implementation and observance of international obligations, and the impact that such obligations have on devolved policy considerations, must be fully taken into account.

I will add to that. Mr Wightman is correct that the UK is taking the lead on international agreements, but the agreements regarding how we deal with hazardous substances planning that I mentioned earlier are already embedded. That will continue—certainly under the current Government—and it is a devolved matter.

It is true that concerns have been expressed in various quarters about changes that might occur after the transition period for the UK leaving the European Union, and about what has been called the race to the bottom. On this particular matter, I assure the committee that we have strong legislation that is underpinned by the international agreements. That will continue.

Does Andy Wightman wish to add anything?

That was my only question. Thanks, convener.

That completes our evidence session. I thank the minister and his officials for being with us today. I remind our witnesses to leave the meeting by pressing the red telephone icon in the video call facility, and I remind committee members that we remain in public session for the next item of business.