Meeting of the Parliament (Hybrid)

Meeting date: Tuesday, October 5, 2021

Official Report 929KB pdf

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Environment Bill

The next item of business is a debate on motion S6M-01512, in the name of Michael Matheson, on legislative consent to the Environment Bill.

I invite members who wish to speak in the debate to press their request-to-speak buttons now, and I call the Cabinet Secretary for Net Zero, Energy and Transport, Michael Matheson to speak to and move the motion. You have up to seven minutes, Mr Matheson.

16:22  

I thank members of the Net Zero, Energy and Transport Committee and the Delegated Powers and Law Reform Committee for their consideration of the supplementary legislative consent motion on the United Kingdom Environment Bill and for their report on the matter.

It might be helpful to recap briefly the purpose of the UK Environment Bill, which includes provisions that cover a range of environmental regimes. A number of regulatory provisions were designed from the outset to extend to areas of devolved competence in Scotland. Those provisions covered aspects of environmental regulation in areas such as water, air quality, chemicals and waste, and resources. The measures were prepared and subsequently amended in a manner that adequately respected the legislative competence of the Scottish Parliament in those specific environmental areas, and the Parliament gave consent to them in November last year, after due consideration and debate on the issues at hand. However, two recent amendments to the bill fundamentally undermine the powers of the Scottish Parliament in relation to the environment—an area of policy for which it has devolved responsibility.

The first such amendment was presented during the House of Commons stages. It introduced a new due diligence regime for forest risk commodities in commercial activities. That came about in response to the findings of the global resource initiative.

Although we agree with the need to reduce the overseas impact of our consumption, the measure fundamentally pertains to devolved law, which should be developed on a devolved basis by the Scottish Government, for which it is answerable to this Parliament. That has clearly not occurred in this case.

The second amendment was passed in the House of Lords no less, and is a further example of the sustained attack that we have seen from the UK Government on the devolution settlement. In the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, we legislated for a set of guiding principles on the environment that ministers must have regard to when making policy, including when UK ministers exercise their functions in relation to reserved matters. It is our legitimate expectation that all ministers should have regard to those principles when operating in Scotland.

The amendment must be resisted, as it seeks to disapply the Scottish environmental principles as agreed by this Parliament. UK ministers shall apply the UK environmental principles when making policy affecting Scotland in reserved areas. That is a clear departure from what was previously agreed with the UK Government in the drafting of the bill. The Scottish Government believes that the duty in the continuity act to have regard to our guiding principles on the environment should apply in all circumstances where actions impact on Scotland, whether they relate to a reserved area or not.

Despite Scottish ministers’ protestations, the UK Government has refused to accept that these matters are within devolved competence. That dismissive attitude to the powers of this Parliament has wide potential consequences for environmental policy in Scotland. It is this Parliament that is responsible for environmental policy in Scotland. The Scottish Government is responsible for ensuring that we have effective policies to achieve the high environmental standards that we seek, which is particularly pertinent given that we are being dragged out of the EU against our will.

The Government and our colleagues in the Scottish Green Party have a shared commitment to making real progress in restoring our natural environment, transforming our use of resources and addressing remaining challenges in environmental quality. We have stretching targets for woodland creation and peatland restoration, which contribute to our net zero target. There will be an ambitious new biodiversity strategy, a circular economy bill, and a significant natural environment bill, including statutory targets for nature restoration. There are also ambitious plans for land use transformation and our marine environment. This Parliament will rightly hold the Government to account for achieving those ambitions, and the people will hold us to account for the quality of our natural environment.

That is all too relevant to this debate and to the motion, because if the UK Government and Parliament continue to intrude on our Parliament’s powers in this area, it will make it harder and harder to achieve our goals and ambitions for the people of Scotland. The measures are part of a pattern, with the United Kingdom Internal Market Act 2020 a particular concern in relation to our ability to make environmental policy in the future.

We simply cannot accept law being made in the UK Parliament in areas within the legislative competence of the Scottish Parliament without that being reflected in the design of provisions and without recognition of the legislative competence of this Parliament in such matters. This is an important issue that could have wide-ranging implications for environmental policy in the weeks, months and years ahead.

I move,

That the Parliament notes the supplementary legislative consent memorandum on the UK Environment Bill lodged by the Scottish Government on 9 July 2021, and the report of the Net Zero, Energy and Transport Committee of 29 September 2021; calls on the UK Government to respect the devolved powers of the Scottish Parliament with respect to measures with an environmental purpose in Scotland; further calls on the UK Government to amend clause 119 (formerly 107) to adequately reflect the devolved purpose of these regulations, and calls on the UK Government to remove clause 20(4) — (6), as it is inappropriate for the UK Government to seek to impose its own environmental principles on UK ministers for decisions with respect to Scotland.

I call Donald Cameron to speak to and to move amendment S6M-01512.1.

16:29  

I refer members to my entry in the register of members’ interests and declare that I am a member of the Faculty of Advocates.

I have to say that this has to be one of the most spurious debates about legislative consent that has been led by the Scottish Government to date. Let us remind ourselves of a few salient facts. The Scottish Parliament, at the behest of the Scottish National Party Government, has already given consent to the UK Government’s Environment Bill—the entire bill. It did so in November last year. The bill aims to tackle the biggest environmental issues facing the UK in the years ahead. It provides a legal framework for environmental governance now that the United Kingdom is outside the European Union, and it makes provision for specific improvement of the environment.

Most of the bill applies in England alone, but there are some provisions that apply in Scotland, Wales and Northern Ireland. For example, there are UK-wide provisions that create delegated powers. There are also shared powers, meaning that the regulations can be made for Scotland either by ministers here acting alone or by the UK ministers, with Scottish ministers’ consent.

There are also—this is important—a number of areas in the bill that extend to Scotland by virtue of their being reserved areas. As I said, Parliament passed a legislative consent motion on the bill last year. However, we now have the absurd scenario where, purely to manufacture another completely artificial row with the UK Government, the SNP takes issue with two amendments that, it argues, trespass on devolved competence—amendments that are designed to protect international rainforests and fill a governance gap on environmental policy. I note that the cabinet secretary has just said that he agrees with the first of those amendments. In committee, he said that it is broadly in line with Scottish Government policy—it is so broadly in line with Scottish Government policy that, this afternoon, the Scottish Government is challenging it. That is absurd—we are through the looking glass.

Let us look at each amendment in turn. The rainforest amendment is designed to protect rainforests around the world. It is a provision that allows UK ministers to make regulations that place an obligation on businesses to ensure that they do not import materials that have been produced on cleared rainforest land. [Interruption.] I am afraid I have a lot to get through, so I will not take an intervention.

The provision makes it illegal for businesses within scope to use, in either production or trade within the UK, forest risk commodities that have not been produced in accordance with the relevant laws in the country where they were grown. It is patently clear that the use of forest risk commodities, as it appears in the Environment Bill, is a reserved matter. It does not pertain to devolved law. The measures in question fall within the scope of reservations to the UK in the Scotland Act 1998 for

“the creation, operation, regulation and dissolution of types of business association.”

The obligations imposed by the bill on “regulated persons” are requirements of a formal regulatory nature, and “regulated persons” are defined as a type of business association. Therefore, what the requirements amount to is regulation of a business association explicitly for the purpose of a reservation in the 1998 act. It is illogical to argue that they are for environmental purposes generally, and that that somehow converts them into a devolved matter. As a matter of law and statutory language, the amendment is about the regulation of business entities, pure and simple, and it is unarguable from a legal and constitutional standpoint that that somehow intrudes on devolved competence. It is a sensible and worthwhile provision that is broadly in line with Scottish Government policy, but it is not a provision that the Scottish Government is prepared to accept today.

The second amendment will have the effect that, where UK Government ministers are making policy relating to reserved matters, they must have due regard to the policy statement of environmental principles in the UK bill. I stress the words “relating to reserved matters”. One might have thought it uncontroversial that the UK Government, when acting in matters solely within its own competence—that is, in relation to reserved matters—just might be entitled to have regard to a UK Government policy statement. That is not just in accordance with the devolution settlement; it categorically respects and reinforces that settlement.

As I have already said, the Environment Bill has already been consented to by this Parliament and it contains a number of provisions that extend to Scotland by virtue of their covering reserved areas. I give the example of the Office for Environmental Protection, whose remit in Scotland is liable to be fairly limited—it will be triggered whenever the UK Government exercises reserved functions in Scotland—because, of course, there is an equivalent Scottish body. Last year, when it came to consent for the bill, the Scottish Government had no objection to the OEP exercising reserved functions in Scotland, but, somehow, it takes issue with the provision that allows UK Government ministers, when making policy relating to reserved matters in Scotland, to have regard to their own policy statement of environmental principles. To argue that that tramples on devolution or infringes somehow on devolved competence, is, I am afraid to say, ridiculous. However, of course, nothing is too ridiculous for this SNP Government when it is trying to pick a fight.

I point to the comments of Kevin Pringle, who is the former director of communications for the Scottish National Party and who is someone I admire and respect, despite our being at different ends of the constitutional spectrum. Writing in The Sunday Times this weekend, he argued that there are political advantages for the SNP in wanting improved relations with the UK Administration. He wrote:

“as we begin the long recovery from the pandemic in our economy and public services, there must be a case for the governments at Holyrood and Westminster having a more co-operative attitude than we’ve been accustomed to ... where it makes sense”—

just like in the current debate.

There is no legal, constitutional or political reason to object to the amendments. Frankly, if the Scottish Government spent less time on its attempts to stoke division and more time on fighting climate change, we might be able to leave the environment in a better state than the one we found it in.

I move amendment S6M-01512.1, to leave out from “calls on the UK Government to respect” to end and insert:

“supports giving legislative consent to the UK Environment Bill; welcomes the UK Government’s commitment to the environment, and calls on the Scottish Government to work constructively with the UK Government in tackling climate change.”

16:35  

It is customary to say that I am pleased to open the debate on behalf of Scottish Labour. I am pleased, but I feel frustrated. As a member of the Net Zero, Energy and Transport Committee, I have been following the issue closely and I put on record my thanks to the clerks of the that committee and the Delegated Powers and Law Reform Committee, colleagues in the Scottish Parliament information centre, who have been working hard, and the cabinet secretary for his time at committee.

However, here we are, and I am not sure that we are any further forward. Our situation partly reflects the collective failure of Scotland’s two Governments to work together in the interests of Scottish people. The impact of Brexit on the UK’s constitutional framework has been huge and it demands that we approach more areas on a common UK basis. It is in our interests and the climate’s best interests for the UK and Scottish Governments to build a stronger and more productive relationship to make that possible. The current governing structures are not fit for purpose.

To date, the Tories’ approach to Brexit has been a shambles and they have sought to undermine the Scottish Parliament on a number of occasions, but the SNP has not helped by engaging in megaphone diplomacy and resorting to banging on about independence rather than seeking to find consensus where we need it. I hope that that explains why we feel frustrated.

Scottish Labour has a proud record of standing up for our devolved powers and we will continue to do so. It is important that I emphasise that we share the Scottish Government’s opposition to the Tories’ contesting Scottish Parliament legislation in the way that they have. If the Scottish Government feels as strongly as I think it does, why was a challenge not taken to the Supreme Court to get clarity on the matter?

Since February this year, we have repeatedly sought to get the matter resolved with the UK Government. The last letter that was sent from my colleague Màiri McAllan to the UK Government on the matter back in June has still not been responded to. We share the same frustrations as the Welsh Government, which refused legislative consent to the bill because of the way that the UK Government was acting in areas of devolved competence in environmental policy. We have sought to resolve the issue with the UK Government, but it has steadfastly refused to engage in such a process.

I am grateful for that update. It is clear that it is not acceptable for correspondence from Scottish ministers to be ignored by UK ministers, and I hope that that issue will be resolved. However, it appears that there have been differences in how the Welsh Government has interacted with the UK Government. Perhaps colleagues on the other side of the chamber could provide insight into that, because that is another point of frustration. Scottish Labour does not have access to the legal advice that either Government gets, so we need more transparency on that.

The cabinet secretary and Donald Cameron spoke well and fairly about the fact that there is lots of agreement about what the bill seeks to achieve. There is little policy difference.

I turn to the amendments on forest risk commodities and deforestation. Alice Lucas, writing for the Fairtrade Foundation, reminds us that

“poverty and deforestation fuel each other in a negative cycle”

and that deforestation is

“wreaking havoc on the planet and its people”.

Today, many of us are wearing challenge poverty week badges. It would be good to be using our time to debate and discuss climate justice and to look at the impact of poverty, but here we are debating legislative consent instead.

To be honest, we are not quite sure how we have reached this point, but it seems to us that there should have been much earlier engagement and discussion between the UK Government and the Scottish Government. It will not be for Labour members to solve that, but we urge people to work more closely together. To make real progress in tackling the climate and nature emergencies, we need both Governments to work together to deliver strong environmental protections.

I move amendment S6M-01512.2, to leave out from “further calls on” to end and insert:

“is disappointed that the UK and Scottish governments have failed to have early and constructive dialogue on the environmental protections that are required, and believes that parliamentary time would be better spent on measures to address the global climate emergency.”

I call Liam McArthur, who has up to four minutes.

16:40  

I will be brief.

I very much share the frustrations that Monica Lennon has just outlined, and I am grateful to Donald Cameron for the characteristically forensic way in which he set out many of the issues at play.

This debate does not paint the Parliament in a particularly good light. It speaks to an almost dysfunctional relationship between Scotland’s two Governments. Like Monica Lennon, I think, from what I can tell, that there seems to be little substantive disagreement between both Governments regarding the actual policies that are contained in the UK Environment Bill, to which the Scottish Parliament consented in November last year.

The Net Zero, Energy and Transport Committee’s report confirms that there are only “small drafting differences” between the proposed approaches for incorporating the guiding principles. According to the committee, the policy differences “appear very minor”. However, the Scottish Government has somehow found time to platform what can only be described as a constitutional spat. That is despite the fact that, over recent weeks, we have seen important debates on important subjects squeezed for time—or, indeed, squeezed out altogether. In that context, this debate hardly feels like the most productive use of our time.

When the Parliament gave its consent to the UK Environment Bill in November last year, I spoke in the debate. At the time, I warned that

“the climate ... does not care about the constitution.”—[Official Report, 18 November 2020; c 59.]

A year on, that warning appears just as relevant, even as the climate emergency has become even more urgent.

The Scottish Liberal Democrats are committed to doing everything possible to minimise the damaging legacy of Brexit, especially in the area of environment policy. Sadly, by the end of this debate, we will be no further forward in achieving that mission.

We will support the amendment in Monica Lennon’s name.

We will move straight to the winding-up speeches.

16:42  

I have to ask myself whether this debate is the best use of parliamentary time. We have taken part in this debate, which was called by the Scottish Government, because of two amendments that it claims fall within the Scottish Parliament’s legislative competence. They are amendments to a bill that the Scottish Parliament has already given legislative consent to. A debate is taking place because there is a dispute between the UK Government and the Scottish Government about both amendments. The UK Government does not consider that they fall within devolved competence and, as such, it has not sought consent from the Scottish Parliament. The Scottish Government’s view is that the two amendments fall within the legislative competence of the Scottish Parliament. That is the background.

The Net Zero, Energy and Transport Committee said in its report on the matter:

“This being ultimately a legal dispute on the dividing line between devolved and reserved competencies, the Committee is in no position to adjudicate authoritatively.”

Given the committee’s views, I am not sure why the Scottish Government has decided to use the chamber’s valuable time to debate the matter—other than that it is playing the politics of grievance.

It is disappointing to see that the UK Government and the Scottish Government have failed to engage in constructive dialogue on environmental protections and regulations. It is unacceptable that a result of that failure is the Scottish Parliament’s time being spent on further legal and constitutional wrangling, even when there is very little policy difference between the ambitions of the two Governments.

We are in the midst of an extreme climate emergency that is a direct threat to our future and that of our children, and yet here we are, in Parliament, watching the Scottish and UK Governments disagree about technicalities in a bill. Instead, they could be acknowledging that much more needs to be done by politicians to tackle the climate threat to our children’s future.

Just this weekend, at the official opening of Parliament, Her Majesty the Queen urged all of us in this chamber to tackle climate change, saying:

“There is a key role for the Scottish Parliament, as with all parliaments, to help create a better, healthier future for us all, and to engage with the people they represent, especially our young people.”

This debate does not help to create a better, healthier future for us all, and I do not think that it helps us to engage with our country’s young people. Any young person watching the debate would surely ask, “Instead of spending their time on legal and constitutional wrangling, why aren’t our politicians dedicating more time to trying to solve some of the biggest problems that we face collectively as humanity?”

To tackle the climate and nature emergencies, countries across the world need to come together and unite around common goals, and the countries of the UK are no exception to that. If we cannot work together across the UK on the issue of climate, what message are we sending to the rest of the world? I make a plea to the chamber: we all have to come here and work together to tackle the climate threat, which is the greatest threat to our children’s and grandchildren’s future.

16:46  

It is more than 100 years since Rutherford split the atom, and I would venture that his achievement was far less challenging than the SNP managing to split the finest of hairs and create quite possibly the most inane constitutional debate that it could come up with.

In a week when it has been announced that the bill to bring every home in one city in Scotland up to just a grade C for energy efficiency could be close to £10 billion—an issue with a huge impact on our net zero target—the Scottish Government has chosen to bring a debate to the chamber and create grievance. I understand the SNP’s need to avoid discussing anything for which it actually has responsibility, because that would lay bare the total incompetence of this Government in using—or not using—its significant powers.

Why is the Government not bringing health debates to the chamber—for example, on the record accident and emergency waiting times, staff shortages or the ambulance waiting time crisis? What about education, which is apparently the SNP’s priority? We could be discussing the stubborn attainment gap or the slide down international league tables. There is the ferries crisis, which sees two partially finished ferries rusting in a Government-owned yard—a yard that cannot even get on a Government tender list. Bring the climate emergency to this chamber and let us get on with discussing issues that actually matter to the people of Scotland.

Of course, we know that the Scottish Government leaves such matters to Opposition parties to raise. The fact that this debate has been brought to the chamber tells us everything that we need to know about the direction of travel of this SNP Government. The substance of the debate matters not. It does not matter that my colleague Donald Cameron—an advocate, no less—has systematically dismantled any legal position that the SNP has tried to manufacture and has exposed it for what it is: not a party of Government but a protest party and a party of grievance. It has become a parody of itself, and, in doing so, it devalues the Scottish Parliament and what it is here to do, which is to serve the people of Scotland.

It does not even matter that the LCM that we are discussing was reported on by the Environment, Climate Change and Land Reform Committee and the Delegated Powers and Law Reform Committee in 2020 or that a legislative consent motion was voted on and agreed to by the Scottish Parliament in November 2020. It will not even matter that the SNP-Green coalition is challenging a provision that is designed to protect rainforests around the world. Let that one sink in, Deputy Presiding Officer. Let us be honest: the motion will be passed this afternoon and the Government will achieve its objective of being able to sell the story to the media that the Parliament agrees that the UK Parliament is on a power grab. Job done. [Interruption.] I do not have time to take an intervention.

With its motion, the SNP-Green coalition has finally given up any pretence of governing for the people of Scotland. This debate is about creating constitutional grievance and finding ways to drive a wedge between Scotland and the rest of the UK. It highlights the SNP’s approach of being unwilling to negotiate and then blaming someone else.

I am in no doubt that, following the debate, the people of Scotland will rise up, as one, and—what? Politics sometimes has to be about compromise. It has to be about accepting that something is not perfect but is not the end of the world. The SNP chose not to compromise or to collaborate with the UK Government, because why would it choose to work constructively to solve a problem when any unresolved problem is another opportunity to paint itself as being hard done by? Why go to all the effort of getting things sorted when it can sit back and blame someone else for its failure?

This has been 40 minutes of my life that I will never get back. What an absolute waste of parliamentary time. Shame on this sham of a Government.

16:50  

Scotland rejected Brexit, and we deeply regret that it has been forced upon us—and during a global pandemic.

Despite that, the Scottish Government has always worked to make the best of a bad situation for Scotland. Despite our differences, we are, of course, prepared to co-operate with the UK Government. We have done so on the Environment Bill. We have a shared interest in working to reduce our global environmental impact and, as I said, we consented to aspects of the bill. I have to correct Donald Cameron, who appeared to suggest that we have consented to the whole bill—that cannot reconcile with what we are debating today. I think that that is wrong. Given the nature of the forest risk commodities provisions, a joint approach might have been achievable in that case. Had the UK Government respected this Parliament’s legislative competence, we could have found a resolution. It is unfortunate that that has not been the case.

If the Parliament does not stand against attempts to undermine the democratic will, the UK Government will continue to constrain the competence of Scotland’s Parliament. Be it the Commons seeking to undermine the application of Scotland’s environmental principles, which were carefully created by the Government and supported by this Parliament, or the House of Lords seeking to legislate on forestry matters over the head of the Scottish Government and Parliament, such attempts must be resisted. Be they stealthy, as in this case, or overt, as in the insidious United Kingdom Internal Market Act 2020, such attempts must be resisted. It is this Parliament that is accountable to the people of Scotland, and we must be free to act in devolved matters as the people of Scotland elected us to do.

We are not alone in our concerns. As the cabinet secretary pointed out, the Welsh Government is equally troubled by the UK Government’s creep into devolved power. I note Monica Lennon’s amendment and what she describes as her disappointment that matters have not been resolved. I share that disappointment, but the difference between Monica Lennon and the Labour Party and this Government is that we are not prepared to accept perpetual disappointment under the UK’s constitutional system.

I am sure that the minister recognises that she is in a position in which she can do something. I heard from her colleague the cabinet secretary that she wrote a letter in June, I think, a month after she came into office. That is great to hear, but is that all that she has done—written a letter and sat back? What else is she doing to get a response from UK ministers?

We regularly engage with the UK Government, and I assure the member that we try repeatedly to get action on these matters—[Interruption.] No, not one letter; repeated meetings—but I thank the member for the intervention.

The Scottish Government has made clear our commitment to maintain or exceed environmental standards following EU exit. It is important to note that the UK Government has not made an equivalent commitment.

It appears from Donald Cameron’s speech that he would be content that we pass responsibility to the UK Government for any and all aspects, but is that a surprise? His party was the architect of the United Kingdom Internal Market Act 2020, which this Parliament rejected and which will severely constrain this Parliament’s ability to deliver progress on the environment in Scotland.

The UK Government is playing fast and loose with the purpose test, and it is trampling arbitrarily on the legislative competence of this Parliament. Therefore, it is imperative that we take every opportunity to urge the UK Government to reconsider and reframe.

I am sorry that members are so inconvenienced by our taking 40 minutes out of their afternoon to defend the powers of this Parliament, which the people of Scotland elected them to serve in. The First Minister’s letter to the Prime Minister of 14 May 2021 made it clear that resolving issues of encroachment into devolved competence is an important test for the UK Government. Resolving the issues with the bill would demonstrate the UK Government’s willingness to step back from an approach that increasingly appears to be designed to unlawfully take power and decision making from this Parliament.

It is high time that the UK Government started to listen to such concerns. I ask members to support the motion to preserve this Parliament’s environmental powers and to respect the will of the Scottish people, whom members were elected to represent in the chamber, as I said.