Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, March 9, 2021

Official Report 548KB pdf

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European Union (Withdrawal) Act 2018

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Air Quality (Legislative Functions) (Amendment) Regulations 2021

Our third item is consideration of a notification from the Scottish Government in relation to consent to a UK statutory instrument, the Air Quality (Legislative Functions) (Amendment) Regulations 2021.

Members will be aware that a revised statutory instrument protocol has been agreed between the Scottish Government and the Parliament. The aim of the revised protocol is to enable committees to scrutinise proposals for UK SIs on all devolved matters that were formerly governed by EU law. The original SI protocol applied only to scrutiny of consent to SIs that fix deficiencies under the European Union (Withdrawal) Act 2018. The new SI protocol will continue to apply to such technical changes and ensure continuity of law, but also extends to proposals for SIs that introduce new regulatory or governance regimes, or that implement policy choices.

The committee raised some queries with the Scottish Government in advance of today’s meeting and we have received a response. I know that members have some concerns and issues with the general process that they would like to raise.

I preface my remarks and suggestions with the observation that I do not imagine that anyone is setting out to deliberately create difficulties between the UK Government and the Scottish Government. The issues with which we are engaging when we look at the regulations that are before us lie more in the shortness of time at UK Government level and, more fundamentally for us, perhaps a failure to lock in the different processes and timetables in the Scottish Parliament with what has to happen at Westminster.

I know that this is not a new subject for us, and that our minister and the Presiding Officer are well aware of some of the difficulties. I propose that, on this occasion, we write to the relevant minister with responsibility for the constitution at Westminster, to make them aware of the difficulty, because I assume that they are not fully aware of it. I also assume that they will not reject any observations, because if the process works well in devolved Administrations—I do not imagine that Scotland is the only one that is affected—it improves the governance and government at all levels. Therefore, it is appropriate for us to write to say that we must get our act together and have a coherent timetable that allows proper consideration not only by the politicians, but by the officials who support our consideration of such UK statutory instruments.

As I outlined, the revised protocols are supposed to facilitate that scrutiny, but they are not really adequate. Members have being bringing up the issue for some time. Stewart Stevenson is right in what he said, and other committee conveners have also raised the issue with the Presiding Officer and the Scottish Government. Those are good suggestions, Stewart.

I agree with those points. It is disappointing to see consistent errors in timings and in the accuracy of the information that is presented to the committee about what the instruments do.

I agree that writing to all those concerned—including the Presiding Officer—would make sense. If the issue persists, the committee conveners in the next session of Parliament will have to consider it in more detail. It is also important to try to understand where the blockage is and how those errors keep on creeping in.

I would like clarity on how the policy could impact on the Scottish Government’s desire to stay in alignment with the European Union. Although I see the logic in having a UK minister administering the instrument, if the European Union were to decide to take air quality standards in a slightly different direction, that might cut across the Scottish Government’s desire to stay aligned with Europe. I am not raising an objection now, but I would like the Scottish Government to be clear as to how likely that might be.

I agree with Stewart Stevenson and Mark Ruskell. Ours is not the only committee to have had these difficulties; it is a wider issue for the Parliament. The main problem is around consistency, or the lack of consistency in some cases. We must address that in the next Parliament. We should not wait for the problem to arise again; we have had sufficient evidence that there is a difficulty. As Stewart Stevenson rightly said, it is probably not intentional, but it could cause us a lot of headaches. The committee should quickly put that on the record and I am very much in favour of copying in the Presiding Officer.

We are agreed that we will write to the UK Government minister with responsibility for this area.

We have been talking bilaterally to other devolved Parliaments about the issues and some of the work that we have been doing. It might be a good idea to copy them in to our letter to the UK Government. We know that they are facing the same issues, and that would make our point stronger. We want to get this right. An awful lot of statutory instruments will be laid and we cannot keep running into the same problems time and again.

I see that everyone seems to be content with that approach.

Are members content to write to the Scottish Government to confirm the committee’s consent to the UK statutory instrument referred to in the notification, caveated with Mark Ruskell’s request to have clarity on some issues?

I see that we are content to write to the Government in those terms.

At the next meeting, on 16 March, the committee will consider our annual report, our legacy report and a number of statutory instruments. That concludes the public part of today’s meeting.

10:19 Meeting continued in private until 10:45.