Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, November 26, 2019

Official Report 589KB pdf

---

Subordinate Legislation

---

Environment (EU Exit) (Scotland) (Amendment etc) (No 2) Regulations 2019 [Draft]

Welcome to the Environment, Climate Change and Land Reform Committee’s 32nd meeting of 2019. I remind everyone to switch off their mobile phones or to switch them to silent mode, because they might otherwise affect the broadcasting system.

The first item on our agenda is consideration of an instrument that is subject to affirmative procedure. I am delighted to welcome the Cabinet Secretary for Environment, Climate Change and Land Reform, Roseanna Cunningham, who is accompanied by Scottish Government officials Elspeth MacDonald, from the environmental quality and circular economy division, and Lorraine Walkinshaw, who is a solicitor with the environmental protection branch of the rural affairs division. Good morning. I believe that you have an opening statement, cabinet secretary.

Yes, I have a brief statement.

As the committee knows, the Scottish Government’s policy is that we should not leave the European Union, but we have to prepare for the eventuality. The regulations are made under the European Union (Withdrawal) Act 2018 and will not come into force before exit day. They address deficiencies in the Regulatory Reform (Scotland) Act 2014 and in a number of waste regulations.

The changes to the waste regulations are minor and technical, and are to enable existing legislation to continue to operate effectively after exit day. The changes to the Regulatory Reform (Scotland) Act 2014 include fixing a deficiency in a regulation-making power that presently refers to section 2(2) of the European Communities Act 1972. That section will be repealed on exit day. The purpose of the amendment is to ensure that the Scottish ministers’ powers under the 2014 act continue to operate effectively in the event that we exit the European Union. The amendment will allow continued effective implementation of a closed list of existing EU obligations, which are expressly itemised in the regulations. The power is for specified environmental obligations that would be part of retained EU law on exit day, and is similar to the existing power under section 2(2) of the European Communities Act 1972.

To put it simply, the Government needs to be able to continue to implement aspects of EU law that are passed before exit day, such as the latest changes to the waste framework directive, but which have not yet been transposed into domestic law on the date of exit. That is part of our commitment to maintaining high environmental standards in the event that we exit the EU.

I hope that that is very clear—although obviously the committee might have questions.

We do. Mark Ruskell has the first question.

The regulations seem to restrict the power to legislate to 21 EU directives and four EU regulations. What is not on the list?

Elspeth MacDonald will answer that.

The list comprises the items that we have identified that either require future implementation or might require change. The list of what is not on that list is quite long, but if the committee wishes, we can write to you to set out the rest of the implementing regulations.

How will the change affect the ability to legislate on things that are not on the list? At the moment, there are wide ministerial powers to legislate on everything.

I presume that those things will not be affected. If they would be affected, they would be on the list. I think that that is the way to look at it.

The power has always been restricted to environmental obligations. We identified environmental obligations and listed them.

What will be the practical effect of the regulations on ministerial powers?

The practical effect will be to keep Scotland in line after exit day with what we have been doing before exit day. This is one instrument among many to try to ensure that, come exit day, problems have not inadvertently been created. We have tried to identify potential problems, and we are fixing those through regulations. The instrument is part and parcel of a long list of statutory instruments that the committee has had to look at as a result of the situation that we are in.

If something is not on the list, and you decide that you need to legislate for it to allow for alignment with the European Union, what would you do?

We have said that we are keeping pace with the EU. That is what this work is about—we are identifying areas in which there would be an issue on exit day if we did not fix the matter. We are not fixing something that does not need to be fixed; we are fixing something that we consider needs to be fixed for exit day. Lots of other things do not require fixing. Many such regulations make technical changes to ensure that current wording in legislation does not inadvertently create a problem: that is what we are doing with this instrument.

The purpose of the regulation is to capture EU law as it exists, as of exit day. There are things that we might not be able to transpose, such as the circular economy package. The powers in the regulation would allow us to do that post-exit day.

A keeping-pace power—that is, a power to keep in line with EU law after exit day—would require primary legislation. The Government has committed to bringing back the keeping-pace provision in the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill.

Right. That is something quite different.

Yes, that is quite different.

That is a policy commitment.

I have a final question on categorisations before we move on. The Government categorises the instrument as being of medium significance under the protocol categories. However, because it will amend a power to legislate, it should be high significance. What is the reason for the medium significance categorisation?

I thought that it fitted the medium significance categorisation. I consulted colleagues and they agreed.

It is a subjective test.

If the Delegated Powers and Law Reform Committee were to decide that the instrument should be categorised as high significance, we would be happy to accept that. The point is that it is an affirmative order, so the committee needs and gets the opportunity to consider it fully.

There are no more questions. I move on to agenda item 2 and invite the cabinet secretary to move motion S5M-19962.

Motion moved,

That the Environment, Climate Change and Land Reform Committee recommends that the Environment (EU Exit) (Scotland) (Amendment etc) (No 2) Regulations 2019 [draft] be approved.—[Roseanna Cunningham]

Motion agreed to.

I thank Lorraine Walkinshaw and Elspeth MacDonald for their attendance. The cabinet secretary will remain with us. I suspend briefly to allow a changeover of officials.

09:43 Meeting suspended.  

09:45 On resuming—