Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, October 29, 2019

Official Report 596KB pdf

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European Union Exit (Environment)

Item 2 is an opportunity for the committee to hear about European Union exit and the environment from the Cabinet Secretary for Environment, Climate Change and Land Reform and her officials. I am delighted to welcome the cabinet secretary, Roseanna Cunningham, and her officials. Katriona Carmichael is deputy director for future environment division, Clare Hamilton is deputy director for climate change, Don McGillivray is deputy director for environmental quality and circular economy division, and Lisa McGuinness is head of compliance at Marine Scotland. Thank you all for coming.

Cabinet secretary, I understand that you want to make brief opening remarks.

Thank you, convener.

Today is interesting timing for this discussion. Notwithstanding where we are in the process, I continue to be deeply concerned about the negative impacts of EU exit, whenever it happens and whatever the terms. I am particularly troubled by the on-going threat of a no-deal exit. I understand that, as of today, the potential no-deal exit date shifts from Thursday this week to the end of January—I think that it will be 31 January; nobody is quite sure.

There has been extensive preparation to protect environment, climate change and land reform interests from the damaging effects of a no-deal Brexit. The Government will continue to prepare for that possibility unless and until it is fully ruled out. We must continue to do so, notwithstanding changing dates.

As the committee knows, on 8 October the Government published, “Scottish Government Overview of ‘No Deal’ Preparations”. I wrote to the committee last week to set out more detail on the actions that have been taken across the portfolio to prepare for no deal, including actions to ensure a functioning statute book. The reality is that it will simply not be possible to mitigate all the impacts of leaving the EU without a deal.

Three aspects of more general Brexit impacts across the portfolio should attract the committee’s attention. First, the revised withdrawal agreement and political declaration that the Prime Minister has agreed to are still live, and together they raise significant concerns, because the revised texts contain no legally binding commitments on environmental protection or climate change. The language in the revised political declaration about the need to “uphold ... common high standards” is unclear and has no legal force.

Because of the Prime Minister’s stated intention of potentially diverging, in the future, from EU laws and regulations that deliver environmental, product and labour standards, the issue continues to be a major concern.

The UK Government’s apparent intention to move away from alignment with EU standards could also seriously undermine the development of long-term common frameworks. The Scottish Government will not agree to any measures that would disadvantage Scotland or place environmental standards at risk, or to any that do not reflect the clear desire of the people of Scotland and the Scottish Parliament.

Secondly, I am concerned about the pace of final development of the UK Environment Bill and the lack of time that we were given for proper detailed consideration of its provisions. Before that bill was published, the Scottish Government was not consulted or even made aware of the climate governance role that is to be given to the proposed office for environmental protection, to replace the role of the European Commission. I have told my UK counterparts that we must work together in a spirit of true collaboration to develop the meaningful joint decision-making processes that might be required, as long as they respect the devolution settlement and help us to achieve our respective net zero targets.

Thirdly, effective and appropriate governance to monitor and enforce environmental standards in Scotland is vital. Our consultation has confirmed that key gaps will exist once we lose the European Commission’s scrutiny of Government performance, so we are currently finalising our proposals for long-term governance arrangements on the basis of that analysis. However, gaps would be immediate in the event of a no-deal exit from the EU.

I intend to appoint an interim advisory panel that will operate if a no-deal exit is confirmed. That panel will provide advice on maintenance of environmental standards and implementation of environmental law in Scotland. Because of his considerable skills, I have invited former Scottish Public Services Ombudsman Jim Martin to chair the panel, and to put in place an interim approach that will follow as closely as possible the Commission’s approach.

I hope that the committee recognises the huge amount of work that has already been carried out by the Scottish Government, and its on-going work to ensure that our environmental laws and regulatory systems are robust in the event of exit from the EU.

I would be happy to discuss any of those issues further with the committee.

You have said that the Scottish Government has done a lot of work to prepare for a no-deal Brexit.

Yes.

Obviously, work is taking place across the Government and Parliament. How much has that work cost in your portfolio? Where is the money for it coming from?

The cost is considerable, and much of it must be met from our own budget. Obviously, we have made bids for funding and will continue to do so.

There are significant costs in several areas. A no-deal exit would have a disproportionate impact on Marine Scotland’s compliance functions, so funding has been awarded accordingly. The Treasury has, at least, now acknowledged that that is a significant issue, and it has provided long-overdue funding to help to mitigate some of the impacts—although it has done so at an incredibly late stage in the day. It has agreed to release £5 million for compliance assets, which will not prevent all the entirely avoidable damage, but is, at least, a significant subvention.

Our clear expectation is that the Treasury will continue to honour the promise on other significant costs that are incurred by the Scottish Government in relation to Brexit. That covers the overall issue of funding for Brexit costs.

Marine Scotland is now, as a matter of considerable urgency, committing the funding that it has been given at this late stage to further enhance existing marine compliance assets. We would not have been able to have the additional assets in place before the end of this week because of the very late confirmation of the funding. Obviously no deal is now not on the table, but we cannot stop preparing for outcomes that might yet happen.

Marine Scotland has borne the lion’s share of costs. There has been spend by the environment and forestry directorate and by various public bodies and the main research providers. I have a detailed year-by-year breakdown: I do not know how much detail you want me to go into.

An overview is fine.

We have been spending on Brexit. For example, £4.4 million was spent by the environment and forestry directorate and sponsored public bodies in 2017-18 and 2018-19, primarily on staff costs. I can give you a more detailed breakdown in a letter, if the committee would like that.

We would welcome that detail. I will pick up on a point in your opening statement about the Environment Bill. The policy statement that accompanies that United Kingdom Bill states:

“There has been extensive and continued collaboration with the Scottish and Welsh Governments and the Northern Ireland Civil Service. This has enabled us to bring forward ... measures that we expect to see adopted outside of England”.

That contradicts what you have just said. Are you saying that such collaboration has not taken place?

I have read that statement; it is categorically untrue.

Has there been no collaboration or discussion?

There has been none. There has not even been notification, let alone collaboration.

Right.

To be clear, I point out that we have known about the proposed office for environmental protection since the UK Government began consulting on the bill, when both Scotland and Wales refused to be part of it. The notion that that office was going to be extended to have oversight of climate change activity came out of the blue when the bill was published. I could be mischievous and point out that if a Government is to have oversight of climate change activity, given that Scotland’s ambition on climate change is considerably in advance of that for the UK as a whole, it should perhaps be the case that the Scottish Government oversees what is happening at Westminster. However, I find the UK Government’s position astonishing.

That is of particular concern, given that quite a lot of the targets in the Climate Change (Emissions Reduction Targets) (Scotland) Bill that we recently passed are dependent on what happens at UK level. That is correct, is it not?

Yes.

The panel might not be in a position to comment on this, but another part of the European Union (Withdrawal Agreement) Bill that causes me great concern is the overarching power of the proposed independent monitoring authority that schedule 2 will create, the membership of which Scottish ministers will have no right to determine. Has that relevance for the committee’s interests? It will clearly have relevance for the interests of the Scottish Parliament as a whole. The authority’s focus seems to be on human rights, but it seems that it will cross over into environmental matters and might, in fact, sit over the proposed office for environmental protection on leaving the EU. What can you say on that?

Those are among the issues on which we have continued to try to get clarity, and are among the reasons why we are at this stage unable to agree to a legislative consent motion. We have advised the Presiding Officer that we cannot do that until we get more clarity from the UK Government. I suspect that, in the few days before the Environment Bill was published, there was a rushed attempt by colleagues south of the border to get something out the door. I am not sure that they are clear about some of what is in the bill and what is intended. We need to do a lot of work on that, if we have the opportunity to do so; we could be in a completely different position by the end of today.

That leads to my second question. I have just seen on the wire that all the parties at Westminster now support the proposal for a general election in early December, which implies that the Environment Bill will fall. In that light, what would we in Scotland lose through the bill not being progressed at Westminster? Notwithstanding our concerns about some aspects, I imagine that we would also lose some positive things that would have been of benefit.

11:15  

In fairness, I say that a considerable amount of work has been done, and that we were in agreement on things such as producer responsibility. Perhaps that is a conversation for another meeting.

We had negotiated with the UK Government some such provisions over a long period, and would have been happy with an LCM on those. The levering in of additional provisions has created the problem, rather than the pre-existing agreed areas on which we had hoped to use the passing of the UK Environment Bill to allow us to have legislation on things that would have been difficult for us to legislate on, given the pressure on our parliamentary legislative timetable.

There has been a bit of a loss in that respect. Stewart Stevenson is right to raise the matter; however, given the current circumstances of the bill, I cannot, in all conscience, simply sign it off. Of course, if the bill falls because an election is called, this all goes back to square 1.

The picture is changing minute by minute; I am getting confused.

Forgive me; I do not know any more than you do about that.

We will try to keep you up to date.

We need to keep an eye on Twitter.

Is there any more clarity around how the proposed office for environmental protection will link with devolved functions? We have heard about the example of offshore wind farms and whether the proposed OEP could have a role in determining consent processes for them. I am searching for real examples in which the proposed OEP would straddle a mixture of devolved and reserved matters, or will come in on them.

That is one of the areas on which we have been unable to get clarity. Our perspective is that the proposed OEP should have no role in respect of devolved issues. We have never had clarity on what the UK Government thinks are the issues on which the proposed OEP might intervene; that is something that we have been unable to establish. The addition of climate change came as a complete surprise to us because we had been having conversations about the proposed OEP.

As I understand it, the proposed OEP will, in effect, be a desk that receives things then passes them to the relevant departments—it will be a conduit for complaints and issues. It is an interim proposal. Perhaps Katriona Carmichael has more information.

That is my understanding of the UK Government’s proposal for the interim arrangement.

The committee should understand that the UK Government is proposing an interim arrangement, although the bill is about the longer term. It is not clear what the proposed OEP will look like and what the bill is intended to cover. Scotland and Wales have said clearly from the outset that we are not happy for the legislation to extend to devolved policy areas. As members heard in my opening remarks, we have therefore developed a proposal for an interim position while we develop the long-term scenario. The scenario is so fluid that I have been having conversations about setting up a fix for a no-deal Brexit, and for things that might not be necessary if no deal does not happen, but will be necessary if there is no deal, which we might not know until the last possible minute. It is like an “Alice in Wonderland” scenario.

I want to record that I am extremely grateful to Jim Martin for agreeing to take on the task in the hugely uncertain space that we are all in just now.

My intention is that our interim measure would look much more like a proper set-up. It would not be just a desk, but would mirror what the European Commission currently does. We cannot make it bigger than that, but it will, at least, do that.

I am sorry to interrupt. You are putting in place all these governance procedures and processes and, potentially, bodies. Are you concerned that there might be some compulsion from the UK Government that interferes with that or supersedes it?

I cannot say whether that will be the case because, at the moment, there is so little available for us to understand. When the UK Government consulted on this aspect of the Environment Bill, it did so on the basis that we—by which I mean Scotland and Wales—were out of those provisions for devolved policy. The UK Government has always kept the odd overarching statement that there will be some reserved policy matters, but we have never been able to establish what it thinks those will be. That has always been an issue, and we continue to press the UK Government on it. I suppose that one could argue that the bill progressing through Parliament might at least have given some ability to find out what that was all about.

I have to say that, at the moment, I do not think that the UK Government intends to do that, except for the addition of the climate change oversight. We were all taken aback by that, and I do not understand what that will look like. I am trying to be as expansive as possible, given the situation that we are currently in.

I appreciate that.

Cabinet secretary, it is helpful that you highlighted the reassuring point about the advisory panel and recognising the Commission’s position. Can you say anything about the monitoring and enforcement arrangements? As I understand it, in the consultation in Scotland, positive arguments were made for having environmental monitoring and enforcement arrangements here. If those arrangements go ahead, how would they be independent of Government?

Again, I will separate out a no-deal exit from an exit with a deal, because those are two different scenarios.

Of course. I was talking about the long term.

For a no-deal exit, as well as the panel, we would expect the existing organisations in Scotland that carry out monitoring and enforcement to continue to do that. Obviously, there is a conversation to be had about longer-term governance in that regard, and we will bring forward ideas on that as soon as is reasonable, although the committee is undoubtedly aware that there is little chance of legislating before 2021. Therefore, the interim scenario that may come into play may subsist for a couple of years.

The other thing about the interim scenario is that we couch it in terms of no deal and deal, but it kind of depends on the deal whether we continue to have the interim scenario for longer. We are in a very uncertain period.

Convener, do you want me to ask about environmental principles now?

I will come to Rachael Hamilton first and then I will come back to you.

I want to go back to a previous point. Cabinet secretary, am I correct in thinking that you are considering ways in which the devolved Administrations can work together to produce environmental principles?

I am not clear what you mean. We all agree on the environmental principles that we adhere to. I do not think that there is a difference anywhere in the UK—there is prima facie agreement about the environmental principles.

Okay. It is just that there was something in the papers that said that there was an agreement to consider

“ways in which the four UK administrations can work to provide for coherent sets of principles.”

That may be a shorthand that the media has used, because the four environmental principles that everybody knows about are agreed by those round the table. There is some discussion of additional principles, which some members of the committee will want to have a conversation about, but the four that apply are those that we anticipate putting into the continuity bill, when it is introduced.

There is no disagreement on those principles, although there may be one on another matter. Let us assume that Northern Ireland has a minister and that there are four ministers around a table discussing coherence of approach. The issue arises with the presumption by one of those ministers that they somehow have the directing role, when they do not when it comes to any devolved matter. The issue concerns that, rather than the principles themselves.

Thanks.

As you will recall, cabinet secretary, Mark Ruskell and I lodged amendments to the previous continuity bill—that seems a long time ago—on the four guiding principles and we were reassured, as were many people in Scotland, that they were included. However, I understand that there is another possible principle on integration, and that human rights principles could be added. You have already highlighted that there will be more to consider. I know that the four principles are there, and that is reassuring, but there may be more to consider.

I need to say that I am not in charge of the continuity bill, so that question is slightly off centre for me. We have agreed the four principles, and there would be no debate about that unless we felt that the continuity bill had to be brought forward in time and introduced earlier. That may raise an issue because of timetables for parliamentary drafting. I am therefore wary about getting drawn into too much detail about what might or might not be a debate at the time of the introduction of the continuity bill, which, at the moment, is due to be in spring 2020 and is intended to legislate for the four environmental principles. However, as we know, it is not just a week that is not a long time in politics—a day is now a long time in politics.

You have said on quite a few occasions that the Scottish Government intends to keep pace with EU standards, yet the language from the UK Government has changed in that area.

Very much so.

What is your response to that, and what will the impact be?

It does not change my intention. It makes it even more important that we retain full control over what is already devolved, because we will be able to do that only if we are in the driving seat on policy. There are tricky issues on keeping pace, because doing so means that we also have to be plugged into the discussions, debates and conversations, and the development of changing thinking. That will be a challenge for us, and we are looking at ways in which we can continue to do that, even on the other side of Brexit, and ensure that there are mechanisms by which we can continue to stay plugged in. For example, we very much hope that the Scottish Environment Protection Agency will continue to be locked into the pan-European gathering of environmental protection agencies.

We will need to keep a very close eye on the continuation of such connections so that we have the information that will allow us to keep pace with developments. It is our intention to do so, but that is why I am so resistant to anything that would give away power in this area.

The changing language that you have referred to, particularly in recent weeks as the political declaration and withdrawal agreement have come back, is a worry for us, because it appears that—perhaps not today, tomorrow or next week, but at some point—there will be an attempt to diverge from the EU standards to which we have become accustomed. The Government and I need to protect our environmental policy from that as much as possible.

11:30  

Given the Government’s position that, regardless of how the UK leaves the EU, it will maintain or exceed the existing environmental standards, and your assurance that your civil servants are prioritising preparations for a no-deal exit from Europe, how advanced are your interim plans as regards governance?

I have indicated that I have already had conversations with Jim Martin, who has agreed to chair the panel.

What are the timescales for that? The present scenario is one that you will have been looking at from day 1. Since people voted to leave the EU, the Government’s position has always been that it would keep pace with environmental standards and prioritise preparations for a no-deal exit. Why have we come so far down the road before getting some idea of what the interim arrangements would be?

With the greatest respect, we were not discussing a no-deal exit right from the get-go in 2016. At that point, everything was about getting a deal. A no-deal exit has become a live issue this year, and it was this year that we began to consider that we needed to do something that would allow us to address the interim scenario. We had to make a decision about what that would look like; there has been a bit of to and fro about that. We then had to make a decision about who, in the circumstances, would be the best person to anchor that process. That is the context in which the discussions with Jim Martin have taken place.

As I indicated in an earlier answer, we intend the situation to mirror the existing situation for cases that are currently before the European Commission. At the moment, there are six live cases from this country. The scenario that we are talking about is not similar to a court sitting on a daily basis; it is not like that. We will simply have to proceed with the panel in the knowledge that a no-deal exit is still a possibility.

It is an extremely difficult set of circumstances. I am having a conversation with somebody who is very experienced and who knows that the panel might not happen, but who has nevertheless agreed to take it on. He is having to get up to speed with the current cases. We have yet to make a decision about what would happen with those. If we were to go off a cliff as part of a no-deal exit, every one of those cases would suddenly be finished. We would need to make a decision about whether we would uplift some of those and bring them into the new scenario. Depending on what stage they were at, they could fall away. All of that must be thought about beforehand.

It is an odd discussion to be having, because the panel might or might not be needed, but we are continuing to have it.

I am suggesting that there is no uncertainty about a no-deal exit—a no-deal exit is a no-deal exit. Therefore, you have some certainty: if we have a no-deal exit, you know what the parameters are within which you will have to work.

Yes.

That is why I am surprised that, given that it is likely that the Scottish Government will not support any deal that is arrived at and that you expect to have to prioritise a no-deal exit, we do not have more certainty about what things would look like after a no-deal exit. That scenario is less uncertain, because we know what a no-deal exit would look like.

Are you asking me why I did not tell the committee what I am telling it today a year ago? Is that what you are asking me?

No. I am suggesting that the lowest common denominator—the worst scenario—is a no-deal exit. I am surprised, given that we could have been leaving the EU on 31 October without a deal, that you do not have a better idea of what interim arrangements might be put in place.

Okay. There is a lot to do. We have a huge amount to do across the board in this whole area. Officials have had to focus on certain things at the expense of other things. I suppose that, in theory, I could have had the interim panel ready to go six months ago, but we are talking about six cases. That process did not have the same necessity as some of the other things that we have had to do. This is all about managing what we do and do not do and how we do it. We have not stopped doing some things, but we have had to slow them down in order for other things to take place.

There will not be a no-deal exit on Thursday. There is a new date at the end of January, and there might or might not be an exit then. You have to understand that money will get spent on that, too. If we get to a position in which the panel wants or needs to take up cases, it needs to think about what its approach will be in those circumstances. People are, on their time, already engaged in doing that.

This is all a balancing judgment about what is absolutely needed and when it is needed. Some of the choices are not easy to make.

I will ask about the UK Government’s replacement for the registration, evaluation, authorisation and restriction of chemicals—REACH—regulation. Numerous tranches of regulations and amendments to regulations have come to the committee. The UK Government seems to have made limited concessions—it will be involving more expert advice and stakeholders in the decision-making process. Are you content with where we have got to? Will the changes lead to improvements? Where is Scotland’s voice represented in the regulatory structure? In effect, the Health and Safety Executive will still run the regulatory framework for the whole of the UK, and I am a little unclear about how we will input into it. Where is the voice of the Scottish Parliament and the Scottish Government the regulations?

Broadly speaking, we are probably in the best place we thought we could be, but I will not say that the situation is perfect. There are on-going conversations about a common framework; those have not been finalised, but they are moving on. This is one of the areas where engaged conversation is taking place.

This is about maintaining the highest possible standards and protections for public health and the environment and, crucially, for business, to make sure that it has consistency and continuity. Chemicals are one of those things that most people do not really think about, but they underpin an enormous amount of our industry and they are incredibly important for the functioning of our economy.

I intend to make a case for the UK retaining membership of the European Chemicals Agency—I have a strong view about that—and participating in all the relevant regulatory regimes. Also, the UK Environment Bill would remove powers previously available to the Scottish ministers, so that is an area that we want to work on.

If I think about the areas that most directly affect my portfolio and are most directly impacted by Brexit—chemicals, waste, water and the EU emissions trading system—chemicals are possibly the area that is in the best place in terms of the agreements that have been reached. However, the situation is not ideal. I agree that there is still a slight nervousness about the information technology system that has been set up, and people will not be convinced until the button is pressed and it works. However, that is more to do with IT systems than it is to do with this issue.

Don McGillivray looks like he is itching to come in on this issue.

No, I was simply nodding along to what you were saying, cabinet secretary.

That is always a helpful sign.

I think that you have covered the points that I would make.

You spoke earlier about going beyond the four environmental principles. When we debated the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, the Scottish Government made a commitment to progress animal sentience issues. That is not covered in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. Where does that principle fit in? Will it come back in as part of the continuity bill? Can legislation be updated in other ways?

Animal sentience is not one of the four principles of the continuity bill that we have been speaking about. I am not conscious of where it is, so I will undertake to get back to the committee about it.

With regard to EU exit, we often ask you about your discussions with the UK Government on the shared prosperity fund and replacement funding for EU funding streams. Can you give us an update on whether the discussions have moved on in clarity or detail?

I still have no idea what the shared prosperity fund is intended for and how it will be operated, so I continue to have the same concern, as does my colleague Fergus Ewing. There is no doubt about that.

The loss of EU funding would obviously pose a huge risk to environmental objectives through a direct financial impact and a longer-term reputational impact. There are already signs that our research would be adversely impacted; people are being told that, in effect, a UK element in a research proposal will not work, because most proposals span a number of other countries—that is a big issue. We have considerable concerns about that issue and the continued lack of information and clarity, and it is not just my portfolio that is affected.

I have a breakdown of current EU funding—would the committee like to see something more detailed?

We would be happy to take the breakdown. We have a fair idea—

You are probably all aware of it.

Yes.

The short answer about whether we are any clearer about replacement funding is no.

It has been highlighted to the committee that big and significant long-term projects have been supported by the EU. For example, the Shiant Islands, which I have visited, got EU LIFE fund money. I fully expect that the cabinet secretary has already done so, but is it possible to highlight again to the UK Government that the loss of such long-term funding in our biodiversity crisis would be of real concern to Scotland?

We raise the issue at every interministerial meeting between the Department for Environment, Food and Rural Affairs and the devolved Administrations. The devolved Administrations are all in the same position and we raise it at some point of the agenda at every single meeting—the meetings take place almost monthly.

I am bound to say—although I may be speaking out of turn—that I am not entirely certain that most UK ministers know either. I am not sure that their refusal to tell us is because they are keeping it a secret. I am not clear that they themselves have much more detail than we have.

If there is to be a shared prosperity fund, it is obviously really important that it is designed in such a way that Scotland can maximise it. When is the Scottish Government’s consultation, which is headed by Professor David Bell, likely to report back? I know that it will be in the new year. Ultimately, it is important that it is brought forward quickly, so that it could potentially fit with the prosperity fund.

The consultation is not being instructed through my portfolio. I will ask Katriona Carmichael whether she is aware of the answer.

We will be able to confirm that.

We will confirm the reporting date, but the consultation is not instructed through my portfolio, so I am not certain when it will be.

My colleagues do not have any final questions, and we have run out of time. I thank the officials who have accompanied the cabinet secretary. The meeting is suspended briefly to allow officials to change over for the next part of the agenda.

11:44 Meeting suspended.  

11:45 On resuming—