Environment, Climate Change and Land Reform Committee
Meeting date: Tuesday, December 4, 2018
Official Report 791KB pdf
Contents
- Attendance
- Decision on Taking Business in Private
- European Union (Withdrawal) Act 2018
- EU Exit and the Environment
European Union (Withdrawal) Act 2018
Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019
The second item on the agenda is evidence on the Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019.
I am delighted to welcome from the Scottish Government Elspeth MacDonald, who is from the environmental quality and circular economy division, and Emily Freeman, who is from the directorate of legal services.
My first question relates to where decision-making powers in relation to the waste regulations will go in the event of a no-deal Brexit. The notification says that targets should be set by a secretary of state of the United Kingdom Government rather than by Scottish ministers. Why does the Scottish Government consider that to be acceptable?
In what particular context? There are targets throughout the area.
I am talking specifically about the Waste and Emissions Trading Act 2003.
The notification has been crafted as carefully as possible in order to give full information to Parliament. We understand that there might be a need for more information, but we hope that we have covered the matter properly.
The regulations would operate to retain the power to set UK targets. The power, as it will be amended by the regulations, is not mandatory, although the existing power would be mandatory in the event of a no-deal Brexit. The power could be exercised only with the agreement of all the devolved Administrations. The effect of that would be that the Scottish Government could participate in a future UK allowance scheme if it chose to do so, but it would not have to.
Another point arises from your question. The retention of the power, or the option to use the power, would not affect the power of Scottish ministers to set their own targets. Ministers have already set a requirement for zero biodegradable municipal waste going to landfill, which will apply from January 2021. That target was set by the Waste (Scotland) Regulations 2012, which were introduced quite a long time ago. Scotland is far ahead on waste disposal targets. Those regulations were obviously put before the Parliament, and any future Scottish regulations in the area would also come before the Parliament.
Regardless of the regulations that are before us, will the committee still be able to scrutinise the targets that are proposed for Scotland, regardless of whether they are the same as or different from those for the UK?
If regulations are for the UK with Scottish consent, they will come to the Scottish Parliament under section 57 of the Scotland Act 1998, so the committee will get the normal notification and will, as a result, be able to ask for evidence.
Do you expect the situation to change? Is this just a temporary arrangement for a no-deal scenario?
This is a temporary arrangement. The regulations that are before the committee are to address a no-deal scenario; they are entirely about keeping current systems operating while that is still appropriate and about making changes so that there is, in the Government, no cessation of operability—that is the expression that we use. We need everything to continue to run as it is running now. That is what the regulations are about.
I will raise a wee technical point that picks up on what I just heard about all four Administrations being required to give consent. Who gives consent on Northern Ireland’s behalf? Is the absence of consent or of non-consent taken as consent?
Proactive consent is required. I confess that I do not know the answer to your first question. I can say that the Northern Ireland department of agriculture, environment and rural affairs is contributing to the process, but that is as far as my knowledge goes. I imagine that the position will depend on how the devolution settlement in Northern Ireland continues.
Active consent is required. If one Administration failed to consent, no regulations would be made.
Convener, you can see why I asked my question. We might want everyone to give consent but, if Northern Ireland could not consent in the way that is framed in the regulations, that could be an issue for us. As we cannot answer the question today, I suggest that we pursue it by other means.
I agree.
In those circumstances, would existing regulations apply? Would the status quo apply? Life would go on.
Targets are currently set under the Landfill (Maximum Landfill Amount) Regulations 2011. All the Administrations are working towards a set of targets. That will carry on until March 2020—that is how long the scheme is set for. After that date, all the Administrations will need to consider how they will proceed. There is no guarantee that there will be a future UK scheme; equally, there is no guarantee that there will not be agreement on a future UK scheme.
We can cross that bridge when we come to it.
I will move on to Commission decision 2000/532/EC, which relates to hazardous waste. We are told that the Scottish ministers will have the power to decide on the classification of hazardous waste. My simple question is this: what discussions have been had with the Scottish Environment Protection Agency? I assume that advice on classification will come from SEPA, but you might tell us that it will come from elsewhere.
You are correct in saying that we would expect advice on hazardous waste to come from SEPA. We regularly engage with SEPA on the full range of waste-related deficiency issues, including hazardous waste, because SEPA is in the front line.
SEPA works with the other UK environment agencies in the list of wastes decision process, and there is joint UK “Guidance on the classification and assessment of waste”, which is known as WM3. Going forward, the Scottish Government would work with SEPA in deciding when further waste could or could not be—
10:00
Let me pick up on that, first. You said, “Going forward, the Scottish Government would” engage with SEPA, but has it already done so?
Yes. I am sorry. What I meant is that it engages with SEPA and will do so in the future.
Do you mean on this specific subject?
Yes.
Therefore, it is reasonable to assume that SEPA has the necessary skills and personnel in place to deal with the matter.
Yes.
That is fine.
Because I knew that I was coming to the committee, I spoke to my contact in SEPA just to be double clear that I could come and say these things to the committee. The answer to your question is yes—SEPA has a long history of involvement in the matter.
On the Control of Pollution (Amendment) Act 1989, to give you a reference point, I note that section 2 of the notification states that
“carriers from EU member states will no longer be exempt from registration.”
I presume that that means that, because the EU system will no longer apply in the UK, EU carriers will have to register in order to adhere to the UK system. That might not in itself be a policy decision and therefore not necessarily a deliberate policy change, but it will have the effect of such a change. Can the Scottish Government confirm that EU carriers will have to register to adhere to the UK system?
Yes—although perhaps I should roll back from that a little and say, by way of preface, that this has been an iterative process with the Department for Environment, Food and Rural Affairs over time. When I prepared and lodged this notification, I used the phrase “will no longer” in the sentence that you have referred to, but, in digging further over time for our own Scottish regs, we have discovered that the power to make such an exemption had, in fact, never been used and that EU carriers actually have to register with SEPA at the moment.
I apologise for that—the sentence was not meant to mislead the committee. Under the change that is being made, those carriers will no longer be exempt from registration, but the fact is that that power has not been exercised. As a result, EU carriers already have to register with SEPA or the other environment agencies in the UK, and that will continue, meaning that it will be business as usual. Not only is it not a policy change; it is not an operational change, either.
That is great. Thank you.
Could this have any border implications, especially in the event of a no-deal scenario? Possibly not, from what you are saying.
This is for the operation of carriers within the UK. Currently, carriers would be able to operate outwith the UK, too, and that position is subject to on-going work with colleagues in the UK Government, other devolved Administrations and environment agencies in relation to a reserved set of regulations covering the transfrontier shipment of waste, which even the European Commission has identified as an issue that needs to be resolved and on which it recently came out with a very helpful notification.
I seem to be hearing that the registration of a carrier with the Environment Agency south of the border will apply to the whole of the UK. If the carrier registered with the environment bodies in any of the four jurisdictions, would that registration cover the whole of the UK?
There is mutual recognition of registrations across the UK, because the bodies work to the same standards.
A number of the EU instruments have not yet been transposed, and we are clearly running out of time. Do you anticipate any of those instruments not being transposed in time for withdrawal? If so, what will the Scottish Government do?
I will take that question in bits, if I may.
The EU regulations and decisions covered in this notification are already directly applicable, and under the European Union (Withdrawal) Act 2018 those regulations and decisions will become part of domestic law. The regulations that we are discussing amend them to ensure that they work properly in our domestic law in the UK, including in Scotland, which means that no further work needs to be done to make sure that they work in that respect.
As for directives, we are working things through to ensure that anything that is not transposed is dealt with in our own Scottish deficiencies instruments. That work is reasonably well advanced, and we expect to complete it before exit day.
You say that you expect to do that, but can you guarantee that things will be in place? If they are not in place, what work will you have to do beyond exit day?
With regard to a no-deal scenario, what we are identifying just now are the deficiencies instruments that will need to be in place before exit day to ensure operability after it. I say that we “expect to” complete that work because no one can totally guarantee everything in real life. However, it is our very real ambition and hope that we will complete—as we expect to—all that work for exit day, if it happens.
Any further changes that might be desirable flowing from EU directives or law would be possible if we had a withdrawal agreement, because that agreement would be available for change under the withdrawal act. However, we are not working towards that scenario at this time. We must make all the changes that we need to make before exit day.
Let us move to another issue. Do you feel that there are gaps in the regulations and guidance with regard to the incineration of waste? I know that that area is not explicitly covered in this SI.
I apologise, but I am not able to answer that question. It is not something that I have dealt with per se in the notification process.
Let me focus my question a bit more. If the SI is approved, will it give the Scottish Government scope to set targets—say, a cap—on incineration? Implicit in the SI are targets for recycling, landfill waste and everything else. Would the SI allow a cap on incineration?
It would not change any existing law. I am sorry, but I just do not have specific knowledge of the area to which you are referring.
Could you write back to the committee on that?
We can follow the matter up in a letter.
It is something that we should get more detail on.
I would love to be able to tell you that what you are saying is correct, because I think that it is. However, I do not know—I will need to check it for you.
That will be fine.
We are happy for you to get back to us on that.
With regard to the framework discussions, the notification says that there will be “administrative changes” and states:
“We have been engaged in framework discussions with all the administrations of the UK and the relevant regulators specifically looking at the waste regulation in the UK outside of the EU and its existing regime.”
Can the Scottish Government provide more detail on who is involved in the framework discussions and, given how wide ranging the field of waste legislation is, what precisely those discussions are about? What role is SEPA playing in that respect?
The focus to date has been on addressing deficiencies in legislation and, in doing so, we have identified that there might be value in having a common framework to support areas where co-ordination and co-operation might be of benefit. What come to mind are the producer responsibility provisions for end-of-life vehicles and so on, which are currently dealt with on a UK basis, but there are other areas.
The discussions are at a very early stage. We are slightly driven by the fact that DEFRA is concentrating on the SIs, and we think that this is a logical development of that, but we are at a very early stage and are going to continue with that work as soon as we can. As for SEPA’s involvement, given that its remit with regard to waste management is so wide ranging, we would, of course, involve it in these considerations. There is no doubt about that.
What will SEPA’s specific role be? Is that role to be defined?
It will be its normal advisory and information-giving role. It also has powers to provide advice on technological changes, for example. We will look to SEPA to provide a full range of supporting information and advice on the frameworks. Apart from anything else, it quite often operates in a framework in the UK, in effect, even though that has not been formalised.
Is SEPA adequately resourced to do all that? One has to ask that, given the declining budgets.
Yes, I think so.
As far as you are aware.
As far as I am aware, SEPA is adequately resourced. However, that is a question for SEPA; it is not for me to advise on that.
That is fair enough.
The notification says that a number of European Union regulations and decisions are to be revoked, but it does not identify them. Can you identify the regulations and decisions that are to be revoked?
Certainly. If the committee wants that kind of information to be included in the next notification, I will be more than happy to include it. There is a list of 20 decisions and regulations that is as dry as dust, to be honest. I could read the list to members, but I would be more than happy to send it to the clerk.
For efficiency, sending the list would probably be a better idea. Is Finlay Carson happy with that answer?
I am totally happy with it.
In short form, it is to do with the revocation of instruments that we have transposed into domestic legislation and are spent or are reporting or other requirements that involve doing things to or for the European Commission—that has probably come out wrongly. That genre of instruments is covered. I will send that information to the clerk when we get back to the office.
I have a general point about the layout of the notification. After the “EU Regulations” and “EU Decisions” headings, there is a general paragraph that states that a number of EU regulations or decisions will be amended. The paragraph goes on to detail several specific regulations or decisions. Can you confirm that every regulation and decision that the statutory instrument concerns, other than the revocations, is specified in the notification?
Yes. The general paragraph was an attempt to explain the general process and the aims to be achieved by the regulations. We have gone into each and every regulation that is dealt with.
Okay. Thank you.
To be honest, I am somewhat out of my depth with this question, but I will ask it anyway. The notification mentions that another notification in the subject area is “anticipated in December 2018”, which is where we now are. Will you clarify for us why the Scottish Government has separated consideration of the notifications? Is it appropriate to consider the two notifications in isolation?
The notification is about regulations that are subject to the affirmative procedure in Westminster; therefore, we have to satisfy its parliamentary requirements and the protocol. We have had to take forward the notification much earlier than the notification for the second set of regulations, which are subject to the negative procedure. There is a parliamentary procedure point coupled with protocol requirements, and the process is driven by timetables in DEFRA, as well. There is a technical reason. There is no intention to split up the notifications for any other reason.
That is very helpful.
A tremendous amount of work is being done in preparation for there being no deal. I presume that, in the event of a deal, we will need to look at all these matters all over again from a different perspective. Is that the case?
I presume that, if there is no deal, we will need to go back and consider what aspects—if any—of the work will be relevant to what will need to be done. The work might be quite helpful, or it might not be: we do not know. If there is no deal, the work could range from being useful to being completely nugatory.
We do not have any more questions. Thank you very much for coming in to help us with our deliberations.
10:15 Meeting suspended.10:20 On resuming—
Persistent Organic Pollutants (EU Exit) Regulations 2018
Under agenda item 3, we will consider a number of requests from the Scottish Government for the committee to consent to the United Kingdom Government legislating, using the powers under the European Union (Withdrawal) Act 2018, in relation to a number of UK statutory instruments.
The first of those is the Persistent Organic Pollutants (EU Exit) Regulations 2018. Members will note that the deadline for consent from the Scottish Parliament is 5 December. If there are no comments on the regulations, are members content to give our consent for UK ministers to lay the regulations in the UK Parliament?
Members indicated agreement.
Control of Mercury (EU Exit) Regulations 2018
The second instrument is the Control of Mercury (EU Exit) Regulations 2018. Members will note that the deadline for consent from the Scottish Parliament is 5 December. If there are no comments, are we content for the Scottish Government to give its consent to UK ministers to lay the regulations?
Members indicated agreement.
Equine (Records, Identification and Movement) (Amendment) (EU Exit) Regulations 2018
The third instrument is the Equine (Records, Identification and Movement) (Amendment) (EU Exit) Regulations 2018. Members will note that the deadline for consent from the Scottish Parliament is 5 December. If there are no comments, are we content with the statutory instrument?
Members indicated agreement.
Animal Welfare (Amendment) (EU Exit) Regulations 2018
The fourth instrument is the Animal Welfare (Amendment) (EU Exit) Regulations 2018. Members will note that the deadline for consent from the Scottish Parliament is 5 December. I believe that John Scott wants to comment on this instrument.
I would like clarification from whomsoever is appropriate that the UK has decided to continue to recognise transport authorisations from EU countries to the UK and on whether the agreement is reciprocal.
We can certainly make that point and ask for clarification when we send our letter of consent.
It relates to the transport section of the Animal Welfare (Amendment) (EU Exit) Regulations 2018.
I would like further clarification in relation to the decision-making powers, on whether the practice of live animal export should be banned and whether there is any bearing on the mix of devolved and reserved responsibilities. Where does the Scottish Government see its powers lying in relation to the regulations?
We can seek clarification on those two points. Beyond that, are we content to give our consent to the statutory instrument?
Members indicated agreement.
Fluorinated Greenhouse Gases and Ozone-Depleting Substances (EU Exit) (Miscellaneous Amendments) Regulations 2018
The fifth instrument is the Fluorinated Greenhouse Gases and Ozone-Depleting Substances (EU Exit) (Miscellaneous Amendments) Regulations 2018. Members will note that the deadline for consent from the Scottish Parliament is 6 December. Are there any comments on the instrument?
I noted that the regulations could allow the Scottish Government to go faster on phasing out ozone-depleting substances. It would be useful to get clarity from the Scottish Government on whether it sees itself continuing to reduce ozone-depleting substances in line with other parts of the UK, or sees any benefit in accelerating the phase-out in Scotland.
Is that in relation to this statutory instrument, or is it a more general question about the Scottish Government’s options in this regard?
It would be useful as context for how the regulations will be used in a withdrawal scenario.
Okay, we can reflect that in our letter. That said, do we consent to UK ministers laying the instrument?
Members indicated agreement.
Nagoya Protocol (Compliance) (UK) (EU Exit) Regulations 2018
The sixth instrument is the Nagoya Protocol (Compliance) (UK) (EU Exit) Regulations 2018. Members will note that the deadline for consent from the Scottish Parliament is 10 December. As there are no comments on the instrument, are we content for the Scottish Government to give its consent for UK ministers to lay the regulations in the UK Parliament?
Members indicated agreement.
Air Quality (Amendment etc) (EU Exit) (No 1) Regulations 2018
The seventh instrument is the Air Quality (Amendment etc) (EU Exit) (No 1) Regulations 2018. Members will note that the deadline for consent in the Scottish Parliament is 10 December. If there are no comments on the regulations, are members content for the Scottish Government to give its consent to UK ministers to lay the regulations in the UK Parliament?
Members indicated agreement.
Air Quality (Amendment) (EU Exit) (No 2) Regulations 2018
The eighth instrument is the Air Quality (Amendment) (EU Exit) (No 2) Regulations 2018. Members will note that the deadline for consent in the Scottish Parliament is 10 December. If there are no comments on the regulations, are members content for the Scottish Government to give its consent to UK ministers to lay the regulations in the UK Parliament?
Members indicated agreement.
Marine Environment (Amendment) (EU Exit) Regulations 2018
The ninth instrument is the Marine Environment (Amendment) (EU Exit) Regulations 2018. Members will note that the deadline for consent in the Scottish Parliament is 11 December. If there are no comments on the regulations, are members content for the Scottish Government to give its consent to UK ministers to lay the regulations in the UK Parliament?
Members indicated agreement.
Agriculture (Zootechnics) (UK) (EU Exit) (Miscellaneous Amendments) Regulations 2019
The tenth instrument is the Agriculture (Zootechnics) (UK) (EU Exit) (Miscellaneous Amendments) Regulations 2019. Members will note that the deadline for consent in the Scottish Parliament is 12 December. Members should be aware that the notification was also sent to the Rural Economy and Connectivity Committee, as the proposed instrument relates to both committees’ remits. Each committee has been asked to consent only to the elements of the notification relevant to its remit. Members should note that no legal or policy issues were raised in relation to this proposed instrument, in so far as it relates to this committee’s remit.
If there are no comments on the regulations, are members content for the Scottish Government to give its consent to UK ministers to lay the regulations in the UK Parliament?
Members indicated agreement.
Farriers (Registration) and Animal Health (Amendment) (EU Exit) Regulations 2019
Our final instrument is the Farriers (Registration) and Animal Health (Amendment) (EU Exit) Regulations 2019. Members will note that the deadline for consent in the Scottish Parliament is 12 December. Members should be aware that the notification was also sent to the Rural Economy and Connectivity Committee, as the proposed instrument relates to both committees’ remits. Each committee has been asked to consent only to the elements of the notification relevant to its remit. Members should note that no legal or policy issues were raised in relation to this proposed instrument, in so far as it relates to this committee’s remit.
If there are no comments on the regulations, are members content for the Scottish Government to give its consent to UK ministers to lay the regulations in the UK Parliament?
Members indicated agreement.
I confirm that the committee will write to the Scottish Government in relation to all the instruments today and include the points that have been raised.
10:27 Meeting suspended.10:31 On resuming—