Chamber and committees

Sarah Boyack has set out why the affirmative procedure is extremely important for the parliamentary scrutiny of anything that future ministers might want to do that entails substantive changes. That is proportionate.

Of course, if we were to have affirmative procedures for all the minor and technical things that might be put through, which do not entail particular policy or material changes, that would be disproportionate. That is why I am supportive of what Emma Harper came to discuss with me.

I will move on and talk about the other amendments.

I do not agree with the phraseology of sledgehammers and nuts. I have explained the reasoning behind the provisions in part 2, which was to do with closing the gap that was caused by EU exit and giving Scottish ministers the power to act in an adaptive and swift way, should they have to, without waiting for an agreement with the UK Government. It has not, and has never been, the policy of this Government to dismantle Scotland’s environmental protections, but one area on which I agree with members is that, if we did not include safeguards, we would leave that possibility open to future Governments. Convener, you and I are not going to agree on this, because, as you made very clear at stage 1, you have already made up your mind that you want part 2 to be removed—the same goes for Mark Ruskell.

I have worked with Alasdair Allan and Emma Harper to allay stakeholders’ concerns so that, we hope, people will be able to support part 2 in its entirety, as amended. Part 2 introduces the bespoke power to modify the 1994 habitats regulations and legislation on the environmental impact assessment regime. It plugs the legislative gap that exists as a result of EU exit. The power is essential to ensure that we continue to meet our environmental obligations in a way that is fit for purpose, particularly in the context of net zero and nature restoration ambitions.

I understand that, as drafted, part 2 does not include safeguards. Having worked with Dr Allan and Emma Harper, I am confident that we have allayed those concerns and that, if their amendments are agreed to, we will have a much stronger part 2 that will protect against future Governments being able to abuse the provisions. If the amendments are agreed to, future Governments will simply not be able to do that.

I recognise that amendment 7 was lodged due to the concerns that we have heard from other committee members, and from stakeholders in their evidence, about the scope of the proposed powers to modify the environmental impact assessment legislation and habitats regulations. I recognise the concerns, but I cannot support amendment 7, because there is already a duty on Scottish ministers to manage and, where necessary, adapt the UK site network, as is specified in regulation 9D of the habitats regulations. That is where regulation 9D is strong. Therefore, when considering the use of the power to amend the habitats regulations, ministers must already have regard to regulation 9D and any potential implications for the UK site network. I ask the member not to move amendment 7, failing which, I ask the committee to reject it.

Amendment 8 would introduce the affirmative procedure to cover the power provided in part 2. I absolutely recognise the concerns that were raised in the stage 1 debate about the lack of clarity as to when the affirmative procedure should apply. I have always been clear that, if the power were to be used to make significant changes, the affirmative procedure should apply. Ms Boyack’s amendment 8 reflects the desire for stronger safeguards, but I would argue that a blanket requirement for the affirmative procedure is not proportionate and would not be an efficient use of the public resource of the Parliament’s time, as that would also cover all the minor and technical changes that might be made over time.

There is a judgment call to be made. Emma Harper’s amendment 57 offers a more balanced approach, but both amendments have the affirmative procedure in their sights; it is just a case of whether the committee wants to have the affirmative procedure for every minor and technical amendment that we might make. It is the committee’s judgment call.

I absolutely understand the concerns around the right type of planting happening in the right types of places. As I was able to outline, all new planting schemes that exceed 20 hectares are already subject to a screening assessment under the forestry regulations. There are strict thresholds there. We do not believe that amendment 60 as drafted would have the intended effect.

Our officials have considered the implications of what was agreed in Ireland. They have done the work in assessing the impact that a similar piece of legislation—a similar amendment to the law—had there. We need to bear in mind the consequences of making it too onerous for projects to continue. We do not want to stop tree planting, which has all the positive effects that we have just mentioned.

I have better news for Ariane Burgess, however, in relation to amendment 59. Ramsar sites are recognised as internationally important areas for wetland habitats and the water birds that they support under the Ramsar convention. It is important that we do all that we can to ensure that they are protected from damaging activity. It is the Scottish Government’s policy that listed Ramsar sites in Scotland should be treated as if they were European sites for the purposes of land-use-change decision making. I am delighted to support Ariane Burgess’s amendment 59. I hope that the committee gets behind her.

However, ahead of stage 3, we would need to revise some of the wording in the amendment, if Ariane Burgess would be happy to work with me on that. It is almost there, but it requires a couple of little tweaks. I am absolutely supportive of the intent behind the amendment—it is a good amendment in its intent—but the wording needs a little bit of looking at. I therefore ask Ariane Burgess not to move amendment 59 today, and we can work on something that she can bring back at stage 3 that we can all get behind and feel confident in. I would be very pleased if we could do that.

Turning to amendments 118 to 120, section 3 of the bill sets out the purposes for which Scottish ministers may exercise the power to make regulations under section 2(1). Those purposes are essential to ensure that our environmental assessment frameworks remain robust, aligned with obligations and adaptable to future needs. The powers in part 2 can be exercised only if the changes align with one or more of the purposes set out in section 3. However, we have heard calls from stakeholders and the committee that those purposes are viewed as too broad. Rhoda Grant’s amendments 118 and 119 would significantly narrow those purposes. Amendment 118 would remove the reference to the net zero emissions target from purpose (b) in section 3. That reference was included as an illustrative example to underline the importance of climate considerations in decision making, alongside other environmental and biodiversity considerations. Taking that reference out would weaken the clear link between environmental regulation and Scotland’s climate commitments. They have absolute parity with one another; one does not supersede the other.

Amendment 119 would go further by removing purpose (c) entirely. Purpose (c) was originally drafted to allow ministers to ensure consistency or compatibility with other relevant legal regimes. Removing it would undermine the ability to maintain alignment with international obligations and future proof our environmental assessment system—which is particularly important post-Brexit, hence the reasoning that I gave earlier.

I am of the view that Dr Allan’s amendment 120 is a targeted and proportionate response to legitimate concerns that have been expressed. It would effectively narrow the scope to the relevant EIA legislation and habitats regulations, which are pertinent, and that is why I believe that the committee should support that amendment.

For the reasons that I have set out, I would ask Rhoda Grant not to move amendments 118 and 119. Instead, I strongly urge members to support amendment 120.

Sarah Boyack’s amendments 9 and 10 would reduce the scope of part 2 of the bill by removing two purposes for which the power may be used from section 3. As I have already stated, I recognise the concerns that have been raised.

The amendments in the name of Sarah Boyack respond directly to those concerns; we have had conversation about the amendments, and I completely understand the intention behind them. However, I have also talked to Sarah Boyack about Dr Allan’s amendments, on which I have worked with him. I hope that Ms Boyack’s Labour colleagues can agree that Dr Allan has lodged amendments that also address those concerns, and we have worked with him to ensure that we can support the wording in them.

Retaining purposes (e) and (f) will maintain flexibility in how the power in section 2(1) is used. However, recognising the concerns, Dr Allan’s amendment 121 would refine the scope of purpose (f) to make it clear that it is to enable administrative changes or to alter aspects of regulatory processes, rather than to make changes to core assessment requirements or substantive environmental standards or protections.

That means that the power can be utilised for streamlining processes and for modernising any procedural or administrative aspects within the EIA and habitats regimes, such as updating the EIA regime to enable the removal of requirements to submit paper copies of applications or other documents alongside electronic versions of the same documents. Purpose (f) will not allow for changes to core assessment requirements or to substantive environmental protections.

I acknowledge that stakeholders have expressed their desire to see the removal of purpose (f) entirely, citing that purpose (a) could capture such a requirement. However, it is unlikely that we could rely on purpose (a) to simplify processes or reduce administrative burdens. I think that we all want the unnecessary red tape to be stripped away to ensure that our agencies, and those who have to apply for any kind of permissions, are not overburdened by unnecessary administration.

I therefore ask Sarah Boyack not to move amendments 9 and 10, and I urge the committee to support Dr Allan’s amendment 121.

Absolutely—I am always open to having discussions with members.

I feel fairly confident that the amendments lodged by Dr Allan and Emma Harper will put scrutiny in there. Dr Allan’s amendments, in particular, include provisions to make sure that no future Government could weaken environmental protections. That is what we all want, because we do not know what will happen in the future.

The very legitimate argument was made by some members at stage 1 that, although we might trust the Government, and even the parties that sit in the Parliament, right now with regard to environmental protections, we do not know what will happen or who will be in government in the future, and we would not want to leave the bill open to misuse.

I therefore commend the members who have said that we need to put in place provisions such that any future Government could not use anything in part 2 to weaken environmental protections. The strength of feeling on that has been demonstrated by the amendments that have been lodged.

I want to finish my point first.

Specifically in recognition of those concerns, I have worked with Dr Allan on amendments that will strengthen the provisions. We have tested some of those amendments with ENGOs. That is why I mentioned Scottish Environment LINK’s comments in that regard.

At stage 1, I set out why we included part 2, which was to address some of the gaps that had been left in the legislation as a result of EU exit. We need to fill in those gaps as much as possible, because they leave us with an inability to adapt to any impacts or changes to particular areas as a result of climate change—or anything—in a fleet-of-foot manner. There might be times when ministers have to act very quickly to align with evolving global climate and biodiversity standards.

There are various examples. On the biodiversity beyond national jurisdiction agreement, we have to rely on the UK Government to provide a power for Scottish ministers to amend our EIA regulations. I would much rather that that was already within the Scottish Government’s competence than our having to wait on another Government to give us the powers.

The loophole has been created as a result of EU exit. That was the main reason for part 2 of the bill, and the main concerns about part 2 were about non-regression rather than the existence of that part. I certainly did not hear anything compelling, outwith what politicians were saying, to suggest that it should be removed wholesale. The concerns that I heard—my adviser and I had discussions with Scottish Environment LINK—were about non-regression and the potential for the lack of parliamentary scrutiny if the affirmative procedure was not required for substantive changes.

I am aware that regulation 9D was mentioned in stage 1 of the debate and that there were calls to amend the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. Let us consider regulation 9D. I will outline why I do not believe that it provides the safeguards that people have mentioned. It includes an obligation on the Scottish ministers to

“manage, and where necessary adapt, the UK site network ... with a view to contributing to the achievement of the management objectives”.

It has not been used in practice so far. There is an implied power to comply with that duty, despite the lack of specific legal provision in the habitats regulations. However, regulation 9D applies only to the UK site network—it does not allow ministers to amend the broader habitats regulations or the EIA regime in the way that we have set out in the policy memorandum to the bill.

If one of the amendments that puts a non-regression provision in the bill is passed, I hope that it will effectively ensure that members are happier with part 2 and that it will protect against future Governments that do not have environmental protection as a priority—

If I may, I will give an example, because this is why I think that your amendment would create a proportionate approach. We heard the example of changing the requirement for EIA reports to be electronic only, rather than on paper, for reasons of efficiency. That would be an administrative change, but I think that using the affirmative procedure for that change would be disproportionate. I do not run the committee, and the committee might believe that it is appropriate for all minor and technical changes to be subject to the affirmative procedure and, therefore, scrutiny in committee. That is entirely up to the committee. Personally, as a parliamentarian and a former convener, I would see that as taking up an awful lot of time, and the committee’s time could be better spent. It is up to the committee to decide whether it wants that.

I have not finished.

The continuity act was also mentioned as a way of keeping pace with EU law, but it provides for a narrower power that does not give us the flexibility to respond to the wider international obligations or domestic needs. I believe that we need to put something in the bill that puts those protections in place. That is why I am happy with Alasdair Allan’s amendments, which I think do that. We must recognise that some of the existing regulations do not quite hit the mark.

I will take it in a second. The wording of the definition that is provided in amendment 60 is also problematic because it would apply to native and non-native conifers. It would also apply not only in commercial contexts but to any “other purposes”. That means that the definition could apply to projects that seek to restore fragile Caledonian pinewoods. Therefore, the amendment is disproportionate and the definition too broad. There could be unintended consequences, which, as I have just outlined, was the result in Ireland.