The matter before us today is a legislative consent motion on the United Kingdom Environment Bill. Members cannot be expected to have followed every detail of the bill, so I will give a very brief summary of the position so far.
The bill was introduced in the UK House of Commons in January. In part, it is the UK Government’s response to the loss of the European Union’s institutional arrangements for environmental policy. We have our own separate approach to those issues, as I set out two weeks ago in the stage 1 debate on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. I think that many aspects of the UK Government’s approach to those matters are misguided. Its approach in the bill to non-regression is a poorly conceived measure that is also weak in execution, in contrast with our proposals on future alignment in the continuity bill. However, those provisions concern only reserved matters, so they do not require legislative consent.
The UK Environment Bill also includes provisions across a range of environmental regimes. Some of those provisions do not extend to Scotland. In other areas, we have worked with the UK Government to provide powers so that UK regulations may extend to Scotland in devolved competence, subject to the consent of the Scottish ministers. I should make it clear that provision for consent was not something that the UK Government was always keen to give up, but I was determined to secure it in every case.
The consent that is given by the Scottish ministers will be subject to the scrutiny of the Scottish Parliament via a protocol about which I will say a bit more later. The provisions cover aspects of environmental regulation for water, air quality, chemicals and waste, and resources. It is those provisions that require legislative consent.
We are not giving up any devolved competence or powers through this legislative consent motion—that would be unacceptable. Any UK regulation that is made under the bill and extends to Scotland in devolved competence must receive the consent of the Scottish ministers and will be scrutinised by the Scottish Parliament. This legislative consent motion is only about agreeing to a framework for future decisions on regulations; no power is being given away, and the Scottish Parliament’s legislative competence will be the same after the bill is passed.
The Environment Bill had reached committee stage in the UK Parliament in March, at which time progress was suspended because of the Covid-19 crisis. In recent weeks, the committee stage has recommenced, and the bill is expected to complete its progress through the House of Commons this year. The Scottish Government lodged a legislative consent memorandum on the bill in May. The Scottish Parliament’s Environment, Climate Change and Land Reform Committee reported on that LCM in June, stating that it was
“unable to make a recommendation” on whether legislative consent should be granted.
I responded to the ECCLR Committee’s report in September. After consideration, members of that committee asked for a debate and they will speak today.
I understand that there is a hesitancy about putting our environmental standards into UK regulations. It has become clear that our attitude to future standards is far apart from that of the UK Government. However, I reassure members that my priority remains maintaining or enhancing our environmental standards. I have made it clear that we should align with future developments in EU standards wherever possible.
I am proud of our environmental record in Scotland and of our commitment to respond to the twin global crises of climate change and biodiversity. Our natural world supports our wellbeing and our reputation as a nation. Natural resources contribute to our society and economy in countless ways, and we must protect those precious assets.
As I set out in my response to the ECCLR Committee’s report, I believe that there can be good practical and pragmatic reasons for seeking to advance our environmental standards through UK regulations. In particular, there can be significant reductions in regulatory burdens through the use of such regulations. In addition, they can be an effective way of dealing with cross-border issues and with complex interactions of devolved and reserved powers. However, I am not advocating handing over control of our standards to the UK Government. Crucially, all the regulation-making powers being given to UK ministers that cover Scotland in devolved competence are subject to consent by the Scottish ministers.
I also appreciate that there are legitimate concerns that the process could be seen to threaten the Scottish Parliament’s legitimate role in determining environmental law and standards in Scotland. Members will be aware that the new protocol governing the Parliament’s scrutiny of the Scottish ministers’ decisions to consent to UK statutory instruments affecting devolved matters is nearing final agreement. That will ensure that the Parliament is able to scrutinise ministers’ decisions to consent to regulations such as those made under the bill. The protocol sets out proportionate measures so that the Parliament can focus on key instruments. In particular, the protocol sets out provision for early engagement with the Parliament where a significant policy development might lead to the use of UK regulation-making powers. I reassure members that any proposals for significant new or reformed regulatory regimes under the bill would be subject to wide consultation, including discussion with the successor to the current committee.
The Environment Bill will allow UK regulations to be made in devolved matters with the consent of the Scottish ministers, and with scrutiny by the Scottish Parliament in four areas where that is more effective or efficient than specific Scottish regulations. That will not impinge on devolved competence, and the new protocol will ensure appropriate scrutiny by the Scottish Parliament.
That the Parliament agrees that the relevant provisions of the Environment Bill, introduced in the House of Commons on 30 January 2020, relating to producer responsibility and associated charging schemes, resource efficiency, electronic waste tracking, review of the UK air quality strategy, water quality priority substances, arrangements for Solway Tweed River Basin District and Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.
As members will remember, the Environment, Climate Change and Land Reform Committee’s report on the LCM stopped short of making any recommendation. Members will also recall that, in June, I gave a statement on behalf of the committee in which I set out its reasons for that.
The committee recognised that legislation was required to enable ministers to make regulatory provision in those policy areas that were previously within EU competence. However, it felt that it was not clear why that had to be done through UK rather than Scottish legislation. We argued that
“provision via Scottish primary legislation would enable full Scottish parliamentary scrutiny and accountability of the legislative proposals and, thus, respect the devolution settlement”.
However, in a detailed response to us, the cabinet secretary set out the circumstances under which the Scottish ministers would consent to UK ministers exercising powers in those policy areas. Ministers have pointed to the reduction of regulatory burdens where there are shared objectives, where there is a complex mix of devolved and reserved issues and where there are cross-border issues.
The committee recognised that, where the Scottish ministers’ consent is sought, the protocol that was agreed between the Scottish Parliament and the Scottish Government would apply.? The protocol provides that Parliament is notified and is given 28 days to consider the Scottish ministers’ decision to consent to UK ministers exercising those powers.?
At the time of publishing our report, the committee felt strongly that there were limited opportunities for Scottish Parliament scrutiny of UK legislation and its implementation.?In particular, we repeated the concerns that we had raised previously about the limitations of the 28-day period and the fact that the Scottish Parliament is not given sight of the draft SIs in order to inform its scrutiny.
Again, we received a welcome response from the Scottish Government, which agreed with us that Parliament should have opportunities for scrutiny and that we should have a “significant role” in scrutinising the—limited, we hope—occasions on which UK ministers make legislative provision in Scotland.?
As a consequence, the Government revised the draft protocol so that Parliament will be consulted during the development of regulatory schemes that are delivered under powers provided in the bill. The committee has agreed to feed into the proposed six-month review of the protocol. We think that that is the right approach, and we are content that we have been heard on this most fundamental of issues.
The committee also recommended
“that measures need to be put in place—as a matter of priority—to ensure the devolution settlement keeps pace with the constitutional reality of a post-EU UK.”?
In relation to common frameworks, the committee highlighted the point—which it also made in relation to the UK Agriculture Bill and Fisheries Bill—that it is “a fundamental requirement” that the Parliament considers the legislative proposals relating to frameworks at the same time as the draft framework.?We have not been given a satisfactory update on the development of common frameworks since 26 June 2019, and we continue to ask the UK environment minister to accept our invitation to provide an update on their development.? The Scottish Government could provide no further information on those frameworks, but it has said that it continues to liaise with the UK Government in trying to ensure that they work for all four nations.
However, I must stress that it is exactly seven weeks until the end of the transition period, and the committee has still not been given the detail on any of the frameworks. The sectors that are affected need clarity now. Indeed, it is difficult to scrutinise many of the statutory instruments before us when we have no detail on the common frameworks that underpin them.
With regard to this bill and its policy provisions, the committee felt unable to make detailed comments as there was no policy to scrutinise. For example, we are very concerned at the lack of information on the replacement for the EU’s registration, evaluation, authorisation and restriction of chemicals—REACH—mechanism, UK REACH. Many questions remain about its operation and a lack of alignment between the UK and EU REACH systems. We believe the lack of withdrawal terms between the EU and the UK Government are at the root of that. Again, I stress that we are seven weeks away from the end of the transition period.
We thank the cabinet secretary for providing us with the detail that we require in this case, but we hope that the provision of the detail on common frameworks is a priority for both Governments as we reach the end of the transition period.
As the cabinet secretary rightly said, and the convener has just repeated, this LCM results from the UK’s withdrawal from the EU and seeks to put in place the replacement legislation that is required for those frameworks that were previously provided by EU law and the repeal of the European Communities Act 1972.
The UK Environment Bill is an enabling bill that provides both UK and Scottish ministers with powers—reserved and devolved respectively—to bring forward secondary legislation, so it is clear that there are implications for the devolved Administrations.
As has been mentioned, the Scottish Government and the committee were generally content with the principles of the bill and with the fact that primary legislation is required. However, there were issues about why that primary legislation has to be made at Westminster rather than Holyrood, even if the Scottish Government takes the view that there is no undermining of the devolution settlement, as the cabinet secretary reiterated.
However, there were questions about the scrutiny process, which is a topical issue in other aspects of the Parliament’s business. Whether or not we voted for Brexit, the process has shone an important light on the political process and on the issues of when primary and secondary legislation should be used and when the affirmative and negative procedures should apply to instruments. That point was raised by key witnesses at the Finance and Constitution Committee during stage 1 evidence on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.
Although those issues are for constitutional lawyers as much as for anybody else, they matter, and we have a collective responsibility to ensure that the procedures that are used in the Parliament are applied appropriately. Against that backdrop, the ECCLR Committee members concluded that they were not confident that there was a sufficient level of detail about the circumstances in which the Scottish ministers would consent to legislative powers of the Scottish Parliament being exercised by the UK Government.
That concern was heightened by the fact that regulations that are made under the bill will be used to implement policy change, and there was a question about whether Holyrood will have sufficient autonomy when it comes to policy direction. Obviously, that is important. The committee rightly made the point that an answer to that question is dependent on our having full information on any governance arrangements, especially those relating to the common frameworks. There was unanimous agreement that there is a need for full clarity so that it is explicit where powers in devolved competence are to be delegated to UK ministers.
That then led to debate, including in the Delegated Powers and Law Reform Committee, about whether joint procedures might be welcome, but the Scottish Government clarified its position and acknowledged that it is important not to place additional regulatory burdens on bodies, as that would double up time or lead to the handling of complex cross-border issues, such as health and safety issues relating to the use of chemicals, in the way that the cabinet secretary described.
The LCM is necessary, but the debate surrounding it exemplifies the difficulties and complexities of the Brexit process, on which all UK legislators are having to spend so much of their scrutiny time.
We will support the LCM at decision time.
The scourge of Brexit creates a distraction from working on Covid-related matters, net zero and other issues about the future of Scotland. It is very time consuming and a real frustration in committee work. However, we have an obligation to ensure that the arrangements are the best that they can be for the future of our environment and that we have as seamless a transition as possible. Scottish Labour is clear that future regulation should be as closely aligned to that of the EU as possible, for the sake of our environment, workers and businesses, and for good trade.
As the ECCLR Committee convener outlined, the committee decided not to make a recommendation in relation to the UK Environment Bill LCM. That was a clear expression of our concern, which was principally about the possible impact on and threats and risks to the devolved settlement. There was a significant amount of correspondence between the committee, of which I am a member, and the Scottish Government on the LCM and the risks that it poses. I was reassured by the Scottish Government’s robust response to our report. As the cabinet secretary has stressed today and in the response to our report, no power is being given away. Nothing can be done without the Scottish ministers’ consent.
I welcome the protocol and the revisions to it, and the cabinet secretary’s remarks on that today. In that context, the committee intends to feed into the proposed six-month review of the revised protocol in relation to the Scottish Parliament’s consideration of the Scottish Government’s consent to UK statutory instruments in devolved competence. We will pursue that, or it will be pursued by the environment committee in the next session of Parliament.
The committee agreed to ask the Scottish Government for an update on all relevant common frameworks. The cabinet secretary has made clear the concerns of the committee and the Government to the UK Government, so it is disappointing that we have not heard back from the secretary of state on that.
I thank stakeholders who responded to the committee’s call for evidence on the LCM. In its submission, Scottish Environment LINK refers to the office for environmental protection arrangements and asks how the proposed arrangements for our environmental watchdog will fit with those. It says:
“We urge the Scottish Government to bring these forward as soon as possible as a priority.”
It is very reassuring that the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, which will give us the new watchdog body environmental standards Scotland, is moving forward at pace.
The committee has been scrutinising and commenting on the on-going development of the REACH chemical regulation. In its response to the committee on the LCM, the Chemical Industries Association states:
“On the basis of current plans, without a mechanism, or even a commitment, to align with EU restrictions and authorisations, the UK regime will inevitably diverge from the EU. This could result in the UK becoming the new ‘dirty man of Europe’ and a dumping ground for hazardous chemicals banned or restricted in the EU.”
The UK Government should take note of those remarks. The committee further explored the issue earlier this week. Surely there must be alignment with the EU on such a serious arrangement.
The committee is also reassured by the Scottish Environment Protection Agency’s response to our call for evidence, which showed a high degree of communication with the Department for Environment, Food and Rural Affairs on the development of future arrangements on water, air quality and other devolved responsibilities, and on the line of delineation between SEPA and the office for environmental protection.
Now that I have highlighted those points and identified, along with the convener, some of the concerns that the ECCLR Committee has set out, I can say that Scottish Labour will reluctantly support the UK Environment Bill LCM today. We will scrutinise—as will the committee, I am sure—the progress that is made to ensure that it is suitable in protecting our devolution settlement and enabling Scottish Government ministers to act appropriately in the devolved settlement.
It should be clear to all of us that leaving Europe means that the role of citizens in influencing laws in the European Parliament has now gone. Given that 80 per cent of our environmental laws were born out of the EU’s democratic processes, what replaces that is of critical concern. The balance of power between Parliament and Government is a critical issue, and the proposals in the Environment Bill put the control of many areas firmly in the hands of the UK and Scottish Governments, with only a cursory nod to the critical role of Parliament.
There have been sheaves of secondary legislation under the European Union (Withdrawal) Act 2018, which have made minor and technical amendments to laws, but that looks set to become the new normal for secondary legislation. Major policy changes could be pushed through under the Environment Bill, with no Sewel convention forcing a full and robust democratic process.
Even though the Scottish Government has reflected on the committee’s concerns and proposed a new protocol with Parliament, ironically the Government has brought the LCM to the chamber ahead of any scrutiny of that protocol by the Parliament. That is not a great position to be in when asking for our consent. The provision of a cursory 28 days to consider a decision that has, in effect, already been made by the two Governments does not empower the Parliament or the people who elected it. The inability to even provide a copy of the proposed legislation in advance makes a mockery of our role as legislators.
A meaningful joint procedure between the Governments that involves their Parliaments is surely the only way of genuinely respecting the constitutional settlement that we have on these islands. The current routes for doing that, such as the Privy Council, are undoubtedly arcane, but they have already been used to agree the new UK emissions trading scheme, and they could evolve further.
The current Brexit mess was not of the Scottish Government’s making, and it wrote to the committee to say that the revised protocol
“cannot by itself provide an answer to the committee’s concerns about an appropriate influence of Parliament.”
However, the proposed set of powers for the two Governments sets a dangerous precedent for how elected Parliaments could be sidelined in the decision-making process, by virtue of having to rely merely on the good will of the Government of the day to allow any scrutiny whatever.
With the twin crises of Covid and Brexit, Governments often need to move fast and answer questions later, but the new normal must involve having more democratic engagement, not less, and at a time when we have lost our European Parliament, we need to be strengthening, not weakening, scrutiny. That is why the Greens will vote against the LCM at decision time.
Scottish Liberal Democrats are committed to doing everything possible to minimise the damaging legacy of Brexit, not least in the area of environmental policy. In the midst of a climate emergency, there can be no let-up in our protection of the environment. In that respect, the UK Environment Bill, alongside the current continuity bill, underscores the needless damage, disruption and uncertainty that are being caused by our imminent departure from the EU. Rather than the UK turning inwards, the climate crisis should see it leading from the front and spearheading international collaboration.
That said, Liberal Democrats have cautiously welcomed the bill, although I certainly echo the concerns about scrutiny that colleagues have raised in the debate. The cabinet secretary offered some reassurances in that regard, but it would be hard to overstate the importance of proper consultation and oversight—by Parliament and not simply by the Government—in such an important area of policy for Scotland.
The Environment Bill will of course need amended to give it the teeth that are necessary for robust environmental protection, yet, for all the cabinet secretary’s criticism, it is in some respects more robust than the Scottish Government’s continuity bill. For example, as I said in the recent stage 1 debate, the duty to follow principles of environmental protection is much stronger in the UK bill. It is important that Scotland is not left behind in that and other areas, because we are in a climate emergency. The climate does not care about the constitution, and difficult choices must not simply be pushed down the line. We need robust legislation to be made both here and at Westminster.
On that basis, although further amendments are needed to the UK bill, Scottish Liberal Democrats will consent to the LCM at decision time this afternoon.
Thank you, Presiding Officer.
I appreciate that this debate is not exactly a show-stopper, but it deals with fundamental issues that do not just apply in this area, but will apply across the board from here on in.
The convener of the Environment, Climate Change and Land Reform Committee referenced my detailed letter in response to the committee’s questions, and if anybody has particular interests in particular areas, that is probably the best place to go to see my responses.
The issue of common frameworks was a theme in the speeches by a number of speakers. I appreciate the frustration about the development of those—indeed, I share it. A lot of this has become caught up in the final stages of Brexit negotiations. Frameworks get pulled in willy-nilly and they become peripheral to a Brexit negotiation. It is not really about them per se, but they become part of it. If members need an example, the issue around the emissions trading scheme is a prime example of how that can happen. I have every sympathy with the frustration about that and the fact that we are not further forward with some of the frameworks.
Specific mention has been made of the chemicals framework—UK REACH. There is a lot of detailed work to put that regime in place. Regulations have been notified to the committee for consideration, and the Parliament recently consented to the fourth statutory instrument to establish a UK-wide system for the registration, evaluation, authorisation and restriction of chemicals. We are making progress, but we are making it terribly slowly and not in the way that we might have wished.
A number of members, again understandably, raised issues about the scrutiny process. I think that the entire parliamentary process has been under huge stress in trying to deal with this, both in the past year and earlier. That was the case, first, with our trying to deal with a couple of no-deal dates that did not come off, and then throughout the current process.
It is important that people understand that the new protocol that we are talking about has been developed between ministers and the Parliament and it will soon reach final agreement. The protocol is not specific to the bill that we are discussing; it will apply across the board. It sets out proportionate arrangements and timescales for different circumstances, and it repeats the commitment to engage with Parliament during the development of significant policies that will be delivered through UK regulations by consent.
Claudia Beamish’s remarks about the scourge of Brexit were very much on point. That is really what is underlying a lot of this. Mark Ruskell made some broader points, many of which I can agree with, but unfortunately they are not specific to this particular debate. It is important that we understand that this is a very particular, detailed, complicated, technical issue that we have to move on, in order for us to be able to achieve some of the things that we wish to achieve. I am grateful to those members who have indicated that they will agree to the motion and I hope that it goes through appropriately.