Chamber and committees

I will start by expressing my agreement with Dr Allan’s earlier remarks and urging the committee to support his amendments, which we worked on together.

Dr Allan’s amendments 115 to 117 are designed to alleviate concerns by including an environmental protection requirement in part 2 of the bill and narrowing the scope of the purpose set out in section 3(c). His amendment 121 seeks to narrow the scope of the purpose set out in section 3(f).

I put on record—I think that I also reflected this in the evidence at stage 1—that I agree that we need to ensure that any legislation is not vulnerable to being misused by any future Government that does not have biodiversity or climate goals in its sights or that does not agree with them. I am happy to see that a lot of work has been done by various members on that. I do not agree with deleting part 2 of the bill, but I am absolutely convinced that Dr Allan’s amendments are a significant step towards having a safeguard put in place, and Scottish Environment LINK has expressed that they are a significant step forward.

I will now turn to other amendments in the group. Although I recognise the attempts that members have made to introduce non-regression clauses and agree with the intention behind that, the amendments that Dr Allan has lodged are those that I feel achieve the objectives in a way that I can stand beside.

Ms Boyack’s amendments 5 and 6, Ms Wishart’s amendment 196 and Mr Eagle’s amendment 313 all seek to introduce a non-regression provision to part 2 of the bill. They respond directly to the understandable concerns that stakeholders and the committee raised about the need for a non-regression provision. Of course, we need to decide which non-regression provision members might want to get behind and support.

The breadth of the power and the absence of safeguards in part 2 of the bill were mentioned in the stage 1 debate. We need safeguards—I hope that members recognise that I agree with everyone on that. The Government shares the ambition to uphold high environmental standards. However, a non-regression provision amendment needs to offer a clearer, more workable safeguard that supports our ambitions for both nature restoration and climate change. I do not agree that one has priority over the other—they are inextricably linked and have parity, as far as I am concerned.

As a non-regression provision would introduce legal obligation, the Government believes that any provision needs to be proportionate and a workable safeguard that strikes a balance between maintaining flexibility and ensuring accountability.

The example that you have just given is a substantive change—a quite hefty substantive change—and, of course, you would expect the Parliament to have the affirmative procedure in place to scrutinise anything in relation to criminality.

On Mark Ruskell’s amendments 1 to 3, as I said, part 2 introduces a bespoke power to modify the 1994 habitats regulations and the legislation that forms the environmental impact assessment regime, and it plugs the legislative gap arising from EU exit. The powers are essential in order for Scotland to continue to meet its environmental obligations in a way that is fit for purpose, particularly in the context of our nature restoration and net zero targets. Removing part 2 of the bill entirely would undermine our ability to take a fast and flexible approach to tackling the twin crises of climate change and nature loss in the face of evolving circumstances. It is appropriate to put in safeguards, but it would be a misstep to remove the ability to adapt flexibly and to be fleet of foot in changing circumstances.

I recognise and accept the concerns that have been raised by the committee and a range of stakeholders. The power in part 2 of the bill is too broad—I accept that—and it could potentially be used to dilute environmental protection, which I want to avoid. Such is the beauty of parliamentary scrutiny and the committee process that concerns can be raised and the Government can reflect on them and work with members to put in safeguards. That is exactly what we have done.

We are unequivocally committed to protecting the environment. The bill has not been designed to dilute environmental protection, but I fully accept that, without the changes in the amendments that have been lodged by Dr Allan and Emma Harper, it could be misused by future Governments. We all want to avoid that happening.

Amendments 58 and 60 seek to place a hard limit on triggering an EIA for the creation of any new conifer woodland schemes. Ariane Burgess has said that those amendments are a continuation of amendments that were lodged but not agreed to for the Agriculture and Rural Communities (Scotland) Bill.

My colleague Mairi Gougeon explained then why such a limit would not be appropriate. However, I will reiterate some of the reasoning now in relation to this bill. All new planting schemes in Scotland that exceed 20 hectares are already subject to a screening assessment under the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017. There are also strict thresholds in regulations that set out where, in particularly sensitive areas, EIA screening is always required. If the outcome of a screening assessment is that a project is likely to have a significant effect on the environment, it should be subject to an EIA.

For comparison—Mairi Gougeon alluded to this in her response to the member—Ireland introduced a mandatory 50 hectare limit back in 2001. What has happened since then provides a sobering reality. In the past 22 years, there has not been a single forestry application in Ireland to establish a forest that is greater than 50 hectares in size, because it would be too administratively onerous to do so.

We have tree-planting targets, and the climate change plan has tree-planting targets in it for the sequestration of carbon. As everyone around this table knows, tree planting is particularly important in protecting and enhancing biodiversity and providing habitats for species that would otherwise be under threat. I am sticking with Ms Gougeon’s approach to this issue.

I am not entirely sure that I understand the question. I have just set out how regulation 9D does not give us the flexibility to adapt to situations that require that flexibility and fleet-of-foot reaction. I am confident that the adoption of Alasdair Allan’s amendments would allay any concerns about not having non-regression safeguards in the bill.

I set out at stage 1 many of the reasons why we could not have a static situation. For example, we could have protected areas that no longer protect the species that they were originally set up to protect, because of the effects of climate change on that species. We need to have a more fleet-of-foot response available. I also point to Emma Harper’s amendment in relation to the affirmative procedure being used for substantive amendments and changes, which is also right.

The suite of amendments from Alasdair Allan and Emma Harper should allay a lot of the difficulties that people had at stage 1.

Sarah Boyack has set out why the affirmative procedure is extremely important for the parliamentary scrutiny of anything that future ministers might want to do that entails substantive changes. That is proportionate.

Of course, if we were to have affirmative procedures for all the minor and technical things that might be put through, which do not entail particular policy or material changes, that would be disproportionate. That is why I am supportive of what Emma Harper came to discuss with me.

I will move on and talk about the other amendments.

I do not agree with the phraseology of sledgehammers and nuts. I have explained the reasoning behind the provisions in part 2, which was to do with closing the gap that was caused by EU exit and giving Scottish ministers the power to act in an adaptive and swift way, should they have to, without waiting for an agreement with the UK Government. It has not, and has never been, the policy of this Government to dismantle Scotland’s environmental protections, but one area on which I agree with members is that, if we did not include safeguards, we would leave that possibility open to future Governments. Convener, you and I are not going to agree on this, because, as you made very clear at stage 1, you have already made up your mind that you want part 2 to be removed—the same goes for Mark Ruskell.

I have worked with Alasdair Allan and Emma Harper to allay stakeholders’ concerns so that, we hope, people will be able to support part 2 in its entirety, as amended. Part 2 introduces the bespoke power to modify the 1994 habitats regulations and legislation on the environmental impact assessment regime. It plugs the legislative gap that exists as a result of EU exit. The power is essential to ensure that we continue to meet our environmental obligations in a way that is fit for purpose, particularly in the context of net zero and nature restoration ambitions.

I understand that, as drafted, part 2 does not include safeguards. Having worked with Dr Allan and Emma Harper, I am confident that we have allayed those concerns and that, if their amendments are agreed to, we will have a much stronger part 2 that will protect against future Governments being able to abuse the provisions. If the amendments are agreed to, future Governments will simply not be able to do that.

I recognise that amendment 7 was lodged due to the concerns that we have heard from other committee members, and from stakeholders in their evidence, about the scope of the proposed powers to modify the environmental impact assessment legislation and habitats regulations. I recognise the concerns, but I cannot support amendment 7, because there is already a duty on Scottish ministers to manage and, where necessary, adapt the UK site network, as is specified in regulation 9D of the habitats regulations. That is where regulation 9D is strong. Therefore, when considering the use of the power to amend the habitats regulations, ministers must already have regard to regulation 9D and any potential implications for the UK site network. I ask the member not to move amendment 7, failing which, I ask the committee to reject it.

Amendment 8 would introduce the affirmative procedure to cover the power provided in part 2. I absolutely recognise the concerns that were raised in the stage 1 debate about the lack of clarity as to when the affirmative procedure should apply. I have always been clear that, if the power were to be used to make significant changes, the affirmative procedure should apply. Ms Boyack’s amendment 8 reflects the desire for stronger safeguards, but I would argue that a blanket requirement for the affirmative procedure is not proportionate and would not be an efficient use of the public resource of the Parliament’s time, as that would also cover all the minor and technical changes that might be made over time.

There is a judgment call to be made. Emma Harper’s amendment 57 offers a more balanced approach, but both amendments have the affirmative procedure in their sights; it is just a case of whether the committee wants to have the affirmative procedure for every minor and technical amendment that we might make. It is the committee’s judgment call.

I absolutely understand the concerns around the right type of planting happening in the right types of places. As I was able to outline, all new planting schemes that exceed 20 hectares are already subject to a screening assessment under the forestry regulations. There are strict thresholds there. We do not believe that amendment 60 as drafted would have the intended effect.

Our officials have considered the implications of what was agreed in Ireland. They have done the work in assessing the impact that a similar piece of legislation—a similar amendment to the law—had there. We need to bear in mind the consequences of making it too onerous for projects to continue. We do not want to stop tree planting, which has all the positive effects that we have just mentioned.

I have better news for Ariane Burgess, however, in relation to amendment 59. Ramsar sites are recognised as internationally important areas for wetland habitats and the water birds that they support under the Ramsar convention. It is important that we do all that we can to ensure that they are protected from damaging activity. It is the Scottish Government’s policy that listed Ramsar sites in Scotland should be treated as if they were European sites for the purposes of land-use-change decision making. I am delighted to support Ariane Burgess’s amendment 59. I hope that the committee gets behind her.

However, ahead of stage 3, we would need to revise some of the wording in the amendment, if Ariane Burgess would be happy to work with me on that. It is almost there, but it requires a couple of little tweaks. I am absolutely supportive of the intent behind the amendment—it is a good amendment in its intent—but the wording needs a little bit of looking at. I therefore ask Ariane Burgess not to move amendment 59 today, and we can work on something that she can bring back at stage 3 that we can all get behind and feel confident in. I would be very pleased if we could do that.

Turning to amendments 118 to 120, section 3 of the bill sets out the purposes for which Scottish ministers may exercise the power to make regulations under section 2(1). Those purposes are essential to ensure that our environmental assessment frameworks remain robust, aligned with obligations and adaptable to future needs. The powers in part 2 can be exercised only if the changes align with one or more of the purposes set out in section 3. However, we have heard calls from stakeholders and the committee that those purposes are viewed as too broad. Rhoda Grant’s amendments 118 and 119 would significantly narrow those purposes. Amendment 118 would remove the reference to the net zero emissions target from purpose (b) in section 3. That reference was included as an illustrative example to underline the importance of climate considerations in decision making, alongside other environmental and biodiversity considerations. Taking that reference out would weaken the clear link between environmental regulation and Scotland’s climate commitments. They have absolute parity with one another; one does not supersede the other.

Amendment 119 would go further by removing purpose (c) entirely. Purpose (c) was originally drafted to allow ministers to ensure consistency or compatibility with other relevant legal regimes. Removing it would undermine the ability to maintain alignment with international obligations and future proof our environmental assessment system—which is particularly important post-Brexit, hence the reasoning that I gave earlier.

I am of the view that Dr Allan’s amendment 120 is a targeted and proportionate response to legitimate concerns that have been expressed. It would effectively narrow the scope to the relevant EIA legislation and habitats regulations, which are pertinent, and that is why I believe that the committee should support that amendment.

For the reasons that I have set out, I would ask Rhoda Grant not to move amendments 118 and 119. Instead, I strongly urge members to support amendment 120.

Sarah Boyack’s amendments 9 and 10 would reduce the scope of part 2 of the bill by removing two purposes for which the power may be used from section 3. As I have already stated, I recognise the concerns that have been raised.

The amendments in the name of Sarah Boyack respond directly to those concerns; we have had conversation about the amendments, and I completely understand the intention behind them. However, I have also talked to Sarah Boyack about Dr Allan’s amendments, on which I have worked with him. I hope that Ms Boyack’s Labour colleagues can agree that Dr Allan has lodged amendments that also address those concerns, and we have worked with him to ensure that we can support the wording in them.

Retaining purposes (e) and (f) will maintain flexibility in how the power in section 2(1) is used. However, recognising the concerns, Dr Allan’s amendment 121 would refine the scope of purpose (f) to make it clear that it is to enable administrative changes or to alter aspects of regulatory processes, rather than to make changes to core assessment requirements or substantive environmental standards or protections.

That means that the power can be utilised for streamlining processes and for modernising any procedural or administrative aspects within the EIA and habitats regimes, such as updating the EIA regime to enable the removal of requirements to submit paper copies of applications or other documents alongside electronic versions of the same documents. Purpose (f) will not allow for changes to core assessment requirements or to substantive environmental protections.

I acknowledge that stakeholders have expressed their desire to see the removal of purpose (f) entirely, citing that purpose (a) could capture such a requirement. However, it is unlikely that we could rely on purpose (a) to simplify processes or reduce administrative burdens. I think that we all want the unnecessary red tape to be stripped away to ensure that our agencies, and those who have to apply for any kind of permissions, are not overburdened by unnecessary administration.

I therefore ask Sarah Boyack not to move amendments 9 and 10, and I urge the committee to support Dr Allan’s amendment 121.

Absolutely—I am always open to having discussions with members.

I feel fairly confident that the amendments lodged by Dr Allan and Emma Harper will put scrutiny in there. Dr Allan’s amendments, in particular, include provisions to make sure that no future Government could weaken environmental protections. That is what we all want, because we do not know what will happen in the future.

The very legitimate argument was made by some members at stage 1 that, although we might trust the Government, and even the parties that sit in the Parliament, right now with regard to environmental protections, we do not know what will happen or who will be in government in the future, and we would not want to leave the bill open to misuse.

I therefore commend the members who have said that we need to put in place provisions such that any future Government could not use anything in part 2 to weaken environmental protections. The strength of feeling on that has been demonstrated by the amendments that have been lodged.

I want to finish my point first.

Specifically in recognition of those concerns, I have worked with Dr Allan on amendments that will strengthen the provisions. We have tested some of those amendments with ENGOs. That is why I mentioned Scottish Environment LINK’s comments in that regard.

At stage 1, I set out why we included part 2, which was to address some of the gaps that had been left in the legislation as a result of EU exit. We need to fill in those gaps as much as possible, because they leave us with an inability to adapt to any impacts or changes to particular areas as a result of climate change—or anything—in a fleet-of-foot manner. There might be times when ministers have to act very quickly to align with evolving global climate and biodiversity standards.

There are various examples. On the biodiversity beyond national jurisdiction agreement, we have to rely on the UK Government to provide a power for Scottish ministers to amend our EIA regulations. I would much rather that that was already within the Scottish Government’s competence than our having to wait on another Government to give us the powers.

The loophole has been created as a result of EU exit. That was the main reason for part 2 of the bill, and the main concerns about part 2 were about non-regression rather than the existence of that part. I certainly did not hear anything compelling, outwith what politicians were saying, to suggest that it should be removed wholesale. The concerns that I heard—my adviser and I had discussions with Scottish Environment LINK—were about non-regression and the potential for the lack of parliamentary scrutiny if the affirmative procedure was not required for substantive changes.

I am aware that regulation 9D was mentioned in stage 1 of the debate and that there were calls to amend the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. Let us consider regulation 9D. I will outline why I do not believe that it provides the safeguards that people have mentioned. It includes an obligation on the Scottish ministers to

“manage, and where necessary adapt, the UK site network ... with a view to contributing to the achievement of the management objectives”.

It has not been used in practice so far. There is an implied power to comply with that duty, despite the lack of specific legal provision in the habitats regulations. However, regulation 9D applies only to the UK site network—it does not allow ministers to amend the broader habitats regulations or the EIA regime in the way that we have set out in the policy memorandum to the bill.

If one of the amendments that puts a non-regression provision in the bill is passed, I hope that it will effectively ensure that members are happier with part 2 and that it will protect against future Governments that do not have environmental protection as a priority—