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The next item concerns consideration of the Scottish Government's response to points raised by the committee on the delegated powers in the Climate Change (Scotland) Bill at Stage 1.
Are we content with the delegated powers in section 6, "Modifying annual targets etc", and that they are subject to affirmative procedure?
Are we content with the delegated powers in section 12, "The net Scottish emissions account", and that they are subject to affirmative procedure on the first occasion, but that the second and subsequent regulations will be subject to negative resolution, other than regulations making provision to alter the amount by which a carbon unit credited or debited to the net Scottish emissions account for a period reduces or increases the account for that period?
The Scottish Government's response talks about emissions from domestic aviation being considered to have been emitted from sources in Scotland. Do we have a definition of "domestic aviation" in the Scottish context?
I certainly do not.
Section 14 of the bill contains a power to make provision regarding what emissions are to be attributable to Scotland. The Government will use delegated powers to define what emissions are attributable to Scotland for the purposes of the account.
Do you mean the Scottish Government or the United Kingdom Government?
The Scottish ministers define the emissions for the purposes of the bill.
Are you content with that? It is not an easy subject.
It seems to give the Scottish ministers a welcome degree of freedom.
Indeed. Are we content to report that, generally, we do not favour the use of affirmative procedure for a first set of regulations and negative procedure for second and subsequent regulations, but that we believe that, in the instance of section 12 of this bill, the Scottish Government has provided sufficient reasons why that choice of procedure appears to be suitable?
Are we content with the delegated power in section 14, "Scottish share of emissions from international aviation and international shipping", and that it is subject to affirmative procedure?
Are we content with the delegated powers in section 18, "Carbon units and carbon accounting", and that they are subject to affirmative procedure on the first occasion, but that the second and subsequent regulations will be subject to negative resolution, other than regulations making provision specifying a carbon unit of a kind not previously specified in regulations?
Again, are we content to report that, generally, we do not favour the use of affirmative procedure for a first set of regulations and negative procedure for second and subsequent regulations, but that we believe that, in the instance of section 18 of this bill, the Scottish Government has provided sufficient reasons why that choice of procedure appears to be suitable?
On section 36, "Duties of public bodies relating to climate change", are we content to report to the lead committee that the power under section 36(1) to impose climate change duties on public bodies is extremely wide in its scope, in particular as neither the public bodies that may be subject to climate change duties nor climate change duties themselves are adequately and clearly defined?
Are we content to recommend that that could be mitigated to some extent by the provision of a list of public bodies to which the power is to apply, along with a power, subject to affirmative procedure, to add to the list? That would be in line with the approach that has been adopted with regard to other regimes regulating public bodies in relation to matters such as freedom of information.
I do not think that that suggestion is necessary. We are reporting our view—that the power is extremely wide in its scope—to the lead committee, which is a group of informed individuals. We should leave it to the lead committee to decide how that might be mitigated.
I take a different view. Given that the approach has been adopted with regard to matters such as freedom of information, we should consider adopting it in relation to this bill. I recommend strongly that we take a different view to that which is proposed by Ian McKee.
I am fairly sceptical about the need to make that recommendation to the lead committee, but I accept that an argument can be made for having a list. It is better to have a detailed suggestion as that gets around the obvious objection that the bill is for the next 40 years, in which time there will be new public bodies. If we really want to deal with the problem, it is better to propose a solution.
At the moment, the committee is inclining towards recommending that there be a list. Can you live with that, Dr McKee?
I simply feel that it is up to the lead committee to decide how the problem should be solved. There are benefits to providing a list but there are also problems with providing a list.
We could tell the lead committee that we have thought about the matter but that, ultimately, it is up to its members to decide. That might incorporate our thinking on the matter. Would that be a way forward?
The only problem with that is that it raises the question of why we meet. We, too, have a responsibility; it is not just down to the lead committee. We provide knowledge and expertise. We want to avoid a situation in which people get involved in litigation because they cannot decide on the definition of certain elements of legislation. It would be unfortunate for the people of Scotland if we were to leave them in that position.
I can see why a list might be desirable. However, I have not spoken up until now because I can see problems with it as well. Although the list can be added to via affirmative instruments, that takes time and if by some error a body is not on the list, the minister cannot set targets for it at the point when he or she would want to. Leaving those points to one side, however, I have to say that I do not know whether it should be this committee or the lead committee that decides whether there should be a list.
I agree that it would take time to add bodies to the list, but only a couple of months, which is not an inordinate amount of time. We have to take this committee seriously. We either do our job or we may as well not be here.
I am inclined towards Helen Eadie's point of view on this matter.
So am I.
I think that we have a majority view. Can you live with that, Ian?
Yes.
That is very considerate of you.
That being the case, are we content to recommend that guidance under this section should be laid before Parliament for a period prior to implementation and that any resolutions of the Parliament that are made in respect of the draft guidance during that period should be implemented?
On section 46, "Variation of permitted times for making muirburn", are we content with the Government's response in the respect that it may be taken to confirm that informal consultation with potentially interested parties will take place in advance of any instrument being made?
Convener, could I take us back to section 37? The final part of the recommendation says:
The Government should take account of it in producing revised guidance.
Yes, but the Government is not obliged to do so.
It is for members to decide how they would like the Government to take account of the resolution.
My firm understanding is that Parliament cannot instruct Government. It can make its view known, but there is never an obligation on the Government to take up every dot and comma of that view, is there?
As I recall, there is a similar issue in relation to the national planning framework, whereby the planning framework must be laid in draft before the Parliament for a certain period of time, and if the Parliament makes a resolution in relation to that draft, the Government is required to take it into account. I do not have the legislation in front of me to give you chapter and verse, but I can certainly come back to you on it.
The word "implemented" should probably be changed to "taken into account", or something like that.
Yes.
Okay. Is that form of words acceptable?
Yes; it is softer.
Let us go back to where we were. I am sure that we have all read the legal brief on section 47, "Power to modify functions of Forestry Commissioners", quite closely. [Interruption.] I call for just a touch of order from my Labour colleagues, please.
We agree with that.
That was certainly quite a big issue; it leaped out of the legal brief.
Could you give me an example of the misuse of the power?
I would not use the word "misuse" but the powers are quite wide. The legal brief gives a couple of examples. In a way, we have a duty to report something like that. What the lead committee or Parliament does with it is another matter.
I think that there are occasions when the climate change tail should wag the dog.
Ah, you have read your legal brief. That was the test phrase.
Did you doubt it, convener?
Sections 52(1), (2) and (4) are on waste prevention and management plans, sections 53(1), (2), (3) and (5) are on information on waste, sections 54(1), (2), (4) and (5) are on facilities for the deposit of recyclable waste, and sections 56(1), (2), (3) and (6) are on regulations for the procurement of recyclate.
Sections 57(1), (2) and (4) are on the targets for reduction of packaging. Are we agreed that the Parliament should be made aware that the powers are expressed in very broad terms and that there is nothing in the bill to restrict their application to commercial activity?
On section 64, "Subordinate legislation"—our good selves—can we agree that the general power contained in section 64(3), which enables orders or regulations to modify any enactment, including the act, is, in the case of the bill, acceptable?
That completes item 2. I thank you.