Official Report 149KB pdf
This is the big one today. We have seen the bill, and read the long and detailed legal briefing. On behalf of us all, I thank the legal team. It was no mean undertaking to put that brief together.
The Climate Change (Scotland) Bill is different from other bills. Normally I would support consultation, but there is a specific advisory body—presumably of experts on climate change—that will be consulted on this and other proposals. That is what makes me uncertain whether there is a need to consult other bodies; presumably it is the experts who matter as far as climate change is concerned. I assume that the advisory committee will be constructed in such as way as to contain the relevant experts.
Convener, I seek your guidance on how much we might be straying into lead committee territory by saying that certain people should be consulted. Rather than making a point, I am asking for guidance. Is that this committee's duty or should we pass it on to the lead committee for a decision?
I am fairly content that we are asking a relevant question. Of course, the Scottish Government could come back and say that it does not agree. I am in the committee's hands, but I think that the question is reasonable, given our role as custodians of the Parliament's interests. We do not assume that there will be any particular response from the Government.
I thought that leaving the provision out would not impair the bill and that is what we are looking at. Perhaps who should and who should not be consulted is more to do with policy.
I would be concerned if we never asked questions—I would rather err on the side of asking questions, not for the sake of it, but because I never want us not to fulfil our duty. Also, in asking questions, we do not impair the progress of the bill; we will revisit it in due course.
If the rest of the committee is happy with that, so am I.
Both your point and Malcolm Chisholm's are on the record.
A further point to that is in the next section of the bill, section 5. The assumption is that the ministers will follow the advice of the advisory body. If they do not, they have to set out the reasons why. That is a completely different situation from what we are used to in other legislation.
Let us move on to section 6, "Modifying annual targets etc". There are two questions for the Scottish Government. The first is to explain and justify why it is considered that the power in section 6(4) may be exercised in any circumstances where the Scottish ministers consider it appropriate to do so. The second question is whether more defined circumstances in which it would be appropriate to exercise the power—in a similar manner to sections 6(2) and 6(3)—could be prescribed, for instance, where it becomes necessary for the achievement of targets.
We come to section 9, "Greenhouse gases". I had not expected this—I thought that we knew what all the greenhouse gases were, but it appears that we do not.
On section 11, "Baselines for additional greenhouse gases", are we content that the proposed power is acceptable in principle and that it is subject to affirmative procedure?
On section 12, "The net Scottish emissions account", are we content to notify the Scottish Government that we do not favour the use of the lesser degree of scrutiny of negative procedure for second or subsequent regulations, as provided for in section 64(7)(a) in relation to section 12(2), rather than affirmative procedure? It is an old point, and it is one that we have stuck to in the past.
Also on section 12, are members content to ask the Scottish Government the questions set out in the summary of recommendations?
That takes us to section 14, "Scottish share of emissions from international aviation and international shipping", which seemed tricky to me when I read it.
That relates to our comments on section 4.
That is on the record.
On section 17, "International carbon reporting practice", are we agreed that the proposed power is acceptable in principle and that it is subject to negative procedure?
On section 18, "Carbon units and carbon accounting", are we content to notify the Scottish Government that we do not favour the use of the lesser degree of scrutiny of negative procedure for second or subsequent regulations, as provided for in section 64(7)(b) in relation to section 18(1), rather than our preferred affirmative procedure?
Are we also content to ask the Scottish Government the questions on section 18 that are set out in the summary of recommendations?
On section 19, "Meaning of advisory body", are we content that the proposed power is acceptable in principle and that it is subject to affirmative procedure?
Also on section 19, are we content to draw to the attention of the lead and secondary committees for the bill, in relation to the effect of the delegated powers contained in sections 19 and 20 and schedule 1, that paragraph 33 of the explanatory notes and paragraph 31 of the policy memorandum indicate that ministers will require to seek expert and—this is the important word—independent advice from the advisory body, but that the bill provides, first, in sections 19(1) and 19(5) that a designated advisory body may be any public body that ministers consider appropriate, which may be a person or body with functions of a public nature, not necessarily independent of the Scottish ministers or Government; and secondly, in paragraph 2 of schedule 1, that the members of the Scottish committee on climate change shall be appointed by the Scottish ministers?
Is that last bit not the Scottish Government's answer to us, rather than our answer to the Scottish Government?
No. I think that we are seeking clarification of the meaning of "independent". It may be very clear to you, as a member of the Scottish National Party—
That is not my point. My point is that the last paragraph of the recommendation is saying that all that the Government needs to say is that "independent" has different meanings and does not necessarily refer to a body that is wholly independent of the Scottish ministers. We should leave it to the Scottish Government to decide what the response should be, rather than telling it what we think would be a good response to keep us happy.
We are not doing that—perish the thought. Ministers are not such shrinking violets that they would not come back and tell us exactly what they thought.
I am sure that the ministers are perfectly capable of looking after themselves, but it is the function of the committee to ask the questions and it is the function of the Government to reply.
That is a thought that I shall bear in mind in future. Is the committee content to proceed on those lines, with that admonition from Dr McKee's good self in the meantime?
On section 20, "Scottish Committee on Climate Change", are we content that the proposed power is acceptable in principle, and that it is subject to affirmative procedure?
Schedule 1 to the bill is on the Scottish committee on climate change that is introduced by section 20. Paragraph 2(2) of the schedule is on the membership of the committee. Are we content that the proposed power is acceptable in principle and that it is subject to negative procedure?
The next question is on the delegated powers in schedule 1 that are in the form of directions or determinations. Are we content that the proposed delegated powers are acceptable in the form of directions or determinations, as the case may be, and that they are not more appropriately expressed in the form of subordinate legislation? The delegated powers in schedule 1 to which I refer are in paragraphs 6(1), 7(5), 8(2) and 9(3).
That takes us to section 23, "Reporting on progress towards targets". Are we content that the proposed powers are acceptable in principle and that they are subject to affirmative procedure?
On section 24, "Scottish Ministers' response to reports on progress", are we content that the proposed powers are acceptable in principle and that they are subject to affirmative procedure?
Section 26 is "Guidance to advisory body". I point out that, unfortunately, the proposal in the summary of recommendations is somewhat misleading. For the avoidance of doubt, we are invited to agree that it is appropriate for the delegated power to be in the form of guidance, rather than subordinate legislation. Are members clear about that? It is a little confusing.
On section 27, "Power to give directions to advisory body", is the committee content that it is acceptable that the proposed delegated power is exercised by issuing directions and is not more appropriately expressed in the form of subordinate legislation?
Are members content to draw to the attention of the lead and secondary committees for the bill the delegated powers that are conferred on the Scottish ministers in sections 26 and 27 to issue directions and guidance to the advisory body, given that paragraph 33 of the explanatory notes and paragraph 31 of the policy memorandum indicate that the advisory body will provide independent advice to ministers?
On section 35, "Further provision about reporting duties", are members content that that power is acceptable in principle, and that it is subject to affirmative procedure?
On section 36, "Duties of public bodies relating to climate change", there are three questions to ask the Scottish Government.
Section 36(3) distinguishes between
So you are clear on what public bodies are? It includes everyone, really.
I think that they are referred to in several pieces of legislation.
Do you propose that we do not ask the three questions that I read out, or are you content to make your point on the record?
I have made the point on the record. My concern about the first question, in particular, is that it might imply the subtext that we want to limit the number of public bodies to which section 36 applies, whereas the legislation quite clearly says that, in some cases, it is appropriate that the order should apply to all public bodies.
Perish the thought that the Subordinate Legislation Committee should stand in the way of stopping climate change—we would be vilified in no uncertain terms. Do members have any more comments on that point?
With regard to the second question, I understand the concern about a lack of definition. A minister or ministers could decide to do lots of things under the guise of climate change. For instance, they could say that people will get their bins emptied only once every month, which would be controversial. That is just one example, but there are many others, so there might be a case for a bit more definition.
Okay. I thought that you were going to take us back to the realm of trees.
No—I have no interest in high trees.
That would indeed be for a subject committee rather than for our committee. Given that Malcolm Chisholm's caveats are on the record, will we proceed to ask the three questions and wait to see what comes back? I have to say, on the record, that there is no way that we want to stand in way of the progress of a bill that is as important as this one. Nevertheless, we have to balance that consideration against our duties to Parliament.
Would a compromise be to take out the word "narrowly" in the first question, which implies that it is trying to be restrictive?
And indeed, the same word in the second question.
Indeed—it is also in the second question.
That would be acceptable. There is enough on the record to cover ourselves and to show that we are not trying to prevent efforts to stop the world from heating up.
One is judged by one's public utterances in writing as well.
With that amendment, we will proceed. I see that the legal team is content with that.
On section 38, "Reporting on climate change duties", are members content, subject to considering section 36—and depending on what we get back—to find the power acceptable in principle and that it is subject to negative procedure?
On section 39, "Appointment of monitoring body", are members content that the proposed power is acceptable in principle and that it is subject to affirmative procedure?
On sections 40 to 44 inclusive, are members content that the proposed powers to direct in sections 40(2), 42(1), 42(2) and 44(1) are acceptable in principle and are not more appropriately expressed in the form of subordinate legislation?
Are members also content that the proposed delegated power in section 43 is acceptable in the form of the issue of guidance, and that it is not more appropriately expressed in the form of subordinate legislation?
On section 46, "Variation of permitted times for making muirburn"—I do not know how to pronounce that, but I know what it means—are members content to ask the Scottish Government whether or not it considers that it would be appropriate to consult the hill farming community, landowners and others who may be affected on the dates that may be appropriate for muirburn, in advance of making an instrument? Do we talk to the farmers and the lairds about that one?
Indeed—we are open with everyone.
On section 50, "Non-domestic buildings: assessment of energy performance and emissions", are members content that the proposed power to make regulations with respect to the assessment of energy performance and emissions is acceptable in principle; and that, subject to the following exception, the affirmative procedure is appropriate, the exception being that negative procedure is appropriate in respect of regulations with respect to the levy of charges to enable the enforcement authority to recover reasonable costs incurred by it in exercising its functions under the regulations?
I have a question—you read out that recommendation, but you did not read out the recommendation for section 47. Will the section 47 recommendation still appear in the Official Report?
It would not appear in the Official Report.
I am sorry—have I failed to read out the recommendation for section 47?
Yes. It is a particularly important recommendation.
Okay—I offer my apologies for that. On section 47, "Power to modify functions of Forestry Commissioners",
It is important that that modification should be in primary legislation. The functions are in the Forestry Act 1967, which was amended by primary legislation, so that is important.
That is a fair point. It is now on the record in full—thank you for that.
Are we also content that the proposed delegated power to issue guidance under section 52(3) is acceptable, and that it would not be more appropriately expressed in the form of subordinate legislation?
I suppose that we have to phrase it that way for legal accuracy.
Sections 54(1), (2), (4) and (5) are on facilities for the deposit of recyclable waste, and section 54(3) provides that the enforcement authority must have regard to any guidance given to it by the Scottish ministers in relation to the functions that are conferred on it by the regulations. Are we content to ask the Scottish Government the questions as set out in the summary of recommendations? Are we also content that the proposed delegated power to issue guidance is acceptable and that it would not be more appropriately expressed in the form of subordinate legislation?
Sections 55(1) and 55(2) contain provisions for facilities for the deposit of recyclable waste at events, and sections 55(3) and 55(4) provide that local authorities and enforcement authorities must have regard to any guidance that has been given to them by the Scottish ministers in relation to the functions that will be conferred on them by the regulations. Are we content that the delegated powers in sections 55(1) and 55(2) are acceptable in principle and that they are subject to affirmative procedure, with specified exceptions where negative procedure applies?
Are we also content that the proposed delegated powers under sections 55(3) and 55(4) are acceptable in the form of guidance and that they would not be more appropriately expressed in the form of subordinate legislation?
Sections 56(1), 56(2), 56(3) and 56(6) are on the procurement of recyclate regulations, and section 56(4) provides that the enforcement authority must have regard to any guidance given to it by the Scottish ministers in relation to the functions that the regulations will confer on it. Section 56(5) provides that persons to whom the regulations apply must have regard to any guidance that has been given by the Scottish ministers or the enforcement authority in relation to the requirements that are imposed by the regulations.
Sections 57(1), 57(2) and 57(4) are on the targets for the reduction of packaging, and section 57(3) provides that the enforcement authority must have regard to any guidance issued to it by the Scottish ministers in relation to the functions that the regulations will confer on it. Are we content that the particular power to issue guidance that is contained in section 57(3) would not be more appropriately expressed as a power to make subordinate legislation?
In relation to sections 57(1), 57(2) and 57(4), are members content that we should ask the Scottish Government to fully explain and justify why, unlike the approach taken in part 1 of the bill, the Scottish Government requires to take the powers in sections 57(1) and 57(2), in so far as they propose that any targets without limit—set by any method—may be set for the reduction of packaging or the reduction of emissions produced by packaging, or requirements on persons to comply with those targets?
On section 58, "Deposit and return schemes", are we content that that power is acceptable in principle and—with specified exceptions where negative procedure applies—subject to affirmative procedure?
Section 59 is "Charges for supply of carrier bags". Mike Pringle, where are you?
Thank you. I would take silence as assent—I have probably bowed you all into complete silence.
Are we content to ask the Scottish Government whether it would reconsider whether the power to make supplementary, incidental or consequential provision could be limited to the purposes of giving full effect to any provision of the act, and whether the power to make transitory, transitional or savings provisions could be limited to being in connection with the coming into force of any provision of the act?
On section 67, "Short title and commencement", are we content that the power is acceptable, and that the provisions—being commencement provisions—are subject to no procedure?