There are quite a lot of amendments in the group. I will speak first to amendments 1006 to 1009, in the name of Liam McArthur. They are intended to change the form of the duty on the Scottish ministers, ministers of the Crown and responsible authorities required to carry out a strategic environmental assessment in all cases. They seek to amend the form of the duty to “act in accordance with” the guiding principles.
Under sections 10(1) and 10(2) of the bill, there are duties on ministers to
“have regard to the guiding principles on the environment”,
which should apply
“in developing policies (including proposals for legislation)”
in relation to Scotland.
Under section 11, there is a duty on responsible authorities to
“have regard to the guiding principles”
when they are considering anything that would require an SEA. It remains my clear view that a duty to “have regard to” is effective and proportionate and will work well with the other duties and functions of ministers and public bodies.
I am aware that there has been debate about the framing of the duties in respect of the guiding principles on the environment, stretching back to the publication of the consultation paper last year. The duties to “have regard to” the guiding principles reflect the effect of the environmental principles in EU law. The guiding principles on the environment are important guides to decision making, but we need to ensure that the duties in respect of the principles—those duties on ministers and on public authorities—are proportionate and effective and work well with the wider range of statutory duties and other relevant factors that ministers and public authorities may have to consider in any decision-making process.
It is therefore important that, while the environmental principles are taken into account in decision making, those duties should not be framed in a manner that would result in their dominating all other duties and objectives. We believe that a duty to “have regard to” strikes the appropriate balance.
Liam McArthur’s amendments, which aim to change the form of the duties to “act in accordance with” the principles, would constrain the ability to take into account other legitimate considerations when developing policy. Indeed, it is possible that, if the environmental principles duty was specified in such terms, it could lead to perverse effects or hold up decision making. The wording in the amendment is a very strong form of duty that is generally seen in areas such as company law, where directors must “act in accordance with” very specific rules and provisions, and in other areas where there are clear, detailed rules that must be followed.
The guiding principles on the environment—as is the case with the EU environmental principles—are guides to decision making of a subjective nature, and they require interpretation and application to individual situations. They are not rules or procedure that can be precisely followed. Liam McArthur’s amendment would have a particular impact on local authorities, which have a wide range of duties and objectives to balance and produce a lot of SEAs for strategic planning functions in particular.
We have discussed the form of duty in the bill with the Convention of Scottish Local Authorities, which also responded formally to the 2019 consultation. There is broad agreement that the proposals in the bill are proportionate and would ensure an appropriate place for the guiding principles at the level of a project or plan that is subject to environmental assessment.
The ultimate impact of a duty to act in accordance with the guiding principles would not be known until tested in court. However, it is possible to foresee some potential impacts of such a duty. A duty to act in accordance with the precautionary principle could lead to disproportionate expenditure to protect against very low probability events. A duty to act in accordance with the polluter-pays principle could prevent provision from grants to assist the most vulnerable in society with energy efficiency. After all, a domestic householder is, by definition, a polluter. Generally, there would be conflicts between a duty to act in accordance with a principle and other policy goals and statutory duties. For those reasons, I urge Liam MacArthur not to move these amendments, and, if they are pressed to a vote, for the committee to reject amendments 1006, 1007 and 1008 and the consequential amendment 1009.
09:30
Finlay Carson’s amendments 1065 and 1066 seek to change the duty on Scottish ministers and responsible authorities from “have regard to” to “have due regard to” the guiding principles. Finlay Carson is not seeking to amend the duty on ministers of the Crown, as I understand it. I am aware that the equivalent duty in the UK Environment Bill has been amended to read “have due regard to”. However, I emphasise to the committee that there are significant differences between the bills. In the first place, the duty in the UK bill applies only to UK ministers. Secondly, unlike the duty in our bill, the duty in the UK bill applies not to the guiding principles but to a guidance document separately written by UK ministers. Thirdly, there is a condition placed on that document that there should be proportionality between environmental and other policy goals.
Therefore, it remains my clear view that the current wording of the duty, as “have regard to”, is effective and proportionate and will work well with other duties and functions of ministers and public bodies. I am not sure that Finlay Carson has worked through the interaction of his amendments with the duties on UK authorities. I do not think that it is right that there are amendments before the committee that would lead to a different specification of the duty in different places. Therefore, I ask Finlay Carson not to press his amendments today, so that we can discuss with him the framing of those duties ahead of stage 3. However, if the amendments are to be voted on today, I ask the committee to reject them.
I will turn now to consider amendments 1004 and 1005, lodged by Mark Ruskell, which seek to remove the exemption from the principles for duty for defence and for finance or budgets. The provisions in section 10(3) of the bill reflect the exclusions in the Environmental Assessment (Scotland) Act 2005 and the European environmental impact assessment directive. National defence was never within the competence of the EU. Therefore, to include defence in relation to our domestic guiding principles for the environment would not be a continuation of their effect in the EU. I cannot see any good reason for removing that exemption. With regard to Ministry of Defence sites, considerations relating to policy areas that are not specifically defence related, such as water abstraction, will already be in the scope of the principles.
Many significant environmental policies also have some financial consequences, and the intention is not to exclude policies on that basis, in the same way that such policies are not exempt from the requirements of the 2005 act. Rather, the provision in section 10(3) removes purely financial and budgetary processes from the scope of the duty, in a similar manner to the 2005 act. The intent of that exclusion will be explained in guidance, again in a similar manner to the guidance on environmental assessment. It is unclear how the guiding principles could apply to the budgetary process itself. The guiding principles will have their due place in influencing the design of the policies, which will then be subject to the budgetary process. I do not believe that these exclusions will have any impact on the achievement of environmental objections. Therefore, I urge Mark Ruskell not to move these amendments, and I urge the committee to reject them if they are pressed to a vote.
Amendment 1029, in my name, has the effect of removing from ministers the power to make regulations to remove more matters from the scope of the principles duty. On consideration of comments about the initial proposal, not least from the Delegated Powers and Law Reform Committee, I concluded that that power cannot really be justified, and ministers had no intention of taking any further matters out of the scope of the principles. I recommend that the committee supports amendment 1029. The amendment would pre-empt amendment 1059, in the name of Alex Rowley, which seeks to apply the affirmative procedure as the regulation-making procedure, because that change would clearly not be required if the power to make further provisions were removed altogether.
I turn to Angus MacDonald’s amendment 1017. As members know, our intention is indeed that responsible authorities should consider the environmental principles in carrying out environmental assessments and that that consideration, and its impact on decisions, should be reported in environmental reports. That was the reason for aligning the duty of regard to guiding principles with the requirement for an SEA.
The means in the bill to achieve that consideration through guidance is sufficient, more effective than amendment 1017, and allows us to set out in far greater detail how the duty should be achieved through the stages of the process of environmental assessments. I do not believe that amendment 1017 is necessary, and I invite Angus MacDonald not to move it.