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Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004 (SSI 2004/258)
The minister is a minute early for the next item. I think that we can cope with that.
He is allowed to be early.
Item 3 is consideration of the Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004 (SSI 2004/258). I remind members that Ross Finnie announced earlier in the year that it was his intention to bring forward subordinate legislation to bring us into line with the European directive on the assessment of the effects of certain plans and programmes on the environment. The regulations transpose the directive into Scots law, but it is the minister's intention also to introduce primary legislation later in the session.
I am joined by Elspeth MacDonald, who comes from the solicitor's side of things, which is always a comfort when dealing with statutory instruments. Jon Rathjen will be in charge—I hope—of steering through both the regulations and, as you indicated in your introductory remarks, convener, the subsequent bill. I am much encouraged that you have been stirring up interest in the matter, so that you can add to the number of questions for us. That is a good procedure for any convener to be following.
Thank you for that clear exposition of the regulations' objectives. I will kick off with the questions. The Convention of Scottish Local Authorities submission does not focus on the instrument, but raises a series of concerns about the proposed bill. For example, it raises concerns about resources and the potential overlap between different local authority processes and it focuses on planning. To what extent are you in dialogue with ministers with responsibility for planning, given that a planning bill is also being considered? I assume that the situation presents a good opportunity to avoid the problems that COSLA identifies and to introduce processes that mesh together and deliver the policy objectives that you set out.
The point that you raise picks up on my comment that, if the policy is to be effective, we must be able to persuade those who administer public bodies that an effective and streamlined procedure is in place. We have to step back slightly and recognise that we are talking about strategic—I emphasise the word "strategic"—environmental assessment, which, if it is properly executed by a public body, should by definition assist in the detailed planning application process in relation to specific projects that might arise as part of an overall plan.
You have accurately summed up the challenge that you face.
Indeed. I would like to give the impression that I have at least thought of that aspect.
That is partly why we elicited comments from the key bodies that strongly support the principle of strategic environmental assessment and bodies that will have to carry out such assessment. We wanted those bodies to engage with the contents of the statutory instrument and to think about how they might need to change the way in which they work and we wanted to give them an opportunity to make representations to the committee before we heard your evidence. The instrument is subject to the negative procedure, so it is a question of take it or leave it. We wanted to raise the level of debate about the matter and to encourage people to start to think about the impact that the SEA process will have on their business.
I have been and still am keen on the principle of strategic environmental assessment. Now that the regulations are in front of us, I am finding it quite difficult to understand the process, but I welcome the principle.
We have had interesting discussions about that. Elspeth MacDonald and I will not bore the committee with our lengthy discussions on the ordinary "Oxford English Dictionary" use of the word "significant" and the legal definitions that have a bearing on the matter.
COSLA has said that because a local authority will decide whether an SEA is required, if that authority decides not to have an SEA and goes ahead with a development, it could be open to legal challenge. COSLA has given one or two examples—I do not know whether it has brought them to your attention. For instance, it says that if a local authority decided that a pupil could not be picked up by a school bus, that could be challenged on the ground that, if the pupil's family had to use a car as a result, that would have a detrimental environmental impact. Perhaps that is becoming a bit silly, but COSLA has given that example. Do you appreciate the concerns of local authorities that they will have to conduct an SEA for just about everything, in case of legal challenge?
I am disappointed by that view, although I am aware that a number of people hold it. If a local authority thinks that one child not being picked up by a school bus will have a significant environmental impact, I am disappointed. If that local authority's solicitorial and other legal advice is that it would be likely to be taken to court on the basis that that had a significant environmental impact, I would be disappointed not only by the local authority's policy, but by the advice that the decision would give rise to a legal challenge.
It also points to the fact that local authorities will need proper guidance on when they should require an SEA.
I agree. I think that guidance will be required. We are trying as hard as we can to use language in the instrument and the bill that will enable people in local authorities to form a view, but we have no doubt that guidance will be needed to clarify matters, particularly in the initial stages of such an entirely new procedure and new approach. As I said, the key issue is that there could be quite a cost if one were to go way down the process of drawing up a plan before one said, "Gosh, we'd better start taking account of the legislation." Building that approach into the process right at the outset is the real way of reducing and minimising cost.
That is a useful answer in respect of guidance. Authorities and organisations will have to exercise judgment, but guidance to enable them to do so intelligently would be useful.
On more general issues, will the regulations allow the Executive to conform fully to the European directive that is driving the issue?
Yes.
You intend to introduce primary legislation subsequently. Will that legislation contain additional elements that have not been included in the regulations?
Yes. I will give a brief explanation. The matters that come within the mischief of the regulations have to arise from a regulatory or statutory requirement. The Executive's view is that that is very good, but a whole range of public policies do not necessarily emanate from a regulatory or statutory requirement. We are anxious to ensure that all plans and processes in public authorities should be brought within the mischief of the statutory environmental assessment requirement, so the bill will extend the range of plans and programmes that would become subject to that. So that we can have a comprehensive piece of legislation that addresses strategic environmental assessment, the regulations will be repealed once we get the bill through the Parliament. There would then be a more elegant piece of legislation.
What timescale is envisaged for introducing the bill?
We do not have an absolute date at the moment, as we will be getting into the next parliamentary year, but there has been parallel consultation and we hope that the bill will be introduced relatively early, as I do not want the matter hanging about. I want a comprehensive, single piece of legislation and I hope that there will be no hiccups in introducing it. The usual vast number of bills and instruments are passing through the Parliament, but we hope that, if all goes well, we will get an early slot.
Can I assume from what you have said that the regulations will bridge the gap between the current requirement and the bill and that, when the bill is introduced, the committee and the Parliament will have the opportunity to scrutinise not only the new measures in the bill, but the measures in the regulations that are reintroduced as part of the bill?
Absolutely. The bill will have to be treated like any other bill and will be open for discussion and debate. I hope that the due consideration that has been given to the regulations might narrow the focus of further scrutiny and debate, but it is not for me to try to fetter any committee or anybody who handles the bill—that is not my job. However, we should be clear that the provisions that are set out in the regulations will by and large be replicated in the bill, although the bill will have an extended scope. If we had not had the deadline of 21 July by which to be European directive compatible, we might have settled for just having the bill, but that was not possible in the parliamentary timetable.
I am interested in the concepts of quality and monitoring. Scottish Environment LINK has raised questions about the requirements of the directive in that regard. Flood prevention measures, for example, would require strategic environmental assessments. How will that fit in with the overall approach to climate change issues? How does the Executive inform that debate at present, given that, as we discussed previously, climate change issues are being shifted around from one place to another in the budget?
There is no doubt that a number of plans and proposals that have been drawn up and executed by local authorities have failed to take account of climate change and that there have been consequences. I would hope that, if the significant environmental impact had been considered, as required under the regulations, those consequences would have been flagged up at a much earlier stage.
So the regulations would accelerate that process.
I am in no doubt about that. I have to be honest—I think that we will have to take responsibility for the first few plans, but the regulations will be an important tool to get us to a point where local authorities throughout the country will be able to integrate with Executive plans and work with other public bodies to understand the cumulative environmental impact of their plans.
We received a submission from Scottish Environment LINK, which has produced a checklist of what it thinks will come under the ambit of SEA legislation. It would be interesting for committee members to get your perspective on Scottish Environment LINK's judgment. There are quite a few plans, programmes and strategies on the checklist over which it leaves question marks, but there are some for which it ticks the box to say that they will be covered and some for which it crosses the box to say that they will not be subject to SEA. Can you to respond to us in writing on that? I would not dream of asking you to respond to all the plans—there are about 40 or 50 of them—but your views would aid our discussion when we reach the bill stage.
I would be happy to do that.
That is good. Thank you.
My question is along the same lines and concerns who is in and who is out. One would expect local authorities to follow the regulations, but who else are we talking about? I would think that Scottish Water and similar bodies would be included.
Indeed. The important point is that, theoretically, all public bodies could be included. Education authorities are definitely included. However, this is not about individual bus journeys but about developments that either individually or cumulatively could have an environmental impact. In the health service, too, the issue is more likely to be long-term planning of infrastructure requirements. In those two areas, long-term infrastructural requirements should be planned. If people take that approach, when they come to seek planning permission for individual buildings or structures they ought to be in the position of having done a substantial amount of the work that is required. In the longer term, the process will have a beneficial effect and will smooth the way forward.
So the regulatory authority will conduct the strategic environmental assessment and the people operating under the regulations will be governed by it.
Do members have any further questions? We have asked a lot of big-picture questions, but they are fundamental to the process. Nora Radcliffe has a supplementary.
It is not really a supplementary. We are in the slightly awkward position of having a statutory instrument that is in force and a bill that will run parallel with, replicate and overlap with it. Are there difficulties in deciding how much effort you put into guidance now, at the expense of work on the bill?
I do not think so. Collectively, the members of the bill team have given a great deal of thought to ensuring that there is a certain consistency of approach. The drafting of the instrument formed part of that process, notwithstanding the fact that we have not quite reached the point of publishing the bill. If we take a consistent approach to the way in which we intend to apply the directive, we can be reasonably confident that any guidance that we publish will not be materially affected. We may have to think about some consequential amendments, but I do not think that the instrument will materially affect our ability to produce guidance in the first instance.
Earlier I asked about the progress of the proposed planning bill. COSLA has identified what it regards as an overlap that will make life difficult for it. Presumably, the fact that the two bills are being developed in parallel provides an opportunity to ensure that there is clear guidance that tells authorities what they are expected to do when.
Again, we must explain in more detail precisely what we think. There are two distinct processes. The regulations are about a plan that may allude to and ultimately call for the building of a physical structure. In that programme or planning process, we want all public bodies to have regard to whether the building will have a significant environmental impact. That will not in any way detract from the need for public and other bodies to comply with the requirements of the Town and Country Planning Act 1990, which will be further amended. The act deals with the detailed issue of the planning permission that is required for a particular building. To be honest, I do not see that there is an overlap. However, as I said a few moments ago in a response to either Rob Gibson or Nora Radcliffe, if the public body has properly assessed the building, it should be well on the way to meeting some of the detailed requirements of the Town and Country Planning Act 1990.
That is a good place at which to leave the discussion, because the regulations are being considered under the negative procedure. I hope that the questions that members have been able to ask in the light of the representations that we have received and the minister's responses on the record will be helpful to the organisations that have concerns about what the regulations mean and to those who are seeking legal interpretations of what they must do and what is proportionate. I thank the minister and his officials.
The minister has said that he is required under the European directive to seek these powers and that the matter will return to us in the form of a bill at some time in the future. We are content with the regulations at this stage.
The expectation is that the bill will be the excitement after the Water Services etc (Scotland) Bill. I will say no more than that.
Shrimp Fishing Nets (Scotland) Order 2004 (SSI 2004/261)<br />Agricultural Business Development (Scotland) Amendment Regulations 2004 (SSI 2004/267)
Common Agricultural Policy (Wine) (Scotland) Amendment Regulations 2004 (SSI 2004/272)
We will now consider three further items of subordinate legislation, all under the negative procedure. They are the Shrimp Fishing Nets (Scotland) Order 2004 (SSI 2004/261), the Agricultural Business Development (Scotland) Amendment Regulations 2004 (SSI 2004/267) and the Common Agricultural Policy (Wine) (Scotland) Amendment Regulations 2004 (SSI 2004/272). All the instruments have been considered by the Subordinate Legislation Committee, which has confirmed that it has nothing to report. Do members have any comments or questions?
One is tempted to discuss elderberry or damson wine.
That may be a temptation to decline on this occasion.
I think that I can do that.
As no member has raised a substantive policy issue, I ask the committee to indicate that it is content with the instruments and wishes to make no recommendations to the Parliament.
Meeting closed at 12:01.
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