Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, August 11, 2020

Official Report 583KB pdf

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UK Withdrawal from the European Union (Continuity) (Scotland) Bill: Stage 1

Item 2 is evidence on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. The committee has been designated as a secondary committee for consideration of the bill at stage 1. We plan to report to the Finance and Constitution Committee by the end of September.

I welcome the first of two panels today. From the Scottish Government we have Emma Lopinska, who is a constitution policy manager; Francesca Morton, who is a solicitor; Charles Stewart Roper, who is the head of the environment strategy and governance unit; and Lorraine Walkinshaw, who is a solicitor. I thank you all for providing a detailed written response to the committee’s questions ahead of the meeting.

If we have signal problems or one of the panel drops out, I might suspend the meeting. I will take it as it comes. I might ask a panel member to fill in for another, but if that is not possible I will suspend the meeting and try to get the witness back.

I will address the first question to Emma Lopinska and Charles Stewart Roper. What are the intentions and rationale behind what the bill says about powers with regard to environmental standards and principles, and how will things work in practice? We are very aware that how European Union exit will look is a moving situation, and that the United Kingdom Government is introducing bills that might have implications for this bill.

The overall rationale is that the bill should enable us to cope with the gaps that are left as we leave the EU, by providing, as far as possible, for continuation of the system of environmental principles in domestic law, and for a system of environmental governance to replace the arrangements that are in place in the EU.

I take the point in the question: there is a lot of uncertainty. We think that the arrangements in the bill are robust and flexible enough to deal with changes that might come forward. In operation, the system will need a considerable amount of flexibility. In particular, joint working by the new governance institution and the institutions of the other nations of the UK will be needed to make everything work effectively as a single system. There will need to be co-ordination between the Administrations across the UK to make the system of principles work, but we think that the measures are flexible enough to enable us to cope with changes that might come, as the new arrangements in the parts of the UK evolve.

Can you give me an example of how the flexibility that you mentioned manifests itself in the bill?

For example, we will, on the principles, flesh out the detail in guidance that we will bring before Parliament for approval. Scottish ministers will develop that guidance, which will allow us to be flexible in terms of how the Government and other public authorities bring the principles into effect. Through consultation and discussion with the other Administrations as necessary, we will be able to put in place a system that is coherent across the UK and which is robust and works well in Scotland.

Flexibility is built into the governance proposals. We have specified the powers and enforcement powers that will be needed by the proposed body, environmental standards Scotland, but in the strategy, which will be that body’s own document and functioning system, it will be able to develop flexible ways of working with other public authorities in order to achieve environmental gains. That flexibility will, in order that ESS can work on issues that cut across the UK, allow it to develop its own relationships with the office for environmental protection—the new UK institution—and with the institutions that will be put in place in Wales and Northern Ireland.

We feel that not being overspecific on the details of the system, but instead providing flexibility through the new body’s strategy and operation, will build an effective and robust system that can work—where necessary, in co-ordination and co-operation with the other new institutions in the UK.

Some of my colleagues have specific questions that we will come to later on ESS and its relationship with other bodies. Mark Ruskell has a supplementary question.

I note that the cabinet secretary’s written response to the committee used some strong words. For example, it talked about easing

“the path to EU re-accession”.

How confident are you that the bill will make us fully aligned with the European Union? There are some aspects of divergence. For example, it has been brought to the committee’s attention that there is nothing in the bill that would commit Scotland to high-level environmental protection. That is in the Lisbon treaty, but not in the bill. How do you know that the bill will help to lead to re-accession, and that we will be fully aligned with the European Union, going forward, if that is the bill’s objective? It seems that there are some gaps.

I will talk about the environmental provisions, then I will hand over to my colleague Emma Lopinska to cover the general point about keeping pace.

On environmental provisions, it is not possible to have in the domestic legal setting exactly the same arrangements as exist in the EU. However, we believe—the Scottish Government’s contacts with the European Commission have given us some comfort on this—that we are putting in place a system that is robust, and which the European Union will be able to see is a commitment to maintaining its standards and to keeping in place the role of the principles. We believe that the arrangements will allow us to maintain confidence in, and international credibility for, our environmental performance.

Emma Lopinska will address keeping pace, because it is more relevant to part 1 of the bill.

[Temporary loss of sound.]

I think that broadcasting staff are having a wee issue with Emma’s microphone. We will give them a couple of seconds. We will come back to Emma, once we get her microphone sorted, for her response to Mark Ruskell’s question.

In the meantime, Stewart Stevenson has a question about the UK internal market.

I want to ask about what is in the white paper, “UK Internal Market”, and the bill, and would like to hear opinions as well as an objective response. The white paper talks about accepting and respecting standards that are set by other jurisdictions. Does that mean that Scotland’s being first to introduce legislation on a particular area of policy related to the internal market would legislatively force the UK Government to work within what Scotland had set? I am leaving aside, of course, the Westminster view of the overriding primacy of the UK Parliament and its view that it can basically do what it likes, and am focusing just on what the white paper states. Would the process work as I have suggested, or is it your view that we would, whatever we do, always have to fall in behind what the UK Government does?

The internal market issue is more for Emma Lopinska to respond on, if her microphone is now working.

We have Emma online now. We will deal with Stewart Stevenson’s question first, then you can address Mark Ruskell’s question.

Okay. I am not the best person in the Scottish Government to talk specifically about the UK internal market. Mr Russell made a statement to Parliament on that last week, and will give evidence to the Finance and Constitution Committee tomorrow.

However, I will say that, at the moment, the UK Government’s proposals are only proposals. We would have to look at the detail of a bill in order to understand how it would impact on what we can do, and how the Scottish Parliament might be constrained by UK legislation. I could not say that if the continuity bill is approved by the Scottish Parliament and enacted, that would force other parts of the UK to act; at the moment, I genuinely cannot answer that question. I do not know what would happen. We would have to wait and see.

However, I will say that the Scottish Government’s view is that a bill on the UK’s internal market proposals is not necessary. We think that properly functioning intergovernmental relations need to be established—relations that recognise that European Union exit has happened, and address the weaknesses of the current IGR frameworks. We would say that we should have agreed frameworks across the UK, where necessary, and that they should have recognised working IGR frameworks as part of that.

Mr Russell has made clear the Scottish Government’s view that the Government would oppose a UK internal market bill. If a UK bill was tabled that would legislate for the proposals as they are in the white paper, the Scottish Government would oppose that and would recommend to the Scottish Parliament that the bill not be consented to. Obviously, I would not like to speculate on what Parliament might decide to do, or on what the UK Government’s response to any decision on consent might be.

I do not know whether that has properly answered Mr Stevenson’s question on the UK internal market, but I am afraid that it is just a bit too early to say with any more certainty what would happen.

I did not expect much more from someone who is, of course, an official, so I am perfectly content with that response. In framing my question, I was not seriously suggesting that we would wish to get ourselves in a position whereby what we did would bind what other Administrations should do. However, it is interesting to turn the question on its head and to see how others might feel about it.

Francesca Morton has asked to come in—I imagine that it is on the point about legality. We will get her microphone on; she might have muted herself, and broadcasting might be having difficulty unmuting. It looks like the microphone is on now.

10:15  

I asked to come in in the middle of Emma Lopinska’s contribution, but she has covered the point that I would have made. Her main point was that it is too early to make a proper assessment: the UK Government has not yet published a draft bill. Although the white paper sets out its proposals, it does not make clear the legal effects of its proposed principles. That was the only point that I was going to add.

Before we go ahead, I point out that witnesses should not mute their microphones; broadcasting will do everything for you. We get into difficulty if we start pressing buttons. I think that we have all guessed that by now.

Mark Ruskell wants to come back in on his previous question. Do so briefly, as we have a lot to cover.

I am not sure whether Emma Lopinska will be able to answer my question, but Charles Stewart Roper mentioned that he has, in effect, had substantial reassurance from the European Commission that the bill will ensure alignment. Is it possible to share that with the committee? I would be very interested to see what reassurance and evidence you have had from the Commission that the bill will enable a smooth path to re-accession.

I have not had any such reassurance because, from my perspective, that is not to do with part 1. The power to align is obviously a discretionary power, so it is not about maintaining absolute alignment with the EU on every subject. We could not do that, because some EU law that comes in is in reserved areas, so the Scottish Parliament could not legislate to align with it.

Also, we have to recognise that a lot of EU legislation makes sense only for member states, so it would not make sense for us to legislate to align with it. There will always be that gap.

In considering EU measures that we might want to align with, several things would have to be considered, including the practical implications—the economic and social benefits, and the costs on resources, whether financial or parliamentary. We would also have to look at whether an alternative approach could deliver the same or better outcomes than the EU measure.

At the moment, there is no agreement between the UK and the EU, but should agreement be reached, we would have to look at what it would mean for areas on which we could align. Mr Stevenson brought up the UK internal market; we must wait to see whether the bill would face any further constraints in that respect. Areas for common frameworks might in the future be negotiated and agreed, so we would have to look at those, as well.

The bill is not about Scottish ministers having to align absolutely everywhere; many subjects in the bill’s competence are legislated for by the powers in section 2(2) of the European Communities Act 1972. When that legislation is lost at the end of the transition period, there will, in lots of areas, be no other existing power to regulate. The bill is replacing that power to regulate; it is not saying that we must use it. I could not, however, say that the bill will enable us to remain entirely aligned with the EU so that we could become a member state.

We need to pick up the pace, because we have an awful lot to cover. Finlay Carson has a question on common frameworks.

In the feedback from our consultation, organisations such as Scottish Land & Estates say that they are concerned about there being substantial policy divergence within the UK, and about how that will impact on businesses and so on.

I am pleased that Francesca Morton cleared up the idea of the internal market. We do not have a bill yet. We have a white paper, the overriding purpose of which is to protect the really important internal market. We all know that it is worth more than any of our external markets. We need to be clear that it is just a white paper. There is no bill on the table at the moment.

The Law Society of Scotland also suggests that strong collaboration between the UK Government and the devolved Administrations is of considerable importance.

My question is about the common frameworks. The Law Society said that

“The development of common frameworks”

and

“future trade deals ... will have de facto impacts on how these powers can be exercised.”

Have we put the cart before the horse with the bill given that we are not clear what common frameworks we will be working within? When are we are likely to see them?

The Scottish Government remains committed to the frameworks process, which has shown that substantive progress can be made where the four Governments come together as equals and proceed on the basis of agreement, not imposition. We remain committed to that, but we have to wait to see what implications the internal market proposals could have for that process.

You asked about putting the cart before the horse. The Scottish Government has always been clear that it is for the Scottish Parliament, and not the UK Government, to determine how far we align with the EU. It is more than four years since the 2016 referendum and we still do not have clarity on so many things. As you have mentioned, we do not have frameworks and we do not have an agreement between the EU and the UK.

I do not think that our ministers would feel that it is for us to wait to see what other parts of the UK decide. The Scottish Government is looking at the powers that the Parliament has within the constraints of the current devolution settlement, and this is the Scottish ministers’ way forward to replace the regulation-making powers that will be lost and look at what will happen with environmental principles and governance.

We are putting forward a bill that we think is right for the circumstances that we are in. We cannot start to second guess what other constraints might be imposed on the Scottish Parliament or the Scottish ministers. We cannot keep waiting. I think that the Scottish Parliament has to legislate in the way that it sees as right.

Finlay, will you make your follow-up question very quick, please? We have to move on.

I will. It was back in October 2017 that the UK and the devolved Governments agreed that a set of common frameworks would be established. Why have we not moved forward? I presume that it is an issue between all the devolved Administrations and the UK. Where is the hold-up? We have discussed the matter in committee before and it appears that there is reluctance from all corners to move this forward, or that something is preventing it, even though there was an agreement back in October 2017 that the matter would be looked at.

This is not my area of expertise, so I hope that you will forgive me if I read out what I have been told about common frameworks.

The current public health emergency has meant that it will not be possible to achieve the original timetable for delivering all frameworks by the end of the transition period. The Scottish Government is working with its counterparts in the UK Government and the other devolved Administrations to prioritise key framework areas.

I am advised that a revised delivery plan has been agreed by all four Governments and that seven frameworks are expected to be finalised and implemented by the end of 2020. Provisional frameworks consisting of effective interim measures are expected to be in place for the remaining estimated 25 areas where final framework arrangements are not feasible by the end of the year. All four Governments consider the relevant delivery plan to be sufficient and the provisional frameworks to be robust and fit for purpose.

We will move on to talk about the environmental principles.

Charles Stewart Roper has already highlighted the importance of international credibility and keeping the principles in place. For the record, I highlight that the core EU guiding principles are the precautionary principle, prevention, rectification at source and the polluter pays principle. Those are significant and important.

A number of stakeholders have argued for a widening of those principles. The Faculty of Advocates has highlighted the possibility of including principles that take into account

“environmental equity (in a redistributive sense)”,

and NFU Scotland has highlighted “proportionality” and “innovation” principles. There are also other principles, such as those relating to sustainable development.

I will not ask the witnesses in the time that we have today to go into why all those principles were ruled out. However, in order to reassure us as we go forward with the important issue of the guiding principles in the bill, perhaps you could say why only the four principles were chosen and whether they are enough.

We consulted on the four principles, which replace the four EU principles, and there was broad support for them. There were not a great deal of responses about additional principles beyond the four, so ministers settled on bringing those four guiding principles into domestic law at this point.

Flexibility is built into the provisions to allow additional principles to be introduced by regulation in future if a consensus emerges that they are legitimate and wanted. However, the provisions that ministers decided to introduce included the four EU principles that we are losing on exit.

Thank you for that response. The committee would also like to know the rationale for including in the bill a duty to “have regard to” the principles rather than a requirement to act. Some stakeholders, including Scottish Environment LINK, have highlighted concerns about that. Client Earth has highlighted concerns about issues being

“siloed or split out from general decision-making.”

What conflict could there be? Given that the environmental principles must be upheld, why does the bill say only “have regard to”? Perhaps you could help us to understand that.

We feel that the use of “have regard to” is proportionate because of the nature of the principles as guides to decision making. The principles do not represent outcomes or objectives for environmental policy; they relate to essential practice in the making of policy. We think that the “have regard to” formulation of the duty is proportionate and will put it alongside other important duties and considerations that regulators and other public authorities have. The four guiding principles are very important, but they should not dominate other factors in decision making, which is why we have gone for that formulation.

10:30  

You also talked about integration. We feel that integration is achieved in the way in which we have formulated the duty. It is clear that the principles affect all decision making where relevant, rather than just decision making for environmental policy. That is how integration is achieved—it is in the structure of how we have put into effect the duty to have regard to the principles.

Mark Ruskell has a question on the definition of the environment.

I will ask that question, but perhaps Charles Stewart Roper could reflect in his answer on why the integration principle is not in the bill.

My question is about environmental definitions. We have had quite a bit of evidence from Scottish Natural Heritage in relation to the birds and habitats directive and evidence from other commentators about the lack of an explicit link to climate and climate targets. Client Earth says that the environment definition should be based on the Environmental Information (Scotland) Regulations 2004.

Will you give us some background on why you have seemingly chosen quite a narrow definition of the environment, given those stakeholders’ concerns about whether it captures the full range of what we would recognise as environmental laws in Scotland?

If I may, I would like to make sure that I did not create confusion earlier when Mr Ruskell asked about the reassurance that we had from the European Commission. We had an official-to-official reassurance that the Commission was quite content that our governance proposals would be robust. The question to Emma Lopinska about future standards and the nature of the keep pace powers concerned a different and more complex issue about future decisions as well as the proposals in the bill. I wanted to make sure that I had not created confusion there.

On the question about the integration principle not being in the bill, we think that it is there, but it is there in the construction rather than standing as a principle on its own. We achieve integration through the way in which we apply the duty to all decision making and not only a narrow range of decision making.

We will carefully think through the points that have been raised about the definition of environment that we are using. There is no intention to exclude issues such as birds and habitats or the creatures that live there. That is clear from the provision on how we define environmental harm. However, we need to think through whether that is clear and ensure that we do not create a problem regarding nature.

There is a deliberate intent to remove the strategic level of policy making on climate change emissions reduction, mainly because it already has a complex and well-developed governance and policy development issue of its own. It seemed that to overspecify it and bring it, as well as all the existing arrangements and the relationship with the Committee on Climate Change, under the purview of the new body would just create confusion.

Mark, do you want to follow up on that response before we move on to talk about the governance models around environmental standards Scotland?

I am aware that time is marching on, but I would like to hear a brief reflection from the bill team on the role of finance and budgets. I am aware that some of your thinking here goes back to the Environmental Assessment (Scotland) Act 2005, from which those aspects are excluded. We are now 15 years on. Has there not been fresh thinking about green recovery and the financial support for it that would perhaps put environmental thinking at the heart of budget processes?

Mr Ruskell is clearly right. What we have in the bill reflects the Environmental Assessment (Scotland) Act 2005 and also the strategic environmental assessment directive. The guidance for the environmental assessments is more clear cut—it says that it excludes measures that are purely financial or budgetary. The proposal is essentially to follow that and ensure that, as with an application for environmental assessment, there is an application of the principles to the actual budget-making process, which has its own procedures, processes and relationship with the Parliament.

I take the point that you make. It is not to exclude from consideration the wider issues of how much resource should be applied to environmental issues or goals; it is about the specific processes for budgets and finance, which we see as not being within the purview of the new duty to have regard to the principles.

I will move on to some questions about ESS, and I know that other colleagues will want to come in.

I am trying to get my head around how ESS will work. I will use as an example the current complaint that has gone to the European Commission about the unlicensed use of acoustic deterrent devices—a matter that has come to the committee previously. That complaint might go so far, but be dropped in December.

How do you see ESS dealing with things such as complaints about Marine Scotland issuing or not issuing licences, and concerns about compliance with the EU habitats directive? What might be the outcomes in relation to compliance notices or improvements? Will you take us through an example to show how ESS might work, in theory, under the structure that you set up in the bill?

That is an interesting example. I am not an expert on that issue, so although I will take it as an example, you should not take what I say as an expert view on acoustic deterrent devices.

It is clearly a matter of concern to many stakeholders that such issues will be brought to ESS when it comes into being, even in its initial shadow form. They may be about particular sites or the issue in general. We would expect, in line with the bill, that ESS would request information from Marine Scotland on its decision-making processes, the background to that, the way that it conducts its business and issues licences, and the criteria that it uses. We would then expect ESS to come to a view on whether there was a problem.

There are clearly two broad possibilities. The first is that the way that Marine Scotland was acting was somehow in conflict with the law as stated. This is where my expertise falls down, but I understand that there was not a decision to put in an amendment to explicitly ban such devices, so there would be a question of judgment as to whether the body was not acting in accordance with the law. In that case, ESS could start to move towards a compliance notice. We would expect it to discuss its concerns and issues with Marine Scotland and try to resolve them first, but that would be the route.

On the other hand, if the concern was more that the law was not properly taking account of the issue or that the balance between nature conservation objectives and regulation of the activity was somehow not in the optimal place, ESS could start to move towards discussions about whether the law should be improved. That would take it to the improvement report end of the process. It would discuss with Parliament, Marine Scotland and the Government whether there should be improvements to the law. It could then bring a report to Parliament with its recommendations on whether the law should be improved in the area, and ministers would have to respond to that.

The compliance notice is for narrower circumstances where the public authority is not working in accordance with the law. The improvement report route is for situations in which the law or the broader strategy is somehow not working to the overall advantage of the environment, or the correct balance between the environment and the activities.

Thanks. That is useful.

I will bring in Claudia Beamish, who wants to raise some issues on non-compliance.

I want to consider enforcement and non-compliance and my question is for whoever thinks it appropriate to answer on that subject. What will the endgame be in the unlikely circumstance that there are difficulties that cannot be resolved by ESS through the steps that it can take? In her letter of 31 July, the cabinet secretary said:

“The Scottish Government expects that the majority of matters that come to the attention of ESS will be resolved without any resort to its formal enforcement powers.”

That is positive. However, under the EU arrangements, where there are concerns about infractions there is also the threat of possible fines. What would be the endgame for the new body if it is established in the way that is currently envisaged? Will there be fines? What will its final powers be?

I will pick that up. If we think of the example that we were discussing, if it is a narrower case, where the public authority is not applying the law correctly and no agreement can be reached, the new body would be able to issue a compliance notice. A compliance notice is appealable but would otherwise be binding and could force the public authority to change its practice. For example, the notice might say something like, “licences issued under these regulations must no longer have this condition applied.” Although the public authority could appeal that decision, it would otherwise be enforceable and it would have to change its practice in relation to the regulatory activity.

Where the new body felt that there were unresolved issues of strategic policy—that the law or policy was wrong and there could be improvements to make it more effective—and if it could not agree with the Government and public authorities, the end route would be for it to submit a report to Parliament. The system is set up so that ESS would submit an improvement report to Parliament and ministers would have to respond either with an improvement plan, stating how they were going to fix the problem, or by arguing that they did not see the problem in the same way. That could be voted down by Parliament. In a domestic setting, ministers do not think that issuing fines in relation to bigger issues is a useful approach. It is not clear where such fines would go. Ultimately, such issues are for Parliament to resolve. The most tricky issues in environmental policy always come down to some sort of conflict between different human activities and the natural environment. That means there are big societal choices and those issues are for the Parliament to resolve rather than the courts.

Thanks for that helpful clarification.

I am fairly content with the answers that we have had on governance issues but I have some questions about the interim body. I am keen to get more information on how the interim body is being established. I refer members to the submission from RSPB Scotland, which says:

“It is critical that the appointments process for the interim body is transparent and robust, as this Interim Board will form the first Board of the statutory ESS. Ministers should also indicate whether the interim body will be able to accept and investigate representations from members of the public, even if enforcement action, for all but the most serious cases, cannot be taken until the statutory ESS is operational.”

Can the officials expand on that and advise us whether appointments to the interim body are already being made?

10:45  

We have advertised the positions for the first board appointments to the shadow body. We cannot begin a regulated appointment process because of the stage that we are at in the development of the legislation, but we are going through as robust and as close to a full public appointments process as we can in the circumstances. We are doing that in a robust way and, when ministers make those choices, they will be well aware of the need for a credible panel and for high quality appointments so that the new shadow body can start off in a positive way.

From 1 January 2021, we will have a facility in place for people to bring concerns and information to the shadow body, which will start to investigate those in its shadow form before it passes into statutory form sometime next year.

Can you be more specific on the timeline. By “sometime next year”, do you mean spring or sometime later?

At the moment, we are optimistic that we will be able to establish the body on a statutory basis in the summer, but that obviously depends on the progress of the bill and on the Parliament’s consideration of it. Ultimately, sir, it is in your hands, not mine.

Stewart Stevenson has some questions about the independence of the new body.

A lot of feedback has been gathered in the committee’s consultation. I will pick up on only a couple of points, as I know that other colleagues will further develop them.

RSPB Scotland focuses on schedule 1 paragraph 1(1), which sets out that ESS is

“not subject to the direction or control of any member of the Scottish Government”,

and notes that paragraph 1(2) goes on to state that that clause is

“subject to any contrary provision in this or any other enactment”.

Professor Gemmell picked up on the issue of climate change policy and targets.

Where does the Government think that paragraph 1(2) comes in? From my point of view, it seems that Parliament and Government set things such as climate change targets and policies, but I wonder whether some of the respondents are suggesting that setting environmental targets of that kind should be transferred to ESS, although it seems that it should be a supervisory body, rather than one that initiates policy changes. Could we have some explanation as to the meaning of

“subject to any contrary provision”

in practice?

An example of a prior provision might be the legislation on targets for climate change. Are there other examples that we should be thinking about? In the minds of the officials or the ministers, what could cause that secondary provision to kick in?

There are two parts to the paragraph in the schedule that you refer to. First, there are things in the continuity bill, and ministers obviously have some role in that bill with respect to the new body, and secondly, there are other possible enactments. That part is there more for tidiness and legal efficiency, rather than because ministers have any other particular functions in mind. It is meant to give us flexibility, so that a piece of legislation passed by Parliament could give additional functions to the new body, without us having to go in and messily amend the act. Once the bill becomes an act, that ability for the body to take on an additional function would already be built in.

There are no specific additions in mind. If one arises down the line, it is more likely to be in the field of the thinking that is being done on the enjoyment of the human right to the benefits of the natural environment, rather than anything on climate change. The climate change institutional structure is already complicated enough, and we do not see that ESS will have a particularly strong role with respect to emissions.

Let me come back to make sure that I fully understand what I am being told. Clearly, there are existing bits of legislation, of which those relating to climate change would be but one example, are over which ESS will have oversight. Equally, however, paragraph 1(2) of schedule 1 leaves open that Government can bring forward, and Parliament can pass, legislation that will affect what ESS is responsible for, and, therefore, ESS is not master of its own destiny to the extent that some people seem to want. Is that a fair expression of what I have heard?

In a sense. However, to say that something is fixed until Parliament passes legislation that changes it is an obvious fact—Parliament can always pass new legislation to change something. All the provision means is that if Government proposes and Parliament passes a change to it, they can do so in a more tidy way because there is already provision in the establishment of ESS for that to happen. The provision does not open up any new prospects for change; it only makes doing so more legislatively tidy.

I will close this discussion in a moment and allow others to come in.

Are you saying that such changes could be made solely by secondary legislation, or are you simply saying that secondary legislation can be exercised as a power under this proposal that gives effect to what is being brought forward in primary legislation in another bill that is laid? Is that the tidy legislative approach that you are talking about?

On that detail of what enactment means, I have to ask my legal colleague to step in, because that is a technical question.

Paragraph 1(2) is not a regulation-making power of itself. It would not enable ministers to make regulations to change ESS’s remit. Does that answer the question?

It does, thank you.

I want to further explore issues that Stewart Stevenson has raised. Some stakeholders have raised the issue of the independence of ESS. I will quote from Professor Campbell Gemmell’s submission to give a sense of their concerns. He said:

“The direct involvement of the government of the day in recruitment, reporting and operation as well as setting budgets and priorities, however, is inappropriate and weakens the body and its likely value and impact.”

There are one or two other comments in that vein but, because of time limitations, I will not quote them.

What is the view, of whoever feels that it is appropriate to answer, on that very important issue of independence? I appreciate that ESS would not be a ministerial body, but exploring that issue would be helpful.

The minister’s belief is that the proposals will set up the body with a high degree of independence. The non-ministerial department is a strong model of independence, and the bill guarantees the independence of the new body. I think—[Inaudible.]

We appear to have lost the connection to Charles Stewart Roper and will just have to come back to him later. Mark Ruskell wants to come in on the precautionary principle, but that is probably a question for Charles. I do not know whether I can suspend the meeting to try to restore his connection, because we have only five minutes left. I have some questions around the budget as well, and the funding allocation and its impact. We will wait to see whether we can get Charles back, because more or less all the questions that we have are for him.

I see that Charles has rejoined us. Charles, can you hear me?

Yes, I can. Apologies for dropping out again.

I imagine that that is not your fault. Did you hear the question?

Yes, but I do not know how far I got into the answer before you lost me. The proposals will create a body with a high degree of independence, which is certainly ministers’ intention. We think that there are important guarantees in the bill on the key steps for that, particularly that the appointments and the strategy developed by the body will be approved by Parliament. There is no intention to set the body up as a creature of Government and ministers. We think that the proposed structure will give the body a high degree of independence and set it up as a non-ministerial organisation separate from ministers and Parliament. It will therefore have a status of its own, although it will obviously be accountable to Parliament, as it should be.

I am going to have to move things along very quickly. I will come back to Stewart Stevenson’s topic of gaps in governance for the last question. First, though, a couple of bodies have flagged up issues about potential additional costs to them from interaction with the new body and the resourcing around that, and whether the resourcing of the new body will be sufficient. You will have seen those points made in the written submissions from Scottish Natural Heritage, Scottish Environment LINK and the Faculty of Advocates.

Yes. Ultimately, a judgment has to be made about how much funding there should be for the body. Our hope is that, like the European Commission in recent years, it will work effectively on a small number of cases and will therefore not incur large costs of its own or impose large costs on public authorities. The great effectiveness of the Commission governance system was due to its deterrent effect, as people did not want to get into trouble for non-compliance. If the system here is set up effectively, ESS should be able to work on a smaller number of exceptional issues with quite a light touch and not impose huge resource costs. We want to spend money on improving the environment and not on running institutions and casework.

Finally, I ask Stewart Stevenson to pick up on the potential that has been flagged up for gaps in competence between the OEP and ESS.

I am particularly focusing on the issue of where there are powers that might be exercised by either a UK minister or a Scottish minister, because it sounds like the first one to move gets the chance to exercise the powers. However, with regard to UK ministers exercising powers that would affect Scottish law, are officials satisfied that what is before us will give us the ability to have proper oversight of that effect, particularly via ESS?

In general, such co-decision powers or powers that could be exercised by either Administration will be exercised with the consent of Scottish ministers when exercised by UK ministers, and we could inquire into that. That is obviously not a complete and full answer to your question, but we do not foresee there being significant gaps, particularly where there are regulatory schemes that work across the UK and Great Britain. The key thing will be for the new governance bodies to work closely together in order to provide effective oversight of schemes that work at the UK and GB level.

Right. I am not unduly bothered about the issue of consent, although I am not sure that it is co-decision making; rather, it is alternate decision making. I will let that one pass, though. The real issue is where a UK minister does something that affects a Scottish institution. I want to be clear that that would not deprive ESS of the ability to intervene in the operation of the Scottish activity that the UK minister had legislated for, even though the Scottish minister could have done so. It is not a question of consent but a question of how we would get a grip of what happened.

The competence of ESS is defined by the law that could be made by the Scottish Parliament. If a law was made by convenience for a UK regulation, that would not affect ESS’s oversight of that law’s operation, because it would still be within the Scottish Parliament’s competence.

I am afraid that we are going to have to leave it there. Thank you for your time this morning. I suspend the meeting for five minutes to allow for a change of witnesses.

11:01 Meeting suspended.  

11:07 On resuming—