Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, May 8, 2018

Official Report 505KB pdf

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EU Environmental and Animal Welfare Principles Inquiry

The third item on the agenda is to take evidence as part of our inquiry on European Union environmental and animal welfare principles. We are joined by Cabinet Secretary Roseanna Cunningham and her officials, who are Ian Jardine, Andrew Voas and Kate Thomson-McDermott. Good morning, cabinet secretary. Unless you particularly want to say anything, we will move straight to questions.

To kick things off, I will ask a question about the principle of animal sentience. I am aware of the United Kingdom draft animal welfare (sentencing and recognition of sentience) bill and that there have been discussions between the UK and Scottish Governments about the provision on sentience in the bill and how it will apply to our laws. Will you give me an update on where the negotiations and discussions are on that?

The issue has not been discussed at ministerial level in meetings with the Department for Environment, Food and Rural Affairs, but what it means has been discussed extensively at official level. The issue has been driven by a House of Lords committee. The original discussion came as a result of an amendment that the House of Lords wanted to make to the UK European Union (Withdrawal) Bill, so it has arisen in a rather roundabout way.

As the member probably knows, and as I have said in the chamber, there is existing Scottish legislation that touches on the issue, although it does not use the word “sentience” because that term is a more modern understanding of the issue. There is existing legislation without that explicit statement, although all Scottish animal welfare legislation continues to be based on the recognition that vertebrate animals can experience suffering. I think that it is such a fundamental part of animal science that it probably does not need much elaboration.

On what is happening with regard to the UK as opposed to the Scottish position, we are trying to ensure that there is a clear understanding of the difference between a scientific concept of sentience, which is a very particular thing—although we believe that it is already recognised in Scots law—and an obligation on Governments to recognise the welfare requirements of those animals when we are developing policy and legislation. That is a slightly different emphasis. We think that the understanding of sentience is already there. The issue might be the extent to which it is then imported into law explicitly or implicitly, and that is where most of the debate has landed in reality.

In principle, we accept that there should be obligations on the Scottish ministers to consider animal welfare needs in developing policy and that those may apply to UK Government ministers in future, although obviously we are not in control of that aspect. That comes out of the Treaty on the Functioning of the European Union. The issue arose here specifically because of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill and the fact that we are leaving the EU. A lot of the questions and discussions are on-going and we are not 100 per cent clear on what the UK intends to do. We have therefore adopted the principle in the continuity bill and we need to think about how that is taken forward. That is about importing the obligation to have regard to these things rather than the actual issue of sentience itself, which we feel is already embedded in Scots law.

From what I am hearing, the intention is to make it more explicit in law. That could be done through the Westminster draft bill. Is it an intention to bring elements of that provision into Scots law to strengthen what we already have?

If there was a Westminster bill and a legislative consent motion, we would not do it separately in Scots law. If that route was chosen, we would not do both, if you see what I mean—one would supersede the other. In principle we think that, following Brexit, there should be the obligation that currently exists under the EU set-up. There are different ways to do that. We could use our continuity legislation or a future UK bill with an LCM but, if we thought that neither of those routes would achieve the aim, we would have to consider whether more specific Scottish legislation was required. That is where we are at the moment. It is still a live on-going discussion.

Given that there is a range of animal welfare legislative proposals from the Scottish Government, is it your intention to bring those together into a single bill or to continue to take a piecemeal approach?

We have not made a commitment to try to bring that all into a single bill. That would be a fairly hefty undertaking that could not be done easily or within the lifetime of this session of Parliament.

Because so much of it is in secondary legislation, it would be big for us.

To summarise, I take it that there is no difference between the Scottish Government’s and the UK Government’s approach to animal sentience and welfare. We have seen quite a different tone in relation to live animal exports. Are you adopting the same approach to animal welfare and sentience as that of the Westminster Government?

Insofar as we know what the Westminster Government is intending to do, we presume so, but at the moment we do not have enough actual detail. There was an amendment that came out of a House of Lords discussion and, as I said, we are not having ministerial level discussions about animal welfare. Some things are happening at UK level, and there is a different programme of animal welfare work going on in Scotland. The issue is about continuing the obligations that we currently have under the EU. We want to ensure that those will continue. We would have to consider whether anything that the UK Government did fitted with that, and then decide whether an LCM was appropriate in those circumstances or whether we would want to find a specifically Scottish legislative vehicle. There are issues. The existence of Scots law and case law and all the rest of it means that one has to look quite carefully at that.

Let us move on to environmental principles.

Sorry, convener, but can Andrew Voas now leave?

Of course.

I have a chunky bit of stuff that I want to ask about, and I will ask it all in a oner, to simplify, which may require somebody to take notes.

First, what role will environmental principles have in the way that we develop policy and construct legislation? I am looking to see whether environmental principles will be essential for maintaining Scotland’s environmental achievements. I recognise that the continuity bill refers to that. Secondly, what advice has the round table on environment and climate change provided in that context and will a report be published? Finally, in practice, what will be the difference between the EU-derived domestic legislation that incorporates environmental principles and other bits of our environmental legislation that do not make an explicit reference to that?

That is a fair wheen of questions, but I thought that it would be useful to ask them in that way, as that allows you to answer in whatever order you choose.

How good is your memory, cabinet secretary?

I saw notes being written.

It is dangerous to ask such an open-ended question.

I have been making it clear since the get-go—that is, after the referendum on Brexit—that we want to adopt the environmental principles and ensure that they continue to form the basis of what we do in Scotland, as is the case under the EU. I did not then and I do not now envisage any departure from what we are already obliged to do under the EU. My concern is to ensure that that is made safe for Scotland, in whatever way that might be done. I have been making very explicit commitments along those lines. About a year in, there was a slight nuancing of that when, after some conversations, we wanted to make it more explicit that, being concerned not to depart from those environmental principles as embedded in the EU, we will also look to continue to track what the EU does in respect of environmental issues.

For almost two years now, I have been making explicit and overt commitments—culminating in the discussions on the continuity bill and the debate on the withdrawal bill and all the rest of it—that we should find a way of legislating those set and agreed fundamental principles into Scots law. I feel that it is important that we do so. Obviously, there is a discussion to be had about it, and I know that some stakeholders will perhaps have different ideas in the consultation. The way that we are looking at it is that we might need to legislate more explicitly for something that we currently have as part of our legislative superstructure by virtue of being in the EU. Of course, as the committee will know, there are issues when we begin to talk about embedding something in legislation. There are complicated discussions about how robust definitions will be if we put them in legislation and whether there are other ways to do it.

I am committed to ensuring that the environmental principles continue to have a fundamental role in Scotland, that they are part of what we do and that they continue to sit at the heart of our approach, regardless of our future relationship with the EU. The issue is really about the best way of taking that forward. Legislating for it is not an easy process. I have already referred to some of the challenges that there would be, and discussions are needed.

I do not know whether that deals with the role part of the question.

09:45  

Can I attempt to play back to you a summary of what I have taken from that? What I have heard is that, if there is a lacuna in the law because European law ceases to apply and we have not yet legislated, the environmental principles that are currently derived from the EU will continue to inform the way that the Government proceeds, through acts and at secondary level under existing legislation.

Absolutely.

Beyond that, it is the intention to find an appropriate way to incorporate the principles into the law that affects Scotland. Those are the two bits that I have taken from what I have heard.

That is a reasonable summary. I do not think that it is misrepresenting anything.

We do not know about the timing at the moment, so there may need to be an earlier iteration. I may be getting this wrong—I read so much stuff, so I sometimes pick up things that are not exactly on point—but I think that there is a discussion at UK level about a national policy framework rather than an actual legislative vehicle. Kate Thomson-McDermott is looking a bit puzzled. We might have to have an interim position because, as everybody knows, legislation does not happen overnight. Legislating for the issue will be a significant undertaking, and we will also have to know how we will fix any interim period.

Can I take you back to the role of the round table on environment and climate change in relation to the environmental principles? You have not made direct reference to that. Does the round table have a role in that regard? Is it helping, and will it continue to help, in advance of any legislation, which you said is not currently timetabled?

The role of the round table is important. It has given us a reasonable amount of advice in relation to the principles and potential governance. I had the draft report only the day before my last appearance—or the one before that—before the committee. The report is still being finalised and is an on-going piece of work. We expect the round table to continue in being for some considerable time, so that it can give us useful advice.

How will the Parliament see the outcomes of the round table’s deliberations?

We intend to publish them. The report was in draft form on 19 March and is currently being worked on; the final report will be published. People will get to see that, and it might be of interest to the committee to have a look at it, in a future meeting.

I can elaborate on the areas of advice that the round table has flagged up. It is in the process of finalising advice on monitoring, measuring and reporting of environmental data, and on the implementation of environmental law. It will provide advice on the scrutiny of reports and the preparation of independent assessments and reports that examine environmental compliance. It is looking at the initiation of investigations, cross-cutting studies and reports. It is looking at mechanisms whereby individuals or organisations can make complaints regarding the application of environmental law, and it is looking at mechanisms for seeking solutions to concerns about the implementation of environmental law, through interaction with Government.

The round table is also looking at powers to refer a public body to some kind of court or other group for alleged failure of implementation, powers to order interim measures to prevent irreversible damage before judgment is handed down, and powers to require Government to take action to bring it into compliance, with the power to impose sanctions if action is not taken. Those are all the areas that the round table is looking at, and detailed advice on them will be published.

Fact checking on the draft report is going on at the moment across the whole of Government, as well as in the round table. It is important to say that some of what the round table is looking at will very much cross over from my portfolio responsibilities into justice portfolio responsibilities; it is not going to be just for one committee or one portfolio.

The round table’s work is quite complex. My guess is that it will be regarded as a starting point rather than an end point, but we are looking closely at the issues and we have asked the round table to do so, too. I have set out the work that it is doing and what it is considering giving advice on; that is what you can expect to be discussed when the final report is published. I am talking about not recommendations but the areas that the round table is looking at.

That sounds like a fairly extensive piece of work.

It is.

Do you have an indication as to when the report might be published?

The draft is already there, so I think that it will be before summer.

Yes, the round table is aiming for the end of the month.

That is not far off. I think that our commitment to consult runs out somewhere around September or October, in terms of timescale, with the indications in the continuity bill. The round table report will be part of that, rather than sitting separately and appearing at the last minute.

I want to go back to some of your earlier comments. In February, Michael Gove committed to putting environmental principles in a policy statement, to ensure that they continue to be set out in a single place. After our call for evidence, a number of respondents suggested that it is important that a similar approach be taken across the UK, to ensure consistency. Does the Scottish Government consider that there should be a UK-wide approach to environmental principles and law across the UK, to ensure consistency?

It would be helpful if we were all singing from the same hymn sheet. Environmental policy is devolved, so we will be making our own decisions. It is interesting that Michael Gove gave a commitment to a national policy statement and not to legislation. We are looking at something stronger than that.

One might argue that the two years’ worth of explicit commitments that I have given are, in effect, a national policy statement. We have not actually framed it in that way, but that could easily be done in fairly short order. From our perspective, we do not just want to consider a national policy statement as the way forward; we want to be more explicit about potentially legislating. I think that I made a fleeting reference to an interim issue and a longer-term issue. Potentially, the national policy statement idea is for the shorter term while we look at whether legislation in this regard is manageable.

You asked whether there can be a UK-wide approach. Yes, as long as the principles are seen as the least that we can do—the basic fundamentals. I do not want to be held back in any way in Scotland; we want to continue to have the freedom to make stronger environmental statements if we want to do so.

Has there been any dialogue with the UK Government on that?

A bit of discussion has been going on—initially between ourselves and Wales—on agreeing principles, and there is an on-going conversation with the UK Government about what they might look like. In fact, we initiated that discussion, but it is not finalised yet—it is on-going. As is always the case, we end up discussing what specific phrases mean. As the committee knows, that is often what happens; one ends up in a slightly more protracted conversation than perhaps was originally envisaged.

Can I take you back to environmental principles and international law? What would be the effect of relying on the inclusion of environmental principles in international law, post Brexit?

The UK is currently signed up to a considerable number of international environmental agreements—I am not sure of the specific number but I know that it is more than 40—on matters that range from climate change, wildlife and habitat protection to waste movement, air pollution and so on. Those international environmental agreements will continue to provide a strong framework for Scotland, because they do not fly off after Brexit. They will continue to provide some of the superstructure that we are talking about.

I am of the view that in Scotland we should continue to do what we currently do, which is to collaborate and demonstrate leadership on the international stage. We work quite hard at international engagement at the moment. We very much want the UK to remain party to all those international environmental agreements, even after Brexit.

One of the things that we have to do is look at the potential gap between EU law and international law. In effect, that is where the environmental principles will have a particularly strong impact, because they do not just come from the EU; they are fairly well understood internationally—there is an international language that countries choose to adopt, to give the sense that we are all coming from the same place. I think that that will continue to be extremely important, but we will have to look very carefully at what might be a different gap—the gap between the EU set-up and the international set-up.

For example, in the marine environment we have international obligations, which do not come solely from our being a member of the EU—they are bigger and broader than that. Scotland already has a fair amount of direct engagement with international groups and is thinking about our international obligations. We want to be able to continue to do that.

10:00  

I dare say that you have seen the evidence that we have received, most of which agrees that environmental principles should be put on a statutory footing in Scots law. The Law Society of Scotland is slightly more circumspect about that, suggesting that the principles could instead be included in a Scottish Government policy statement.

I understand where the lawyers will be coming from. There is a constant discussion, debate and tension, not just in committees but in the chamber, about the fact that, the minute that we move to put something into legislation, there is a very big discussion and an onus on us to ensure that the words that we use in legislation mean what they say and are understood to mean that when matters move away from legislation and end up in court or whatever.

I suspect that the Law Society—although it does not necessarily use this language and I do not want to presume to speak for it—might be concerned that there is a difference between legislating for an aspiration and legislating for an actuality. Legislating for an aspiration is fine in theory; however, in practice, legislation is about concrete realities and potentially actionable issues. An aspiration does not fit as easily into that. I do not want to put words into Michael Gove’s mouth but that may be why he has opted for the idea of a national policy statement rather than legislation.

I do not want to rule out legislation. Clearly, if we were to go down that road, there would have to be some very careful discussions with, among others, the Law Society. The committee knows very well from experience that trying to define things is much harder in practice than you imagine it will be. I think that the Law Society always provides a caveat for us, to ensure that we understand that.

You are not dismissing it, at any rate.

I would never dismiss what the Law Society has to say. As a lawyer, I have a fundamental understanding of where it is coming from.

That is understood, cabinet secretary. The other questions that I had have already been covered. There has been a suggestion that incorporating or creating new legislation that must have regard to the principles would be another way forward. However, from what you are saying, the whole thing is still in flux.

It is. I do not want to prejudge any consultation, and there is a pretty reasonably sized debate to be had about some of this. Even if we were to go forward with legislation, that would not happen in the very near future; it would take a fair amount of time to bring that to Parliament, and we would probably want to do something in the interim period. There is a lot to discuss, and we need to be very careful that we do the right thing.

Do you have concerns about enshrining one principle and not another? Do you see a hierarchy of principles?

I do not think that we can drop one, two or three of the four principles and enshrine only one legislatively without picking up the others. I do not think that that would work. We treat them as a whole rather than individually, and I certainly have never viewed them as having some kind of hierarchical status, as if there were a ranking among the four. I do not see that.

Forgive me—I did not mean that. I was talking about enshrining the environmental principles as opposed to other principles that come from Europe.

That would be part of a conversation that might be had, because there are a great many other principles. That takes us back to the utility of legislating for something that is seen by many people as being more aspirational. There is a big area in between those two end points.

The principles would include subsidiarity and proportionality, for example.

Indeed, but I am talking about environmental principles. If there was to be discussion about trying to legislate or make some kind of formal reference to other EU principles that were not environmental principles, you would need to speak to other cabinet secretaries about that.

Stewart Stevenson touched on this. Do you have any concerns about a difference opening up between EU-derived legislation that incorporates environmental principles and Scottish environmental legislation that is currently in force, but that does not incorporate those principles?

Do you mean legislation that predates the—

Yes.

Well asked. That would speak to some kind of consolidation in the future, which would be a huge undertaking. We would need to look at how that might be managed. I suppose that you could find a way to reach out and pull that legislation in, but we are where we are, to a certain extent, with some of that.

The question goes back to the question that Mark Ruskell asked about animal welfare, only in an even bigger context, because that kind of consolidation would not be an easy process. Anybody who has ever been involved in, or had any relationship with, efforts to produce a piece of consolidated legislation knows that it is quite a long-term process. It is an interesting question, though, and one that we will need to reflect on.

I hear what you say about how complex this all is, cabinet secretary, but can I add to the complexity by asking another question? Has any thought been given to whether a non-regression principle might be required post-Brexit?

I saw reference to what was talked about, and it looked as though another four principles were lurking that might be added. In fairness, however, in dealing with the situation that we are in, our priority has to be to find a way of ensuring that, post-Brexit, Scotland is committed to the existing four principles. There may be a longer discussion to be had and a bigger piece of work to be done that addresses other potential environmental principles, but, for the sake of achieving what we need to achieve in the timescale in which we need to achieve it, we have not really given detailed consideration to adding other things. We are looking at the four environmental principles that, at present, everybody understands to be the ones that prevail.

Let us turn to how the principles relate to trade and trade policy across the UK. We have had some interesting evidence on that. Some witnesses have suggested that the incorporation of the principles into Scots law would, in effect, provide a backstop to any deregulation of food standards or the environment, for example. However, some evidence that we received last week suggested that the principles on their own are too broad and that, in the negotiation of any trade deal between, say, the United States and the UK, the interpretation of, say, the precautionary principle may be very different. Where do you see the environmental principles sitting in any international trade deal? What discussions, if any, have there been with the UK Government on that?

Trade issues have been part of live discussions for a considerable time, so we are not blind to what might be raised under that heading. Environmental protections are key aspects of trade policy, but they will always have been so—every EU trade deal that has been done will have involved an active conversation about those protections, and they have been an extremely controversial aspect of some potential trade deals. It would be naive to assume that that will not continue to be the case. There is, though, an issue about where are we now, as we are going to lose the superstructure of EU law that embeds the four principles that we have been discussing. We want to find a way of ensuring that Scotland continues to have those principles as part and parcel of what we do, but in doing that we are not moving beyond what already is the situation in the EU.

What we are trying to do—what I have explicitly said that we will do—is continue to have the principles as a backstop, to use your word. Would that necessarily mean that there will not be debates about them? I could not possibly say that that would be the case, because there have been such debates all the time when the EU has negotiated trade agreements.

In the original publication “Scotland’s Place in Europe”, we set out the need for high environmental standards and robust regulations not just for businesses but for our citizens as well, and that will continue to be where we want to be. Nevertheless, as most members here will be aware, that constitutes some of the current discussion about the list of 153 powers, in which there is argument about where competency lies. There is a fairly lively political debate on the extent to which Scotland will, in the future, be able to stand by its environmental laws. That conversation is taking place at a number of different levels, as the member is probably aware.

Do you have any particular views on how a trade deal could be scrutinised in relation to the environmental principles? You seem to be suggesting that there would be considerable uncertainty and perhaps some areas of public alarm in the context of trade deals.

All that I am pointing out is that every trade deal that the EU has negotiated has involved a conversation on such issues. Some principles have been more controversial than others. The four principles being fundamentally part of what we do does not somehow magically whisk away any debates about trade deals, and I do not suppose for one single minute that that will not continue to be the case. Supposing that Scotland does what we want to do with the four environmental principles, and supposing that there is no Westminster override, the controversy will still not disappear. At the end of the day, it depends on who has the final word on it.

Could a trade deal at the UK level prevent the EU principles from being included in Scots law? Could it act as a block, and do you foresee that happening?

I would be astonished if there was any attempt to prevent our putting the principles into Scots law in whatever way we decided to do that, whether it was through a national policy statement or legislation. The arguments about the application of those principles would be about what happened in the trade deals. I am fairly confident that it is unlikely that I will be invited to sit around the table at any discussions in the negotiation of those trade deals.

10:15  

You never know. Perhaps you should.

I am trying to be realistic.

In reference to Mark Ruskell’s last question, is there a threat or a risk that the adoption of more stringent environmental principles and regulation into Scots law could limit Scotland’s ability to compete on a level playing field with other parts of the UK in a trade deal?

That would depend on where you wanted to put the level playing field. If the level playing field is that we toss all our environmental regulation and principles out of the window, frankly, that is not where I want to be. What having a level playing field means is a bigger question for discussion, and I think that the four principles that we are talking about are pretty widely understood internationally and globally. They are not things that we have dreamed up in the past year or two; they are things that have already been part and parcel of every negotiation that the EU has ever been involved in.

I am not blind to the fact that it is an irritation to some countries that the EU has stuck quite tightly to the four principles. There may be an attempt to remove some of their application, but I think that we would want to resist that. The point about the environmental principles is that they are pretty fundamental, pretty widely understood and part of the international language and understanding of how we should proceed. I very much hope that any trade deal that is struck in the future will continue to have them as part of what is discussed.

I declare an interest as a farmer. I am not concerned about the principles. What concerns me is the granular detail of them concerning things like genetically modified crops and how that might work against Scotland’s ability to compete in international trade deals if other countries are growing GM crops and we are not.

In the past 10 years or so, Scotland’s food and drink sector has seen an absolutely huge increase in exports. The thriving premium business that we do, selling on a very strong image of Scotland, suggests quite the opposite of what you suggest.

I would like to move on to enforcement. It is obviously important that enforcement mechanisms are introduced to ensure compliance with the principles, when and if they are incorporated into Scots law. What consideration has the Government given to enforcement and dispute resolution mechanisms?

I have outlined what the round table is giving us advice on, and it is very much on point with that. In the main, that is the area that it has been looking quite hard at, although I cannot say whether it will try to give us formal recommendations or simply give us a suite of potential solutions. Ian Jardine is a bit more intimately involved in that work and may be able to say more, but that is very much the area in which the round table is working. I flag up what I said earlier: some of the proposals are likely not to be for my portfolio to decide and may be for a different portfolio.

The round table report sets out options for plugging any potential gaps in governance; it does not recommend what the right answer is.

It is important to remember that we have committed to a consultation on the principles and on governance and we are trying not to prejudge the outcome of that consultation, as there is likely to be a range of potential options. I understand some of them, but I am quite clear in my mind that the consultation on governance will have to include justice colleagues as well, which slightly complicates things—it is not just for us to look at. Work must be done with other Cabinet colleagues on the specifics; therefore, detailed questions will have to wait until we have a final indication from the round table of what it sees as the potential options and over what timescale those might be manageable.

Alongside the round table, have you had any discussions with the UK Government regarding a UK-wide enforcement body?

Environmental policy is devolved to Wales and Scotland, but we are, of course, aware of the UK Government’s potential consultation and have had some conversations about it. The UK Government has not yet published any consultation on environmental governance, although it must surely be reasonably imminent, but its proposed consultation document is for England only, not for the rest of the UK, precisely because environmental policy is devolved. There may be merit in having some conversations about certain things, but it comes back to the basis on which the decisions are taken and the understanding that environmental policy is devolved, that there are two other legislatures that have concerns about what the way forward might be and that each is quite different. Although Wales and Scotland have been having those discussions, the Welsh situation is quite different from ours.

I appreciate the points that you have already made, cabinet secretary, and the importance of highlighting to us that the justice portfolio will be involved in discussions, and what the significance is of the round table in the assessment of the legal aspects of enforcement and compliance. If appropriate, could you give us a sense of the discussions that are taking place with the Cabinet Secretary for Justice, and also more widely, on the possibility of enforcement and compliance being done within Scotland? As you have highlighted already, environment is a devolved area.

When you say “more widely”, do you mean across Government?

What sort of an independent body might relate to the Scottish Government, in the way that the Commission in Europe does? Will there be some form of body?

That is one of the things that the round table—

I am asking whether you could enlighten us, not on what the round table is doing, but on the Scottish Government’s thoughts so far, because that will help us in our deliberations.

The principal piece of work has been instructed by Government via the round table, and I am waiting on the final publication of its report. We have said that we will consult on that. When we see the range of options that the round table indicates that it thinks are appropriate, we will consider whether or not we think that some of them are more manageable than others, but that is where most of the work has gone.

I have had discussions with others about this, including some of the environmental non-governmental organisations in London. One of the difficulties that we have to overcome is that, notwithstanding this Parliament being nearly 20 years old, they still do not entirely understand the implications of devolved environmental policy. If you are thinking about the potential for some kind of UK-wide body, at the moment there is nothing specific under discussion and, as I indicated, the Westminster consultation will be for England only.

I am specifically wondering whether, as part of the discussions—this has not been highlighted in relation to the round table—a Scottish enforcement body is being considered and also whether—

The round table’s report to us will cover that.

I am asking whether that is being considered. We do not want to find, as a committee, that we get a report back and that that has not been considered. I ask you please to bear that in mind, as well as whether ordinary courts can be made to work effectively in an environmental context, and what the view is of the Scottish Government on the establishment of an environmental court or extension of the remit of the land court.

I am not going to prejudge any of this.

I am not asking you to. I am simply asking whether those issues are part of the discussions.

There will be a range of options. The round table report will be published soon, well before the summer. The committee will be able to look at it and, in informing a potential consultation, the committee will have plenty of time to consider whether or not it thinks that something has been missed.

I am trying to make the point, cabinet secretary—and I am not really making it very well—that surely, if these issues are not being considered now, it will be very late in the day. I am simply asking for reassurance that they are being considered.

The round table was tasked with looking at gaps and coming up with solutions, so I think that it is fair to say that its consideration ranges across a huge number of options. I would be astonished if anybody managed to come up with yet another one that has not been looked at by the round table.

Just to be clear, cabinet secretary, you talked earlier about the consultation and mentioned September. Would that be the beginning of the consultation or the end of it?

I think that the commitment was made to consult within six months of the bill—and obviously there are issues—but we did a rough calculation and said that that would be the absolute end point for launching the consultation. The consultation itself would take—I do not know how long we will give it. There will be analysis and all the rest of it.

It will kick off in September.

Yes, but you have to have a bit of space to get a consultation up and running.

I have two questions. To ensure clarity, I will not lump them together. What is the view of the Scottish Government on the appointment of an environmental ombudsman or commissioner and their role in dispute resolution?

I am sorry, I will not prejudge any of these issues. I suspect that that is the kind of thing that will be included in the range of options that the round table will present and we will have to see what it has to say. These are all potential solutions. They may not all be potential solutions on their own. There may need to be more than one way to do this. There may need to be interim processes before we can go to a full-blown solution, simply to make sure that there is not an interim gap. There are many different ways to do this and I do not want to prejudge the consultation.

How does the Scottish Government consider that third-party interests could effectively be taken account of in the framework and mechanisms for enforcement and dispute resolution?

That would have to be dealt with throughout the consultation, because it would be very much part of how things actually work. I have said that there is likely to be a huge range of options and people will need to look at which options give greater comfort in terms of access than others. All the options will have their access issues.

Thanks for that clarity.

We have been talking about enforcement and solutions, but I will touch on what is perhaps an opportunity to increase transparency on some of this. For example, there is a suggestion kicking around out there that there should be a duty on the Scottish ministers—it could perhaps be extended to other agencies, including, for example, those local authorities that are not in the control of the Scottish Government—to report on the extent to which the environmental principles have been considered in arriving at a decision; for example, the precautionary principle. What are your thoughts on that?

10:30  

On every decision?

Every significant decision, certainly.

My immediate reaction to that is that it is interesting. I suppose that it might be like the statements that go with a bill introduction: there are various indications and memoranda that show that certain things have been looked at and taken into consideration.

Define “significant decision”. I think that that is where you would get into the issue.

It might perhaps be any decision that had an impact on the environment. Some people might look for a local authority to be required to indicate the extent to which it had deployed the precautionary principle in reaching a decision concerning a major fish farm, for example. That is just one example. There has been a conversation in the background about whether this process presents an opportunity to provide that kind of transparency and that kind of confidence in decisions that have been arrived at.

I will point out one of the dangers that we might get into here. We are where we are because Brexit is a looming deadline and we need to ensure that we can manage without major disruption. There is clearly another discussion going on that says, “Here is an opportunity to come up with a whole lot of other things to add to this.” I guess that I am just cautioning that the more that we add, the longer this will take and the more complicated it will be. While I would not necessarily rule out conversations on some of these things, it may slow down the whole process if we have them.

Let us just have a think about timescales. I think that if you were talking about the potential for going to legislation—that is probably a discussion that would be very germane—we would be back to the question of definitions. How do we designate something as significant enough to trigger such a duty?

Is there any possibility that the round table and the consultation process may in the end produce some recommendations for the here and now, as well as recommendations for some future date?

We would find it quite helpful if people looking at this, both within the Parliament and externally, thought about the timescales, both the more immediate challenge that we face and the medium and longer-term opportunities that might arise out of some of the potential solutions. I think that it is a case of seeing that what we choose to do in the shorter term is not necessarily the be-all and end-all, but that we still need to do it.

Given your last statement, cabinet secretary, are you confident that Government has the capacity to achieve what we have now—the minimum, if you like—in the timescales that are available? Specifically, do you have the capacity and the resources to be able to make that happen?

That is a good question. Brexit has put a huge amount of extra work on to civil servants that, two years ago, we could hardly have anticipated. There will be a huge amount of work getting subordinate legislation into shape, and I think that there has already been some discussion about how that will have to be managed through committees. It is not just about the Government’s capacity, it is also about parliamentary capacity to manage all this. That is why I have been careful in most of my conversations to talk first about the shorter term and the more immediate challenge that is faced to ensure that we are in a manageable state, and then about the potential for longer-term fixes. My guess is that we will be dealing with the consequences of Brexit for many, many years to come.

I think that all the committee members have covered what they wanted to. Cabinet secretary, I thank you and your officials. That discussion has been quite useful. I will suspend for five minutes before we resume with you and different supporting officials. Thank you.

10:34 Meeting suspended.  

10:41 On resuming—