UK Withdrawal from the European Union (Continuity) (Scotland) Bill

The Convener

Item 2 is evidence on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. The committee has been designated as a secondary committee for consideration of the bill at stage 1. We plan to report to the Finance and Constitution Committee by the end of September.

I welcome the first of two panels today. From the Scottish Government we have Emma Lopinska, who is a constitution policy manager; Francesca Morton, who is a solicitor; Charles Stewart Roper, who is the head of the environment strategy and governance unit; and Lorraine Walkinshaw, who is a solicitor. I thank you all for providing a detailed written response to the committee’s questions ahead of the meeting.

If we have signal problems or one of the panel drops out, I might suspend the meeting. I will take it as it comes. I might ask a panel member to fill in for another, but if that is not possible I will suspend the meeting and try to get the witness back.

I will address the first question to Emma Lopinska and Charles Stewart Roper. What are the intentions and rationale behind what the bill says about powers with regard to environmental standards and principles, and how will things work in practice? We are very aware that how European Union exit will look is a moving situation, and that the United Kingdom Government is introducing bills that might have implications for this bill.

Charles Stewart Roper (Scottish Government)

The overall rationale is that the bill should enable us to cope with the gaps that are left as we leave the EU, by providing, as far as possible, for continuation of the system of environmental principles in domestic law, and for a system of environmental governance to replace the arrangements that are in place in the EU.

I take the point in the question: there is a lot of uncertainty. We think that the arrangements in the bill are robust and flexible enough to deal with changes that might come forward. In operation, the system will need a considerable amount of flexibility. In particular, joint working by the new governance institution and the institutions of the other nations of the UK will be needed to make everything work effectively as a single system. There will need to be co-ordination between the Administrations across the UK to make the system of principles work, but we think that the measures are flexible enough to enable us to cope with changes that might come, as the new arrangements in the parts of the UK evolve.

The Convener

Can you give me an example of how the flexibility that you mentioned manifests itself in the bill?

Charles Stewart Roper

For example, we will, on the principles, flesh out the detail in guidance that we will bring before Parliament for approval. Scottish ministers will develop that guidance, which will allow us to be flexible in terms of how the Government and other public authorities bring the principles into effect. Through consultation and discussion with the other Administrations as necessary, we will be able to put in place a system that is coherent across the UK and which is robust and works well in Scotland.

Flexibility is built into the governance proposals. We have specified the powers and enforcement powers that will be needed by the proposed body, environmental standards Scotland, but in the strategy, which will be that body’s own document and functioning system, it will be able to develop flexible ways of working with other public authorities in order to achieve environmental gains. That flexibility will, in order that ESS can work on issues that cut across the UK, allow it to develop its own relationships with the office for environmental protection—the new UK institution—and with the institutions that will be put in place in Wales and Northern Ireland.

We feel that not being overspecific on the details of the system, but instead providing flexibility through the new body’s strategy and operation, will build an effective and robust system that can work—where necessary, in co-ordination and co-operation with the other new institutions in the UK.

The Convener

Some of my colleagues have specific questions that we will come to later on ESS and its relationship with other bodies. Mark Ruskell has a supplementary question.

Mark Ruskell (Mid Scotland and Fife) (Green)

I note that the cabinet secretary’s written response to the committee used some strong words. For example, it talked about easing

“the path to EU re-accession”.

How confident are you that the bill will make us fully aligned with the European Union? There are some aspects of divergence. For example, it has been brought to the committee’s attention that there is nothing in the bill that would commit Scotland to high-level environmental protection. That is in the Lisbon treaty, but not in the bill. How do you know that the bill will help to lead to re-accession, and that we will be fully aligned with the European Union, going forward, if that is the bill’s objective? It seems that there are some gaps.

Charles Stewart Roper

I will talk about the environmental provisions, then I will hand over to my colleague Emma Lopinska to cover the general point about keeping pace.

On environmental provisions, it is not possible to have in the domestic legal setting exactly the same arrangements as exist in the EU. However, we believe—the Scottish Government’s contacts with the European Commission have given us some comfort on this—that we are putting in place a system that is robust, and which the European Union will be able to see is a commitment to maintaining its standards and to keeping in place the role of the principles. We believe that the arrangements will allow us to maintain confidence in, and international credibility for, our environmental performance.

Emma Lopinska will address keeping pace, because it is more relevant to part 1 of the bill.

[Temporary loss of sound.]

The Convener

I think that broadcasting staff are having a wee issue with Emma’s microphone. We will give them a couple of seconds. We will come back to Emma, once we get her microphone sorted, for her response to Mark Ruskell’s question.

In the meantime, Stewart Stevenson has a question about the UK internal market.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I want to ask about what is in the white paper, “UK Internal Market”, and the bill, and would like to hear opinions as well as an objective response. The white paper talks about accepting and respecting standards that are set by other jurisdictions. Does that mean that Scotland’s being first to introduce legislation on a particular area of policy related to the internal market would legislatively force the UK Government to work within what Scotland had set? I am leaving aside, of course, the Westminster view of the overriding primacy of the UK Parliament and its view that it can basically do what it likes, and am focusing just on what the white paper states. Would the process work as I have suggested, or is it your view that we would, whatever we do, always have to fall in behind what the UK Government does?

Charles Stewart Roper

The internal market issue is more for Emma Lopinska to respond on, if her microphone is now working.

The Convener

We have Emma online now. We will deal with Stewart Stevenson’s question first, then you can address Mark Ruskell’s question.

Emma Lopinska (Scottish Government)

Okay. I am not the best person in the Scottish Government to talk specifically about the UK internal market. Mr Russell made a statement to Parliament on that last week, and will give evidence to the Finance and Constitution Committee tomorrow.

However, I will say that, at the moment, the UK Government’s proposals are only proposals. We would have to look at the detail of a bill in order to understand how it would impact on what we can do, and how the Scottish Parliament might be constrained by UK legislation. I could not say that if the continuity bill is approved by the Scottish Parliament and enacted, that would force other parts of the UK to act; at the moment, I genuinely cannot answer that question. I do not know what would happen. We would have to wait and see.

However, I will say that the Scottish Government’s view is that a bill on the UK’s internal market proposals is not necessary. We think that properly functioning intergovernmental relations need to be established—relations that recognise that European Union exit has happened, and address the weaknesses of the current IGR frameworks. We would say that we should have agreed frameworks across the UK, where necessary, and that they should have recognised working IGR frameworks as part of that.

Mr Russell has made clear the Scottish Government’s view that the Government would oppose a UK internal market bill. If a UK bill was tabled that would legislate for the proposals as they are in the white paper, the Scottish Government would oppose that and would recommend to the Scottish Parliament that the bill not be consented to. Obviously, I would not like to speculate on what Parliament might decide to do, or on what the UK Government’s response to any decision on consent might be.

I do not know whether that has properly answered Mr Stevenson’s question on the UK internal market, but I am afraid that it is just a bit too early to say with any more certainty what would happen.

Stewart Stevenson

I did not expect much more from someone who is, of course, an official, so I am perfectly content with that response. In framing my question, I was not seriously suggesting that we would wish to get ourselves in a position whereby what we did would bind what other Administrations should do. However, it is interesting to turn the question on its head and to see how others might feel about it.

The Convener

Francesca Morton has asked to come in—I imagine that it is on the point about legality. We will get her microphone on; she might have muted herself, and broadcasting might be having difficulty unmuting. It looks like the microphone is on now.

Francesca Morton (Scottish Government)

I asked to come in in the middle of Emma Lopinska’s contribution, but she has covered the point that I would have made. Her main point was that it is too early to make a proper assessment: the UK Government has not yet published a draft bill. Although the white paper sets out its proposals, it does not make clear the legal effects of its proposed principles. That was the only point that I was going to add.

The Convener

Before we go ahead, I point out that witnesses should not mute their microphones; broadcasting will do everything for you. We get into difficulty if we start pressing buttons. I think that we have all guessed that by now.

Mark Ruskell wants to come back in on his previous question. Do so briefly, as we have a lot to cover.

Mark Ruskell

I am not sure whether Emma Lopinska will be able to answer my question, but Charles Stewart Roper mentioned that he has, in effect, had substantial reassurance from the European Commission that the bill will ensure alignment. Is it possible to share that with the committee? I would be very interested to see what reassurance and evidence you have had from the Commission that the bill will enable a smooth path to re-accession.

Emma Lopinska

I have not had any such reassurance because, from my perspective, that is not to do with part 1. The power to align is obviously a discretionary power, so it is not about maintaining absolute alignment with the EU on every subject. We could not do that, because some EU law that comes in is in reserved areas, so the Scottish Parliament could not legislate to align with it.

Also, we have to recognise that a lot of EU legislation makes sense only for member states, so it would not make sense for us to legislate to align with it. There will always be that gap.

In considering EU measures that we might want to align with, several things would have to be considered, including the practical implications—the economic and social benefits, and the costs on resources, whether financial or parliamentary. We would also have to look at whether an alternative approach could deliver the same or better outcomes than the EU measure.

At the moment, there is no agreement between the UK and the EU, but should agreement be reached, we would have to look at what it would mean for areas on which we could align. Mr Stevenson brought up the UK internal market; we must wait to see whether the bill would face any further constraints in that respect. Areas for common frameworks might in the future be negotiated and agreed, so we would have to look at those, as well.

The bill is not about Scottish ministers having to align absolutely everywhere; many subjects in the bill’s competence are legislated for by the powers in section 2(2) of the European Communities Act 1972. When that legislation is lost at the end of the transition period, there will, in lots of areas, be no other existing power to regulate. The bill is replacing that power to regulate; it is not saying that we must use it. I could not, however, say that the bill will enable us to remain entirely aligned with the EU so that we could become a member state.

The Convener

We need to pick up the pace, because we have an awful lot to cover. Finlay Carson has a question on common frameworks.

Finlay Carson (Galloway and West Dumfries) (Con)

In the feedback from our consultation, organisations such as Scottish Land & Estates say that they are concerned about there being substantial policy divergence within the UK, and about how that will impact on businesses and so on.

I am pleased that Francesca Morton cleared up the idea of the internal market. We do not have a bill yet. We have a white paper, the overriding purpose of which is to protect the really important internal market. We all know that it is worth more than any of our external markets. We need to be clear that it is just a white paper. There is no bill on the table at the moment.

The Law Society of Scotland also suggests that strong collaboration between the UK Government and the devolved Administrations is of considerable importance.

My question is about the common frameworks. The Law Society said that

“The development of common frameworks”

and

“future trade deals ... will have de facto impacts on how these powers can be exercised.”

Have we put the cart before the horse with the bill given that we are not clear what common frameworks we will be working within? When are we are likely to see them?

Emma Lopinska

The Scottish Government remains committed to the frameworks process, which has shown that substantive progress can be made where the four Governments come together as equals and proceed on the basis of agreement, not imposition. We remain committed to that, but we have to wait to see what implications the internal market proposals could have for that process.

You asked about putting the cart before the horse. The Scottish Government has always been clear that it is for the Scottish Parliament, and not the UK Government, to determine how far we align with the EU. It is more than four years since the 2016 referendum and we still do not have clarity on so many things. As you have mentioned, we do not have frameworks and we do not have an agreement between the EU and the UK.

I do not think that our ministers would feel that it is for us to wait to see what other parts of the UK decide. The Scottish Government is looking at the powers that the Parliament has within the constraints of the current devolution settlement, and this is the Scottish ministers’ way forward to replace the regulation-making powers that will be lost and look at what will happen with environmental principles and governance.

We are putting forward a bill that we think is right for the circumstances that we are in. We cannot start to second guess what other constraints might be imposed on the Scottish Parliament or the Scottish ministers. We cannot keep waiting. I think that the Scottish Parliament has to legislate in the way that it sees as right.

The Convener

Finlay, will you make your follow-up question very quick, please? We have to move on.

Finlay Carson

I will. It was back in October 2017 that the UK and the devolved Governments agreed that a set of common frameworks would be established. Why have we not moved forward? I presume that it is an issue between all the devolved Administrations and the UK. Where is the hold-up? We have discussed the matter in committee before and it appears that there is reluctance from all corners to move this forward, or that something is preventing it, even though there was an agreement back in October 2017 that the matter would be looked at.

Emma Lopinska

This is not my area of expertise, so I hope that you will forgive me if I read out what I have been told about common frameworks.

The current public health emergency has meant that it will not be possible to achieve the original timetable for delivering all frameworks by the end of the transition period. The Scottish Government is working with its counterparts in the UK Government and the other devolved Administrations to prioritise key framework areas.

I am advised that a revised delivery plan has been agreed by all four Governments and that seven frameworks are expected to be finalised and implemented by the end of 2020. Provisional frameworks consisting of effective interim measures are expected to be in place for the remaining estimated 25 areas where final framework arrangements are not feasible by the end of the year. All four Governments consider the relevant delivery plan to be sufficient and the provisional frameworks to be robust and fit for purpose.

The Convener

We will move on to talk about the environmental principles.

Claudia Beamish (South Scotland) (Lab)

Charles Stewart Roper has already highlighted the importance of international credibility and keeping the principles in place. For the record, I highlight that the core EU guiding principles are the precautionary principle, prevention, rectification at source and the polluter pays principle. Those are significant and important.

A number of stakeholders have argued for a widening of those principles. The Faculty of Advocates has highlighted the possibility of including principles that take into account

“environmental equity (in a redistributive sense)”,

and NFU Scotland has highlighted “proportionality” and “innovation” principles. There are also other principles, such as those relating to sustainable development.

I will not ask the witnesses in the time that we have today to go into why all those principles were ruled out. However, in order to reassure us as we go forward with the important issue of the guiding principles in the bill, perhaps you could say why only the four principles were chosen and whether they are enough.

Charles Stewart Roper

We consulted on the four principles, which replace the four EU principles, and there was broad support for them. There were not a great deal of responses about additional principles beyond the four, so ministers settled on bringing those four guiding principles into domestic law at this point.

Flexibility is built into the provisions to allow additional principles to be introduced by regulation in future if a consensus emerges that they are legitimate and wanted. However, the provisions that ministers decided to introduce included the four EU principles that we are losing on exit.

Claudia Beamish

Thank you for that response. The committee would also like to know the rationale for including in the bill a duty to “have regard to” the principles rather than a requirement to act. Some stakeholders, including Scottish Environment LINK, have highlighted concerns about that. Client Earth has highlighted concerns about issues being

“siloed or split out from general decision-making.”

What conflict could there be? Given that the environmental principles must be upheld, why does the bill say only “have regard to”? Perhaps you could help us to understand that.

Charles Stewart Roper

We feel that the use of “have regard to” is proportionate because of the nature of the principles as guides to decision making. The principles do not represent outcomes or objectives for environmental policy; they relate to essential practice in the making of policy. We think that the “have regard to” formulation of the duty is proportionate and will put it alongside other important duties and considerations that regulators and other public authorities have. The four guiding principles are very important, but they should not dominate other factors in decision making, which is why we have gone for that formulation.

You also talked about integration. We feel that integration is achieved in the way in which we have formulated the duty. It is clear that the principles affect all decision making where relevant, rather than just decision making for environmental policy. That is how integration is achieved—it is in the structure of how we have put into effect the duty to have regard to the principles.

The Convener

Mark Ruskell has a question on the definition of the environment.

Mark Ruskell

I will ask that question, but perhaps Charles Stewart Roper could reflect in his answer on why the integration principle is not in the bill.

My question is about environmental definitions. We have had quite a bit of evidence from Scottish Natural Heritage in relation to the birds and habitats directive and evidence from other commentators about the lack of an explicit link to climate and climate targets. Client Earth says that the environment definition should be based on the Environmental Information (Scotland) Regulations 2004.

Will you give us some background on why you have seemingly chosen quite a narrow definition of the environment, given those stakeholders’ concerns about whether it captures the full range of what we would recognise as environmental laws in Scotland?

Charles Stewart Roper

If I may, I would like to make sure that I did not create confusion earlier when Mr Ruskell asked about the reassurance that we had from the European Commission. We had an official-to-official reassurance that the Commission was quite content that our governance proposals would be robust. The question to Emma Lopinska about future standards and the nature of the keep pace powers concerned a different and more complex issue about future decisions as well as the proposals in the bill. I wanted to make sure that I had not created confusion there.

On the question about the integration principle not being in the bill, we think that it is there, but it is there in the construction rather than standing as a principle on its own. We achieve integration through the way in which we apply the duty to all decision making and not only a narrow range of decision making.

We will carefully think through the points that have been raised about the definition of environment that we are using. There is no intention to exclude issues such as birds and habitats or the creatures that live there. That is clear from the provision on how we define environmental harm. However, we need to think through whether that is clear and ensure that we do not create a problem regarding nature.

There is a deliberate intent to remove the strategic level of policy making on climate change emissions reduction, mainly because it already has a complex and well-developed governance and policy development issue of its own. It seemed that to overspecify it and bring it, as well as all the existing arrangements and the relationship with the Committee on Climate Change, under the purview of the new body would just create confusion.

The Convener

Mark, do you want to follow up on that response before we move on to talk about the governance models around environmental standards Scotland?

Mark Ruskell

I am aware that time is marching on, but I would like to hear a brief reflection from the bill team on the role of finance and budgets. I am aware that some of your thinking here goes back to the Environmental Assessment (Scotland) Act 2005, from which those aspects are excluded. We are now 15 years on. Has there not been fresh thinking about green recovery and the financial support for it that would perhaps put environmental thinking at the heart of budget processes?

Charles Stewart Roper

Mr Ruskell is clearly right. What we have in the bill reflects the Environmental Assessment (Scotland) Act 2005 and also the strategic environmental assessment directive. The guidance for the environmental assessments is more clear cut—it says that it excludes measures that are purely financial or budgetary. The proposal is essentially to follow that and ensure that, as with an application for environmental assessment, there is an application of the principles to the actual budget-making process, which has its own procedures, processes and relationship with the Parliament.

I take the point that you make. It is not to exclude from consideration the wider issues of how much resource should be applied to environmental issues or goals; it is about the specific processes for budgets and finance, which we see as not being within the purview of the new duty to have regard to the principles.

Mark Ruskell

I will move on to some questions about ESS, and I know that other colleagues will want to come in.

I am trying to get my head around how ESS will work. I will use as an example the current complaint that has gone to the European Commission about the unlicensed use of acoustic deterrent devices—a matter that has come to the committee previously. That complaint might go so far, but be dropped in December.

How do you see ESS dealing with things such as complaints about Marine Scotland issuing or not issuing licences, and concerns about compliance with the EU habitats directive? What might be the outcomes in relation to compliance notices or improvements? Will you take us through an example to show how ESS might work, in theory, under the structure that you set up in the bill?

Charles Stewart Roper

That is an interesting example. I am not an expert on that issue, so although I will take it as an example, you should not take what I say as an expert view on acoustic deterrent devices.

It is clearly a matter of concern to many stakeholders that such issues will be brought to ESS when it comes into being, even in its initial shadow form. They may be about particular sites or the issue in general. We would expect, in line with the bill, that ESS would request information from Marine Scotland on its decision-making processes, the background to that, the way that it conducts its business and issues licences, and the criteria that it uses. We would then expect ESS to come to a view on whether there was a problem.

There are clearly two broad possibilities. The first is that the way that Marine Scotland was acting was somehow in conflict with the law as stated. This is where my expertise falls down, but I understand that there was not a decision to put in an amendment to explicitly ban such devices, so there would be a question of judgment as to whether the body was not acting in accordance with the law. In that case, ESS could start to move towards a compliance notice. We would expect it to discuss its concerns and issues with Marine Scotland and try to resolve them first, but that would be the route.

On the other hand, if the concern was more that the law was not properly taking account of the issue or that the balance between nature conservation objectives and regulation of the activity was somehow not in the optimal place, ESS could start to move towards discussions about whether the law should be improved. That would take it to the improvement report end of the process. It would discuss with Parliament, Marine Scotland and the Government whether there should be improvements to the law. It could then bring a report to Parliament with its recommendations on whether the law should be improved in the area, and ministers would have to respond to that.

The compliance notice is for narrower circumstances where the public authority is not working in accordance with the law. The improvement report route is for situations in which the law or the broader strategy is somehow not working to the overall advantage of the environment, or the correct balance between the environment and the activities.

Mark Ruskell

Thanks. That is useful.

The Convener

I will bring in Claudia Beamish, who wants to raise some issues on non-compliance.

Claudia Beamish

I want to consider enforcement and non-compliance and my question is for whoever thinks it appropriate to answer on that subject. What will the endgame be in the unlikely circumstance that there are difficulties that cannot be resolved by ESS through the steps that it can take? In her letter of 31 July, the cabinet secretary said:

“The Scottish Government expects that the majority of matters that come to the attention of ESS will be resolved without any resort to its formal enforcement powers.”

That is positive. However, under the EU arrangements, where there are concerns about infractions there is also the threat of possible fines. What would be the endgame for the new body if it is established in the way that is currently envisaged? Will there be fines? What will its final powers be?

Charles Stewart Roper

I will pick that up. If we think of the example that we were discussing, if it is a narrower case, where the public authority is not applying the law correctly and no agreement can be reached, the new body would be able to issue a compliance notice. A compliance notice is appealable but would otherwise be binding and could force the public authority to change its practice. For example, the notice might say something like, “licences issued under these regulations must no longer have this condition applied.” Although the public authority could appeal that decision, it would otherwise be enforceable and it would have to change its practice in relation to the regulatory activity.

Where the new body felt that there were unresolved issues of strategic policy—that the law or policy was wrong and there could be improvements to make it more effective—and if it could not agree with the Government and public authorities, the end route would be for it to submit a report to Parliament. The system is set up so that ESS would submit an improvement report to Parliament and ministers would have to respond either with an improvement plan, stating how they were going to fix the problem, or by arguing that they did not see the problem in the same way. That could be voted down by Parliament. In a domestic setting, ministers do not think that issuing fines in relation to bigger issues is a useful approach. It is not clear where such fines would go. Ultimately, such issues are for Parliament to resolve. The most tricky issues in environmental policy always come down to some sort of conflict between different human activities and the natural environment. That means there are big societal choices and those issues are for the Parliament to resolve rather than the courts.

Claudia Beamish

Thanks for that helpful clarification.

Angus MacDonald (Falkirk East) (SNP)

I am fairly content with the answers that we have had on governance issues but I have some questions about the interim body. I am keen to get more information on how the interim body is being established. I refer members to the submission from RSPB Scotland, which says:

“It is critical that the appointments process for the interim body is transparent and robust, as this Interim Board will form the first Board of the statutory ESS. Ministers should also indicate whether the interim body will be able to accept and investigate representations from members of the public, even if enforcement action, for all but the most serious cases, cannot be taken until the statutory ESS is operational.”

Can the officials expand on that and advise us whether appointments to the interim body are already being made?

Charles Stewart Roper

We have advertised the positions for the first board appointments to the shadow body. We cannot begin a regulated appointment process because of the stage that we are at in the development of the legislation, but we are going through as robust and as close to a full public appointments process as we can in the circumstances. We are doing that in a robust way and, when ministers make those choices, they will be well aware of the need for a credible panel and for high quality appointments so that the new shadow body can start off in a positive way.

From 1 January 2021, we will have a facility in place for people to bring concerns and information to the shadow body, which will start to investigate those in its shadow form before it passes into statutory form sometime next year.

Angus MacDonald

Can you be more specific on the timeline. By “sometime next year”, do you mean spring or sometime later?

Charles Stewart Roper

At the moment, we are optimistic that we will be able to establish the body on a statutory basis in the summer, but that obviously depends on the progress of the bill and on the Parliament’s consideration of it. Ultimately, sir, it is in your hands, not mine.

The Convener

Stewart Stevenson has some questions about the independence of the new body.

Stewart Stevenson

A lot of feedback has been gathered in the committee’s consultation. I will pick up on only a couple of points, as I know that other colleagues will further develop them.

RSPB Scotland focuses on schedule 1 paragraph 1(1), which sets out that ESS is

“not subject to the direction or control of any member of the Scottish Government”,

and notes that paragraph 1(2) goes on to state that that clause is

“subject to any contrary provision in this or any other enactment”.

Professor Gemmell picked up on the issue of climate change policy and targets.

Where does the Government think that paragraph 1(2) comes in? From my point of view, it seems that Parliament and Government set things such as climate change targets and policies, but I wonder whether some of the respondents are suggesting that setting environmental targets of that kind should be transferred to ESS, although it seems that it should be a supervisory body, rather than one that initiates policy changes. Could we have some explanation as to the meaning of

“subject to any contrary provision”

in practice?

An example of a prior provision might be the legislation on targets for climate change. Are there other examples that we should be thinking about? In the minds of the officials or the ministers, what could cause that secondary provision to kick in?

Charles Stewart Roper

There are two parts to the paragraph in the schedule that you refer to. First, there are things in the continuity bill, and ministers obviously have some role in that bill with respect to the new body, and secondly, there are other possible enactments. That part is there more for tidiness and legal efficiency, rather than because ministers have any other particular functions in mind. It is meant to give us flexibility, so that a piece of legislation passed by Parliament could give additional functions to the new body, without us having to go in and messily amend the act. Once the bill becomes an act, that ability for the body to take on an additional function would already be built in.

There are no specific additions in mind. If one arises down the line, it is more likely to be in the field of the thinking that is being done on the enjoyment of the human right to the benefits of the natural environment, rather than anything on climate change. The climate change institutional structure is already complicated enough, and we do not see that ESS will have a particularly strong role with respect to emissions.

Stewart Stevenson

Let me come back to make sure that I fully understand what I am being told. Clearly, there are existing bits of legislation, of which those relating to climate change would be but one example, are over which ESS will have oversight. Equally, however, paragraph 1(2) of schedule 1 leaves open that Government can bring forward, and Parliament can pass, legislation that will affect what ESS is responsible for, and, therefore, ESS is not master of its own destiny to the extent that some people seem to want. Is that a fair expression of what I have heard?

Charles Stewart Roper

In a sense. However, to say that something is fixed until Parliament passes legislation that changes it is an obvious fact—Parliament can always pass new legislation to change something. All the provision means is that if Government proposes and Parliament passes a change to it, they can do so in a more tidy way because there is already provision in the establishment of ESS for that to happen. The provision does not open up any new prospects for change; it only makes doing so more legislatively tidy.

Stewart Stevenson

I will close this discussion in a moment and allow others to come in.

Are you saying that such changes could be made solely by secondary legislation, or are you simply saying that secondary legislation can be exercised as a power under this proposal that gives effect to what is being brought forward in primary legislation in another bill that is laid? Is that the tidy legislative approach that you are talking about?

Charles Stewart Roper

On that detail of what enactment means, I have to ask my legal colleague to step in, because that is a technical question.

Lorraine Walkinshaw (Scottish Government)

Paragraph 1(2) is not a regulation-making power of itself. It would not enable ministers to make regulations to change ESS’s remit. Does that answer the question?

Stewart Stevenson

It does, thank you.

Claudia Beamish

I want to further explore issues that Stewart Stevenson has raised. Some stakeholders have raised the issue of the independence of ESS. I will quote from Professor Campbell Gemmell’s submission to give a sense of their concerns. He said:

“The direct involvement of the government of the day in recruitment, reporting and operation as well as setting budgets and priorities, however, is inappropriate and weakens the body and its likely value and impact.”

There are one or two other comments in that vein but, because of time limitations, I will not quote them.

What is the view, of whoever feels that it is appropriate to answer, on that very important issue of independence? I appreciate that ESS would not be a ministerial body, but exploring that issue would be helpful.

Charles Stewart Roper

The minister’s belief is that the proposals will set up the body with a high degree of independence. The non-ministerial department is a strong model of independence, and the bill guarantees the independence of the new body. I think—[Inaudible.]

The Convener

We appear to have lost the connection to Charles Stewart Roper and will just have to come back to him later. Mark Ruskell wants to come in on the precautionary principle, but that is probably a question for Charles. I do not know whether I can suspend the meeting to try to restore his connection, because we have only five minutes left. I have some questions around the budget as well, and the funding allocation and its impact. We will wait to see whether we can get Charles back, because more or less all the questions that we have are for him.

I see that Charles has rejoined us. Charles, can you hear me?

Charles Stewart Roper

Yes, I can. Apologies for dropping out again.

The Convener

I imagine that that is not your fault. Did you hear the question?

Charles Stewart Roper

Yes, but I do not know how far I got into the answer before you lost me. The proposals will create a body with a high degree of independence, which is certainly ministers’ intention. We think that there are important guarantees in the bill on the key steps for that, particularly that the appointments and the strategy developed by the body will be approved by Parliament. There is no intention to set the body up as a creature of Government and ministers. We think that the proposed structure will give the body a high degree of independence and set it up as a non-ministerial organisation separate from ministers and Parliament. It will therefore have a status of its own, although it will obviously be accountable to Parliament, as it should be.

The Convener

I am going to have to move things along very quickly. I will come back to Stewart Stevenson’s topic of gaps in governance for the last question. First, though, a couple of bodies have flagged up issues about potential additional costs to them from interaction with the new body and the resourcing around that, and whether the resourcing of the new body will be sufficient. You will have seen those points made in the written submissions from Scottish Natural Heritage, Scottish Environment LINK and the Faculty of Advocates.

Charles Stewart Roper

Yes. Ultimately, a judgment has to be made about how much funding there should be for the body. Our hope is that, like the European Commission in recent years, it will work effectively on a small number of cases and will therefore not incur large costs of its own or impose large costs on public authorities. The great effectiveness of the Commission governance system was due to its deterrent effect, as people did not want to get into trouble for non-compliance. If the system here is set up effectively, ESS should be able to work on a smaller number of exceptional issues with quite a light touch and not impose huge resource costs. We want to spend money on improving the environment and not on running institutions and casework.

The Convener

Finally, I ask Stewart Stevenson to pick up on the potential that has been flagged up for gaps in competence between the OEP and ESS.

Stewart Stevenson

I am particularly focusing on the issue of where there are powers that might be exercised by either a UK minister or a Scottish minister, because it sounds like the first one to move gets the chance to exercise the powers. However, with regard to UK ministers exercising powers that would affect Scottish law, are officials satisfied that what is before us will give us the ability to have proper oversight of that effect, particularly via ESS?

Charles Stewart Roper

In general, such co-decision powers or powers that could be exercised by either Administration will be exercised with the consent of Scottish ministers when exercised by UK ministers, and we could inquire into that. That is obviously not a complete and full answer to your question, but we do not foresee there being significant gaps, particularly where there are regulatory schemes that work across the UK and Great Britain. The key thing will be for the new governance bodies to work closely together in order to provide effective oversight of schemes that work at the UK and GB level.

Stewart Stevenson

Right. I am not unduly bothered about the issue of consent, although I am not sure that it is co-decision making; rather, it is alternate decision making. I will let that one pass, though. The real issue is where a UK minister does something that affects a Scottish institution. I want to be clear that that would not deprive ESS of the ability to intervene in the operation of the Scottish activity that the UK minister had legislated for, even though the Scottish minister could have done so. It is not a question of consent but a question of how we would get a grip of what happened.

Charles Stewart Roper

The competence of ESS is defined by the law that could be made by the Scottish Parliament. If a law was made by convenience for a UK regulation, that would not affect ESS’s oversight of that law’s operation, because it would still be within the Scottish Parliament’s competence.

The Convener

I am afraid that we are going to have to leave it there. Thank you for your time this morning. I suspend the meeting for five minutes to allow for a change of witnesses.

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-23163, in the name of Michael Russell, on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. I call Michael Russell to speak to the motion. [Interruption.]

The Cabinet Secretary for the Constitution, Europe and External Affairs (Michael Russell)

Sorry, Presiding Officer—I am having another kerfuffle here.

The Deputy Presiding Officer

It has been that kind of afternoon. Please continue, cabinet secretary.

Michael Russell

My apologies, Presiding Officer. I thought I would contribute my own kerfuffle, as I did not see the earlier one.

Let me start with what, although a truism, needs to be repeated regularly and often. The people of Scotland voted overwhelmingly to remain in the European Union, but they are being dragged out of the EU against their will. Moreover, in subsequent elections, the people of Scotland have comprehensively rejected the hard-Brexit ideology of the Conservative Party and its plans to remove Scotland from the many benefits of EU membership, including membership of the single market and the customs union. The Tories, in government in the United Kingdom while in perpetual opposition here, are not listening. The Scottish Government and, I believe, the Scottish Parliament, are listening, however. We hear the ambition of the people of Scotland to retain the closest links with the EU and to continue to meet the high European standards that presently serve us so well.

The UK Withdrawal from the European Union (Continuity) (Scotland) Bill makes a start, at least, on meeting those ambitions. It is a modest measure, but it will be of use to every part of our country and every sector of our economy. The only people who oppose it are those who have got us into this mess in the first place.

The bill returns the ability to regulate that was lost as a result of the Brexit that Scotland rejected. It replaces the protection for Scotland’s environment that is provided by EU law, and it is a statement of our values and of the path that we believe is the best future for Scotland. My remarks on it will focus on part 1 of the bill, and my colleague Roseanna Cunningham will cover part 2, which has a particular focus on her area of responsibility.

Murdo Fraser (Mid Scotland and Fife) (Con)

Will the cabinet secretary give way?

Michael Russell

Let me make some progress, please.

I thank the Finance and Constitution Committee, the Environment, Climate Change and Land Reform Committee and the Delegated Powers and Law Reform Committee for their thoughtful contributions to scrutiny of the bill so far. I also thank everyone who has expressed their views.

If Mr Fraser now wishes to express his views, he may.

Murdo Fraser

I am grateful to the cabinet secretary for giving way. It was stated in evidence to the Finance and Constitution Committee that the bill creates a substantial Henry VIII power, taking power away from the Parliament and giving it to the Scottish ministers. The cabinet secretary would be apoplectic if the UK Government were to do that. Why is it all right for him?

Michael Russell

I would be in a state of permanent apoplexy if I—

Murdo Fraser

You are.

Michael Russell

Well, I am only in a state of permanent apoplexy because I am faced with people like Murdo Fraser too often.

I would be in a state of permanent apoplexy if I even thought about the amount of powers that the UK Government is taking for itself on a daily basis—including today in the House of Lords, under the United Kingdom Internal Market Bill. Murdo Fraser should not patronise this Parliament, please, by pretending that there is an interest in the powers. The powers are being grabbed by the party of which Mr Fraser is a member.

Let me make some progress, however. Let me not be distracted by Mr Fraser—it is never a pleasant experience.

A defining feature of this Parliament, in contrast to some others, is the importance that we place on listening to those who are affected by what we do. The power in section 1 is intended to give ministers an appropriate way to recognise in domestic law the high standards that are represented by EU law. I have, of course, heard the calls for greater clarity on the principles that underpin how that power will be exercised, and I agree with those who say that the nature and breadth of EU law makes trying to define those in the bill almost impossible. However, if the bill passes at stage 1 today, I will commit to publishing guidance on the factors that ministers will have to consider.

I have also heard calls for the Parliament to reflect on the role that it and stakeholders should play in scrutinising regulations. That is, of course, an important issue with every bill. Some people have suggested that primary legislation should be required instead, and there is a role for primary legislation in areas of major innovation, but to make all legislative changes, however small and technical, through primary legislation would be, and always is, disproportionate.

Liz Smith (Mid Scotland and Fife) (Con)

I agree entirely with the points that the cabinet secretary has just raised. Does he accept, however, that, when it comes to major policy issues, primary legislation is very important?

Michael Russell

I am always happy to agree with the reasonable face of the Conservative Party, from which I have just heard. We will, of course, ensure that, when there are major changes, they are adopted in that way. However, attempting to limit the power to exclude significant new proposals would not be practical, given the legal difficulties in defining them.

Subject to Parliament’s agreement, I will engage further to agree a way of working together that not only addresses the point that Liz Smith has made but gives Parliament as early a role as possible. That could involve regular reporting by ministers on forthcoming EU legislation and its interaction with devolved areas, as well as a discussion on the most appropriate procedure for any legislation. I will also lodge an amendment that requires ministers to make a statement to accompany regulations under this power, which will set out the consultation that has taken place with local government and others.

We have listened to those who are concerned that Brexit threatens human rights. Following Parliament’s agreement to the general principles of the bill, I will lodge an amendment to require a further statement to accompany regulations that explains any effects that they will have on human rights.

The people of Scotland did not choose Brexit. They certainly did not choose the sort of disastrous no-deal Brexit that is still a possibility, and nor did they choose the equally low deal that is the only alternative left on the table. That low deal is a painfully thin, job-destroying ideological muddle, and, if it is imposed in the middle of a global pandemic, the resulting deep recession will cost every one of us dearly. It beggars belief that any responsible Government would even consider it, still less choose it.

This Government will do all that we can do ensure that we remain a confident, outward-looking country that shares values with the people of England, Wales and Northern Ireland as well as with our European neighbours. We value our joint commitment to compliance with international human rights law and the protection of the environment that is at its core.

With that, I shall pass over to Roseanna Cunningham, the Cabinet Secretary for Environment, Climate Change and Land Reform, who will speak to part 2 of the bill.

The Deputy Presiding Officer

That is breaking news to me, but it has been one of those days.

I invite Roseanna Cunningham to speak to and, I presume, move the motion.

The Cabinet Secretary for Environment, Climate Change and Land Reform (Roseanna Cunningham)

This is a unique job-share experience for the Parliament.

I thank Mike Russell for so clearly restating that Scotland did not choose to leave the EU. There should be no need to consider how to deal with Brexit, and anything that we do cannot fully substitute for the loss of our membership.

From the beginning, my priority has been to protect the environmental standards that we have in Scotland. I am proud of our environmental record and of our commitment to respond to the global crises of climate and biodiversity loss. Our natural world supports our wellbeing and our reputation as a nation. Natural resources contribute to our society and economy in countless ways, and we must protect those precious assets from the threats that arise from Brexit.

I have committed to maintaining or enhancing our environmental standards, and I have made it clear that we should align with future developments in EU standards wherever possible. Those objectives have been shared by many across Scotland—in our public bodies and nature charities and across society. That is the context for the development of the environmental proposals in part 2 of the bill. We have already completed a huge body of work to ensure that our regulatory systems are robust and will continue to protect standards.

Earlier this year, I published “The Environment Strategy for Scotland: vision and outcomes”, which will set a framework for future policy. The measures in the bill provide for continuity, in domestic law, of two key features of the EU’s structures that we are losing, to ensure that we can continue to protect environmental standards. The proposals establish guiding environmental principles in domestic law, which will ensure that the principles continue to underpin the development of our environmental policy and law. The proposals will also create a proportionate system of domestic environmental governance to replace the role of the EU institutions in ensuring that environmental law is fully implemented and effective.

This is becoming urgent. I hardly need to remind the Parliament that the Scottish Government made repeated calls to negotiate an extension to the transition period in the face of Covid-19—calls that were ignored by the Government at Westminster.

I echo Mike Russell’s thanks to the Finance and Constitution Committee, the Environment, Climate Change and Land Reform Committee and the Delegated Powers and Law Reform Committee for their scrutiny of the bill to date. I also thank all those who have contributed their views. With the hard work of the committees, clerks and stakeholders—who have been willing to give evidence remotely—the proposals in the bill have had a thorough airing. I appreciate that we have been working to a tight timetable for complex provisions. However, that is not a situation or timescale of our own choosing.

If people are saying that the proposals are not as good as being in the EU, I readily agree. However, we must be careful that, in seeking to maintain what we are losing due to the EU exit, we keep the balance with domestic law and procedures right. We want to maintain what we had within the EU, but careful thought must be given to how best to translate supranational arrangements into domestic law. As Mike Russell said, it must be for this Parliament to determine our environmental standards outwith the EU. He made a clear argument against any automatic or rules-based application of the alignment power. The real-world policy environment is too complex for a sensible set of rules to be made by flatly applying criteria.

A similar case can be made with respect to part 2. We need measures to continue the effect of environmental principles and governance, but no rigid set of rules can replace the judgments made by ministers and the Parliament about future policies and legislation.

The environmental principles must remain what they are in the EU context: a central guide to good decision making that is to be weighed alongside other matters and objectives. Environmental governance must keep public authorities in line with the laws that are passed by this Parliament but must not shift decision making from this Parliament to another body or to the courts. I will, of course, be flexible at stage 2.

I believe that the fundamental measures in the bill are what we must have in place. There is limited time, and we must focus on putting in place effective and proportionate principles and governance now and dealing with other matters at a more appropriate time.

The Deputy Presiding Officer is telling me that I have run out of the time that I thought I had.

The Deputy Presiding Officer

It has been a mystery tour for us all this afternoon. There was 10 minutes for the cabinet secretaries, and you have not moved the motion.

Roseanna Cunningham

I move,

That the Parliament agrees to the general principles of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.

The Deputy Presiding Officer

There we are. We are all inventing the script as we go. I call Bruce Crawford—I hope—to speak on behalf of the Finance and Constitution Committee.

Bruce Crawford (Stirling) (SNP)

I hope that I can clear up any remaining mysteries.

I thank our clerking team for supporting the committee so effectively through the stage 1 process. I also thank my MSP colleagues for the way they went about the process, not always agreeing, but being able to disagree amicably and professionally.

As the lead committee, we focused on part 1 of the bill. The Environment, Climate Change and Land Reform Committee focused on part 2, and the convener, Gillian Martin, will discuss her committee’s findings later in the debate.

Part 1 of the bill would enable ministers to make provisions in secondary legislation to keep pace with EU law in devolved areas, where appropriate. My committee—with the exception of our Conservative colleagues—supports the principle of the keeping pace power as it exists in the bill, but the committee does not accept that the use of the power should be entirely at the discretion of the Scottish Government. The committee recommends that the bill should be amended to require the Scottish Government to provide guidance setting out the criteria that will apply to the use of that power. The guidance should also set out clearly how the keeping pace power interacts with other sources of regulation that will impact on people and businesses in Scotland. That should include the impact of trade deals, common frameworks and the operation of the UK internal market.

The committee welcomes the commitment from the cabinet secretary to work with the Parliament to agree an appropriate and proportionate decision-making framework for future alignment with EU law. I am therefore pleased that the cabinet secretary has committed to publishing such guidance.

However, given that future Governments might not always be as accommodating as the current one, there might still be room for further discussion on the matter. It is therefore essential that the Parliament gives serious consideration to the level of scrutiny of the keeping pace power that would be appropriate and proportionate. Specifically, what role should Parliament, stakeholders and the wider public have in relation to the decisions on whether to keep pace and to early engagement in the policy development process, especially when there are opportunities for ministerial discretion in how to keep pace?

The committee recognises that, until now, Parliament has had a limited role in the EU policy development process. There might be a risk that EU policy-making process is replaced by an executive-driven process that allows for significant levels of ministerial discretion. Therefore, there is a pressing need for Parliament to consider how its scrutiny role must evolve to meet the challenges of the impact of Brexit on devolution.

The committee has therefore agreed to write to other parliamentary committees to seek their views on the matter. We have also asked for a committee debate in the chamber before the Christmas recess, and we encourage all committee conveners or representatives from each committee to speak in that debate.

A key question for the committee is whether the extent of the secondary powers in the bill is appropriate. As colleagues will be aware, the keeping pace regulations in the bill are subject to either the affirmative or the negative procedure. The committee recognises that it might be necessary and acceptable for minor and technical amendments to be made quickly by subordinate legislation to refine retained EU law. However, the committee’s view is that further consideration is needed in relation to the implementation of significant new policy proposals that have no equivalent in retained EU law.

The committee therefore recommended that the Scottish Government give serious consideration to the Delegated Powers and Law Reform Committee’s view that primary legislation is the most appropriate vehicle for domestic law to implement significant new policy proposals that have no equivalent in retained EU law, and that that applies particularly to EU directives. In the event that the power is not amended to that effect, the committee recommends that the choice of procedure is expanded to include the superaffirmative procedure.

I note the cabinet secretary’s view that attempting to limit the scope of the power in section 1(1) to exclude significant new proposals would not be practical, given the significant legal difficulties involved in defining that in the bill. I also note that the cabinet secretary has said that he is content to discuss the matter further.

A further important consideration for the committee and Parliament is the extent to which the keeping pace power could be subject to statutory and non-statutory constraints. Although the keeping pace power is very wide in principle, in practice it might be much more limited. In particular, the committee notes, although with the disagreement of my Conservative colleagues, that the mutual recognition and non-discrimination principles in the United Kingdom Internal Market Bill could significantly undermine the use of the keeping pace power. Indeed, the committee believes that the internal market bill, in particular the market access principles, undermine the whole basis of devolution. This Parliament has made its views clear on that in refusing consent for that bill.

That leads to my final point, which is on the role of common frameworks—an area that the committee has considered extensively. The committee remains supportive of the Scottish Government’s view that common frameworks should not be imposed by the UK Government. The committee supports a system of common frameworks for trade in the UK market, with the common frameworks to be agreed between the devolved Governments and the UK Government. However, it is equally important that common frameworks are not imposed on Parliament and stakeholders without meaningful consultation and an opportunity to propose amendments.

The committee, with the exception of my Conservative colleagues, supports the general principles of the bill.

Gillian Martin (Aberdeenshire East) (SNP)

The Environment, Climate Change and Land Reform Committee outlined a number of areas in which further information and action is required in part 2 of the bill. The committee has previously expressed serious concerns about the ability of Scottish ministers to exercise their powers within the devolution settlement in devolved environmental competence following EU exit. In fact, during the summer, I made a statement on behalf of the committee on our discomfort with giving approval to a legislative consent motion on the UK Environment Bill—that is just one example.

The continuity bill and its interplay with the United Kingdom Internal Market Bill raises further questions about the broad and lasting consequences of EU exit, including on the development of and agreement on common frameworks. Despite our continued requests to the UK Government—certainly since I have convened the committee—for more detail on common frameworks, we have yet to receive sufficient information on them. My committee agrees with the Finance and Constitution Committee on that point.

The committee agrees with the general principles of part 2 of the bill, in so far as it seeks to provide legal recognition of the environmental principles and oversight of the implementation of and compliance with environmental law following EU exit.

We welcome the cabinet secretary’s determination, which he has outlined again today, to keep pace with environmental standards set by the EU. However, we want to highlight some concerns, particularly about the role of environment principles, and the functions, powers, and independence of the proposed new environmental standards Scotland body, or ESS.

The committee certainly supports the commitment to maintain or exceed EU environmental law to ensure the continuation of higher environmental standards in Scotland. We consider that the bill is fundamental in consolidating the framework for environmental law and other policy and law that impacts on our environment. [Interruption.] I apologise for the noise that the dog is making—I will keep going.

On balance, we are content that the keeping pace power is discretionary. However, there must also be more clarity about when the Scottish Government would use the regulation-making power under section 1.

We are also of the view that the climate and ecological emergencies, the climate targets, the commitment to maintain environmental standards and sustainable development must form part of any decision-making tools or assessments when deciding whether to keep pace.

We recommended that the Scottish Government regularly reports to Parliament on developments in EU environmental law and how they have been matched in Scotland. It is crucial that we have a transparent and accountable process for parliamentary engagement and scrutiny of those decisions. The Government should also lay a regular report before Parliament on significant developments in international environmental protection legislation.

We welcome a statutory footing for the principles in the bill, but we consider that, in order to provide legal continuity, it must also set a high level of environmental protection. Without that being on a statutory footing, the Scottish Government’s objective of achieving a high level of environmental protection is a statement of policy intention and does not necessarily provide legal continuity for any subsequent governments.

We firmly believe that, in order to deliver a green recovery and respond to climate and ecological emergencies, we need to integrate environmental issues across all Government policy legislation. That will rely on there being a legislative basis for the principles of integration and environmental equity, and extending the precautionary principle to include human health.

We have said in our report that we need to know how those principles will sit in the broader constitutional and legal context, and how they will be applied. We also need additional information on how the United Kingdom Internal Market Bill will influence Scottish ministers’ ability to act on environmental principles.

I turn to environmental standards Scotland. We asked whether the body will provide continuity of environmental governance and we heard that there are potentially a couple of gaps, specifically in the ability to pursue matters at the level of an individual case, in the investigation of cases in which the environment is an element and not the core of the matter, and in climate governance more generally.

Under the proposed system, an element of governance previously fulfilled by the European Commission will, ultimately, end up in Parliament through the laying of an improvement report. That will impact parliamentary committees, particularly the ECCLR Committee, and questions remain about whether committees have the capacity and access to expertise to consider such reports.

Our report also flags up the long-standing debate about the need for an environmental court in Scotland. We need to rationalise how legal issues and appeals are determined across regulatory frameworks affecting environmental issues. We firmly believe that compliance appeal cases need to be heard by people with expertise and experience in environmental law. We are keen to know how the Government plans to build and consolidate environmental law expertise across the judiciary in tandem with setting up the ESS.

The committee is of the view that the bill’s success, from the point of view of the environment, depends on a satisfactory response to the issues that we have raised in our report and to strengthening the areas that we have outlined. However, as I said earlier, we support the principles of the bill at stage 1.

The Deputy Presiding Officer

Thank you, Ms Martin. I also thank your canine companion for the little interventions made on your behalf—or perhaps not on your behalf.

I call Dean Lockhart. Let us hope that things will go smoothly for the rest of the afternoon. You have six minutes, Mr Lockhart.

Dean Lockhart (Mid Scotland and Fife) (Con)

Thank you, Presiding Officer. I do not have any pets with me, as far as I can see.

I add my thanks to the clerks, conveners and others on the committees overseeing the legislation for all their hard work.

The context for the debate is that Scotland is now facing an unprecedented recession, with its economy declining by 20 per cent and unemployment increasing rapidly. Following the additional restrictions that were announced earlier today, the Parliament’s priorities must be to protect jobs and livelihoods and to rebuild Scotland’s economy.

However, instead, we are debating a continuity bill that will do the opposite—a piece of legislation that will impose barriers to trade, increase the cost of doing business and ultimately, I am afraid, cost jobs and livelihoods across Scotland. There is no doubt that this bill will damage Scotland’s trade with the rest of the UK and beyond. Those are not just my views; they are concerns that were raised by stakeholders who gave evidence to the Finance and Constitution Committee.

John Mason (Glasgow Shettleston) (SNP)

Will the member give way?

Dean Lockhart

I will in a minute, Mr Mason.

For example, according to NFU Scotland, the keeping pace power in part 1 has, in its words,

“the clear potential to lead to substantial regulatory, and therefore economic, divergence with the rest of the UK.”

For NFU Scotland, that is a major concern, given that more than 60 per cent of Scotland’s agriculture and food exports go to the rest of the UK.

Michael Russell rose—

Dean Lockhart

However, such concerns are not limited to the agriculture sector. According to the Fraser of Allander institute, more than 550,000 jobs across all sectors in Scotland depend on our having barrier-free access to the UK’s internal market.

I will give way to the cabinet secretary.

Michael Russell

I wonder whether the member has read NFU Scotland’s submission on the United Kingdom Internal Market Bill, which talks about the difficulties that will be experienced with the proposals that are being made and the effect that they will have on trade.

Would it not be better to remain in the EU, which would get rid of all such problems and would help all of us? It would also mean that the recession that we face would not be made worse by Brexit—which it will be.

Dean Lockhart

I remind the cabinet secretary that we are debating the continuity bill. As Scottish Conservatives have said in previous debates, common frameworks will form the bedrock for trade in the internal market. It was unfortunate that the cabinet secretary walked away from negotiations on the internal market guidelines.

By keeping pace with some—but not all—future EU laws, the bill will require firms in Scotland to comply with myriad divergent regulations, including: devolved law that keeps pace; devolved law that does not; and different regulations in other parts of the UK that no longer follow EU regulations.

The committee heard evidence that that would lead to Scotland becoming a “regulatory no man’s land”, with the inevitable consequence of the proposals being that they will increase the expense and complexity of doing business, increase costs for consumers and, at the end of the day, cost jobs and livelihoods—all at a time when thousands of businesses across Scotland are already struggling to survive under Covid restrictions.

However, the ultimate indictment of the bill is that it will not even achieve its stated aim of keeping Scotland aligned with EU regulations, which the cabinet secretary mentioned in his opening remarks.

The Faculty of Advocates has pointed out that

“the Scottish Government will not be able to ‘keep pace’ in areas of EU law which depend on reciprocal arrangements between Member States.”

Commenting on the proposed legislation, EU officials have said:

“This legislation could create a difficult position for Scotland and wouldn’t be effective. Many regulations which are passed by the EU will be difficult to implement and will not apply to Scotland.”

I look forward to the cabinet secretary addressing that EU response in his closing remarks.

Not only will the bill damage Scotland’s economic recovery; it also represents a power grab by Scottish ministers that will undermine the powers of the Scottish Parliament and turn it into a passive rule taker of future EU laws. [Interruption.] The Scottish National Party members who are making comments should listen to the following concerns that were raised by key stakeholders.

Paragraph 48 of the committee’s report refers to the keeping pace power as a “substantial Henry VIII power”—in other words, a power that will enable Scottish ministers to introduce new laws, including significant new policies, by means of secondary legislation without any parliamentary scrutiny or consultation with stakeholders.

Scottish Conservatives’ concerns in that area are shared by the Law Society of Scotland, the Faculty of Advocates, NFU Scotland and a number of constitutional experts, including Professor Aileen McHarg, who gave the following evidence to the committee:

“In those circumstances, it seems very hard to justify putting such an extensive power into the hands of ministers.”—[Official Report, Finance and Constitution Committee, 26 August 2020; c 4.]

We agree—as does NFU Scotland, which told the committee that

“there is an absolute requirement that Scotland, through the Scottish Parliament, retains an ability to adapt new laws for Scottish circumstances.”

I have read the cabinet secretary’s response to those stakeholder concerns and I have listened to what he has said today about some of the amendments that he will lodge at stage 2 and I have to say that he provides no assurance whatsoever in respect of this Parliament having the proper level of scrutiny.

Given the concerns that I have outlined, a number of stakeholders have provided recommendations on how this legislation can be improved. For example, the NFUS made the following important recommendations: that ministers be required to publish a full regulatory, financial and environmental impact assessment of regulations made under the legislation and to ensure that all keep pace regulations are made following consultation with relevant stakeholders. We will be listening to the recommendations from the NFUS and other key stakeholders and we will be lodging appropriate amendments at stage 2 to address those concerns.

We will be voting against the bill at decision time. It gives excessive powers to Scottish ministers to implement significant new policy changes with no parliamentary scrutiny, it will turn the Parliament into a passive rule taker, and it will create barriers to trade between Scotland and the rest of the UK, a market that accounts for more than 60 per cent of our trade.

Alex Rowley (Mid Scotland and Fife) (Lab)

I am pleased to be speaking in this stage 1 debate on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. I thank all those on the Finance and Constitution Committee and the Environment, Climate Change and Land Reform Committee for their hard work in scrutinising the bill, and I thank the clerks for their support in bringing together the stage 1 reports. I also thank all those who gave evidence and helped to advise the committees through the scrutiny of the bill.

The bill is being introduced to allow our legal system to keep pace with EU law in devolved areas where appropriate, as well as being able to ensure that there continue to be guiding principles on our environment here in Scotland in our post-Brexit landscape. Those general principles are supported by the Labour Party and we will be supporting the Government with the progression of the bill today.

At this stage, we agree in principle with creating new powers to allow the Government to keep pace with EU laws. It is particularly desirable to be able to deliver the strong environmental standards that we want to see in Scotland. It would be impractical to require all changes in EU law to be given effect by primary legislation in the Scottish Parliament. That would hold up important legislative activity. However, some future changes in EU law could involve substantial policy considerations, which Parliament and stakeholders must have the opportunity to scrutinise and influence.

The Government must set out detailed guidance on how those powers would be used and alternative processes for when consultation would be required. Scottish Labour welcomes the proposal for a new environmental governance body, environmental standards Scotland, but that body has to be independent of Government. We believe that climate change, individual cases and fiscal measures should all be included in the remit of that body and that exemptions to investigations should be prevented or at least have to go through primary legislation.

We welcome the incorporation of the EU’s guiding environmental principles in the bill, as argued for by Scottish Labour in relation to the previous continuity bill. Labour is considering amendments at stage 2 to add further principles, including recognition of human health impacts. We also believe that the bill should be strengthened at stage 2 to act in accordance with the environmental principles.

The keeping pace powers should not be entirely at the discretion of the Scottish Government and there must be greater clarity on how the Scottish Government proposes to use the powers. I am pleased by the indications from the cabinet secretary to the Finance and Constitution Committee that he intends to work with the Parliament to agree on an appropriate and proportionate decision-making framework for all future alignment with EU law.

I welcome the cabinet secretary’s response to the Finance and Constitution Committee’s report, which we received this Tuesday and which stated that he would

“commit to publishing the guidance which will be used to inform decisions on the use of this power.”

That is a welcome step. However, it is worth noting that the Law Society of Scotland, in its briefing for today’s debate, said:

“it is suggested that the power to make regulations under section 1 should be restricted to where the changes in EU law do not involve substantial policy considerations unless they are subject to super affirmative procedure”.

That point is worth bearing in mind as we move forward with the bill. From my reading of the cabinet secretary’s response to the committee, he appears not to have taken that suggestion on board. I hope that a satisfactory agreement can be reached on the level of scrutiny that will be required before we take on board new rules.

The NFUS has said that it agrees with the recommendations of the Finance and Constitution Committee and the Environment, Climate Change and Land Reform Committee that the use of the power in part 1 should not be “absolute and inflexible” and that there should be a stronger role for Parliament in scrutinising its use.

I hope that there will be a willingness to work together. We believe that there is a need for the bill. It is ludicrous for the Scottish Tories to continue to align with Boris Johnson and attack the environmental rights of the Parliament and the people of Scotland. We will work together to ensure that we improve the bill at stages 2 and 3 and then pass it.

Mark Ruskell (Mid Scotland and Fife) (Green)

I say at the outset that the Greens strongly back the bill’s principles at stage 1, just as we backed the original continuity bill—the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—which was so recklessly struck down by the UK Government. While the storms gather over the United Kingdom Internal Market Bill, it is important to forge ahead with European alignment for the sake of the environment, people and our economy.

It is important to reflect on what the bill aims to allow us to stay in alignment with. European protections were built on the struggle of citizens’ movements to protect human rights and the environment over many decades. From the Sandoz chemical spill that decimated the Rhine to particulate air pollution in European cities and today’s climate emergency, European protections have been the response to the struggles on those issues and now provide a strong counterweight to the economic neoliberalism that, if left unabated, would have collapsed Europe’s environment a long time ago.

The Environment, Climate Change and Land Reform Committee was told that the bill’s primary objective is to maintain alignment with those hard-won protections and to ease the path to reaccession to the European Union. Therefore, it is not a pick and mix or a Norway-lite approach; it is about EU membership. Stage 2 will be a test of the Scottish Government’s commitment to the goal of alignment and reaccession.

The foundation stone of that is the keeping pace power. I welcome the Government’s commitment to make the decision-making framework for that more democratically accountable, but it still needs a direction. It needs a statutory purpose that nails what we are aiming for. One of the rights that we had as EU citizens was the right to enjoy a world with a high level of environmental protection. That is enshrined under article 37 of the Charter of Fundamental Rights of the European Union, yet it is absent from the bill. If the Government wants to maintain and exceed European environmental standards, it needs to be clear in law that that means a high level of environmental protection.

I have my doubts, however, because the Government’s response to the Environment, Climate Change and Land Reform Committee stage 1 report states:

“When enhanced environmental standards are introduced in the EU, we can expect a full and lively policy debate about how Scotland should respond”.

That worries me because, although there will be EU laws that are no longer functionally relevant to a departed member state, those that set core environmental standards will be relevant. Actually, I do not want a lively debate about whether we should hold off from tackling air pollution that causes asthma in children, or whether we should keep spraying a pesticide that decimates bee populations; I want Europe-wide action as the baseline.

The bill attempts to enshrine four key environmental principles, but it requires ministers merely to “have regard to” them. That is very different from how policy has been developed until now in the EU, because EU treaties have required our policy to be based on those principles. A Westminster committee has judged that the phrase “have regard to” is

“weak, unenforceable and lacks clear meaning”,

so why put those weasel words into Scottish legislation?

I think that we have an opportunity to deliver real progress while staying on a parallel path to reaccession. For example, applying environmental principles to budgets would drive the green recovery that I think we all want. The precautionary principle would help us to put preventative spending first, thereby stopping costly problems becoming unmanageable in the future.

If environmental standards Scotland is to replace the European Commission, it needs to be strong, independent, well resourced and rigorously appointed by Parliament. It needs to operate under the widest definition of the environment, which must include climate change. It must consider individual complaints as case studies to improve compliance with the law and to suggest changes to the law itself. ESS needs to be a watchdog that has one eye on the European and international legislation, with the other eye firmly focused on ensuring that we keep pace at home.

There is acres of room for the Government and a majority of members in the Parliament, should they wish to improve the bill at stage 2. For the sake of our environment and our health, we need to continue to make progress in lockstep with our European neighbours, and the bill must rise to that considerable challenge.

Liam McArthur (Orkney Islands) (LD)

I, too, start by thanking the Finance and Constitution Committee and the Environment, Climate Change and Land Reform Committee for their work to date on the bill. It is not a bill that many of us would have wanted to see and it further highlights the needless damage, disruption and uncertainty that have been caused by Brexit.

As Scottish Environment LINK points out, 80 per cent of Scotland’s environmental protections stem from European Union legislation. The climate emergency and the need to tackle biodiversity loss demand no let-up in robust standards, and that is what we must look to achieve through the bill.

To do that effectively, the approach must be based on the right principles and set within the context of a clear overall purpose. Although I have no difficulty with the four principles that are currently in the bill, I agree with the ECCLR Committee and others that the Government should go further by including the Lisbon treaty principles on high levels of protection and integration. It would also be helpful to set out the overarching principle. Scottish Liberal Democrats will work with others to achieve that at stage 2.

Such principles will matter only if there is an onus on ministers to use them as the basis on which to take decisions. As Scottish Environment LINK pointed out and Mark Ruskell has identified, the bill that is going through Westminster appears to provide greater safeguards in that respect than what is proposed in the bill before us. Whether it is a requirement for ministers to have “due regard to” or to “act in accordance with”, it is clear that the ECCLR Committee wants the Government to toughen things up. Again, the Scottish Liberal Democrats will work with others to achieve that.

Another problem that the Government will have to address at stage 2 stems from the power that the bill gives ministers to keep pace while not requiring them to do so. Nobody else is allowed to insist that ministers keep pace; as things stand, only ministers can choose to do so.

I was struck by the fact that Mr Russell told the Finance and Constitution Committee that

“those who are opposed to any keeping pace could frustrate the legitimate will of the Scottish people to keep pace with high standards.”—[Official Report, Finance and Constitution Committee, 9 September 2020; c 6.]

However, he then spent the rest of his time saying that he would not keep pace with everything, for a whole series of reasons. Therefore, it turns out that he might yet find himself in the position of frustrating the legitimate will of the Scottish people.

The Law Society of Scotland, the Faculty of Advocates and others have made suggestions about how that might be addressed. Professor Michael Keating put it well when he said:

“We need to know on what basis things are going to be selected.”—[Official Report, Finance and Constitution Committee, 26 August 2020; c 3.]

It has been suggested that there could be an annual report that would look ahead at anticipated EU legislation and state whether the Government intended to keep pace with it. There are various options. The cabinet secretary has mentioned the use of guidance as a possible option. The bottom line is that the issue needs to be addressed at stage 2.

Among the other issues that have been flagged up by the committees is the need to protect the independence of ESS. I can certainly understand the anxieties about that.

I want to close by acknowledging one other issue that was identified by Scottish Environment LINK in its briefing. The case for a dedicated environmental court or tribunal is one that has been made by many people over many years, although few have made it with as much persistence and passion as Lloyd Austin, formerly of RSPB Scotland, has done. I think that the bill provides an opportunity for the Government at least to commit to consult on an environmental court, which would allow any incoming Government in May to decide how best to proceed. I hope that the cabinet secretary will consider the idea and look at least to take initial steps on it.

In the meantime, I again thank the committees for their work to date and assure them of Scottish Liberal Democrat support in pursuing the improvements that are needed to minimise the damaging legacy of Brexit, especially in the area of environmental policy.

Joan McAlpine (South Scotland) (SNP)

We are now more than four years on from the disastrous and irresponsible Brexit referendum, so it is worth reminding ourselves of the outcome of that vote here in Scotland: remain got 62 per cent and leave got 38 per cent. Every local authority area in Scotland voted to remain, so the bill has an overwhelming mandate from the people of Scotland. Brexit has been forced on us by the UK Government’s actions, not only in taking us out of the world’s largest single market and ignoring compromise solutions from the Scottish Government, such as remaining in the single market and customs union, but in refusing to extend the transition period despite Covid and in failing to secure any kind of trade deal worth the name—and certainly not the Canada-double-plus deal that was the UK minister’s catchphrase just a few months ago. The Tories have swung the wrecking ball of Brexit towards Scotland, and the bill aims to mitigate some of the destruction that that wrecking ball will do. This is law as damage limitation.

Maintaining high environmental standards is critical for addressing the nature and climate emergencies that we face as well as underpinning efforts to deliver a green economic recovery from Covid-19, which are all Scottish Government priorities. I note that Scottish Environment LINK welcomed the bill’s intention to embed the four EU environmental principles directly into Scots law, which are the precautionary principle, the polluter-pays principle, the rectification-at-source principle and the preventative action principle. I also note that Scottish Environment LINK would like us to go further still—instead of requiring ministers to “have regard to” the four principles, as the bill states, LINK wishes it to say that the policy will be “based on” the four principles. That strikes me as a fine line and no doubt colleagues will give it due consideration as the bill moves through Parliament.

I must comment on paragraph 87 of the Finance and Constitution Committee’s report on the bill, which notes that the United Kingdom Internal Market Bill could

“significantly undermine the use of the keeping pace power”

in this continuity bill. Indeed, it is incompatible with devolution, as my colleague Bruce Crawford has said.

My committee, the Culture, Tourism, Europe and External Affairs Committee, has also taken evidence on the internal market bill and we came to exactly the same conclusion. The Scottish Parliament has now voted decisively to withhold consent for the internal market bill, but there is no assurance that the UK Government will listen. That is why there is only one way forward. The bill will ensure that we keep pace with European environmental standards, but it looks as if the Brexit wrecking ball means that anything that we do in this Parliament can simply be obliterated and the devolution principle can be turned to dust. That is why more and more Scots understand that it is only by assuming the full status of an independent country that we can prevent the UK Government from smashing Scotland’s powers to pieces. That independent Scotland is coming, and it will be an independent equal member of the European Union. The continuity bill will help to ensure that we are ready to rejoin Europe in as smooth a way as possible, and I therefore have no hesitation in supporting it today.

Liz Smith (Mid Scotland and Fife) (Con)

Just as was the case when we debated the United Kingdom Internal Market Bill a few weeks ago, the Parliament’s main purpose with regard to the end of the transition period must surely be to ensure that all the post-Brexit structures that will be put in place will have the best interests of Scotland at heart, as well as her relationships with the rest of the UK and with the international community, most especially those that protect the internal market and Scotland’s ability to be a thriving nation in the future.

The continuity bill must be judged against those criteria, and I am sure that we can all agree, just as we did last August, that Scotland’s best interests also have to be the principal concern from the legislative perspective. To that end, it is surely important that Scotland’s Governments work together and do not seek to create division. That is obviously true for the environment, just as much as it is true for other aspects of policy. Roseanna Cunningham was correct when she said that it is essential that Scotland does not lose crucial environmental safeguards as the UK exits the EU—safeguards that have increasing relevance as the focus on the environment becomes ever more prominent.

That brings me to the controversial keeping pace principle. In the continuity bill, that principle is designed to ensure that Scotland will be aligned with EU regulations wherever possible, but that is something about which members on the Conservative benches are uncomfortable, because it would necessarily mean keeping pace with standards and laws over which we would have no say.

There is another aspect to the issue, which Bruce Crawford mentioned when he was opening on behalf of the Finance and Constitution Committee. Any keeping pace decision would become a matter of political choice for ministers, rather than be a legally binding commitment, as was the case when we were in the EU. Potentially, that will invest significant powers in ministers and it raises questions over scrutiny of some key policies, as Alex Rowley pointed out. Evidence given to both the ECCLR Committee and to the Finance and Constitution Committee reflects that.

On part 2 of the bill, which relates to the environment, there is general agreement across all parties about the need for Scotland to adopt the highest environmental standards and for a legal basis to protect environmental principles, but much less agreement about the structures that need to be put in place to achieve that. As the convener of the ECCLR Committee said, we have broadly agreed on some key principles that would have to be adhered to for the highest standards to be maintained—for example, the polluter-pays principle—but we are not agreed about exactly how to do that. For example, some witnesses at the ECCLR Committee, such as Scottish Environment LINK and the National Trust for Scotland, were seeking confirmation that some aspects of EU environmental law would be written into the bill, so that ministers would be specifically required to keep pace with environmental standards.

That was definitely not the view of NFU Scotland, which told the Finance and Constitution Committee that it has long been frustrated by agriculture’s inability to adapt to local circumstances as a result of some aspects of blanket EU law that do not always articulate with local circumstances. That, of course, is only part of the story, as questions remain about keeping pace decisions. I think that it was Bruce Crawford who said that keeping pace has implications for trade deals, common frameworks and so on, so there are question marks over that.

It is for those reasons that Conservative members want to see structures put in place that permit maximum flexibility when it comes to achieving the highest standards. It should not just be a case of aspiring to follow EU law, when there is no guarantee at all that EU standards would automatically be those that we wished to adopt.

We also want to see good governance when it comes to parliamentary scrutiny and the agencies that oversee environmental standards. A lot of issues have been raised at both committees about how we do that. I entirely accept the comments that members have made about environmental standards Scotland, which in principle is a very good idea, but whether it will have sufficient independence from Government and whether there will be separation of powers is a major issue in the bill.

I reiterate the point that I made at the start of my speech, which is that post-Brexit structures must put in place what is in the best interests of Scotland and the UK, in terms of economic growth and social cohesion, and that both Governments must work together to deliver what the public has a right to expect.

Tom Arthur (Renfrewshire South) (SNP)

I am grateful for the opportunity to participate in the debate and I would like to put on record my thanks to committee colleagues, clerks and those who gave evidence during stage 1.

It is a matter of regret that the legislation is required. My constituents in Renfrewshire South, along with a clear majority of people in Scotland, opposed leaving the European Union. They registered that view in the referendum of June 2016 and reinforced it at subsequent elections, most recently the UK general election of December 2019. With barely five months until the dissolution of this session of the Parliament, currently opinion polling suggests that support for the parties most strongly opposed to Brexit has only strengthened.

The circumstances in which we find ourselves are a consequence of a monumental failure of statecraft by the UK Government. Had it responded to the referendum with humility and a sense of responsibility, and pursued a settlement commensurate with the close and contested nature of the result across the UK, it could well have been the case that we would now be exactly 19 months to the day into a single market and customs union arrangement. Instead, we are exactly nine weeks away from, at best, a damaging low-deal Brexit, and, at worst, a disastrous no-deal Brexit.

Given that our best-case scenario is now a hard Brexit, it is of the utmost importance that we respond by equipping ourselves with the necessary tools to mitigate and minimise the impact of the UK Government’s hardline approach. The bill is an important part of that response. In particular, it enables the Scottish ministers to make provision in secondary legislation to allow Scots law to keep pace with complex EU law in devolved areas, where appropriate.

Outwith the European Union, Scotland will, of course, no longer automatically be subject to new EU regulations, and it will not be obliged to implement EU directives. However, that does not preclude the Scottish Parliament from seeking to mirror EU law where it determines that that is appropriate.

I stress that it will be for the Scottish Parliament ultimately to decide whether to incorporate any new aspect of EU law into Scots law via the bill. All regulations in part 1 of the bill are subject to the affirmative or the negative procedure. Power remains with the Scottish Parliament. The Scottish Government can propose, but it is for the Parliament to decide whether to approve.

For those who wish to see an example of Scotland being compelled to be a rule taker or of a hoarding of powers by the Executive, one need look no further than the UK Government’s United Kingdom Internal Market Bill. That bill, which was comprehensively rejected by the Scottish Parliament only a few weeks ago, poses a threat to the bill that we are considering. That was highlighted by the convener of the Finance and Constitution Committee, Bruce Crawford, who quoted from paragraph 87 of the Finance and Constitution Committee’s stage 1 report on the bill. Those words bear repeating. The report says:

“the mutual recognition and non-discrimination principles in the UK Internal Market Bill have the potential to significantly undermine the use of the keeping pace power in this Bill. Indeed, as the Committee states in our report on the Internal Market Bill LCM, we believe that the Internal Market Bill, and the market access principles in particular, undermine the whole basis of devolution.”

That state of affairs serves as yet another example of the inadequacy of the current constitutional arrangements. The best solution would be for Scotland to be a member of the European Union in its own right. However, as we face the imminent end of the transition period, we must do all that we can to ensure that we have the flexibility to retain the closest possible alignment with the EU where appropriate. On that basis, I support the general principles of the bill.

Claudia Beamish (South Scotland) (Lab)

The continuity bill is fundamental to the way forward for our devolved settlement as Brexit deadlines, sadly, approach all too fast. The bill as introduced and the scrutiny so far afforded by both committees are significant. I intend to focus on some of the concerns that were raised by the ECCLR Committee in our unanimous stage 1 report, which I do not believe have yet been resolved by the Scottish Government response.

We need the most robust possible protection for our environment and scrutiny of all actions and impacts on it by air, land and sea. That is not simply about the current Government and its commitments; it is about underpinning the direction and accountability of future Scottish Governments.

I was delighted when the Scottish Government agreed to enshrine the four EU guiding principles—the precautionary, prevention, rectification at source and polluter-pays principles—in law in the previous continuity bill as a result of amendments that Mark Ruskell and I lodged. That said, I still ask the Scottish Government to consider whether it could be necessary to amend the bill to refer more explicitly to human health in the precautionary principle, because of the importance of assessing how actions affect human health.

The four principles have been focused on, but I think that it is necessary to have a high-level environmental protection principle in the bill, as highlighted in recommendation 81 of the ECCLR Committee report. That report refers to

“reflecting the Treaty on the Functioning of the European Union”.

I also want to focus our thinking on the integration principle, which I believe would strengthen the bill. In recommendation 83, which our convener quoted, we stated:

“The Committee believes that, in light of the green recovery and current climate and ecological emergency, it is critical that environmental issues are integrated across all government policy and legislation.”

Despite what the Scottish Government said in response to our report about there being references in the bill, I am still of the view that there is a need for a stand-alone integration principle for robustness, and I hope that the Scottish Government will reconsider that.

I turn to the phrases “having regard to”, “having due regard to”, and “acting in accordance with” the principles. I am aware that time prevents me from going into the detail of the committee’s stakeholder engagement and its deliberations on the significant differences between those phrases. However, it is disappointing that the Scottish Government does not agree with our committee’s recommendations and has said in its response that

“‘have regard to’ ... would give effective and proportionate effect to the principles”.

It is crucial that we accord those principles a strength that is similar to or greater than what is contained at present in the terms of the EU treaty, so I ask the Scottish Government to reconsider.

Turning to the new body, ESS, I point out that our environmental laws are only as good as the institutions that uphold them and a watchdog can only be robust and effective if it is truly separate from and independent of Government. The European Commission’s role in implementing and enforcing environmental law has been crucial because of its independence from member states’ national governments. I still think that climate change should be included in the remit, despite the Scottish Government’s reassurances.

I will turn to the exclusion of individual decisions. Unless those limitations are removed, the ESS would not provide the continuity with existing EU arrangements and would represent a significant erosion of environmental governance in Scotland, as well as the rights and ability of Scots to take action on the environment. A more detailed definition of the environment would also be valuable.

I am clear that the further scrutiny of schedule 1 to the bill, and of the exemptions in paragraph 1(2) of the schedule, is essential. The committee raised those concerns in recommendation 180 of its report. The Scottish Government’s response was detailed and helpful, but if the exception in schedule 1 is required for accounting or other general reporting requirements, could the provision be more tightly drawn to allow for that exception, but no others? I still argue that the scope of the exception is too broad.

Finally, along with the committee and Scottish Labour, I support the principles of the bill and I look forward to working with everyone to take forward the best continuity bill possible.

John Mason (Glasgow Shettleston) (SNP)

First, Scotland wants to trade freely with both the UK and the EU. I fully accept that the UK may be the bigger part of that trade and that of course we do not want to lose that 60 per cent, but neither do we want to lose the 20 per cent of our trade with the EU. What country in its right mind would put 20 per cent of its exports in jeopardy?

The main aim of the bill was to keep us aligned with both the UK and the EU. It seems wise for us to keep our environmental and other standards as closely aligned with the EU as possible, and that should make it easier for us to trade with the EU and easier when we re-enter the EU as a free member in our own right.

One of the first questions that the Finance and Constitution Committee faced was whether we needed the legislation at all. It was suggested that primary legislation could be used for every issue. However, we accepted that that would be impracticable, and that minor tweaking of existing policies would be best dealt with by secondary legislation.

Following on from that was the need for guidance on what criteria there would be for the Scottish Government to use the powers. I think that it is agreed that guidance is required by the Government, but the Government does not consider that an amendment to the bill is needed; it is committing to providing guidance and I guess that we will go into more detail on that at stage 2.

Another suggestion was that it should be mandatory for ministers to keep pace, at least on environmental matters. That was suggested by the National Trust for Scotland and by Scottish Environment LINK. Clearly, those organisations trust the EU more than they trust the UK, and I share that position. However, I take the Government’s point that the power needs to be discretionary as it would not be possible to keep pace with everything.

Again, there is the question of the volume of work that would be involved in keeping pace, both for the Scottish Government and for the Parliament. I am not sure that it would be practical to require the Government to report on every EU law that is not being kept pace with. It is probably not possible to examine every decision to keep pace or not, but the Parliament, through its committees, should be ready to challenge the Government as to why any particular directive is not being followed. I am quite drawn to the idea of an annual report from the Scottish Government that looks at EU legislative priorities for the coming year, as well as looking back at what has already been done. I think that the Government has agreed to that.

The DPLR Committee considers that for major new policies, in contrast to amendments to existing policies, primary legislation in Parliament will normally be the best way to go. I think that the Government accepts that, since it has talked about “areas of major innovation”, which is good. However, I note that the Government seems reluctant to have amendments to that effect on the face of the bill, apparently because they would be difficult to word. I suppose that that is a challenge for somebody to propose suitable amendments for the committee to consider at stage 2.

The relationship with the United Kingdom Internal Market Bill is also relevant. If, as we fear, that bill allows the UK Government to roll back devolution, or at least gives the power to private companies to challenge devolution, the scope for us to align with the EU might be more limited. Again, the key point is that we want Scotland to be outward looking and international, not narrowly focused on the British or English market, important though that is.

We also touched on common frameworks, which I hope will be voluntarily entered into by all the devolved Administrations. If that is the case, it is to be welcomed. However, bargaining between Governments in a private room late at night or over the phone, as we know has happened before, does not make scrutiny by this Parliament—or, for that matter, by the Westminster Parliament—very easy. The Scottish Government confirmed in its response that there should be “an appropriate role” for Parliament. It would be good if we could hear more detail on that in due course.

Overall, I believe that we can support the bill in principle, and I hope that members will do so at decision time.

The Deputy Presiding Officer (Lewis Macdonald)

I remind members who are taking part in the debate to press their request-to-speak buttons in good time to be called.

Alexander Burnett (Aberdeenshire West) (Con)

Just yesterday, I was glad to contribute to a debate that focused on how to support the Scottish energy industry in helping to meet our climate change targets and improve energy efficiency. As a member of the Scottish Parliament, I take pride in doing what I can to represent my constituents and in taking part in debates that will bring real, positive change to their life and the next generation.

Today, however, I am wasting time, which I could have spent helping constituents, by debating a bill that has only one underlying aim: to reopen old divisions and break up the country in the middle of a pandemic. It is on record that, as a member of the Finance and Constitution Committee, I dissented from supporting the general principles of the bill. I did so for a number of reasons. Although the divisive aim of the bill is plain for all to see, and although Mike Russell and his colleagues choose to devote valuable time in the midst of pandemic to such legislation, it is, as usual, flawed.

First, the bill will lead to a lack of scrutiny, and that is simply not good enough. The policy memorandum states that, apart from some prescribed circumstances that are set out in section 4 of the bill, negative procedure will be used to align with EU law. That will lead to this Parliament’s role being diminished, as there is no scrutiny when EU law is simply copied and pasted into Scots law. Professor Aileen McHarg raised concerns, noting that the lack of scrutiny arrangements in the bill are even weaker than the scrutiny arrangements that the SNP proposed in the original UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in 2018.

There is not only that. Our committee pointed out that the Scottish Government has admitted that it is not possible to keep pace with all future EU laws. The committee recommended that amendments should be made to the bill that set out guidance on how the keeping-pace power would be used. The Law Society of Scotland agreed with that recommendation. I hope that the SNP will be wise enough to change the habit of a lifetime and listen to such organisations.

I cannot support a bill that fails to recognise the importance of our biggest trading partner, the United Kingdom. Some 60 per cent of our trade is with the rest of the UK, and it is worth over £50 billion. NFU Scotland repeated that point, noting that

“the UK internal market is far more important to the interests of Scottish agriculture than the EU market or other export markets”.—[Official Report, Finance and Constitution Committee, 2 September 2020; c 9.]

The bill’s policy memorandum states that the

“Scottish Government will do everything it can to be an active and constructive participant on EU matters.”

What a pity, then, that the SNP can never bring itself to be active and constructive on UK matters, which have far greater impact on Scotland’s interests. The bill is simply another opportunity for the SNP to reheat its separatist agenda.

The coronavirus pandemic has shown that we have had to adapt. Now, more than ever, we need to work with the rest of the UK and take advantage of the benefits that being part of this union bring. [Interruption.] I will not give way.

The Parliament’s time would be better spent in discussing ways in which we can create jobs, become world leaders in education once more and drive forward the revolution that we need to see in tackling climate change. One day, the Parliament will perhaps stop being used as a tool for separatist grandstanding and will focus instead on shaping a better Scotland for future generations.

Kenneth Gibson (Cunninghame North) (SNP)

That is a really hard act to follow.

In 2016, the Minister for the Cabinet Office, Michael Gove MP, said that

“there is a free trade zone stretching from Iceland to Turkey that all European nations have access to … after we vote to leave we will remain in this zone.”

Former Tory MEP and founding member of the vote leave campaign, Daniel Hannan, declared that

“absolutely nobody is talking about threatening our place in the single market.”

Indeed, the current Prime Minister promised in the aftermath of the Brexit vote that Britain would retain access to the single market. How times and Tory policy have changed. The risk of Scotland crashing out of the European single market with no trade deal whatsoever has never been greater than it is right now.

Who knows? The UK Tory Government might strike a limited, last-minute low deal with the European Union—only marginally less damaging than no deal at all. As a third country, many goods that enter Scotland from the European mainland would still be subject to border checks, which, by the UK Government’s own admission, would lead to delays as well as an increase in costs and bureaucracy for our businesses.

The people of Scotland did not vote for any type of Brexit and most certainly not for the cliff-edge scenario that we face in only two months in the middle of a pandemic. A direct consequence thereof is that a majority of Scots now want our nation to be an independent country. We could then rejoin the European Union and its single market of 450 million people.

In the meantime, it is our duty to prepare for that possibility by staying close to our European partners. The continuity bill will be a helpful instrument in allowing our businesses to keep pace with European directives and regulations where it makes sense to do so.

Dean Lockhart

Mr Gibson talks about Scotland rejoining the European Union. How will his Government reduce Scotland’s fiscal deficit, which is currently around 25 per cent of gross domestic product, to the 3 per cent that the EU requires?

Kenneth Gibson

I have to say that the union dividend to which Scotland has been subjected is quite shocking. Mr Lockhart seems to believe that Scotland is a kind of parasitic nation, in which we live off the rest of the United Kingdom. We all know well that the UK Government is inept when it comes to the development and growth of Scotland’s economy and to ensuring that we are a country that is able to play a full role in Europe. Two million people migrating out of this country from 1950 to 2000—that is Mr Lockhart’s union dividend.

At a time of huge economic uncertainty, the bill will also provide businesses in Scotland and the EU with vital consistency and predictability. I therefore also welcome the Scottish Government’s willingness to prepare regular reports about the EU’s upcoming legislative priorities and updates on how those might affect Scotland’s devolved competencies.

Yet, the continuity bill is about more than just economics: it will also help us uphold the EU’s core values and principles, which we share. I am pleased that the bill seeks to maintain or enhance the EU’s high environmental protection standards, after the Tories drag us out of the single market, the customs union and the European Court of Justice’s jurisdiction.

As a country, we have world-leading ambitions when it comes to tackling global warming and will never accept a post-Brexit race to the bottom in environmental standards. I welcome the fact that the bill seeks to establish a robust and independent environmental governance body—environmental standards Scotland—to secure a full and effective implementation of environmental legislation.

Of course, the current devolution arrangements mean that the Scottish Government will have the discretionary powers to maintain alignment only in matters that are devolved to the Scottish Parliament. Sadly, even in those devolved policy areas, the UK Government’s unacceptable internal market bill poses a serious risk to our ability to maintain close alignment with EU standards in areas where we choose to do so.

I share the Finance and Constitution Committee’s concerns that the internal market bill’s market access principles might still undermine the use of the keeping pace power in the continuity bill. Its implementation could force us to accept the lower food or environmental standards that are set elsewhere, against the explicit wishes of the Scottish Parliament.

The continuity bill is clearly a helpful and necessary instrument in the reduction of the economic shock of a no-deal Brexit. It allows us to maintain close alignment with the European Union’s standards in devolved areas wherein we consider it appropriate and practicable to do so. Yet, the UK Tory Government’s disastrous internal market bill also makes it clear that, as long as we are part of the United Kingdom, the Scottish Parliament will be at constant risk of seeing Westminster overrule its decisions.

Stuart McMillan (Greenock and Inverclyde) (SNP)

I welcome the continuity bill and know that constituents welcome it, too. Taking action now to protect the future is crucial to protection of the interests of people, businesses and our environment.

I had a discussion with a constituent last week, who was raising concerns about what will happen to our regulations in the post-EU environment. I told her about the bill and its purpose and she was genuinely pleased to hear that. Constituents are keen to learn that the Scottish Parliament is determined to focus on and work for the interests of every person who lives here.

The UK has taken the decision to leave the EU, although Scotland did not. It is therefore vital that Parliament does what it can to keep our standards as high as possible by aligning with our EU neighbours, rather than with the race to the bottom that is proposed by the Prime Minister and the Tory UK Government.

I thought it was telling, earlier this afternoon, when MSPs from across the chamber were asking Richard Lochhead questions regarding the impact of Brexit on Scottish further and higher education, that issues concerning the Erasmus+ programme, research funding and international researchers were key.

Members from all parties were asking genuine questions, so I found Edward Mountain’s comments of a few moments ago to be quite strange. It was not Edward Mountain, but Alexander Burnett. I apologise. He was attempting to portray the bill as some type of grievance bill, but it certainly is not that. It is a bill to try to protect and help our population and some services in Scotland.

The continuity bill has become even more important as a consequence of things that have happened. The proposals in it are based on the existing strong institutional arrangements for climate change action, including the roles that are played by Parliament and the UK Committee on Climate Change. Our climate change legislation, which was agreed by Parliament in 2009 and 2019, provides a strong role for regular independent expert advice from the UK Committee on Climate Change. In addition to having the ambitious headline target of net zero emissions by 2045, we are the only country to have legally binding annual emissions targets, which means that reporting to Parliament and scrutiny of progress happen every year.

The submission from the Faculty of Advocates to the Environment, Climate Change and Land Reform Committee’s call for evidence on the bill, which closed on 31 July 2020, was very helpful. It said:

“After the end of the transition period, some areas previously subject to EU regulation will continue to require regulation at the domestic level, in the interests of good government. Within those areas, the subject-matter may pertain to an area within devolved competence. A power to adopt EU measures appears to us to offer a vehicle for such necessary regulation of those areas in future.”

I believe that Brexit should not mean a race to the bottom on environmental standards, which is why the Scottish Government is absolutely correct to keep pace with EU regulations. In addition, the UK is already facing the worst economic crisis in decades, yet the Tories are determined to crash out after the transition period this year, thereby imposing yet more uncertainty on Scottish businesses during a global health emergency. Add in the social and economic effects of Covid-19 on Scotland and we see that it is essential that some degree of certainty exists for our population.

Until such time as we become an independent country, it will be important that Parliament maintains an international outlook. The bill does that, for the limited areas that it considers.

The Deputy Presiding Officer

We move to closing speeches.

Sarah Boyack (Lothian) (Lab)

This has been an important debate. We need the continuity bill, but it is clear from the hard work of our committees that it needs to be improved, and that the Scottish Government should commit to supporting a more accountable approach in order that we keep to the democratic principle of important policies being tested by the Parliament, and not just by the Scottish ministers.

I agree with Liz Smith that the two Governments need to work together, but the UK Government also needs to respect our devolved Governments and international law. It is really striking how out of step the Tories have been in their speeches today. That makes the bill even more important in ensuring that we retain the high environmental standards that our country needs—a view that has been supported by members from across the chamber.

The debate gives us the opportunity to ensure that this devolved Parliament has the powers to maintain what are currently some of the highest environmental standards in the world, and to keep pace with improvements in standards in the EU. It also gives us the opportunity to decide which standards we wish to maintain in Scotland as Brexit pulls us out of the EU, which is creating huge economic uncertainty in the middle of the pandemic. The comments from Alexander Burnett were completely bizarre and somewhat ironic.

Part 2 of the bill sets out the framework for keeping pace with EU environmental standards. As Alex Rowley made clear, Scottish Labour welcomes the proposal for a new environmental governance body, but it needs to be independent of the Scottish Government. As several colleagues mentioned, climate change, individual cases and fiscal measures should all be included in the remit of that body, and exemptions in respect of investigations should be prevented—or should, at least, have to be made through primary legislation.

We should take on board the evidence from Scottish Environment LINK, which argued that the

“exemption of individual decisions overlooks the critical role that individual decisions have played in setting precedents in the past”.—[Official Report, Environment, Climate Change and Land Reform Committee, 18 August 2020; c 33.]

We welcome the fact that the bill incorporates the EU’s guiding environmental principles. However, as Labour argued in the previous debate on the continuity bill, and as Claudia Beamish said this afternoon, we can still do more to strengthen the bill, with better regulation of human health impacts and environmental protection.

Having looked at the evidence, we feel that because some future changes in EU law could involve substantial policy considerations, this Parliament and our stakeholders must have the opportunity to scrutinise and influence the law as it will apply in Scotland. We believe that, in principle, new powers should allow the Government to keep pace with EU laws, and that we should be able to deliver the strong environmental standards that we want in Scotland. However, it is crucial that we ensure transparency and accountability, so changes need to be made when the bill comes back for stage 2.

I hope that, in summing up, the Scottish ministers will commit to looking at those issues. Those points have been raised by two committees, and there is clear cross-party support for them. It is important that we have the necessary democratic accountability and principles so that people who make representations to Parliament can see that there is transparency and that their views are being considered.

Members from across the parties made points about the importance of tackling climate change, biodiversity and making sure that we have strong environmental policies. It is critical that, in our future economic and trade relations, we have strong standards in Scotland, because that is what we want. It is also important that our Parliament debates the issues and their detail. Although we work with ministers, it is Parliament that needs to do that work. The work should be advised by ministers but not without the control of Parliament. That is a really important principle.

I thank the committee members for the work that they have done so far. I hope that ministers will reflect on the power of their scrutiny and work with MSPs to deliver the change that we need in order to strengthen the bill, because it could not be more important at this time. As we look at Brexit coming down the track, the bill is important for the future of Scotland.

Murdo Fraser (Mid Scotland and Fife) (Con)

I remind members that I am a member of the Law Society of Scotland, as I will be referring to its evidence to the Finance and Constitution Committee.

As we have heard throughout the debate, the bill seeks to give the Scottish ministers the power to keep pace with EU legislation. That will apply after we have left the EU, so we are talking about laws that would be made by a supranational body of which we are not a member and with which we have no direct relationship. We are talking about laws, in relation to which we will have had no input, being made by others.

As a number of witnesses have made clear in evidence to the Finance and Constitution Committee, that would put Scotland in the position of being a rule taker but not a rule maker. Widespread concerns about the approach were expressed in evidence to the committee. Dean Lockhart and Liz Smith both highlighted evidence from NFU Scotland, which is concerned that Scottish producers could be put “at a competitive disadvantage” if they are obliged to adhere to an EU regulatory framework for the environment, in so far as it relates to agricultural practice, when producers elsewhere in the UK are not.

In NFU Scotland’s view, that would cause “distortion” within the UK internal market, which is by far the biggest market for Scottish agricultural exports, and the primary source of the majority of agricultural imports.

That is not the only thing that is wrong with the bill. A host of witnesses who came before the Finance and Constitution Committee, including Professor Aileen McHarg, Professor Michael Keating and representatives of the Faculty of Advocates, the Law Society of Scotland and the NFUS, expressed concerns about the sweeping powers that are being given to Scottish ministers under the bill. Laws that are made in the EU, into which we have had no input, will be introduced in Scotland by Scottish ministers after very limited parliamentary scrutiny and with no scope for amendment.

There is one term for that: it is “power grab”—a term with which the constitution secretary is very familiar. It is a real irony that he is now guilty of the very act that he continually complains is done by the UK Government. I referred earlier to Henry VIII powers; that was a direct quote from Professor Tom Mullen, who is an adviser to the Finance and Constitution Committee and an eminent constitutional lawyer, who Mr Russell complains is patronising Parliament with his view. I suggest that Professor Mullen knows more about these matters than Mr Russell does.

Patrick Harvie (Glasgow) (Green)

I am sure that Mr Fraser was not intending to suggest that the list of witnesses whom he cited are all calling for the bill to be abandoned, because that certainly is not their position. The Tories argue that the bill will open up regulatory divergence from the rest of the UK. That cannot be the case if he accepts the UK’s promise not to diverge from, or water down, EU standards. Which is it? Does Mr Fraser agree with the UK Government, or does he think that there will be regulatory divergence?

Murdo Fraser

That is an entirely false choice; we do not know what the EU is going to do in the future. We know that, in many areas, UK regulations are actually stricter than EU laws, but we do not know where the EU is going to go in the future. To take a blanket approach and adopt every single EU law, whether we have been consulted on them or not, would put Scottish farmers at a competitive disadvantage, which is precisely why the NFUS is concerned about the bill.

As the Finance and Constitution Committee heard time and again, if the Government wants to bring in major new policy changes, it has a mechanism through which to do that—the tried and tested mechanism of primary legislation. That allows for full consultation, discussion with stakeholders and proper impact assessments to be carried out. It also allows Parliament to amend the legislation, which will not apply to the secondary legislation that the bill will set up.

There was an opportunity to approach the whole issue differently—an opportunity for the Scottish Government to introduce legislation that would allow minor tweaks to existing EU laws to be made via secondary legislation. I do not think that anyone would have objected to a bill that did that.

What we have before us today is quite different, however. It gives sweeping powers to the Scottish ministers and seeks to align Scots law with the future law of the EU—a body of which we are not a member and with which we will not have a direct relationship. That will be damaging to Scottish business, as Dean Lockhart said, and to vital sectors including agriculture. For all those reasons, the bill should be rejected.

What we have before us today is bad law. There could have been consensus on a way forward that had the support of stakeholders through which to bring in a law that would allow ministers to make minor adjustments to existing legislation through use of regulations. Instead, we have a power grab by Mr Russell—the Henry VIII of this Parliament. It is a power grab that will damage the Scottish economy, that disrespects and takes power away from this Parliament, and which is fuelled by the SNP Government’s ideological obsession with the EU.

For all those reasons, Parliament should reject the bill.

Michael Russell

Let me start with the positives in the debate. I say to the other parties, with the exception of the Conservatives, that I was clear in my opening speech that I want to debate and discuss some of the key issues that the committees have identified. As has been my approach to every bill that I have ever brought to the chamber, I acknowledge that the bill before us can be improved and developed, and we will find a way to do that. I note the points that have been made by a variety of members across the chamber. The stage 1 reports by all the committees have some important issues within them on which we can respond, and we will do so.

We will not agree on everything. One thing that has been common to every bill that I have ever been involved with is that there is always a discussion about the levels of subordinate legislation—a matter that seems entirely arcane to most people outside the chamber, but I know that it is very important to members of the Parliament. I think that we will have that discussion, and I think that we will find a way through it.

In the few minutes available to me, I want to reflect on the extraordinary speeches from the Conservatives. Sarah Boyack used that word, and she was quite right to do so.

Let us start by remembering why we are here. This chamber passed a continuity bill by an overwhelming majority. It was a bill that had keeping pace powers and, with one very small exception that was not in this area, entirely within the competence of this Parliament. The Supreme Court found that the UK Conservative Government had changed the law to outlaw that bill. We are here, repeating what we have already done, because the UK Conservative Government—backed by a minority in this chamber—managed to overrule a piece of legislation that had been passed by an overwhelming majority.

In addition to that, I say to Alexander Burnett that we are here—using the valuable time that he would spend with his constituents—because of the UK’s Tory Government. Therefore, I hope that he will take the issue up with his colleagues in the UK Tory party and blame them for the fact that we have had to come back here.

Mr Burnett should blame them for something else, too. He talked about the waste of time and money that Brexit has been. Indeed, I agree with him—to the tune of £200 billion, which has been the cost of Brexit. I agree with him because I have spent a great deal of the last four years engaged in it, and I would much rather that I had not been, because the people of the country in which I live voted against Brexit. I have had to spend that time—as we all have—on something that goes against the wishes of our constituents. He should, please, not remind me of wasted time. Instead, he should go and remind his Conservative colleagues.

I have to say that I have a life full of enjoyable instances and excitements, and I will go straight from this debate to a meeting of the joint ministerial committee on EU negotiations. During that meeting, I will, no doubt, hear many of the arguments that have been put by the UK Tory party already, and it will allow me a further opportunity to wonder—as I have spent this afternoon doing—at the current state of the Tory party.

Mr Lockhart’s contribution reminded me of a line from “Alice Through the Looking-Glass”:

“If I had a world of my own, everything would be nonsense.”

That is because he is living entirely in a world of his own. He is living in a completely upside-down world.

Dean Lockhart

Will the cabinet secretary take an intervention?

Michael Russell

No, thank you. I am standing the right way up and will continue speaking on this matter.

Allow me to deconstruct the nonsense that I heard earlier. There are three particular items that I will deconstruct. The first one—I have to raise this point, because it is of great significance to this chamber—is that Mr Lockhart has now twice contended that the United Kingdom Internal Market Bill bases its powers on the frameworks and is there to support them. The Official Report will make that entirely clear. That has happened twice now; it happened in this debate and in a previous debate. I asked Mr Lockhart to correct the Official Report, because what he said was not true: the bill does not refer to the frameworks in that way. However, he repeated that this afternoon. He doubled down on an assertion about the internal market bill that is not true.

Dean Lockhart

Will the member take an intervention?

Michael Russell

No, I will finish this point and then I will give way.

That is a very serious matter, because that bill is of enormous importance. It is taking powers away from this Parliament and we must tell the truth about it. Please, Mr Lockhart, tell the truth about it.

Dean Lockhart

This is a debate about the continuity bill, so will the cabinet secretary respond to comments from European Union officials that the legislation will not be effective, will be difficult to implement and will not apply to Scotland? That has come not from us or from the UK Government, but directly from the European Union.

Michael Russell

First, there is the issue of the internal market bill. I have given Dean Lockhart the opportunity to correct something that he has said twice in this chamber, and it has not been corrected. Let the record show that.

Secondly, there is the issue of jobs and the retention of them. The argument from the Conservatives, all afternoon, has been that high standards cost jobs. Their argument is that, if we lower those standards and become a deregulator—because that is what the argument is in favour of—jobs will be created in Scotland. However, that is not true—it would be utterly counterproductive and would mean throwing away all the advantages that we have to create jobs, and they simply would not be created. That is also an area on which the chamber has been woefully misinformed this afternoon.

Then there is a third, very significant, issue: the issue of this Parliament being made a rule taker. How can any Conservative deny that who has in front of them the internal market bill, which is the most massive undermining of devolution since its beginning? Members should not take my word for it; they should take the word of Lord Hope, the former Deputy President of the UK Supreme Court, the word of the Anglican primates across these islands or the word of any of the members of the House of Lords who have spoken on it. Members can take their word for it, and yet what they say is apparently not true, because Mr Lockhart says that it is not true. A rule taker—that is what the Conservative UK Government seeks to make this Parliament. It wants to undermine and take away our powers to do things and to make rules.

Having heard the debate, I say that the Scottish Conservative Party is in an utterly woeful state—in fact, worse than woeful, because what we have heard is an attempt to defend the indefensible. We are debating this bill because a previous bill was sabotaged by the UK Tory Government, and with the consent of the Tory party in Scotland. Now black is white and white is black.

I am grateful to the members who have shown their commitment to taking the bill through. We will take it through, but it will be part of a process of saying to the people of Scotland that we have the right, in Scotland, to make our own choices about what we do. We will not be told not to do that; we will not be cheated out of that by people who care nothing for this chamber and everything for their colleagues south of the border. It is a shameful position and it will not stand.

The Presiding Officer

That concludes our debate on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.

The Presiding Officer (Ken Macintosh)

The first question is, that motion S5M-23163, in the name of Michael Russell, on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division. As members know, we will have to allow all members, including those online, to access the voting platform, so I will suspend Parliament for a few moments to allow members to do exactly that.

The Presiding Officer

We will go straight to the vote. This will be a one-minute division.

The vote is now closed. If any member does not think that they have been able to vote, please let us know either through a point of order or online.

The Minister for Community Safety (Ash Denham)

On a point of order, Presiding Officer. I was unable to vote this evening due to a technical issue. I would have voted in favour.

The Presiding Officer

Did I hear you correctly that you would have voted for the motion?

Ash Denham

That is correct.

The Presiding Officer

Thank you very much, Ms Denham. I will make sure that your name is added to the voting roll.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Harper, Emma (South Scotland) (SNP)
Harvie, Patrick (Glasgow) (Green)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Johnson, Daniel (Edinburgh Southern) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McDonald, Mark (Aberdeen Donside) (Ind)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McNeill, Pauline (Glasgow) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Rennie, Willie (North East Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Russell, Michael (Argyll and Bute) (SNP)
Sarwar, Anas (Glasgow) (Lab)
Smith, Elaine (Central Scotland) (Lab)
Smyth, Colin (South Scotland) (Lab)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wightman, Andy (Lothian) (Green)
Wishart, Beatrice (Shetland Islands) (LD)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Greene, Jamie (West Scotland) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Kerr, Liam (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, Tom (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)

The Presiding Officer

The result of the division is: For 87, Against 27, Abstentions 0.

Motion agreed to,

That the Parliament agrees to the general principles of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.

The Presiding Officer

Our final question is, that motion S5M-22723, in the name of Kate Forbes, on a financial resolution on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, be agreed to.

Motion agreed to,

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, agrees to—

(a) any expenditure of a kind referred to in Rule 9.12.3(b) of the Parliament’s Standing Orders arising in consequence of the Act, and

(b) any charge or payment in relation to which Rule 9.12.4 of the Standing Orders applies arising in consequence of the Act.

The Convener

The next item of business is stage 2 consideration of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill.

As agreed by the Parliament, this committee will consider amendments to part 2 of the bill. Amendments to the rest of the bill will be considered by the Finance and Constitution Committee at its meeting tomorrow. The numbering of the amendments that will be considered today starts at 1000. You will be glad to hear that there are not 1,000 amendments, although there are a lot. That numbering is being used to distinguish the amendments that this committee will consider from those that the Finance and Constitution Committee will consider. We will start at section 9.

We are joined by the Cabinet Secretary for Environment, Climate Change and Land Reform, Roseanna Cunningham, and her officials. We will also be joined by Liam McArthur MSP and Alex Rowley MSP. I welcome you all.

We have a lot to get through this morning. We have provision to meet this afternoon, if required. I will take a view on the need for that as we progress through the bill.

Everyone should have a copy of the bill as introduced, the marshalled list of amendments, which sets out the amendments in the order in which they will be disposed of, and the groupings. I remind members that requests to speak should be made by typing R in the BlueJeans chat function once I have called the relevant group. Please speak only when I call your name.

Only committee members are eligible to vote, and voting will take place using roll call. I will call names alphabetically. Once I have read out the result of the vote, if you consider that your vote has been incorrectly recorded, please let me know as soon as possible; I will pause to provide time for that. If we have tied votes on any amendment, I will, as convener, vote as I voted in the division. I will do that consistently throughout the process.

If we lose connection to any member or to the cabinet secretary, I will suspend the meeting until we reconnect. In the unlikely event that reconnecting is not possible, we will need to continue our meeting in the afternoon. I will suspend for a comfort break at a suitable point this morning.

I strongly encourage succinct contributions from everyone who speaks.

Section 9—The guiding principles on the environment

The Convener

Amendment 1022, in the name of Mark Ruskell, is grouped with amendments 1053 and 1054, 1001 and 1001A, 1002, 1023, 1003, 1024 to 1026, 1055 and 1056, 1027, 1058, 1028, 1030, 1033, 1052 and 1064.

Mark Ruskell (Mid Scotland and Fife) (Green)

This is a good place to start detailed consideration of the bill, the aim of which is, of course, to maintain the good progress that the UK delivered by working in solidarity with other countries across the European Union.

None of my amendments in this group is about putting detailed policy goals into law or introducing new, untried and untested concepts into law—they are simply about retaining the way in which principles have been applied for many years. In many ways, they are quite conservative; they are about preserving the way in which principles have been and continue to be applied. I would be concerned about unintended consequence if the status quo were changed.

About 80 per cent of our environmental laws come from European directives, which have a high level of environmental protection, sustainable development and animal sentience integrated into the policy process. If, up to now, we had implemented domestic laws in contravention of those directives, they could have been challenged and struck down. Those principles are with us now and should stay with us as we develop new policy in parallel with the European Union.

Article 37 of the Charter of Fundamental Rights of the European Union states:

“A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.”

Those words are also reflected in the Treaty on the Functioning of the European Union.

The amendments in my name in this group enshrine those principles in the continuity bill, as they are about continuing with how we apply the four main environmental principles. They deliver a high level of environmental protection in an integrated and sustainable way.

We heard evidence at stage 1 from Professor Scotford that the absence of a principle of high-level environmental protection was a

“glaring oversight,”

particularly as the four main principles can be interpreted

“in slightly stronger or slightly weaker ways”.—[Official Report, Environment, Climate Change and Land Reform Committee, 18 August 2020; c 11.]

Setting an explicit commitment to a high level of environmental protection avoids diluting the ambition of the other environmental principles.

I welcome Claudia Beamish’s amendment 1001A, which picks up on the sustainable development aspect to complete this suite of amendments. I also welcome her amendment 1054 to apply the precautionary principle more broadly to human health, noting the relevance of that to issues such as air quality.

With regard to my amendments on animal sentience, starting with amendment 1022, we reached a consensus during consideration of the first continuity bill, the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, that that principle should be maintained, so it is disappointing to see that that is not reflected in this bill. If the Government is considering a very different way of enshrining animal sentience, I would like to know broadly what it is considering and when that will be ready. If those provisions end up being different from the EU definition, how will we maintain alignment in future?

I will leave it there, but I look forward to hearing the cabinet secretary’s comments and the comments of fellow committee members.

I move amendment 1022.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

In the committee’s stage 1 report, we concluded that an amendment should be lodged to bring the integration principle into the bill. In essence, that is the high-level reference that we have just heard Mark Ruskell make. I have five amendments that seek to bring the integration principle into the bill. Amendment 1003 from Mark Ruskell is a necessary adjunct to my five amendments, and it should be supported by those who support my amendments. I had originally lodged an amendment very similar to amendment 1003, but it was excluded for being identical.

I believe that my amendments are effective, and they work with other provisions. Basically, “developing policies” becomes more widely drawn as “making policies”. My amendment 1055 provides a definition of that to create the principle that I am seeking to bring in.

There are lots of other amendments in this group that seek to do other things that I think go substantially beyond providing continuity from the status quo ante. I will listen carefully to the arguments, and I will hear what the minister and others have to say, but the other amendments may have a place elsewhere, rather than in a continuity bill that is relatively focused on particular issues.

Claudia Beamish (South Scotland) (Lab)

Amendment 1054 amends section 9 so that the precautionary principle is included in its entirety rather than being limited to how it relates to the environment. The amendment expands the principle to include human health hazard considerations.

Members will recall that that was recommended by the committee in the stage 1 report and that it was also raised by the Faculty of Advocates and a number of others in written evidence. Human health hazards can often be impacted by environmental wrongdoing. Many will be reassured to know that a cautious approach would be taken to our health in cases of air pollution, hazardous chemical spills or flaring, to name but a few of the concerns that are often raised with me and others.

My amendment 1001A is an amendment to Mark Ruskell’s amendment 1001, which adds the principle that ministers must aim for a high level of environmental protection. I am supportive of that. Amendment 1001A adds a particular reference to the notion of sustainable development. It is important that such a reference be included here, in the general principles section of the bill. In the words of the EU,

“Sustainable Development ... aims at the continuous improvement of the quality of life on earth of both current and future generations.”

That is a core tenet of both the EU and Scotland. I therefore courteously disagree with Stewart Stevenson. It is, in my view, a core tenet and it is right that sustainable development should be front and centre in the guiding principles of a bill that focuses on keeping pace. That is the case, in my view, even if that tenet is also recognised elsewhere in the bill.

I also support all of Mark Ruskell’s other amendments in the group, including on animal sentience. It is important that that is recognised as part of keeping pace.

I also support Stewart Stevenson’s amendments.

Liz Smith (Mid Scotland and Fife) (Con)

I apologise for any information technology problems. I seem to have a connection problem, but I understand that the committee can see me.

Although I agree with the principles of improving animal welfare and recognising animal sentience, I am not convinced by Mark Ruskell’s amendments, because I do not think that they deliver what he is trying to achieve, There are other opportunities to do that in other areas of legislation.

I am happy to support Stewart Stevenson’s amendments.

Liam McArthur (Orkney Islands) (LD)

Like Liz Smith, I am experiencing IT problems.

I thank Mark Ruskell for lodging his amendments and congratulate him on managing to do so at the head of a queue of members looking to do so.

As I said in the stage 1 debate, although the principles that are set out in the bill are fine as far as they go, they do not go far enough. The key aim is to deliver the highest level of protection for the environment and Claudia Beamish’s amendment 1001A, which promotes sustainable development, helpfully underpins that.

Amendments 1002 and 1003 further ensure that the bill incorporates other relevant Lisbon treaty principles and do so more robustly than Stewart Stevenson’s amendment 1053. However, if Mark Ruskell is unsuccessful, I will support Stewart’s efforts.

I look forward to hearing what the minister has to say.

The Cabinet Secretary for Environment, Climate Change and Land Reform (Roseanna Cunningham)

It might be helpful to start looking at this large group of amendments by setting out the broad purpose of the environmental principles measures that are in the bill.

We are seeking, through the provisions of the bill, to ensure a role for domestic environmental principles—informed by the four EU environmental principles—in the development of law and policy in Scotland. There is broad support for continuing the role of the four environmental principles as they operate at EU level. They had the highest level of buy-in when we consulted on the bill. That was clear from the responses to our 2019 consultation and has been clear from the work that we have done since then with a range of stakeholders. That is the focus of the principles and provisions in the bill.

I am concerned about attempts to amend those provisions to include other measures drawn from the Treaty on the Functioning of the European Union that are unrelated to policy and law on the environment. That would expand the reach of this part of the bill without relevant stakeholders having had any meaningful opportunity to consider and respond.

Amendment 1023 is the first of a group of 10 amendments, including 1022 to 1028, 1030, 1033 and 1052, that Mark Ruskell has introduced to extend the guiding principles on the environment so that they also cover animal welfare. I do not think that sufficient attention has been paid to section 12, which sets out the purpose of the duties as

“protecting and improving the environment”

and

“contributing to sustainable development.”

Animal welfare is an important subject, but it is not environmental policy. Article 13 of the TFEU, to which Mark Ruskell refers in amendment 1024, does not relate to environmental policies but relates rather to the European Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies. There are many policies listed in that article but, conspicuously, there is no mention of the environment. It is inappropriate to shoehorn the subject of animal welfare—however important—into those guiding principles on the environment.

Proposals that would require ministers and public bodies to have regard to the welfare requirements of animals as sentient beings in making law and policy would need full consultation, taking into account the legislation on animal health and welfare that is already in force. The farming and land management sectors have, at the very least, the right to be consulted before a change of that nature is introduced in Scots law.

Animal sentience has been implicitly recognised in Scottish legislation for over a century, most recently in the Animal Health and Welfare (Scotland) Act 2006. Our newly established Scottish Animal Welfare Commission has a specific remit to report annually on how the welfare needs of sentient animals are being addressed in all areas of relevant legislation. I ask Mark Ruskell not to move the 10 amendments seeking to introduce consideration of animal welfare into the guiding principles or, failing that, I urge the committee to reject the amendments.

Amendment 1053 is part of a set of five amendments that would add a principle of integration to the set of principles. I support those amendments and amendment 1003, in the name of Mark Ruskell, which supplies the reference to integration in the treaty. The Scottish Government remains of the view that it is not a necessary step to achieve the desired integration of environmental policy, but I am happy to support the amendments as an effective way to respond to stakeholder concern that it should be more explicit in the guiding principles.

Amendment 1054, in the name of Claudia Beamish, relates to the precautionary principle. The precautionary principle is best known as it applies to environmental protection, but it can have wide applications, for example to health. This is not the time or the place to discuss the merits of such a wider approach. Equally, this is not the bill or the set of principles where such an approach should be enshrined. If Claudia Beamish wants to argue for a precautionary principle to be applied to matters other than the environment, she can make that case when relevant legislation is being considered. However, it cannot be right to apply a general precautionary principle under the guise of the guiding principles on the environment, because that is not what we consulted on. It is not a continuation of the effect of the EU environmental principles and it is not fair to stakeholders in those other policy areas who have had no opportunity to consider or react to such a proposal. Accordingly, I ask Claudia Beamish not to move amendment 1054 and, failing that, I urge the committee not support it.

I turn to amendment 1001, in the name of Mark Ruskell, on the principle of a high level of protection, and amendment 1001A, in the name of Claudia Beamish, adding sustainable development to the principle. Amendment 1001 is not particularly well drafted and the inclusion of the Scottish ministers in the text of the principle itself would make a bit of a guddle of the application of the principles to other duty holders.

However, that is not the primary reason why I am opposing amendment 1001. I do so because the bill already has provision at section 12 that I believe will be more effective in protecting the environment than introducing the principle of a high level of protection. Section 12 sets out clearly that all those to whom the duty applies

“are to comply with the duties with a view to—

(a) protecting and improving the environment, and

(b) contributing to sustainable development.”

That is a much clearer and richer expression of the purpose of the provisions and it includes reference to “improving” as well as “protecting” the environment. I hope that Mark Ruskell will not move amendment 1001 and I recommend that the committee rejects it if it is moved.

Finally, we come to amendments 1002 and 1003. Amendment 1002 is Mark Ruskell’s version of an integration principle. The drafting is broad because it applies only to the implementation of the Scottish ministers’ policies and activities, but the guiding principles apply to other duty holders too. I therefore invite Mr Ruskell not to move amendment 1002 but instead to support the integration principle that is introduced by Stewart Stevenson’s amendment 1053. I will recommend support for amendment 1003 as it provides the definitional reference relevant to Stewart Stevenson’s version of the integration principle.

The Convener

I invite Mark Ruskell to wind up and to press or withdraw amendment 1022.

Mark Ruskell

Amendment 1022 is about animal sentience. I am disappointed by the lack of progress on the issue. As I said in my opening comments, we had several debates about it during consideration of the first continuity bill, and I understood that a definition that more fully reflects the European definition of animal sentience was going to be carried forward. I do not know what has happened between then and now.

Last week in the chamber, the Cabinet Secretary for the Constitution, Europe and External Affairs, Mike Russell, indicated that the Scottish Animal Welfare Commission was probably looking at the issue and at what legal changes may be required. Today, we have an opportunity to ensure continuity with European principles. If there is a better way to do that, I would like the cabinet secretary to tell us what that is. In the light of her comments, I will not move the relevant set of amendments today, but I will seek greater clarification in the run-up to stage 3 on what the Government is proposing and which areas of legislation still require to be changed to ensure continuity in that area.

Turning to Stewart Stevenson’s amendment 1053, I am reading the words, but they do not have any basis in European law. It might be continuity with Stewart Stevenson’s thinking, but it is not continuity with the European Union. That point is made by the fact that, as Stewart Stevenson admits, amendment 1003 is a necessary adjunct to his amendment, which is needed to give it some kind of basis in European law. I am a little uncomfortable with it, to be honest. If the committee prefers to come up with a new form of words that does not relate to the Treaty on the Functioning of the European Union and which is not in the EU charter of fundamental rights, it should do that, but amendment 1053 is not about strict continuity and I have concerns about that.

In the points that she made about the other amendments, which reflect well-founded and deeply embedded European principles about high-level environmental protection, the cabinet secretary referred to section 12 of the bill. I am looking at it now and it does not identify the aim of a high level of environmental protection. It talks about

“protecting and improving the environment”,

which are laudable aims, but that could mean improving the environment a little bit or improving it a lot—it could mean a low level of environmental improvement or a high level. The fact is that all the European treaties and the charter of fundamental rights point to a high level of environmental protection. Those are the words that are missing from the bill and which I would like to be included in it.

In view of the cabinet secretary’s comments, I will not move the amendments in question, but we might need to return to the issue. I have no further comments to make.

The Convener

For clarity, I will take each amendment as it comes. Are you withdrawing amendment 1022?

Mark Ruskell

In the light of the comments that have been made, I am.

Amendment 1022, by agreement, withdrawn.

Amendment 1053 moved—[Stewart Stevenson].

The Convener

The question is, that amendment 1053 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Abstentions

Ruskell, Mark (Mid Scotland and Fife) (Green)

The Convener

The result of the division is: For 6, Against 0, Abstentions 1.

Amendment 1053 agreed to.

Amendment 1054 moved—[Claudia Beamish].

The Convener

The question is, that amendment 1054 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 1054 disagreed to.

Amendment 1001 not moved.

The Convener

Amendment 1001A, in the name of Claudia Beamish, falls.

Claudia Beamish

I am happy to continue discussions.

Amendments 1002 and 1023 not moved.

Amendment 1003 moved—[Mark Ruskell]—and agreed to.

Amendments 1024 to 1026 not moved.

Amendment 1055 moved—[Stewart Stevenson].

The Convener

The question is, that amendment 1055 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Abstentions

Ruskell, Mark (Mid Scotland and Fife) (Green)

The Convener

The result of the division is: For 6, Against 0, Abstentions 1.

Amendment 1055 agreed to.

Section 9, as amended, agreed to.

After section 9

The Convener

Amendment 1016, in the name of Claudia Beamish, is grouped with amendments 1016A, 1016B and 1057.

Claudia Beamish

Amendments 1016, 1016B and 1057 would require ministers to produce an environmental policy strategy that sets out their proposals to protect and recover our natural environment, in line with the environmental principles and in consultation with—[Inaudible.] That is vital, not least because our natural world is in crisis—one in nine species in Scotland is at risk of extinction—and because the European Commission is pressing ahead with its new biodiversity strategy to 2030, which will address the crisis.

My amendment 1016 sets out much of the detail. Ministers would have six months from the date when the proposed section came into force to lay their strategy before the Parliament. I am happy to discuss whether, on reflection, that timescale is too short, given the forthcoming election and the challenges from the virus.

I am aware that the Scottish Government is developing an environment strategy, which is welcome. However, there is no statutory requirement for such a strategy to be implemented or for regular monitoring of and reporting on whether it has achieved the Government’s stated outcomes.

My amendment 1016 would require a strategy to be produced and would create a clear mechanism for scrutinising the Government’s progress, much as with Scotland’s climate change ambitions. My amendment 1016B clarifies that the Scottish ministers would have to set out how the targets that they have proposed in the strategy would be legally binding, which would help to ensure that we keep pace with what emerges from the EU on the creation of a nature recovery target arrangement in the EU’s biodiversity strategy to 2030. Provisions to set out nature recovery targets for England are included in the UK Government’s Environment Bill. That element is not being taken forward in such a way in Scotland, and we should at least match the ambition that is being shown in other parts of the UK.

Amendment 1057 follows on from amendment 1016 and would require the Scottish ministers, when developing environmental policies, not only to consider the guiding principles on the environment but to act in accordance with their strategy. That would ensure that the strategy would be actively implemented and would become a true guide for Scotland’s environmental and nature policies.

I welcome amendment 1016A, in the name of Mark Ruskell, which clarifies that the purpose of the environmental policy strategy would be to secure the

“improved protection, restoration and enhancement of the environment and biodiversity of Scotland.”

That makes clear what the ultimate aim of Scotland’s environment policy should be.

I move amendment 1016.

Mark Ruskell

I thank Claudia Beamish for the constructive work that we have done on not just the amendments in this group but other amendments that the committee is discussing.

We return to the debate that we had in the chamber last week. If we take the twin crisis approach of dealing with biodiversity and climate change together, that means putting the environmental strategy on a statutory basis, so that the nature emergency is underpinned with the same status and urgency as the climate emergency is.

Ministers need a strong duty to deliver on legally binding targets. There should be a requirement in law to monitor and report on that. My amendment 1016A underlines the core objective of the restoration of nature under the strategy and the targets that should flow from that.

We need to keep continuity with the ambition on the nature emergency that is being shown in the European Union, which has committed to a biodiversity strategy up to 2030 that will include nature restoration targets. That is why the amendments in this group are critical. They reflect the broad consensus that was expressed in the chamber last week on the importance of statutory underpinning.

I move amendment 1016A.

Finlay Carson (Galloway and West Dumfries) (Con)

The Scottish Conservatives appreciate that we are in a climate and biodiversity emergency. However, we must consider the implications of the Covid-19 pandemic and the forthcoming elections next May. I look forward to the cabinet secretary giving us an indication of the ability of civil servants to deliver the amendments that Claudia Beamish has lodged. The issue certainly needs to be tackled as a priority, but I appreciate that civil servants might find it difficult to carry out the work at this time.

Roseanna Cunningham

As members know, earlier this year, I published “The Environment Strategy for Scotland: vision and outcomes”. The publication includes the key outcomes that we need to achieve that vision and sets the direction for further work on the strategy, which includes developing a strategic environmental assessment.

I was keen for Scotland to have a clear environmental strategy partly so that we can underpin our environmental policy once we are outwith the EU and reinforce our commitment to maintaining enhanced standards. Therefore, I can see that there is a case for providing for an environmental strategy in the bill. However, as I think that Claudia Beamish and Finlay Carson have already recognised, the amendments, in their current form, would create some difficulties. The provisions are too inflexible and, frankly, the timescales are not realistic.

To be effective, any such strategy must be developed with a broad range of stakeholders. In addition, if it is to achieve the desirable aim of increasing the integration of the environment into other policy areas, we will have to involve policy makers and stakeholders in those policy areas, too. I also think that the further development of the strategy must fit in with the work that is already being done.

There is a bit of confusion around the approach to statutory targets in Claudia Beamish’s amendment. I will shortly be publishing a monitoring framework for the environment strategy that will bring together the existing statutory targets, elements of the national performance framework and indicators from other strategies. Stakeholders have contributed to that effort. There is a wide understanding that this a complex area, with a lot of targets already in place. There are a lot of technical difficulties in designing meaningful strategic targets.

I ask Claudia Beamish not to pursue amendment 1016 in its current form, but I offer to work with her to design an amendment that sets out an obligation on ministers to continue the work on an environmental strategy. I think that we will be able to keep the essence of her proposals, but it will need to be set in a framework that allows for development at a pace that will lead to an effective strategy, with broad acceptance by stakeholders and relevance across Government. That really cannot be done in the coming six-month period, which is pretty much all that we would have during an extraordinarily complicated time, which includes Brexit, Covid, parliamentary elections and the likelihood of Parliament itself not really being in a position to look seriously at the issue until autumn 2021.

I ask Claudia Beamish to enter into conversations with us and not to press amendment 1016, or to move her other amendments in the group.

The Convener

I call Claudia Beamish to wind up on amendment 1016.

Claudia Beamish

I listened carefully to the cabinet secretary’s comments. For the record, Mark Ruskell and I have worked together on this amendment and a number of other amendments, as he highlighted.

Finlay Carson highlighted a point that I touched on briefly and which the cabinet secretary elaborated on, which relates to the challenge of publishing the legally binding strategy that my amendment provides for within six months. I acknowledge that that is an unrealistic challenge.

On the basis of the commitment that has been given that an obligation on ministers will be developed at stage 3, as long as it is possible for me and others with an interest—I have already highlighted who those people are—to work with the cabinet secretary, I will not move amendment 1016.

I also highlight that I will want to discuss the statutory targets before we get to stage 3, because they are a fundamental aspect of what our party has declared as a nature emergency. As was highlighted in the Green Party debate last week, legally binding targets will focus minds in Scotland.

I will not be moving either of the two amendments in my name today.

The Convener

Given that you have already moved amendment 1016, would you like to withdraw it?

Claudia Beamish

I would—thank you.

Amendment 1016, by agreement, withdrawn.

The Convener

I am therefore unable to call amendments 1016A and 1016B.

Section 10—Ministers’ duties to have regard to the guiding principles

Amendment 1056 moved—[Stewart Stevenson]—and agreed to.

The Convener

Amendment 1065, in the name of Finlay Carson, is grouped with amendments 1006, 1007, 1004, 1005, 1029, 1059, 1066, 1008, 1017 and 1009. Please note that amendments 1065 and 1006 are direct alternatives, amendments 1066 and 1008 are direct alternatives and amendment 1029 pre-empts amendment 1059.

Finlay Carson

Amendments 1065 and 1066 seek to address the “have regard to” question, which was examined in paragraphs 95 to 105 of the committee’s stage 1 report. The committee’s recommendation was:

“The Committee ... recommends the Scottish Government brings forward amendments at Stage 2 to strengthen the wording in relation to the duty to have regard to the principles. The Committee highlights the suggestions made to it which includes a duty to ‘have due regard to’ or to ‘act in accordance with’.”

Liam McArthur, in amendments 1006 to 1009, has proposed the wording “act in accordance with”, while my amendments 1065 and 1066 offer the alternative of “have due regard to”. I understand that there may be some issues with the amendments that propose the wording “act in accordance with”.

The strength of the duty to apply the principles is an issue that needs to be addressed at stage 2. The committee recommended that, and it is disappointing that the Government has chosen not to respond positively. The same recommendation was made in relation to the UK Environment Bill by the Westminster committee that conducted the pre-legislative scrutiny there, and the UK Government responded by agreeing to take the “have due regard to” approach.

The recommendations are based on stakeholder concern, and the stakeholders have experienced Government exercising similar duties. The concern was probably best summarised by the Law Society of Scotland, which the committee quoted in paragraph 94 of the stage 1 report. It commented:

“you could ‘have regard to’ something but attach little or no weight to it. The phrase is, by its nature, limited in scope.”

That observation is correct. However, in the Government’s response to the committee, it concluded that it would not lodge amendments on the subject. That appears to be predicated on the different structures of the UK bill and the bill that is before us. In particular, the Government’s response says:

“We would also note that the equivalent duty in the UK Environment Bill is a duty on UK Ministers to have regard to a policy statement, to be published by UK Ministers themselves on the environmental principles, and not to the principles themselves.”

That is correct as far as it goes, but it fails to observe that section 13 of the bill requires Scottish ministers to publish guidance on the principles and that duty holders must exercise their duty having regard to that guidance. The structure may be different, but the effect is the same.

For those reasons, the duty must be strengthened in order for us to ensure that the principles are applied in a manner that is as consistent as possible with the current EU application.

I move amendment 1065.

Liam McArthur

Like the amendments in Finlay Carson’s name, my amendments 1006 to 1009 would strengthen the duty on ministers and public authorities to comply with the overarching principles that we discussed earlier.

The bill requires ministers to “have regard to” the principles, which is too weak and offers insufficient assurance that policy and actions will adhere to the principles. Finlay Carson’s amendments would beef up the provisions in line with the wording in the equivalent UK bill, which requires ministers to “have due regard to” the principles, but that might not be sufficient, in and of itself.

Amendments 1006 to 1009, therefore, would require ministers and public authorities to “act in accordance with” the environmental principles that the bill incorporates into Scots law. They are strongly supported by Scottish Environment LINK and reflect the committee’s recommendations in its stage 1 report. I hope that they attract the support of the committee.

Mark Ruskell

Amendment 1005 would remove the exemption from the duty to apply the environmental principles in relation to matters of budget and finance. No such exclusion applies to the principles in the Treaty on the Functioning of the European Union; EU finance and budgets are subject to the principles. If the bill is about providing continuity, the same approach should apply in Scotland.

The cabinet secretary might argue that budgets do not determine policy. She might say that budgets only implement policy and that it is the policy to which the principles apply. That might be correct in theory, but it neglects the issues, on many policies. First, in practice, spending decisions do not always follow policy. For instance, transport policy at a strategic level is generally in line with environmental ambitions, such as the aim to meet net zero targets and set out a transport hierarchy, yet spending decisions, which are essential to implementing policy, regularly do not reflect those aims. For example, road-building programmes are prioritised, ahead of spending on active travel infrastructure.

Secondly, finance or fiscal policy in itself has the potential to harm or benefit the environment. The use of green taxes and charges on or permits for resource use are all policies that should be underpinned by the environmental principles. How can the polluter-pays principle, for instance, be fully applied if it is not applied to our choices on taxation?

Thirdly, the application to the budget of the precautionary principle should ensure that long-term thinking about the cost of not taking early action is factored in. For example, budgets to tackle non-native invasive species should be seen as long-term preventative measures, which will save far more money than they initially cost. In the prioritisation of budget spend, it would make sense to consider how preventative spend can deliver better budget outcomes.

In the committee’s recent report, “Pre-Budget Scrutiny 2021-22”, we said:

“all public expenditure should be consistent with addressing the climate and ecological crises, building a wellbeing economy and delivering a green recovery.”

We recommended that the Scottish Government use the next budget to

“set a pathway towards a green, just and resilient recovery.”

By backing amendment 1005, members can ensure that matters of budget and finance are in line with the key environmental principles, in all future budgets.

Amendment 1004 would remove the exemption in relation to defence matters. I am sure that members can think of examples of Ministry of Defence action in Scotland that could show better regard to environmental principles, outwith periods of national emergency. For example, in Dalgety Bay, radioactive pollution from world war 2 waste disposal continues to pollute the local beach. Consideration of the polluter-pays principle should have resulted in the MOD progressing the clean-up of the Fife coast decades ago.

Another example is the generation of acoustic noise pollution associated with naval exercises. That is a real problem for beaked whales on the west coast of Scotland where, in 2018, the largest mass stranding in the world was recorded. The Ministry of Defence should be undertaking acoustic monitoring of the offshore habitats of beaked whales in which it operates, as required under the EU habitats directive. It should then use that field data to carry out environmental impact assessments, and it should consider operating outside those beaked whale habitats until the EIAs have been finalised. My amendment 1004 would ensure that the MOD gives greater consideration to Scotland’s environment.

Finally, the committee has heard detailed evidence from experts in environmental law on the deficiencies in the phrase “have regard to” in the bill, as Finlay Carson and Liam McArthur outlined. The wording is clearly weaker than that in the UK Environment Bill. If we are serious about delivering on environmental principles, the wording “act in accordance with” says what we mean. It says that policy will be based on the principles, and the wording is in line with the Treaty on the Functioning of the European Union. I hope that the committee will support Liam McArthur’s amendments to enable the bill to deliver on that objective.

Roseanna Cunningham

There are quite a lot of amendments in the group. I will speak first to amendments 1006 to 1009, in the name of Liam McArthur. They are intended to change the form of the duty on the Scottish ministers, ministers of the Crown and responsible authorities required to carry out a strategic environmental assessment in all cases. They seek to amend the form of the duty to “act in accordance with” the guiding principles.

Under sections 10(1) and 10(2) of the bill, there are duties on ministers to

“have regard to the guiding principles on the environment”,

which should apply

“in developing policies (including proposals for legislation)”

in relation to Scotland.

Under section 11, there is a duty on responsible authorities to

“have regard to the guiding principles”

when they are considering anything that would require an SEA. It remains my clear view that a duty to “have regard to” is effective and proportionate and will work well with the other duties and functions of ministers and public bodies.

I am aware that there has been debate about the framing of the duties in respect of the guiding principles on the environment, stretching back to the publication of the consultation paper last year. The duties to “have regard to” the guiding principles reflect the effect of the environmental principles in EU law. The guiding principles on the environment are important guides to decision making, but we need to ensure that the duties in respect of the principles—those duties on ministers and on public authorities—are proportionate and effective and work well with the wider range of statutory duties and other relevant factors that ministers and public authorities may have to consider in any decision-making process.

It is therefore important that, while the environmental principles are taken into account in decision making, those duties should not be framed in a manner that would result in their dominating all other duties and objectives. We believe that a duty to “have regard to” strikes the appropriate balance.

Liam McArthur’s amendments, which aim to change the form of the duties to “act in accordance with” the principles, would constrain the ability to take into account other legitimate considerations when developing policy. Indeed, it is possible that, if the environmental principles duty was specified in such terms, it could lead to perverse effects or hold up decision making. The wording in the amendment is a very strong form of duty that is generally seen in areas such as company law, where directors must “act in accordance with” very specific rules and provisions, and in other areas where there are clear, detailed rules that must be followed.

The guiding principles on the environment—as is the case with the EU environmental principles—are guides to decision making of a subjective nature, and they require interpretation and application to individual situations. They are not rules or procedure that can be precisely followed. Liam McArthur’s amendment would have a particular impact on local authorities, which have a wide range of duties and objectives to balance and produce a lot of SEAs for strategic planning functions in particular.

We have discussed the form of duty in the bill with the Convention of Scottish Local Authorities, which also responded formally to the 2019 consultation. There is broad agreement that the proposals in the bill are proportionate and would ensure an appropriate place for the guiding principles at the level of a project or plan that is subject to environmental assessment.

The ultimate impact of a duty to act in accordance with the guiding principles would not be known until tested in court. However, it is possible to foresee some potential impacts of such a duty. A duty to act in accordance with the precautionary principle could lead to disproportionate expenditure to protect against very low probability events. A duty to act in accordance with the polluter-pays principle could prevent provision from grants to assist the most vulnerable in society with energy efficiency. After all, a domestic householder is, by definition, a polluter. Generally, there would be conflicts between a duty to act in accordance with a principle and other policy goals and statutory duties. For those reasons, I urge Liam MacArthur not to move these amendments, and, if they are pressed to a vote, for the committee to reject amendments 1006, 1007 and 1008 and the consequential amendment 1009.

Finlay Carson’s amendments 1065 and 1066 seek to change the duty on Scottish ministers and responsible authorities from “have regard to” to “have due regard to” the guiding principles. Finlay Carson is not seeking to amend the duty on ministers of the Crown, as I understand it. I am aware that the equivalent duty in the UK Environment Bill has been amended to read “have due regard to”. However, I emphasise to the committee that there are significant differences between the bills. In the first place, the duty in the UK bill applies only to UK ministers. Secondly, unlike the duty in our bill, the duty in the UK bill applies not to the guiding principles but to a guidance document separately written by UK ministers. Thirdly, there is a condition placed on that document that there should be proportionality between environmental and other policy goals.

Therefore, it remains my clear view that the current wording of the duty, as “have regard to”, is effective and proportionate and will work well with other duties and functions of ministers and public bodies. I am not sure that Finlay Carson has worked through the interaction of his amendments with the duties on UK authorities. I do not think that it is right that there are amendments before the committee that would lead to a different specification of the duty in different places. Therefore, I ask Finlay Carson not to press his amendments today, so that we can discuss with him the framing of those duties ahead of stage 3. However, if the amendments are to be voted on today, I ask the committee to reject them.

I will turn now to consider amendments 1004 and 1005, lodged by Mark Ruskell, which seek to remove the exemption from the principles for duty for defence and for finance or budgets. The provisions in section 10(3) of the bill reflect the exclusions in the Environmental Assessment (Scotland) Act 2005 and the European environmental impact assessment directive. National defence was never within the competence of the EU. Therefore, to include defence in relation to our domestic guiding principles for the environment would not be a continuation of their effect in the EU. I cannot see any good reason for removing that exemption. With regard to Ministry of Defence sites, considerations relating to policy areas that are not specifically defence related, such as water abstraction, will already be in the scope of the principles.

Many significant environmental policies also have some financial consequences, and the intention is not to exclude policies on that basis, in the same way that such policies are not exempt from the requirements of the 2005 act. Rather, the provision in section 10(3) removes purely financial and budgetary processes from the scope of the duty, in a similar manner to the 2005 act. The intent of that exclusion will be explained in guidance, again in a similar manner to the guidance on environmental assessment. It is unclear how the guiding principles could apply to the budgetary process itself. The guiding principles will have their due place in influencing the design of the policies, which will then be subject to the budgetary process. I do not believe that these exclusions will have any impact on the achievement of environmental objections. Therefore, I urge Mark Ruskell not to move these amendments, and I urge the committee to reject them if they are pressed to a vote.

Amendment 1029, in my name, has the effect of removing from ministers the power to make regulations to remove more matters from the scope of the principles duty. On consideration of comments about the initial proposal, not least from the Delegated Powers and Law Reform Committee, I concluded that that power cannot really be justified, and ministers had no intention of taking any further matters out of the scope of the principles. I recommend that the committee supports amendment 1029. The amendment would pre-empt amendment 1059, in the name of Alex Rowley, which seeks to apply the affirmative procedure as the regulation-making procedure, because that change would clearly not be required if the power to make further provisions were removed altogether.

I turn to Angus MacDonald’s amendment 1017. As members know, our intention is indeed that responsible authorities should consider the environmental principles in carrying out environmental assessments and that that consideration, and its impact on decisions, should be reported in environmental reports. That was the reason for aligning the duty of regard to guiding principles with the requirement for an SEA.

The means in the bill to achieve that consideration through guidance is sufficient, more effective than amendment 1017, and allows us to set out in far greater detail how the duty should be achieved through the stages of the process of environmental assessments. I do not believe that amendment 1017 is necessary, and I invite Angus MacDonald not to move it.

Alex Rowley (Mid Scotland and Fife) (Lab)

Amendment 1059 would provide that the regulation under section 10(4) would be subject to affirmative procedure, which would ensure a higher standard of parliamentary scrutiny in the making of those regulations.

As the cabinet secretary has said, amendment 1029 pre-empts that change. I certainly support amendment 1029, which means that amendment 1059 would not be required.

Angus MacDonald (Falkirk East) (SNP)

I will keep this contribution brief. Amendment 1017 seeks to ensure that, when public authorities apply the EU environmental principles during the SEA process, they have a responsibility to set out how that has been done. The purpose of the amendment is to add transparency and scrutiny to the process.

In light of the cabinet secretary’s comments, however, I am minded not to move the amendment.

Claudia Beamish

I will be as brief as I can. I had considered supporting Liam McArthur’s amendment 1006 in relation to the requirement to “act in accordance with”, because it would lead to consideration of the vital importance of our environment to the future of Scotland. However, I listened to the cabinet secretary and I am less minded to support the amendment, for some of the reasons that she gave.

I will strongly support Finlay Carson’s amendment 1065 on the requirement to “have due regard to”, should he decide to press it. The phrasing “have due regard to”—I stress the word “due”—would enable evidence to be more clearly shown that those fundamentally important guiding principles had been regarded. I will listen carefully to what Finlay Carson says when he winds up, however, as he might decide to withdraw his amendment because of what the cabinet secretary has said about consideration of the detail. In principle, I want to support his amendment.

In relation to the removal of the exemption for national defence, the points that Mark Ruskell makes about the pollution at Dalgety Bay and acoustic noise pollution are really important examples. However, I am not able to support that amendment today because I think that it should be clearer. The cabinet secretary used the example of water as one of the issues that the Ministry of Defence would have to deal with anyway because of legislation. I have concerns about the slowness of the Ministry of Defence in dealing with—[Inaudible.]—although I do not feel that I can support the amendment today, because there should be more clarity on the issue.

I support Mark Ruskell’s amendment 1005, which removes the exemption for finance or budgets. I will not reiterate the reasons that he gave, but I absolutely align myself with that. As I understand it, the exemption would follow EU legislation. Finance is utterly in need of scrutiny, because the policies might be right but the finance might be wrong, to put in a nutshell what Mark Ruskell said.

I support the cabinet secretary’s amendment 1029, and I respect Alex Rowley for not moving his amendment on the basis that he explained. I also respect Angus MacDonald’s position.

The Convener

I call Finlay Carson to wind up and to press or withdraw amendment 1065.

Finlay Carson

I still believe that the duty must be strengthened to ensure that the principles are applied in a manner that is as consistent as possible with the current EU application. I lodged amendments 1065 and 1066 to do that as an alternative to Liam McArthur’s amendments, and I will bear in mind the cabinet secretary’s response to those. I welcome the assurance that the cabinet secretary will work with me and others to strengthen that duty at stage 3. On that basis, I withdraw amendment 1065 and look forward to discussions with the cabinet secretary.

Amendment 1065, by agreement, withdrawn.

Amendment 1006 moved—[Liam McArthur].

The Convener

The question is, that amendment 1006 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Beamish, Claudia (South Scotland) (Lab)
Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The Convener

The result of the division is: For 1, Against 6, Abstentions 0.

Amendment 1006 disagreed to.

Amendments 1027 and 1057 not moved.

Amendment 1058 moved—[Stewart Stevenson]—and agreed to.

The Convener

I call amendment 1007, in the name of Liam McArthur, already debated with amendment 1065.

Liam McArthur

I will not move amendment 1007. I should also indicate now that I do not wish to move amendments 1008 or 1009. I am slightly concerned that amendment 1009 is your penultimate amendment today, and I am also due to attend the Justice Committee. Given the earlier vote, it seems sensible for me not to move any of those remaining three amendments in my name.

Amendment 1007 not moved.

The Convener

Okay—we will take a note of that. I will check that with the clerk.

Liam McArthur

Thank you, convener.

Amendments 1028 and 1004 not moved.

Amendment 1005 moved—[Mark Ruskell].

The Convener

The question is, that amendment 1005 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 1005 disagreed to.

Amendment 1029 moved—[Roseanna Cunningham].

The Convener

If amendment 1029 is agreed to, amendment 1059 will be pre-empted.

Amendment 1029 agreed to.

Section 10, as amended, agreed to.

Section 11—Other authorities’ duty to have regard to the guiding principles

Amendments 1066, 1008, 1030 and 1017 not moved.

Section 11 agreed to.

Section 12—Purpose of the duties under sections 10 and 11

The Convener

Amendment 1031, in the name of the cabinet secretary, is grouped with amendments 1032, 1014 and 1049 to 1051. I ask members to note that amendment 1014 pre-empts amendments 1049 and 1050.

Roseanna Cunningham

Amendments 1031, 1032 and 1049 to 1051, in my name, expand the bill’s definition of “the environment” expressly to include habitats and species, in response to stakeholders’ concerns that were raised at stage 1.

Officials consulted further with NatureScot to assist them in drawing up those amendments. They provide an expanded definition of “the environment” and make it clear that the references to “the environment” in sections 12 and 40 include those to wild animals, plant life and their habitats, which appears to have been the issue at the heart of stakeholders’ concerns. The amendments will ensure consistency between the two definitions of “the environment” in part 2 of the bill. They will also put it beyond doubt that environmental standards Scotland’s functions and governance arrangements extend to the domestic legislation, transposing the obligations contained in the Eh habitats directive and the EU birds directive in so far as that legislation is within the legislative competence of the Scottish Parliament.

I turn to amendment 1014, in the name of Claudia Beamish. I have accepted the need to respond to stakeholders’ concerns about the bill’s definition of “the environment”. However, I am not sure that Ms Beamish’s amendment is the way to do so. It is not clear how the definition in her amendment would interact with other provisions in the bill. It would also be difficult to interpret provisions about measures that protect, maintain or restore the environment in that definition. The definition in amendment 1014 contains a list of things, which is an appropriate approach for the Environmental Information (Scotland) Regulations 2004, but in this context is not as effective as the simpler approach taken in the Government’s amendments. Moreover, it does not make sense for the protection of the environment to include the protection or restoration of genetically modified organisms. I am not quite sure what that element was about.

Therefore the Scottish Government cannot support Claudia Beamish’s amendment 1014. I ask her not to press it to a vote.

I move amendment 1031.

Claudia Beamish

My amendment 1014 seeks to address a concern that the committee heard when it took evidence at stage 1, which was that, as section 40 is currently drafted, the bill’s definition of “the environment” omits habitats, species and landscapes.

I am pleased that the cabinet secretary has also noted those concerns, which are reflected in her own amendments. However, my approach has been to seek continuity with existing definitions and to add clarity and completeness. My amendment adopts the existing definition of “the environment” as contained in the Environmental Information (Scotland) Regulations 2004, which has previously been agreed and found to function well, rather than seeking a new definition for the purposes of the bill. Members will note that that approach has been supported by Scottish Environment LINK. The definition in my amendment states:

“‘the environment’ includes all elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements.”

I recognise the point about genetically modified organisms, which the cabinet secretary highlighted. However, as I said earlier, that is the full definition that has come from the Environmental Information (Scotland) Regulations 2004, so I did not want simply to cut off the end of it. It is also in line with the definition in the EU’s directive on access to environmental information, which enhances the continuity of our bill with existing European arrangements and which is of course key to our whole approach.

Finlay Carson

I welcome the cabinet secretary’s confirmation that she will take action on NatureScot’s concern about the definition of “the environment”, which omitted habitats and species. I support the cabinet secretary’s clarification and the inclusion of amendment 1031 in the bill.

The Convener

I call the cabinet secretary to wind up.

Roseanna Cunningham

There is nothing further that I want to add. I have made it clear that lifting a definition from regulations and placing that into legislation is not an appropriate way forward. In respect of everything else, my position is as stated at the outset.

The Convener

The question is, that amendment 1031 be agreed to. Are we agreed?

Members: No.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Against

Beamish, Claudia (South Scotland) (Lab)

Abstentions

Ruskell, Mark (Mid Scotland and Fife) (Green)

The Convener

The result of the division is: For 5, Against 1, Abstentions 1.

Amendment 1031 agreed to.

Amendment 1032 moved—[Roseanna Cunningham]—and agreed to.

Section 12, as amended, agreed to.

Section 13—Guidance

Amendment 1033 not moved.

Sections 13 and 14 agreed to.

Section 15—Environmental Standards Scotland

The Convener

Amendment 1034, in the name of Mark Ruskell, is grouped with amendments 1035, 1036, 1060, 1037, 1010, 1011, 1021, 1038, 1039, 1061 and 1041.

Members should note that amendment 1037 pre-empts amendments 1010, 1011 and 1021, and amendment 1039 pre-empts amendment 1061.

Mark Ruskell

During the committee’s stage 1 evidence, we heard from stakeholders that the model of a non-ministerial office as proposed for environmental standards Scotland is at risk of not being sufficiently independent of Government.

Under that model, the Government would be involved in ESS’s recruitment, reporting and operations, as well as in setting the budget for ESS. I gather that the interim body is already being recruited by Government and that it may morph into the new body that the bill establishes.

In the stage 1 report, the committee highlighted that we were

“not yet convinced that a non-ministerial office would provide ESS with sufficient distance and autonomy from the Scottish Government.”

That is reflected in the range of amendments that seek to increase Parliament’s involvement in the appointments and to increase the transparency of ESS’s funding arrangements.

Amendments 1034 to 1039 and 1041 propose that ESS be set up in the model of a parliamentary commission. The best way to ensure that Scotland’s new environmental watchdog is fully independent of Government is to establish it as a parliamentary commission.

To explain how I have come to that view, I draw the committee’s attention to some points raised by Professor Campbell Gemmell in a report that was commissioned last year by Scottish Environment LINK. He said that an independent parliamentary commission

“would have the powers and resources to perform independent assessments, checks and investigations”

and that it would sit

“outside the Government of the day and its agencies.”

That model is in place in New Zealand, which has a parliamentary commissioner for the environment. The commissioner leads a small multidisciplinary team to investigate issues including, but not limited to, river water quality, invasive species and coastal management. Much of the commissioner’s work, as the Gemmell report highlights, is undertaken in response to public complaints or requests. A lot of effort is put into assessing those issues and engaging with public authorities to seek resolutions.

Amendments 1034 to 1036 make small drafting changes to accommodate that change. The new body would be known as the environmental standards commission. Amendment 1037 requires that the chair be appointed by the Scottish Parliament. Amendment 1038 sets out the conditions that would disqualify a person from being appointed to the board under a parliamentary commission model. Amendment 1039 sets out the detail of a commissioner’s term of office. Amendment 1041 sets out the terms of the commission’s financial arrangements.

If we want an independent body that operates more like a commission than a non-ministerial office, we should call it that—a commission—and we should give it a clear role, powers and operation. That is why I am putting that option to the committee.

I move amendment 1034.

Claudia Beamish

The success of ESS hinges on its ability to robustly hold the Scottish ministers and public authorities to account in relation to environmental complaints. That is why paragraph 1 of schedule 1 is concerning and significant. ESS is said to be

“not subject to the direction or control of any member of the Scottish Government.”

However, that is immediately followed by an exception that the provision is

“subject to any contrary provision in this or any other enactment.”

That gives the Government a great deal of flexibility to curtail ESS’s independence in future legislation or in a future revision of the bill. The committee recognised that area of concern in its stage 1 report.

Amendment 1060 seeks to clarify that the exemption is not intended to have such a broad scope. It would add clarification that the Scottish ministers can direct or control ESS only in order to take account of changes in public authority accounting requirements. I understand from the Scottish Government’s response to the committee’s stage 1 report that that is in line with the Government’s reasoning for including such an exception in the first place. The amendment would make that clear in the bill.

If the Scottish Government indicates today that it is willing to discuss enlarging the specific list of exemptions before stage 3, I am willing not to move amendment 1060. The amendment would build in protection of ESS’s independence against any future Government that, perhaps many years from now, may seek greater control and direction of a watchdog that has the power to take it to task as we approach critical years for climate and nature.

Amendment 1010 would increase Parliament’s involvement in the recruitment of the ESS board. The committee’s stage 1 report noted that the appointments process for the interim board has involved little engagement with Parliament to date, which is understandable because it needed to be set up rapidly, and that there is a need for genuine parliamentary involvement in the appointments to the statutory board. My amendment would set a requirement for Parliament to sign off on the terms and conditions of any appointment to the board—in other words, the “person specifications or experience” requirements. I stress that that is only for the long-term board, not the interim board.

Amendment 1011 would require the Scottish ministers to seek “nominations or recommendations” for ESS board members from Parliament. That would ensure that there is a truly open and collaborative approach to recruitment to the watchdog, which, I am sure, aligns with the cabinet secretary’s intention to have a transparent process. Again, that is for the long-term board.

Alex Rowley will speak to amendment 1061, so I will just briefly say that I am supportive of it.

In relation to Mark Ruskell’s amendments, I will put slightly more flesh on the bones. I support his amendments that would make our new watchdog body that follows on from the EU a commission. That is of fundamental importance if we are to send the right message to the people of Scotland and beyond—that it is an independent body. The word “commission” might seem unimportant, but that is the best message to send in order to enable the body to function independently.

Angus MacDonald

Amendment 1021 provides for an additional requirement in the appointment process and seeks to underline the need for the chair and members of ESS to be qualified and/or experienced in matters relevant to its functions. The current recruitment process for members of the interim non-statutory body appears to follow that good practice, and the amendment would ensure that that continues to be the case in further recruitment rounds and under future Governments.

The drafting of amendment 1021 follows the precedent set by section 11 of the Land Reform (Scotland) Act 2016 in setting out the desired type of experience for members of a public body. It also mirrors the approach taken in schedule 1 to the UK Environment Bill in relation to appointments to the office for environmental protection in England. In effect, the amendment would ensure that the board of ESS includes members with a range of environmental expertise or experience relevant to its functions and that future rounds of recruitment continue to follow the good practice that there appears to be for recruitment to the non-statutory board.

Alex Rowley

Amendment 1061 would impose a duty on the Scottish ministers to consult the chair of ESS prior to giving notice to remove a member, providing an additional layer of scrutiny. That requirement on the Scottish ministers to consult the chair would help to ensure that the Scottish ministers’ actions are open and transparent.

Stewart Stevenson

I think that a bit of a false argument is being deployed. I am not terribly in favour of commissions that are entirely independent of Government; I think that such an approach lets the Government off the hook, because it is the commissioner, rather than the responsible minister, who goes before the Parliament.

Let us look at how the UK Committee on Climate Change works. It is able independently to report on and advise the four Governments in the UK. It is also required to take inputs from Government and do research that Government commissions. The CCC’s chief executive has appeared before this committee on a significant number of occasions. That relationship with Government provides a better model than one in which a commission is detached from Government, which enables the Government to say, “Well, we don’t have to say anything about this at the moment; that’s the commission’s job.” I would rather that ministers were responsible to the Parliament, when necessary, on a timetable that the Parliament determined.

I will listen carefully to the debate, but I have always had a bit of a concern about commissions, and my concerns have not been allayed so far.

Liz Smith

I will make two brief points. I have sympathy with the principles that Claudia Beamish and Alex Rowley developed, because it is important that there are checks and balances on ministerial power and that environmental standards Scotland should be independent. However, I am not comfortable with the way in which amendments in the group are drafted. I will not support the amendments, but I think that there are further discussions to be had about the whole issue, which I hope can take place before stage 3.

Roseanna Cunningham

Amendments 1034 to 1039 and 1041, in Mark Ruskell’s name, are pretty fundamental and would change entirely the established structure of a future governance body from a non-ministerial office to a parliamentary commission.

In its stage 1 report, the committee asked for more information about why the Government was proposing a model of a non-ministerial office, and I gave a fairly detailed response. I will not go back into the detail now; I simply emphasise again that I believe that the model in the bill will give environmental standards Scotland the highest level of independence. I also believe that an independent body that sits between ministers and the Parliament will provide for better continuity with the current arrangements.

To put it simply, ESS will be outside the Government of the day. It will be part of the Scottish Administration, but it will not be part of the Scottish Government.

The main point that I make today is that the pressure of time is now very much against us. The end of the transition period is some five weeks away. I have presented a plan to set up ESS on a shadow basis from 1 January and to move it to a full statutory basis once the bill has been enacted. There are challenges to that plan, but it is the only plan that is available, as far as I am aware.

Unless some preparations are going on of which I am not aware, I understand that switching to a parliamentary commissioner model at this point would mean that there was not the remotest opportunity of having a workable body in place by 1 January and that there would be a substantial gap before the arrangement could be put in place. Even if the Parliament had the capacity to take the matter forward, the potential for a governance gap should give us all cause for concern. I therefore invite Mark Ruskell not to press the amendments in his name in this group; if he presses them to a vote, I ask the committee to reject them.

Amendment 1060, in the name of Claudia Beamish, would restrict the provision in paragraph 1(2) of schedule 1. As members will no doubt recall from the lengthy discussion at stage 1, the purpose of paragraph 1(1) of schedule 1 is to emphasise the independence of ESS, by providing:

“In performing its functions, Environmental Standards Scotland is not subject to the direction or control of any member of the Scottish Government.”

Similar provisions are included in other acts establishing bodies with a similar status.

Paragraph 1(2) of schedule 1 provides that:

“Sub-paragraph (1) is subject to any contrary provision in this or any other enactment.”

That is an absolutely standard provision, and there is no suggestion that it has created problems anywhere else. The legislation that established the Scottish Fiscal Commission and Revenue Scotland contains similar qualifications.

The provision is necessary to ensure that the annual accounts of the new body are subject to the appropriate directions from the Scottish ministers, and I think that Claudia Beamish’s amendment is intended to address that point. However, the provision at paragraph 1(2) of schedule 1 also serves other purposes. It is necessary for other provisions in the bill, which specifically confer functions on Scottish ministers in relation to ESS, such as the powers of ministers to appoint members at paragraph 2, although it is clear that such powers for Scottish ministers are themselves to be subject to parliamentary approval as a result of paragraph 2(2).

Scottish ministers also have powers to approve the remuneration that ESS provides for its members and to approve the terms and conditions on which ESS appoints its staff, who will be civil servants. In addition, a range of other duties that have been imposed on public bodies over the years will involve some direction from the Scottish Government—for example, in the form of guidance on regulations. Examples would include the public sector climate change duty and duties on public bodies under the Equality Act 2010. It is not uncommon for duties that are placed on all public authorities to include some involvement by ministers in interpreting or monitoring the duty. There is no reason why ESS should be exempt from the normal range of duties on public bodies that have been established in legislation.

In general, we have presented a model for ESS that provides for a high degree of independence. Appointments are subject to confirmation by the Parliament and the body has to subject its strategy to the approval of Parliament. There is no intention to use the provision at paragraph 1(2) of schedule 1 in conjunction with new legislative proposals to put forward limits on the independence of ESS. Rather, that provision allows for the imposition of general conditions such as financial reporting requirements, and even then only through legislation, which itself will have been subject to parliamentary scrutiny.

Claudia Beamish’s amendment 1060 would place restrictions on the provision at paragraph 1(2) of schedule 1 that could make other provisions of the bill potentially unworkable or unclear in their effect, and which would seem to take ESS out of the scope of some general duties on public bodies. The amendment is unnecessary, as ministers cannot use the provision at paragraph 1(2) to exert any control other than is specifically allowed for in the bill or in other legislation. I therefore invite Claudia Beamish not to move amendment 1060. Failing that, I invite the committee to reject it.

The balance of this group is taken up by four amendments on the appointment of members to ESS. We should all be clear that these provisions will affect future regulated-appointment rounds under the bill when it is enacted. That will mean that the process will be supervised by the Commissioner for Ethical Standards in Public Life in Scotland, and that the Scottish Government will work fully within the agreed process for appointments that will be subject to parliamentary approval.

Claudia Beamish’s amendments 1010 and 1011 are unnecessary, as there is full provision to ensure a correct process between ministers and the Parliament for those future regulated appointments. There is also the potential for conflict between her amendments and the provisions for regulated appointments. For example, I do not understand how the proposal for Parliament to nominate names would fit in with the steps that a regulated appointments process would involve. I therefore invite Claudia Beamish not to move those amendments. If they are brought to a vote, I invite the committee to oppose them.

Amendment 1021, in the name of Angus MacDonald, suggests a range of experience that ministers should consider when they are considering making appointments to ESS. I am happy to support that amendment, and I ask the committee to agree to it.

Alex Rowley’s amendment 1061 makes sensible provision for ministers to consult the chair of ESS before contemplating a proposal to the Parliament for the removal of another member, for the reason that they are unable to perform their functions or are unsuitable to continue. That would, of course, constitute best practice, and I am happy to support the amendment so that there will be a requirement on ministers in those circumstances. I advise the committee to support the amendment.

The Convener

I invite Mark Ruskell to wind up and to say whether he wishes to press or withdraw amendment 1034.

Mark Ruskell

Having heard the response, I will press amendment 1034. It is important for the committee to have the option of deciding whether it wants a commission.

I take on board the cabinet secretary’s concerns about the practicalities and the timescale. None of us is in the position that we wanted to be in at the end of the withdrawal period, given the governance gap that is emerging. However, as Claudia Beamish said, it is important for the proposed body to be set up in the right way and to be future proofed, particularly for the critical years of 2030 and 2045, when we will need to meet targets and make hard decisions. Getting the arrangement right early is important.

I listened to Stewart Stevenson’s points about the disbenefits of a parliamentary commission, but his arguments were missing the role of Parliament. Independent commissions have a hugely important role, but it is up to Parliament and parliamentary committees to use those commissions’ independent and robust work in doing their job of holding ministers to account. That is where a commission sits, and an independent commission would play an important role.

As for the other amendments, I listened to what the cabinet secretary said. I support Angus MacDonald’s amendment 1021 to broaden the membership’s expertise. Alex Rowley makes an important point about a requirement to consult the chair; we need a chair who is robust and is fully independently appointed. I am happy to support amendment 1061.

The Convener

The question is, that amendment 1034 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Beamish, Claudia (South Scotland) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)

Against

Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

The Convener

The result of the division is: For 2, Against 5, Abstentions 0.

Amendment 1034 disagreed to.

Amendments 1035 and 1036 not moved.

Section 15 agreed to.

The Convener

Colleagues, we will take a short break and resume at half past ten.

Schedule 1—Environmental Standards Scotland

Amendments 1060, 1037, 1010 and 1011 not moved.

Amendment 1021 moved—[Angus MacDonald]—and agreed to.

Amendments 1038 and 1039 not moved.

Amendment 1061 moved—[Alex Rowley]—and agreed to.

The Convener

Amendment 1067, in the name of Mark Ruskell, is grouped with amendment 1068.

Mark Ruskell

The independence of ESS will depend, in part, on the adequacy of its funding, which will be provided by the Scottish ministers. My two amendments in the group aim to increase the transparency of ESS’s funding and to help with the question about the independence of ESS with which we are grappling.

Amendment 1067, which is modelled on provision in the UK Environment Bill, would require that ministers ensure that the funding of ESS is “sufficient” for it to do its work. I think that that is reasonable and will provide Parliament with the reassurance that future ministers will not be able to control indirectly the work of ESS by restricting its funds. If a UK secretary of state can make such a commitment to the UK Parliament in relation to the new office for environmental protection, I do not understand why the Scottish ministers should not accept a similar commitment in relation to ESS.

To add to that, my amendment 1068 would ensure transparency and scrutiny of the process of funding, by adding a requirement that ESS’s annual report, which is to be laid before the Parliament, must include an assessment of whether the funding that has been provided in the financial year has been

“sufficient”

for it

“to carry out its functions.”

The provision is modelled on provisions in the UK Environment Bill, and would enable the Parliament to review whether ministers have fulfilled their obligation to provide sufficient funding.

Members will be aware that such matters can sometimes be a bit delicate, particularly as the constraints on public finances are likely to continue for the next few years. My amendment would require the watchdog to raise any concerns that it might have about funding simply as a matter of course, and to do so transparently in order to ensure that members of Parliament are aware of any financial constraints on ESS’s ability to be a robust body.

I move amendment 1067.

Claudia Beamish

I support amendments 1067 and 1068, which are important and targeted. I am determined and hopeful that they will be agreed to because, in straitened times for public finance, I do not want there ever to be a situation in which the new watchdog is in any way struggling to do the robust work that could be needed as we go forward, whatever the complexion of a future Government.

Roseanna Cunningham

Amendments 1067 and 1068, in the name of Mark Ruskell, would place more structure around the funding arrangements for environmental standards Scotland by requiring the Scottish ministers to pay to ESS

“such sums as they consider are reasonably sufficient to enable it to carry out its functions.”

In addition, the annual reports of ESS would contain

“an assessment by Environmental Standards Scotland of whether, in the financial year to which the report relates, the Scottish Ministers provided it with sufficient sums to carry out its functions.”

I am satisfied that the intention of the amendments is proportionate, and that it would be helpful to provide structure around the funding of ESS.

However, there is a technical concern that the provisions clash with the process of resource allocation through the budget bill. There is no need to make special provision for ministers to pay moneys to ESS, because it will be part of the Scottish Administration. In addition, we do not want inadvertently to bypass normal parliamentary scrutiny of spending.

Therefore, I ask Mark Ruskell to seek to withdraw amendment 1067, and to not move amendment 1068, and I offer to work with him on revised amendments for stage 3 that take the spirit of the adequacy of funding on board without stepping on general budgetary rules. If amendment 1067 is pressed, and amendment 1068 is moved, I ask the committee to oppose them on the basis that they are not, as currently drafted, consistent with the budget process.

Mark Ruskell

I thank the cabinet secretary and Claudia Beamish for their comments, on the back of which I will not press amendment 1067. I look forward to having conversations in the run-up to stage 3 to develop something that fits with the budget process, as the cabinet secretary said. As we have seen in recent years, the budget process is a shared responsibility between Government and Parliament; therefore, transparency in that regard is important. If there is a better way to crack the issue, I am happy to work on an amendment with the cabinet secretary ahead of stage 3.

Amendment 1067, by agreement, withdrawn.

The Convener

Amendment 1040, in the name of Mark Ruskell, is grouped with amendments 1015, 1042, 1020, 1012, 1013, 1047 and 1048.

Mark Ruskell

Amendment 1015 seeks to state explicitly that ESS, as well as monitoring and having regard to the developments of international EU law, should monitor use of the section 1 keeping pace powers and should, as it considers appropriate, make recommendations on use or non-use of those powers. Although that might be implicit in the general functions that are set out in section 16(1), it would be helpful to have it specifically stated in section 16(2). That would ensure that ESS has a role in ensuring that on-going continuity is maintained between Scotland and the EU in relation to environmental matters.

Amendment 1013 is one of a pair including Claudia Beamish’s amendment 1012, to remove the exclusion on climate change targets from ESS’s remit. I think that I now understand the thinking in the bill behind allowing ESS to have a role in relation to climate adaptation. There is, of course, a natural overlap between, for example, flood management and adaptation plans. However, it cannot be ignored that plans for climate change mitigation also overlap with plans for the wider environment—peatland restoration and air quality plans being two examples. The bill is in danger of creating a rough edge between mitigation and adaptation when it comes to the role of the environment of Scotland in delivering both aspects via climate emergency response.

ESS’s role will be statutory, while the UK Committee on Climate Change is advisory. I accept that there is a need for clarity about the functions of the bodies: for example, it would not be necessary for ESS to advise on the relative contributions of different sectors to a net zero target. That is why I have included under amendment 1042 a more detailed reporting framework than exists in the bill, and have specified that it should cover how ESS avoids overlap in its functions with the UK Committee on Climate Change and other bodies. The regulations would require reporting on

“public authorities’ compliance with environmental law”

and the effectiveness of that law, as well as recommendations for future changes, with no restrictions placed on ESS on the frequency of those reports. That would be essential in supporting our successor committee’s work in scrutinising ESS.

I recognise that amendment 1040 conflicts with my amendments 1067 and 1068 in the previous group on funding, so I will not press it and will perhaps wrap the issue into discussions at stage 3 on financial reporting, where it could be dealt with more appropriately, if the cabinet secretary is willing.

I move amendment 1040.

The Convener

I call Angus MacDonald to speak to amendment 1020 and other amendments in the group.

Angus MacDonald

Amendment 1020 seeks to address concerns that narrow interpretation of section 39(3) could prevent ESS from exercising its various functions in circumstances in which Scottish ministers fail to transpose an “international obligation” into domestic law, either at all or sufficiently. Section 39 defines “environmental law”—the phrase that is used in all the previous sections that set out ESS functions and powers. Section 39(3) refers only to “domestic” law. Amendment 1020 will add relevant international law, which removes that potential limitation on ESS’s role. However, if it can be clarified that the phrase “any other enactment” in section 39(3)(b) includes international obligations, I will be content not to move amendment 1020.

The Convener

I call Claudia Beamish to speak to amendment 1012 and other amendments in the group.

Claudia Beamish

The climate emergency is one of the greatest issues of our time. I am grateful to Mark Ruskell for supporting my amendment 1012, which seeks to delete section 39(4) of the bill, which removes climate change targets from the remit of ESS.

During our stage 1 evidence, we heard comments from stakeholders that it was an “extremely odd” exclusion in particular, because there is no such exclusion for the OEP in England. The cabinet secretary stated that there is no need for “an additional institutional voice” in the process that is currently in place for receiving advice from the UKCCC. However, I make the point as strongly as I can that, much as I respect it, the UKCCC performs only an advisory role. The enforcement power to take action on failure to comply, or on misapplication of environmental law as it relates to climate change, will lie with ESS. Finally, my amendment would provide continuity between ESS arrangements and those of the European Commission; we should include climate change in ESS’s remit.

I state my formal support for Mark Ruskell’s amendment 1013, which furthers this important change to the remit of ESS. I hope that the committee will consider our amendments favourably. I will listen carefully to what the cabinet secretary has to say on Angus MacDonald’s amendment 1020. I support his amendment in principle, but I will defer to him as to whether it is necessary.

Roseanna Cunningham

First, I will address Mark Ruskell’s amendments 1040 and 1042, which would remove the current flexible annual reporting provision in schedule 1 to the bill and replace it with an onerous reporting requirement in a new section. Under Mark Ruskell’s proposals, ESS would have to report at least annually on public authorities’ compliance with environmental law, the effectiveness of environmental law, and any recommendations that it had for the Scottish ministers to bring forward proposals for legislation. That would necessitate ESS taking a view of compliance across the broad scope of environmental law and public authorities, which is impractical and is not how governance functioned in the EU system.

Although the Commission was always keen to see that new laws were effectively transposed, there was no regular overall assessment of compliance with the law; rather, the system worked by exception and tackled instances of non-compliance, which, frankly, is where resources should be targeted. The proposal is analogous to expecting the police to write an annual report on the lawfulness of the population, rather than using their resources to pursue and thereby deter crimes. I therefore invite Mr Ruskell not to press those amendments; if they are pressed, I ask members not to support them.

I turn to the amendments concerned with how ESS’s functions can reflect on international obligations. There was discussion of that at stage 1, and some concern that there was not sufficient provision for ESS to clearly address how well we are meeting our international commitments in all instances. We have amendments proposing three different approaches to that issue. Members will not be surprised to hear that I think that the Government amendments are the best approach.

Angus MacDonald’s amendment 1020 would expand the definition of environmental law, which is central to the functions of ESS, to include international obligations of the UK. That would mean that the Scottish Environment Protection Agency and ministers could be judged against any international obligation, regardless of whether it had been brought into Scots law by domestic legislation. I do not think that that is the way to approach the issue, and it perhaps is not quite what Angus MacDonald intended. I therefore invite him not to press his amendment.

Mark Ruskell’s amendment 1015 seeks to give ESS a new function of advising on the use of the power in section 1(1) of the bill; however, the power in section 1(1) is about enabling us to align in future with EU standards, rather than with international obligations of the UK. There is some confusion here, and I invite Mark Ruskell not to press his amendment. The Government amendments 1047 and 1048 will ensure that ESS functions that relate to the effectiveness of environmental law will include consideration of its contribution to the implementation of any international obligation of the United Kingdom that relates to environmental protection. That will allow consideration of the effectiveness of the law in meeting our commitments under agreements, such as the Ramsar convention, in a proportionate manner. I recommend that members support amendments 1047 and 1048.

Amendments 1012 and 1013 seek to remove the exemption of climate change planning. It is important to clarify what is being excluded from the scope of ESS’s functions by the provisions of the bill as introduced, as I think that there is some misunderstanding. The exclusion is of the consideration, construction and enforcement of duties in relation to the setting of cross-economy, greenhouse gas emissions reduction targets and the preparation of strategic cross-portfolio climate change plans to meet them.

Specific measures within environmental law to deliver emissions reductions would be within scope, as are strategic planning duties in relation to climate change adaptation. To bring cross-economy emissions targets and strategic planning into the scope of ESS would be to duplicate the current strong arrangements for oversight, advice and enforcement with something less effective. ESS will not have the capacity to match the advisory expertise that is already provided by the UK Committee on Climate Change, nor will it be able to match the strength of the oversight for the setting and subsequent achievement of targets that is provided by the Parliament itself. It would be wasteful for ESS to expend resources on those functions, given that any interventions seem likely, at best, to slow processes and confuse lines of accountability.

Amendments 1012 and 1013 give rise to a number of questions. For example, if ESS were given the role of oversight on the Government’s achievements of climate change targets, what would that mean in practice? Would ESS need additional resource and capacity? Would it take time to consider any failure? Would ESS write an improvement report in that regard, if necessary? If so, it is not clear where that advice would be drawn from, other than the existing expertise of the Committee on Climate Change. Would all of that add to the rigour of the system, or would it simply lead to duplication and delay?

Those questions notwithstanding, I am aware that there is a confusing comparison to be had with the equivalent position in the UK Environment Bill. As I understand the current position, following Government amendments, the UK’s new office for environmental protection will have no advisory role with respect to greenhouse gas emissions planning, but it will have a role in enforcement. I am prepared to explore that further, so that we can get a better understanding of the difference. I ask Claudia Beamish and Mark Ruskell not to press amendments 1012 and 1013 respectively and, if they are pressed, I invite the committee to reject them.

The Convener

I invite Mark Ruskell to wind up and to confirm that he wishes to withdraw amendment 1040.

Mark Ruskell

Thank you, convener. I will seek to withdraw amendment 1040.

There is a lot to pick up on, and I am sure that we can do that in a more substantive discussion between the cabinet secretary, myself and Claudia Beamish between now and stage 3.

On the broader point on reporting, there is a reporting framework in the bill and I think that we have already acknowledged that it is not quite robust enough in relation to finance. The cabinet secretary said that reporting should be based on exceptions, rather than reporting on general compliance with environmental law, but within the framework that I have put forward, it is at the discretion of ESS as a fully independent body—although not a commission—to report on what it views as appropriate for the Parliament to consider. That may include changes in the law that it thinks are needed; it may include reports on levels of compliance in certain sectors, to which it wishes to draw our attention. The whole point of having an independent body is to enable it to determine that, with robust reporting. As I say, perhaps we could have more discussion about that between now and stage 3.

There are some mixed messages regarding climate. In relation to adaptation, which is clearly cross-portfolio and strategic in its nature, ESS does have a role. I am at a loss to understand why it does not then have a role in relation to aspects of mitigation that are directly related to the environment, such as peatland restoration, which is a large and important action and topic, to which the Scottish Government has committed over many years.

Again, there is perhaps more discussion that we could have ahead of stage 3. I would look forward to that and to establishing whether we could do something more appropriate to pin down exactly what ESS’s role will be in relation to adaptation, enforcement and mitigation. At the moment, that is not clear, and it is my sense from the evidence that we took from Chris Stark that it is not clear to the UK Committee on Climate Change either.

Amendment 1040, by agreement, withdrawn.

Amendments 1068 and 1041 not moved.

Schedule 1, as amended, agreed to.

Section 16—Functions

Amendment 1015 not moved.

Section 16 agreed to.

After section 16

Amendment 1042 not moved.

Sections 17 and 18 agreed to.

Schedule 2—Environmental Standards Scotland: Strategy

The Convener

Amendment 1062, in the name of Angus MacDonald, is grouped with amendment 1063.

Angus MacDonald

Members will recall that in the committee’s stage 1 report we concluded that an amendment should be lodged to add to the list of persons to whom ESS must set out how it will avoid overlap in functions and its strategy. I understand that the Scottish Government remains of the view that that is not a necessary step, as schedule 2 allows for the strategy to set out that detail. However, I feel that it is worth pursuing.

I am grateful for the Scottish Government’s support in lodging my amendments, which ensures that if an amendment is made to add to the list of persons in paragraph 1(1)(d)(2) of schedule 2, it will be done in an effective way.

My amendments would ensure that ESS would set out in its strategy how it will exercise its functions in a way that respects and avoids overlap with the exercise of functions by

“the Scottish Information Commissioner, Audit Scotland or the Committee on Climate Change”.

I move amendment 1062.

The Convener

I call the cabinet secretary to wind up.

I have just realised that two other members wish to speak on this group. Could members please be a bit quicker about typing an R in the BlueJeans chat box if they wish to speak? I almost missed your requests.

Claudia Beamish

Apologies, I was waiting to hear what Angus MacDonald said before I indicated that I wanted to speak. However, I take your point.

In the circumstances, I am considering not moving my climate change targets amendment 1012. Instead, I will consider working with the Government and the cabinet secretary on how to look at that in relation to ESS’s enforcement powers. With respect, I ask Angus MacDonald to consider not pressing amendment 1062, because it has implications in relation to amendment 1012, although that is, of course, entirely up to him.

Mark Ruskell

I have a similar point. I support what Angus is attempting to do, but it is difficult to consider the overlap with the UK Committee on Climate Change when it is still not clear what ESS’s role will be in relation to the climate. I ask Angus not to press the amendment just now, if he wants my support.

The Convener

We can go to the cabinet secretary.

Roseanna Cunningham

Thank you, convener. [Inaudible.]—not necessary and ESS would already have the flexibility to set out material on relationships with other persons in its strategy. I am nevertheless happy to support amendments 1062 and 1063, which would additionally require ESS to set out in its strategy how it will exercise its functions so as to respect and avoid any overlap with the functions of the Scottish Information Commissioner, Audit Scotland and the UK Committee on Climate Change. I am not sure that that in any way contradicts the previous discussion, and I invite the committee to support the amendments.

The Convener

I call Angus MacDonald to wind up and press or withdraw amendment 1062.

Angus MacDonald

As someone who is normally in favour of consensus, I am afraid that, on this occasion, I will press my amendment. I take on board what Mark Ruskell and Claudia Beamish said, but it is still important that we try to get the amendments through. I press amendment 1062.

The Convener

The question is that amendment 1062 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Against

Beamish, Claudia (South Scotland) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)

The Convener

The result of the division is: For 5, Against 2, Abstentions 0.

Amendment 1062 agreed to.

Amendment 1063 moved—[Angus MacDonald].

The Convener

The question is, that amendment 1063 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
MacDonald, Angus (Falkirk East) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Smith, Liz (Mid Scotland and Fife) (Con)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)

Abstentions

Beamish, Claudia (South Scotland) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)

The Convener

The result of the division is: For 5, Against 0, Abstentions 2.

Amendment 1063 agreed to.

Schedule 2, as amended, agreed to.

Sections 19 to 22 agreed to.

Section 23—Restrictions on preparing an improvement report

The Convener

Amendment 1018, in the name of Angus MacDonald, is grouped with amendment 1019.

Angus MacDonald

The purpose and reasoning behind amendments 1018 and 1019 are to help to ensure that ESS provides continuity with existing arrangements under the EU and upholds the rights of people in Scotland to see action taken in response to environmental complaints that they raise about decisions that have been taken by public bodies.

The amendments remove subsections in sections 23 and 28 that restrict ESS’s powers in relation to individual cases. Members will recall that, in paragraphs 141 to 146 of the committee’s stage 1 report, we raised concerns about those subsections and concluded that

“restricting the remit of the ESS to strategic issues (in relation to improvement and compliance reports) could be unduly restrictive and have unintended consequences.”

It is worth pointing out that, within the EU, the ability of stakeholders to raise concerns about individual cases with the European Commission has been crucial. Many such cases have proven to be strategic and precedent setting, so there is an argument that restricting ESS’s powers in such a way means that we would not be replicating the functions of the Commission.

I am aware of and understand the Government’s concerns that, without the restriction, ESS would become an additional layer of appeal for all decisions, and that that would invite such a flurry of complaints that ESS would be overwhelmed and would need resources to address that avalanche. Indeed, since I lodged the amendments in the group, it has been suggested to me that removing the restriction could cause chaos, in that it would fundamentally alter the nature of the powers that are given to ESS in relation to overturning individual regulatory and planning decisions, and would cut across established regulatory appeals processes that already exist.

I am keen to hear the cabinet secretary’s view before deciding how I wish to proceed. I am in a genuine quandary over the issue. Like other members of the committee, I have had concerns about the restriction on ESS’s powers to act in individual cases. I have read the cabinet secretary’s response on the matter. I appreciate that there will be no restriction on ESS considering information about individual cases; it will be restricted only in taking enforcement action in individual cases.

In addition, I understand that there are concerns among local authorities and regulators about the impact on regulatory structures and processes if ESS could review and overturn individual regulatory decisions.

As I said, I am in a real quandary. I am keen to hear the cabinet secretary’s views. I will decide how to proceed once I have heard those views and comments from other members.

I move amendment 1018.

Claudia Beamish

In principle, I very much support Angus MacDonald’s amendment 1018 on individual cases. He has set out the reason for it extremely clearly. In the EU, much of what has happened in the development of law and its enforcement has come from individual cases. That has resulted in robust protections for our environment, many of which could not have happened without such cases.

I am somewhat concerned about the capacity issue that might arise before ESS becomes a full body. I wonder if it might be possible for us to get some clarity, possibly before stage 3, as to how that element could be shaped in more detail in the bill or whether there could be a commitment in regulation.

I very much support the amendment in principle, and I hope that I will be in a position—if not now, at least at stage 3—to support it in a vote.

Roseanna Cunningham

Angus MacDonald’s amendments would fundamentally alter the nature of the powers that are given to environmental standards Scotland. If ESS were given powers to overturn individual regulatory and planning decisions, that would result in significant regulatory uncertainty and disruption. Such uncertainty could have significant economic costs and severe impacts on the development planning system in particular, and it could place untenable demands on ESS.

We would in effect be turning ESS into a kind of super-regulator. ESS should not be used as a means to review individual decisions or as some kind of substitute appeals process. Once all existing mechanisms of challenge have been exhausted, individual regulatory decisions should be deemed final. That is especially important in the current period of significant disruption and uncertainty for all organisations as a result of both Brexit and the pandemic.

Moreover, the integrity of existing statutory regimes that make provision for the appeal or review of such decisions must be preserved. Local authorities, regulators and representatives of regulated businesses have already expressed significant concerns regarding the potential impacts if ESS were to be given those powers.

Individuals and organisations will be able to submit concerns to ESS regarding individual decisions, and ESS will be able to investigate those matters and consider whether those decisions demonstrate failures in regulatory practice or the effectiveness of environmental law. Although the European Commission has, on occasion, investigated individual matters or decisions, it has focused primarily on decisions of a strategic nature, and that is the role that ESS is intended to fulfil.

I therefore invite Angus MacDonald not to press or move his amendments. If he does so, I urge the committee to reject them.

The Convener

I ask Angus MacDonald to wind up and say whether he wishes to press or withdraw amendment 1018.

Angus MacDonald

In the light of the cabinet secretary’s explanation, I wish to withdraw amendment 1018. I now see the precedent that my amendments in this group would set on planning issues, as in the example that the cabinet secretary gave, and I welcome the assurance that ESS will still be able to investigate individual cases.

Amendment 1018, by agreement, withdrawn.

Section 23 agreed to.

Sections 24 to 27 agreed to.

Section 28—Restrictions on issuing a compliance notice

Amendment 1019 not moved.

Section 28 agreed to.

Sections 29 to 35 agreed to.

Section 36—Confidentiality of proceedings

The Convener

Amendment 1043, in the name of the cabinet secretary, is grouped with amendments 1044 and 1045.

Roseanna Cunningham

The amendments will establish a simpler confidentiality provision and remove the restriction on the disclosure of information by third parties. The amendments were lodged in response to concerns that the Scottish Information Commissioner submitted about interactions with the Environmental Information (Scotland) Regulations 2004 and the Freedom of Information (Scotland) Act 2002.

Amendment 1043 adjusts section 36(2)(d) to clarify that the rule against disclosure of information by ESS under section 36(1) does not apply to a disclosure when an improvement report has been published or a compliance notice has been issued and the time limits for an appeal have expired or the appeal process has concluded, as well as instances in which ESS has determined that it wishes to take no further action.

Amendment 1044 adds further exemptions to the rule against disclosure by ESS when disclosure relates to civil proceedings, the investigation or prosecution of an offence or suspected offence, the detection of crime or an order of a court or tribunal, or when disclosure is

“made in accordance with any ... enactment requiring or permitting the disclosure.”

Amendment 1045 removes the imposition of confidentiality duties on public authorities under subsections (3) to (6) of section 36. It also removes the reference in subsection (7) to

“environmental information for the purposes of the Environmental Information (Scotland) Regulations 2004”,

as that is not required.

The amendments address the Scottish Information Commissioner’s concerns while allowing ESS to carry out its functions effectively. Issues that involve confidentiality and the disclosure of information will be addressed in the strategy that ESS prepares, which will be subject to public consultation and will be laid before Parliament for approval.

I move amendment 1043.

Amendment 1043 agreed to.

Amendments 1044 and 1045 moved—[Roseanna Cunningham]—and agreed to.

Section 36, as amended, agreed to.

After section 36

The Convener

Amendment 1046, in the name of Liz Smith, is in a group on its own.

Liz Smith

Amendment 1046 was lodged because of the gaps in governance that are likely to occur when the transition period ends. The loss of access to the European Court of Justice will present issues, especially when environmental cases are examined for any breaches of the law. I fully appreciate that the newly established environmental standards Scotland and the judicial review process will address many concerns. However, under current practice in environmental matters in Scotland, there are examples of where access to a court process is an important fallback, especially if environmental agencies are unable to resolve a major concern. Amendment 1046 would require the Scottish ministers to bring forward and consult on proposals to fully address all gaps in governance that are left by our inability to access the Court of Justice of the European Union.

I move amendment 1046.

Roseanna Cunningham

Amendment 1046 seeks to introduce an additional reporting requirement within the first year of the operation of ESS, when ESS will not have had sufficient opportunity to become fully established and effective. We must bear in mind that the provisions in the bill give ESS a year from statutory establishment to prepare and lay a strategy before the Parliament for approval. That strategy will set out the detail of how it will exercise its functions, including how it will provide for people to make representations to it about any matter concerning public authorities’ compliance with environmental law or concerning the effectiveness of that law or of how it is applied. The provisions include procedures for consultation and parliamentary approval of the strategy. It does not make sense to run the process of reviewing the governance arrangements that are put in place under the bill and other matters at the same time as the Parliament is considering and commenting on ESS’s strategy for how it intends to exercise its functions.

I am grateful for the discussion with Liz Smith on her amendment. If the amendment were to be modified to provide a longer timescale for the preparation and publication of the proposals relating to environmental governance and environmental law, the proposals might support the on-going scrutiny of our approach to environmental protection and access to justice, following our departure from the European Union. That would allow ESS to become fully established and operational and for its strategy to have been consulted on, scrutinised and approved by Parliament. Questions surrounding the potential for the creation of a dedicated environmental court are much broader than the focus and purpose of the bill. In 2017, I committed to keeping these issues under consideration, and, over the next parliamentary session, the successor committee will wish to explore them. Therefore, I am willing to work with Liz Smith and my ministerial colleagues who have responsibility for justice matters with a view to developing an appropriate amendment for consideration at stage 3.

With that offer, I ask Liz Smith not to press her amendment today. If the amendment is pressed, I ask the committee not to support it on the basis of the undertaking that I have made to work with Liz Smith with a view to bringing forward an adjusted amendment or amendments at stage 3.

The Convener

I appear to have some connection problems. I wish to check that my colleagues all heard the cabinet secretary’s full statement. I can see that everyone did, so it was just me who had the connection issue.

I call Liz Smith to wind up the debate on amendment 1046 and to press or withdraw that amendment.

Liz Smith

Thank you, convener. I thank the cabinet secretary for her engagement and for her comments. I understand that there are a few technical issues with the amendment, particularly given what the cabinet secretary says about the timescale. However, there are important principles behind the amendment, so I welcome her commitment to engage further before stage 3. On that basis, I am happy to withdraw amendment 1046.

Amendment 1046, by agreement, withdrawn.

Sections 37 and 38 agreed to.

Section 39—Meaning of “environmental law” and “effectiveness of environment law”

Amendment 1020 not moved.

The Convener

I ask Claudia Beamish whether she wishes to move amendment 1012.

Claudia Beamish

No, I do not, but I look forward to discussing the matter with the cabinet secretary.

Amendments 1012 and 1013 not moved.

Amendments 1047 and 1048 moved—[Roseanna Cunningham]—and agreed to.

Section 39, as amended, agreed to.

Section 40—Meaning of “environmental protection”, “environmental harm” and “the environment”

Amendment 1014 not moved.

Amendments 1049 to 1051 moved—[Roseanna Cunningham]—and agreed to.

Section 40, as amended, agreed to.

Section 41 agreed to.

Long Title

Amendments 1052 and 1009 not moved.

Amendment 1064 moved—[Stewart Stevenson]—and agreed to.

Long title, as amended, agreed to.

The Convener

That ends our consideration of the bill at stage 2. I thank all committee members.

That concludes the committee’s business for today. Our next meeting will take place on 1 December, when we will hear from the Minister for Rural Affairs and the Natural Environment as part of our inquiry on regional marine planning and we will also consider EU exit legislation.

The Convener (Bruce Crawford)

Good morning and welcome to the 30th meeting in 2020 of the Finance and Constitution Committee. The only item on our agenda is stage 2 consideration of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. We are joined by Mike Russell, Cabinet Secretary for the Constitution, Europe and External Affairs, and by Mike Rumbles and Liam McArthur, who have lodged amendments to the bill. Welcome, everyone.

We have a lot to get through this morning, but it will work well if we take it nice and steady and with a bit of patience. I remind members to take a wee breath before speaking, to allow your microphones to be switched on. You can request to speak by tapping R in the BlueJeans chat function as soon as I call the relevant group of amendments.

Only committee members are eligible to vote. Voting will take place using the BlueJeans chat function. Once I have read out the result of a vote, if you think that your vote has been incorrectly recorded, please let me know as soon as you can. I will pause to allow time for that.

Depending on how long proceedings take, I might suspend the meeting for a comfort break at a suitable juncture. Given the time constraints, I encourage everyone who speaks to make succinct contributions.

As agreed by the Parliament, the Environment, Climate Change and Land Reform Committee considered amendments to part 2 of the bill at its meeting yesterday. Today, we will consider amendments to the remainder of the bill.

Before section 1

The Convener

Amendment 6, in the name of Angela Constance, is grouped with amendment 10.

Angela Constance (Almond Valley) (SNP)

Good morning. In the committee’s stage 1 report, there was majority support in principle for the proposed keeping pace power. There was also widespread support from stakeholders.

However, we heard from stakeholders such as Scottish Environment LINK and the Human Rights Consortium Scotland that the bill could provide greater clarity on what the power is for and when it would be used. As things stand, there is no direction for ministers as to the power’s use, and transparency and accountability could be improved.

Most of us want Scotland to align with the best of what comes out of the European Union. The Scottish Government shares that commitment. The concern is that, on leaving the EU, we take a step backwards and Scotland becomes the poor man of Europe on rights or the dirty man of Europe on the environment. It seems reasonable, therefore, to give ministers a clear indication that the keeping pace power should be used to deliver on the Government’s commitment and allay such concerns.

Keeping pace powers are not the whole answer, but I believe that they could be part of the solution. By putting such a purpose in the bill, we would provide more certainty, predictability and clarity for businesses, public agencies and others. Of course, we must be careful to ensure that, in putting a purpose in the bill, we keep the flexibility that will be needed to deal with future uncertainties. I agree with the committee’s observation in its stage 1 report that making the keeping pace power into a simplistic duty would create an “inflexible” and “inoperable” approach. However, I think that we can achieve flexibility and clarity in the bill if we work hard to strike the right balance.

Amendment 6 seeks to provide that clear sense of direction in the form of a statutory purpose that ministers must seek to achieve in their use of the power in section 1. Members should note that amendment 6 does not seek to limit the power’s use for other reasons.

Amendment 10 is complementary, in that it seeks to amend section 7 to ensure that reports on the use of the power, which that section requires, also set out how the power’s use has or has not helped to deliver on the purpose.

The two amendments have been lodged in the spirit of probing amendments so that we can hear from the minister on and better understand his thinking, and I look forward to doing that. I am sure that the amendments could be improved, and it may be that ministers feel able, after hearing this debate, to agree in principle to what I am proposing and to commit to producing stage 3 amendments.

That said, I commend to the committee the concept of a purpose, in order to bring transparency, accountability, certainty and clarity.

The Convener

Would you like to move the amendment, please?

Angela Constance

I would like to hear the minister’s response first.

The Convener

No—it will be possible for you to withdraw the amendment after you have heard the minister’s response.

Angela Constance

I move amendment 6.

Dean Lockhart (Mid Scotland and Fife) (Con)

Amendments 6 and 10 raise a number of concerns about the keeping pace provisions in the bill. The amendments, together with the powers in section 1, would allow the Scottish ministers to keep pace with future European Union laws in relation to which they have had no influence or input, and to do so without any scrutiny from Parliament or consultation with key stakeholders. That would mean the Scottish Parliament becoming a passive rule taker across a number of key sectors of the economy, and those future EU laws might not be appropriate for the particular needs of those sectors in Scotland.

We believe that the proposals would also create further regulatory divergence from the rest of the UK. We heard evidence from key stakeholders such as NFU Scotland that the United Kingdom market is the single most important market for its members’ produce, with more than 60 per cent of their products going to the rest of the UK. Keeping pace with some, but not all, future EU laws—as it will be impossible to keep pace with all future EU laws that come through in the future—would create myriad different regulations for Scottish companies to comply with, which would increase the cost and complexity of doing business.

We agree that Scotland and the rest of the UK have some of the highest standards in the world in those various areas, and we think that that should continue to be the case. However, we do not believe that the bill and, through it, the granting of unprecedented powers to the Scottish ministers to pass secondary legislation without scrutiny or consultation represent the best way to achieve that. For those reasons, we are unable to support amendments 6 and 10.

Patrick Harvie (Glasgow) (Green)

I very much welcome Angela Constance’s amendments. It is important to say clearly that if, as she says, they are intended as probing amendments and are not put to the vote today, something very much like them needs to be passed at stage 3.

Amendments 6 and 10 change the context of the whole of the rest of the bill. In fact, the arguments that we will hear when we debate many of the issues that are raised in the later groups of amendments about the exercise of the power, scrutiny, duration and limitations are changed if a clear purpose is set out in the bill. That is the context that the power in section 1 very much needs.

Therefore, I welcome the two amendments and, if I had not seen amendments such as Angela Constance’s in this group or the relevant amendments from Liam McArthur in a later group by the time the deadline arrived, my amendments would have been more substantial. Both those sets of amendments deal with very substantial matters.

It is telling that, only a few minutes into our discussion, we have heard the rather bogus argument about our being a rule taker. It is important to put on the record, once again, that the inability of Scotland and the UK to influence discussions at European level about what European rules and regulations will be is the result not of Scottish Government policy but of UK Government policy in pursuing Brexit in the way that it has done.

That changes nothing about a judgment on the value of maintaining those high European regulatory standards. I believe strongly in those values, and amendment 6 captures the objectives that I think that most of us across most of the political spectrum—including parts of the Conservative Party—share. There are those who do not share the view that we should maintain higher regulatory standards and for whom the purpose of Brexit is a race to the bottom. I think that we should say very clearly on the face of the bill what our purpose is—we know that it is not shared by the UK Government—and that we will stick to it. If amendment 6 is not agreed to at stage 2, something very like it must be agreed to at stage 3.

Alex Rowley (Mid Scotland and Fife) (Lab)

I will wait to hear what the cabinet secretary has to say before deciding how to vote; nonetheless, I absolutely support the principle that is set out in amendment 6.

I had not intended to speak until I heard Dean Lockhart speak. It is important to say that there is a real risk of Scotland ending up in a race to the bottom. I support what Angela Constance said; it is important that we make that clear and that we protect the high standards that we have in Scotland as much as possible. I do not believe that the legislation that the UK Government has introduced so far—the United Kingdom Internal Market Bill—supports the highest standards. That is a great threat to the future of Scotland. Therefore, I support the principle of amendment 6, and I look forward to hearing what the cabinet secretary has to say.

The Cabinet Secretary for the Constitution, Europe and External Affairs (Michael Russell)

That opening exchange of fire has perhaps defined what we will hear for the rest of the morning. I will talk about that for a moment, if the convener will allow me.

The debate today will be between those who are absolutely clear that they want to maintain the highest of standards and see the bill as the vehicle for doing so, but who have not yet reached a common position on some of the important issues. Two of the most important issues have been presaged by Angela Constance and Patrick Harvie and lie in the amendments in group 1 and group 3, which we will come to later. The debate is about the balance between flexibility of operation and a more rigid definition of what we are trying to do. It is also, in essence, about securing appropriate and effective power for the Scottish Parliament and ensuring that there is appropriate and effective scrutiny by and engagement of the Parliament and wider Scottish society as we go forward, on which I think that we are united. That is where I find myself.

We will probably not come to a completely common mind on groups 1 and 3 today, but I hope that we will be able to do so between now and stage 3. That is what I aim to do, and I make that commitment explicit at the very beginning. Although I have reservations about this particular way of setting out the purpose and want to suggest some alternatives, I am committed to continuing to discuss it with Angela Constance, Patrick Harvie and the Labour Party, which has indicated its support through Alex Rowley, and we will try to take the matter forward.

I am afraid that I must reject what we heard from Dean Lockhart. I believe that a number of amendments that have been lodged are wrecking amendments that are designed to not allow the bill to operate effectively. I will say so when I see those; however, I hope that Dean Lockhart will not go back and simply fight the internal market fight and the Brexit fight but will look at the need for Scotland to have the highest regulatory powers and the ability to operate them as well as we can.

Although we in the Scottish Government do not have a monopoly on ideas in relation to how the power in section 1 may be used, I suggest that we need to look at three points in defining how we use the power and how the bill sets that out. We need to have a policy statement on the use of the power; we need to have a forward look to make sure that we are always scanning the horizon; and we need to agree a framework for the involvement of Parliament.

On the policy statement, I prefer Tom Arthur’s amendment in group 3, which requires a statement of the policy and the factors to be taken into account in deciding whether to use the power over the whole spectrum. It would not be a policy statement that was published once and forgotten about; it would be a live document that would continue to change and improve, and it would ensure that we work with key stakeholders. I think that those things are in Tom Arthur’s amendment, but it may not be perfect yet, so we need to do some work with him.

The second element of the approach is ensuring that there is a forward-looking report. We have always looked at the potential uses of the power not just in the initial forthcoming period, but in relation to EU legislative proposals that might still be at an early stage of development. There would be an opportunity for the Parliament to help to shape the Government’s priorities through engagement with the EU.

The third element is the framework for involving the Parliament and wider stakeholders in Scotland. The forward-looking report would be one element of that, but there would be other elements to ensure that the appropriate parliamentary scrutiny procedure was put in place. Section 3 deals with that in particular.

I want to ensure that we move forward with the ideas in section 1 on purpose and the ideas in section 3 on how we do that. If we can do that over the next month or so after this stage, we will get a better bill.

There are some technical concerns about amendment 6 that worry me. The list is non-exhaustive and it requires ministers to exercise the power in certain ways, but it remains silent on others. It could lead to a skewing of priorities.

I am also concerned that the wording in amendment 6 on maintaining and advancing standards is problematic. It will mean different things to different people. I would like the bill to be more specific so that the opportunity to damage it, which its enemies will take, is not exploited, and I want to know what action will be required of ministers in a situation in which advancing one right or standard might directly reduce or conflict with a different standard. We need to consider whether there is an inherent contradiction in the wording that we can get rid of.

I would like Angela Constance not to press amendment 6. I am very clear that we have work to do on purpose and implementation. When we come to group 3, we will find that there are elements of the proposals by Liam McArthur, Patrick Harvie and Tom Arthur that can all be brought together. If we dovetail that with consideration of Angela Constance’s ideas, we will end up with a better bill.

If Angela Constance does not press amendment 6, I make the commitment to include those considerations and discussions, as I will also do when we come to group 3.

Angela Constance

I stressed at the outset that I am interested in practical legislative tools to guard against regression. I do not want inflexibility in dealing with the uncertainties of leaving the European Union, which we are, of course, leaving against our will.

In general, I am in favour of purpose clauses in domestic legislation—I think that they have a value—but I listened to what the cabinet secretary said about a united way forward, certainly among those of us with progressive voices. Given that there are a number of progressive voices that are interested in the area—it is not just me—I am content to seek to withdraw the amendment.

Amendment 6, by agreement, withdrawn.

Section 1—Power to make provision corresponding to EU law

The Convener

Amendment 7, in the name of Alex Rowley, is grouped with amendment 12.

Alex Rowley

Amendment 7 would delete section 1(4) of the bill, which allows Scottish ministers to make regulations that authorise any Scottish public authority that already exercises functions under the EU instruments to delegate those functions to another person or to arrange for any of those functions to be carried out by another person or by another Scottish public authority.

Paragraphs 69 to 72 of the Finance and Constitution Committee’s stage 1 report noted that the Delegated Powers and Law Reform Committee had raised the issue of whether that

“power to sub-delegate is ... appropriate when there is no equivalent”

provision in section 2(2) of the European Communities Act 1972. The power of delegation will apply to future EU law, the content of which would be unknown, and is therefore inappropriate given the uncertainty about what that law might be.

Amendment 7 is therefore a probing amendment to remove the power from the bill. It allows the Scottish Government the opportunity to explain the need for that provision.

I move amendment 7.

Michael Russell

I thank Alex Rowley for his useful probing amendment. I know that both the Delegated Powers and Law Reform Committee and the Law Society of Scotland were concerned that the power might not exist within the 1972 act. I hope to be able to set Mr Rowley’s mind at rest.

Section 1(1) of the bill gives the Scottish ministers the discretionary power to continue to keep devolved law in line with EU law after the implementation period. Section 1(4) sets out some of the things that can be done using the power to amend existing EU law implementation.

That aspect of the power was drafted on the basis of a potential future need to amend domestic legislation as a consequence of existing EU requirements, rather than as a consequence of necessarily reflecting any developments in EU law.

I will give a general example. In implementing EU obligations, member states are often allowed a degree of discretion in determining how to implement a particular measure. It is possible that the Scottish ministers might, in the future, consider that they want to exercise a discretion differently. For example, ministers might have previously decided to appoint body X as a competent authority under an EU directive or regulation but, as a result of changing circumstances, might later consider it to be more appropriate to appoint body Y.

The power under section 1(4) is about enabling ministers to make that type of refining provision without the need for primary legislation. That sort of provision does exist elsewhere. It has recently been taken forward under the draft Feed (Transfer of Functions) (Miscellaneous Amendments) (Scotland) Regulations 2020, which were laid in Parliament in draft form on 9 November using the power that we have under the 1972 act. That draft Scottish statutory instrument transfers competent authority functions under EU law in the field of the enforcement of animal feed law in Scotland from local authorities to Food Standards Scotland. The SSI also takes powers to administratively sub-delegate those functions to certain local authorities where that is appropriate.

That is the sort of provision that could be made in accordance with section 1(4) of the bill. If that section is deleted and no other delegated powers are available, primary legislation would be required to take that sort of provision forward. That would not be a good use of parliamentary or Government time.

For those reasons, although it is useful to probe amendment 7 and to discover whether there is support for it in legislation, I do not believe that that amendment is appropriate. I ask Alex Rowley, having heard me explain the situation, not to press amendment 7 to a vote.

Amendment 12 in my name is a minor and technical amendment that is lodged solely to clarify the intended effect of section 1(5)(c). Section 1(5) enables regulations under section 1(1) to make provision for the charging of fees or other charges in connection with the carrying out of a function conferred on a Scottish public authority by virtue of regulations made under section 1(1).

The amendment makes it clear that the ability to sub-delegate, which is provided for at section 1(5)(c), relates only to that specific power to make fee-charging provision, and does not relate to any other aspect of the power to make regulations under section 1(1).

Dean Lockhart

We will support the cabinet secretary’s amendment 12.

Regarding Alex Rowley’s amendment 7, we share his concerns about the uncertainty surrounding what the power might mean in future, given that we do not know which future EU laws would be kept pace with. That concern was also raised by the Law Society of Scotland.

I hear what the cabinet secretary said about provisions in other legislation but I remain unconvinced that his explanation addresses the issue. I will therefore wait to see whether Alex Rowley presses amendment 7.

Patrick Harvie

I was open to hearing Alex Rowley’s rationale for amendment 7. It would be a serious concern if the deletion of the power in this section was to be permanent. The cabinet secretary has indicated the kind of scenarios in which it might be used so I am satisfied with the discussion that has taken place already.

Alex Rowley

I hear what the cabinet secretary said and I will want to look at that further. The concern is still there and I reflect on what the Delegated Powers and Law Reform Committee said. At this stage, I will not press amendment 7. If there is still a concern when I have looked at the issue again, I can always come back with a stage 3 amendment.

Amendment 7, by agreement, withdrawn.

Amendment 12 moved—[Michael Russell]—and agreed to.

Section 1, as amended, agreed to.

After section 1

The Convener

Amendment 28, in the name of Dean Lockhart, is grouped with amendments 41, 11, 22, 23, 44, 45, 46, 24, 47, 25, 48, 26, 27 and 49.

I remind members of the procedural information that is noted in the groupings. If amendment 24 is agreed to, I cannot call amendment 47, and if amendment 27 is agreed to, I cannot call amendment 49 because amendments 47 and 49 will be pre-empted.

Dean Lockhart

Amendment 28 provides for the Scottish ministers to prepare and lay before Parliament a statement of the criteria to be determined on whether to exercise section 1 keeping pace powers before the power is used for the first time. The amendment is based on the recommendation in paragraph 38 of the committee’s stage 1 report, which states that the bill should be amended

“to provide guidance setting out the criteria which will apply to the use of the power.”

It is also based on evidence given by Professor Keating and others that there is a need to know on what basis future EU laws will be selected. Amendment 28 seeks to address those issues.

Amendment 11, in the name of Liam McArthur, covers similar ground and requires ministers to publish a strategy for the use of keeping pace powers. We will support amendment 11.

Tom Arthur’s amendment 41 also provides for the Scottish ministers to publish a statement of their policy that shows the factors that they will take into account when considering the use of section 1 powers. My personal preference is, however, the combination of amendments 28 and 11. They cover similar ground to amendment 41 but amendments 28 and 11 go further.

I have lodged amendment 46 on behalf of the Law Society of Scotland. It required additional information to be included in the Scottish Government’s reports on the circumstances in which the keeping pace power is not exercised.

Concerns were raised during stage 1 evidence that there was no provision in the bill for the Scottish ministers to publish details about legislation that they decide not to follow in the future. Amendment 46 addresses those concerns by requiring the Scottish Government reports to set out the circumstances in which the section 1(1) powers are not exercised in the future.

We will support Patrick Harvie’s amendments 44 and 45, which relate to additional reporting requirements. The cabinet secretary’s amendment 24 pre-empts Patrick Harvie’s amendment 47, but we prefer Patrick Harvie’s amendments 47 and 48. They shorten the reporting period from one year to six months and provide for earlier and more frequent reporting to Parliament. We also prefer Patrick Harvie’s amendment 49 to the cabinet secretary’s amendment 27, which we believe seeks to dilute the reporting provisions in the bill. However, we will support the cabinet secretary’s amendment 23 and welcome his intention to set out how he will use those new powers in the future. We will also support his technical amendment 26.

I move amendment 28.

Tom Arthur (Renfrewshire South) (SNP)

There has been much discussion throughout the scrutiny of the bill about the need for Parliament to be sighted on the potential uses of the power to align. I think that all of us who support the principle of the bill agree that there is a need to ensure that that happens. That includes the Government and I thank the cabinet secretary for working with me on amendment 41.

There have been different suggestions as to how we might make it happen, but the danger in writing those into the bill in great detail is that, however well intentioned that approach might be, it ends up creating a restrictive provision that does not function properly and overburdens both Parliament and Government. Amendment 41 seeks to get to the heart of the matter in a way that is proportionate.

We are concerned with understanding the Government’s intentions. We want to know how it will approach questions of alignment and the factors that it will take into consideration and we want to be able to measure its actions against that framework. The amendment requires ministers to

“publish ... a statement of their policy on the factors to be taken into account when considering whether to use the power”

to align

“under section 1(1).”

It deliberately does not go into specific detail about the precise contents of that statement because if the past few years have shown us anything it is that circumstances can change and change quickly. What seems to be a pressing issue today might be a footnote tomorrow, and vice versa. For that reason, the amendment also allows the Government to amend its policy statement whenever it is appropriate to do so and does not tie it to particular periods of time.

I appreciate that the cabinet secretary has indicated that he is very happy to agree a way of working that gives Parliament an early involvement in consideration of any potential alignment and I see the policy statement as being part of that process. I know that colleagues will not be shy in letting the Government know if they do not think that the approach is right. The policy statement required by amendment 41 is a key means of facilitating that in a way that does not tie the Parliament up in overly bureaucratic processes.

In conclusion, I see amendment 41 as a proportionate response to the concerns raised. It will allow Parliament to be sighted on the Government’s intentions in a way that does not render the bill inoperable and, on that basis, I ask colleagues to support it.

The Convener

I welcome Liam McArthur to the meeting and ask him to speak to amendment 11 and other amendments in the group.

You are still on mute, Liam; hold on a second. We are not quite there yet. We will suspend for five minutes to make sure that your sound is working.

The Convener

We will start again. I welcome Liam McArthur to the Finance and Constitution Committee’s meeting.

Liam McArthur (Orkney Islands) (LD)

Thank you, convener. I hope that that is better. I apologise—it was all going so swimmingly until you invited me to speak.

Amendment 11 would require ministers to prepare and publish a strategy on their section 1 powers to make provisions that correspond to EU law. I welcome Dean Lockhart’s and Patrick Harvie’s earlier intimations of support.

As others have observed, the bill hands over substantial decision-making powers to ministers. The powers might be necessary for Scots law to keep pace with EU legislation but, as things stand, only ministers get to decide whether—[Inaudible.] Meanwhile, Professor Aileen McHarg reminded the committee that it is a power, not a duty. Amendment 11 seeks to address that and the concerns that were raised by others at stage 1 by ensuring that ministers are accountable for their decisions. It would require ministers to set out their priorities in a strategy, allowing the Parliament the chance to scrutinise and approve it.

At a previous meeting, Mr Russell told the committee that people who were opposed to keeping pace powers were frustrating the will of the people. In this bill, he is reserving for himself, as a minister, the power to frustrate the will of the people and not to keep pace.

If a strategy is published, the rest of the country could at least get a glimpse into the thinking behind decisions not to use the power. We must certainly avoid any undue delay in keeping pace, but Parliament has a duty to find out what ministers are planning to ignore for keeping pace purposes, and to hear what ministers intend to regulate for.

All that power is in the hands of the minister. As of today, the minister is in a minority Government, which would have monopoly powers to trigger the keeping pace power. It therefore seems reasonable that ministers are not only held to account but—as the amendment provides—held to account in advance. I look forward to hearing what other members of the committee, as well as the cabinet secretary, have to say.

Michael Russell

I thank members for lodging their amendments. I make it clear—to repeat what I said at the outset—that I am keen that, in respect of this group and the previous group of amendments, we find a way forward together. I will therefore not indulge in name calling or other such exchanges with any members; we should try to find a way to make the provisions work for everybody. I accept that what we have so far is not right or enough, so let us see if we can get something better between now and stage 3.

I have listened to members’ views on the need for greater clarity, and I have lodged amendments 22 to 27. The Government supports amendment 41, in the name of Tom Arthur. I believe that there are problems with the approach of Liam McArthur and Patrick Harvie, so I ask them not to move their amendments. I ask them instead to be part of trying to get—I make this commitment—a better set of amendments together for stage 3. I do not support Dean Lockhart’s amendments. One of them in particular would, by and large—whether intentionally or not—wreck the whole process.

I start with the factors that will apply to any decision to use the powers. I agree with the Faculty of Advocates, which suggested in its submission that attempting to define criteria in the bill

“would be an impossible task.”

We need to find a thoughtful way to ensure that we know what the bill is for and that the power to use it is being effectively scrutinised. It is reasonable to ask that any Government sets out a statement of the factors that are taken into consideration in determining whether to use the powers in any situation, and that those reasons can be questioned, interrogated and, if necessary, contradicted.

The statement needs to cover things such as the overall intention to align and whether it would be in Scotland’s best interests; the impact on any future free trade agreements and whatever arises from the—woefully misbegotten—United Kingdom Internal Market Bill; consideration of the economic and social costs and benefits; and practical considerations such as the Government’s capacity to bring forward legislation.

Crucially—this is where I very much prefer Tom Arthur’s amendment to Dean Lockhart’s amendment—it is expected that the statement will need to be amended, possibly frequently in its early days, as developments in these areas continue to unfold. The Government must be open to that process and to listening to feedback from Parliament and others. Tom Arthur’s amendment specifically provides for such a statement to be revised from time to time, which is necessary, given the uncertainty around some of those factors. There needs to be flexibility in uncertain circumstances that are not of our making.

Amendment 11, in the name of Liam McArthur, is broadly in line with amendment 41, and I welcome that. However, the key difference between the two amendments is that Mr McArthur’s amendment also requires a statement of the process that ministers followed in determining whether to use the power. I am keen to engage with the Parliament, and I would want to arrive at a situation in which we all understood why the power was being used, but to go substantially further than that would add greatly to the burden.

I turn to the forward-looking report in which ministers would set out their intentions, which is addressed by amendments 22 and 23 in my name, amendment 11 in the name of Liam McArthur and amendments 44 and 45 in the name of Patrick Harvie. I think that we all agree that there should be a forward look, and that the Parliament should have greater visibility and knowledge of ministers’ intentions and should be able to scrutinise them; that is why I lodged amendments 22 and 23. However, the key difference between those amendments and the amendments that have been lodged by Patrick Harvie and Liam McArthur is that, under amendments 22 and 23, the forward-looking aspect would not relate specifically to a fixed time period but would be wider.

The problem with requiring a report that sets out a very specific time period is that the Government will already have been engaged in making decisions. Therefore, those producing a report would need to do a wider horizon scan and ensure that they know all the things that are in the process of being developed. That is crucial, and therefore to limit the time would be difficult and unhelpful.

Those are the other reasons why I think that Tom Arthur’s approach—and mine—is a better one.

There are some technical concerns—as there always are. Patrick Harvie’s amendment 45 requires a first forward-looking report to be prepared and laid within two months of the power to align being commenced. The problem with that is that the usual processes that need to be completed following stage 3 proceedings mean that commencement is not expected until March 2021. Scottish Parliament elections are scheduled for 6 May 2021, and the usual pre-election period restrictions will apply during the period leading up to that. Therefore, there would be a collision between a requirement of legislation and what will be happening electorally.

Mr Harvie has attempted to address the fact that there need not be a first report until the end of the first reporting period, but the bill does not say that there would not be one. Amendments 24 and 25, in my name, address that issue. Including them would mean that the report would be prepared at the end of the first reporting period.

Amendment 47 seeks to change the first reporting period to six months. That would take us only to 31 August 2021, which is too soon, in my view. We need to allow time for the process. If the Parliament returns in late May, we simply will not have enough time to understand what we are trying to do and how we should do it. It would be an onerous reporting cycle and would not be particularly practical.

Amendment 49 requires publication of reports in that cycle and within two months of the end of a reporting period. We have been quicker than that on the emergency continuity legislation, for example. I think that we could do better than reporting in two months.

I also want to draw attention to the issue of proportionality. I have to say that amendment 46, in the name of Dean Lockhart, is far from being proportional. Whatever the intent behind it, it would bog down the reporting requirements in a level of detail that could not have been intended by Mr Lockhart.

On average, more than 2,000 EU legal acts are produced every year. We cannot even begin to consider the capacity of the Government and Parliament to legislate to align with all of those. Many of them relate to matters that are only of interest to the EU internally—such as appointments to boards and the adoption of negotiating positions—and which we would never consider bringing into the law of Scotland. Dean Lockhart’s amendment requires us to, and to report on all those matters. That would be far from proportionate.

There is a lack of proportionality in the consultation period in Liam McArthur’s amendment 11, which I think is unintentional. Some technical aspects of the amendment are vague, but there is an onerous nature to their requirements. The broad intention of the amendment appears to be that the Government would be required to update its strategy every 12 months, and to lay it in draft for up to 120 days—that is four months of the year. If at the end of that period it decided that it was necessary to change the strategy, there would be a requirement to consult further. Carving out four months from 12 is far too much, and more time would be required if the strategy had to be reconsidered.

The practicality of Tom Arthur’s amendments and mine makes me prefer them to those from Patrick Harvie and Liam McArthur. However, I accept that there are elements in both sets of amendments that could be useful. Therefore, if the bill remains unamended or is amended by myself and Tom Arthur, I commit to further consultation with Liam McArthur and Patrick Harvie to see if we can bring in some elements of what they have proposed.

On groups 1 and 3, I am not resistant to a situation in which members feel that they have greater engagement and more opportunity to influence and that they can change what is being done and scrutinise it. If we can get that into the final bill, I will be pleased.

Patrick Harvie

Clearly, a complex, interconnected set of issues is under consideration, not only in this group but in relation to the wider context. Whether we eventually have a purpose on the face of the bill changes some of the issues that are under discussion in this group.

I do not think that any combination of the amendments in the group should ultimately be the position in the bill when we pass it. That said, it might be sensible for the committee to agree to something that the Government does not like rather than agree only to amendments that it likes, so that the Government has a practical requirement to try proactively to reach an agreement before stage 3, rather than play a more defensive game.

Amendments 28 and 41 would do more or less the same thing: they would place a requirement on the Government to produce a policy to tell us its position, rather than a requirement to seek parliamentary approval for its position. That is the fundamental weakness of those amendments. Amendment 41 also makes it clear that the Government does not even need to tell us its position before using the power. Therefore, neither of those amendments achieves what we need to achieve, which is parliamentary accountability for the decisions that are made, rather than merely reporting.

Those of us who support the basic objectives of the bill have a responsibility to try to strengthen it in ways that are workable. At the same time, the Government has a responsibility to recognise that the bill will not be acceptable to Parliament unless it is strengthened significantly in terms of accountability, rather than merely having ministers telling us what they want to do.

Liam McArthur’s amendment 11 goes substantially further and would mean that a strategy for the use of the power in the bill would need to be approved by Parliament. The cabinet secretary asks a reasonable question about whether the process that is set out in the amendment is too onerous and unwieldy, because of the time involved. It might be possible to refine the amendment and achieve what Liam McArthur is looking for but without the extremely time-consuming aspects. The issue needs further work but, as with Angela Constance’s amendments 6 and 10, something very like amendment 11 needs to be agreed to at stage 3.

My amendments in the group try to ensure not only that we shorten the one-year reporting period but that we require a report back as well as a look forward over the proposed six-month period. There would be no requirement for the reporting on the previous period to be consistent with what the Government expected at the outset of that period. If things changed between the Government’s setting out the intended use of the power for the next six months and its reporting back on how that six-month period went, that would be fine and perfectly understandable. The cabinet secretary is right that things will change and that the situation will be dynamic, so it would be wrong if we said that the report back had to achieve 100 per cent consistency with what was expected at the outset. Therefore, the right way to go is not to link the two; it is to say that the Government must look forward and then report after the fact.

Dean Lockhart’s amendment 46, which relates to decisions not to use the power, also intends to achieve something that I think needs to be achieved. However, my amendments do it better. As the cabinet secretary says, there will be many issues on which the Scottish Parliament and the Scottish Government would never consider using the power. My amendments would require the Government only to look forward or to report back on the use of the power that has been under consideration—that is a more proportionate way to achieve the objective.

Therefore, I will move some of my amendments in the group. I am not yet convinced on the other amendments. If Liam McArthur’s amendment 11 is moved, I will probably abstain at this stage, but something very much like it needs to be agreed to at stage 3. If the Government is willing to work with Opposition parties, we will have a group of amendments that lead to a much stronger bill. However, I caution the cabinet secretary that, if he does not work proactively with Opposition parties to seek that agreement, we will probably end up at stage 3 with another messy group of amendments and the risk of passing an incoherent bill.

Dr Alasdair Allan (Na h-Eileanan an Iar) (SNP)

I will comment on amendment 11, in the name of Liam McArthur, and amendment 44, in the name of Patrick Harvie. I will make some of the same points about proportionality that Tom Arthur made in speaking to amendment 41, which I support.

I understand the motivation behind amendment 11, and I sympathise with the need to publish a strategy timeously. However, as others have pointed out, with 2,000 or so EU directives, I am not convinced that amendment 11 represents a proportional approach. I am also unsure how the envisaged reporting period would sit with the reporting periods in the bill.

Likewise, I sympathise with the intentions behind amendment 44 in seeking to align with reporting periods. However, again, it would seek to put too much in the bill. For instance, it would require ministers to anticipate what regulations are likely in the forthcoming six-month period, with what looks like an arduous requirement for detail.

I understand the motivation for those two amendments, but they put too much into the bill.

Alex Rowley

I am not sure that amendment 41, in Tom Arthur’s name, goes far enough to recognise the importance of the role of Parliament. Therefore, I am of a mind to support Liam McArthur’s and Patrick Harvie’s amendments. I will wait to see whether they move them, but it is important that the cabinet secretary gets a clear message from the committee that the role of Parliament needs to be recognised and that we need to go further than what either he or Tom Arthur proposes.

The Convener

I call Dean Lockhart to wind up the debate and to say whether he will press or withdraw amendment 28.

Dean Lockhart

I welcome the cabinet secretary’s recognition of the need for more transparency on the use of these significant powers. My amendment 28 and amendment 11, in the name of Liam McArthur, reflect concerns that were raised during the committee’s evidence taking at stage 1. A number of stakeholders called for the Scottish Government to publish the factors that it would take into account in using the keeping pace powers and to take representations on that strategy. It is not overly burdensome on the Scottish Government to do that.

Amendment 46 in my name, which concerns any future EU laws that the Scottish ministers decide not to follow, reflects concerns raised by the Law Society of Scotland. I am happy to work with the cabinet secretary on simplifying and considering the definition of which laws should be reported on with regard to the keeping pace powers not being used. However, as a matter of principle, I want that reporting requirement to be included in the legislation in some form.

I will press amendment 28, but I will not press amendment 46 at this stage.

The Convener

The question is, that amendment 28 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 28 disagreed to.

Section 2—Limitations on the section 1(1) power

The Convener

Amendment 29, in the name of Murdo Fraser, is grouped with amendments 4, 30 to 32, 13, 1, 14, 34, 5, 2 and 3.

Murdo Fraser (Mid Scotland and Fife) (Con)

I have lodged three amendments in this group: amendments 29, 32 and 34, which all seek to clarify the use of the keeping pace power in section 1(1). They have no substantial policy impact; they would merely provide clarification, in the bill, on the Scottish ministers’ ability to exercise the power. Dean Lockhart will speak to other amendments in the group.

Amendment 29 would clarify that the use of the keeping pace power in section 1 will be subject to the restrictions and limitations in the Scotland Act 1998, as amended, so that any use of the power is consistent with the reserved and devolved settlement in the 1998 act. The bill would therefore make clear that nothing can be done in relation to reserved areas—that might well be implied, but it would do no harm to make the limitation explicit.

Amendment 32 would clarify that the section 1 keeping pace power could not be used to

“modify, directly or indirectly, the fiscal framework”,

with the term “fiscal framework” being defined in amendment 34. I am sure that that would not be the Scottish Government’s intention in using the keeping pace power, but having such provision in the bill would be an important safeguard, to ensure that the matter is beyond doubt.

I move amendment 29.

The Convener

I welcome Mike Rumbles and invite him to speak to amendment 4.

Mike Rumbles (North East Scotland) (LD)

I am pleased to be here; I will speak only to amendments that I lodged.

Amendment 1 and consequential amendments 2 to 5 are very straightforward. I have been concerned about the Scottish Government’s enthusiastic—let me put it that way—use of regulations in making the law of Scotland. Of course there is a place for using regulations. For example, when fees need to change because of inflation or when minor adjustments to statute law are needed, it makes sense to use regulations to update our laws.

However, that is precisely my point: regulations, as secondary legislation, should be used only in routine circumstances. I think that we all need to be reminded of that basic principle. If major changes are to be made to our laws, the proper place to do that is in primary legislation. I am always surprised to have to make that point. However, I suppose that I am not that surprised, because the predilection for using secondary legislation rather than primary legislation has not by any means been the sole preserve of the current Scottish Government.

I hope that the minister, Mike Russell, will remember, if he casts his mind back far enough, that both he and I often railed against ministers in the Labour-Liberal Democrat coalition Government for using secondary legislation when primary legislation was far more appropriate. I remember when Mike Russell was a rather articulate and vocal advocate for using secondary legislation appropriately.

Governments of all colours seem to find it incredibly convenient to use regulations when they should be using primary legislation. The single purpose of amendment 1 and my four consequential amendments is to limit the power of Scottish ministers to using regulations for the purposes for which they were intended. It has been my experience since I was first elected to the Scottish Parliament 21 years ago—as Bruce Crawford was, too—that Scottish ministers of all colours do not like to have their powers limited. That is a truism, is it not?

The purpose of amendment 1 and consequential amendments 2 to 5 is simply to exclude the major provisions in section 4 from changes by regulations and ensure that, if and when changes are needed, they are made by primary legislation, which is why section 2 needs to be added to. Those changes are about abolishing a function of an EU entity or public authority, changing that function, creating or widening the scope of a criminal offence and creating or amending a power to legislate.

I trust that members will agree that those are major issues and, that being the case, that primary rather than secondary legislation should be used. It is not enough to imply, as the bill does, that those issues are important. The minister believes that they are important. Why? Because they are to be dealt with by the affirmative procedure and not the negative procedure. If he believes that, everyone must recognise that the minister accepts that those issues are important. If I may say so, the minister needs a gentle nudge; we need to gently nudge him away from the affirmative procedure in secondary legislation to where the issues should be dealt with, which is in primary legislation.

Finally, if there is an objection to dealing with those important issues in primary rather than secondary legislation because of time constraints, I can put any such concern to rest. All of us know all too well that the EU moves very slowly indeed. If the EU wanted to change any of those major issues that I have highlighted in my amendments, it would certainly take many months, if not years, to change them, so there would be plenty of time for the Scottish ministers to get primary legislation through the Scottish Parliament, as they should do.

I hope that members will recognise that any argument against my amendments on the grounds of the need for speed and flexibility from the Scottish Government simply does not hold water. I emphasise that this is not a party-political issue; it is simply about ensuring that we use secondary legislation for the purposes for which it is intended. I have made a case for my amendment 1 and its consequential amendments and I hope that the minister accepts it and the spirit in which I have argued for it. I hope that committee members will see its validity too.

The Convener

Thank you for reminding me that I have been here for 21 years. I guess that that makes me a veteran like yourself.

I call Dean Lockhart to speak to amendment 30 and other amendments in the group.

Dean Lockhart

My amendments 30 and 31 would prevent the use of the keeping pace powers by the Scottish ministers in circumstances where secondary legislation with no or limited parliamentary scrutiny could otherwise be used to implement significant new policy proposals that had no equivalent in retained EU law or to make provision that required a significant change to Scots law or Scottish Government policy.

The amendments are not intended to be wrecking amendments; I believe that they entirely reflect evidence that was heard at the committee. For example, paragraph 68 of the committee’s report recommends the Delegated Powers and Law Reform Committee’s view that

“primary legislation is the most appropriate vehicle for domestic law to implement significant new policy proposals that have no equivalent in retained EU law”,

and my amendment 30 reflects that wording.

Amendment 31 also reflects concerns that the Law Society of Scotland and the Faculty of Advocates expressed that the bill as drafted provides inadequate powers for the Parliament to scrutinise substantial policy changes or significant changes to Scots law.

As a matter of parliamentary principle, I agree with what Mike Rumbles has just said. It is not appropriate for the Scottish ministers to have powers to introduce significant changes to policy or major changes of Scots law without parliamentary or stakeholder scrutiny. That is why we will support Mike Rumbles’s amendments 1 and 4, which seek to remove a list of significant provisions from the keeping pace powers and from being subject to the affirmative procedure.

We will be happy to support the cabinet secretary’s amendments 13 and 14.

The Convener

The cabinet secretary will speak to amendment 13 and other amendments in the group.

Michael Russell

I will begin with the amendments in the group that were lodged by Murdo Fraser and Dean Lockhart. As the committee is, I think, fully aware, the main purpose of the power in part 1 of the bill is to maintain the Scottish ministers’ ability to make subordinate legislation where appropriate in order to keep devolved Scots law aligned with EU law as it develops. It will also allow for the refining and updating of retained EU law as appropriate within devolved competence. That is largely a replacement of the power that we lost at the end of the EU exit transition period.

Section 2 includes certain circumstances in which the power to align cannot be used. The restrictions cover a number of key policy areas, including imposing or increasing taxes, creating “a relevant criminal offence” and establishing a new Scottish public authority. Those aspects are in the bill. To state in the bill that the power in section 1(1) cannot be used to legislate for reserved matters is, at best, redundant and would set an unhelpful legal precedent; at worst, if it seeks to expand on the competence restrictions that are already provided for by the Scotland Act 1998, it is entirely inappropriate.

Section 2(1)(h) prevents the section 1(1) power from modifying the Scotland Act 1998, to reflect the principle that certain matters are of such constitutional significance that changing them using that power would be inappropriate. However, because an act of the Scottish Parliament cannot make provision that relates to reserved matters—as provided for in schedule 5 to the Scotland Act 1998—it is not clear what amendment 29 seeks to achieve.

Amendment 32 is similarly unnecessary or entirely inappropriate. The fiscal framework is an agreement between the Scottish and UK Governments, which determines how the Scottish Government is funded. By mutual agreement between the parties, the agreement will be reviewed after the Scottish Parliament elections in 2021. It does not make any sense to include a provision in the bill that the power under section 1(1) cannot modify that agreement. I am not clear what it is trying to achieve, except to restate the obvious. It follows that attempting to define the agreement in an act of the Scottish Parliament, as amendment 34 seeks to do, should also be resisted.

In relation to amendments 30 and 31, as I said during stage 1, the Scottish Government would always use primary legislation where that is the most appropriate vehicle for legislative proposals. Possible examples might be were the EU to introduce a law in an area in which we had gained new competence or in areas of major innovation. However, the Government remains of the view that flexibility should be maintained, because primary legislation would not necessarily be appropriate in every situation.

As the committee is aware, the bill is intended for circumstances that fall short of justifying primary legislation and it recognises the overall limit of legislative time available to the Parliament to align with EU law that which would previously have been achieved by the European Communities Act 1972. Therefore, the bill provides flexibility, so that the most appropriate legislative vehicle can be used, depending on specific circumstances, while allowing alignment of EU law where that is in the best interests of Scotland. Attempting to limit the scope of the power to exclude “significant new policy proposals” would be neither practical, given the significance of differences involved, nor possible—by definition—in the bill.

The concept and content of retained EU law are already complex. A limitation such as that proposed in those amendments would create further uncertainty and inflexibility in the ability to use the powers. Similar concerns apply to amendment 31, which refers to provision that would constitute a “significant change”.

There are huge difficulties with the terms in the amendments: “significant new policy proposals”; “new policy” areas; and “significant change to ... policy”. Those terms will all mean different things to different people. Accepting the amendments would undermine the entire purpose of the section 1(1) power, and one wonders whether that is their purpose. Their likely effect would be to proliferate, unnecessarily and disproportionately, the number of bills that would be required to avoid legal risk, with undesirable implications for the resources of the Government and the Parliament.

For all those reasons, and many more, I ask the committee to reject those amendments if they are moved.

I turn to Mr Rumbles’s proposals. The limitations set out in section 2 broadly replicate the restrictions that apply to the power in section 2(2) of the European Communities Act 1972; they also reflect the principle that certain matters are of sufficient importance or constitutional significance that changing them by using the power under section 1 of the bill would be inappropriate. The Government therefore believes that the limitations set out in section 2 comprise a proportionate balance. That is, of course, what we also believed of section 13 of the previous continuity bill.

Although I accept that Mr Rumbles has a long-standing objection to regulation, I know that he has a similar objection to the current continuity bill because he moved an amendment to remove section 13 in its entirety from the original continuity bill. I accept that Mr Rumbles recognises the uncertainty about when the power under section 1(1) would be used. That is an unfortunate consequence of Brexit, which I understood he opposed. However, it is precisely because of that uncertainty that the Government considered that such flexibility in the power is needed, to ensure its workability. In recognition of the width of the power, and where regulations under section 1(1) create or amend a power, the Government is clear that the affirmative scrutiny procedures should apply, as we recognise that the Parliament will want full assurance that legislative sub-delegation is done in an appropriate manner.

In drafting the bill, and particularly in considering appropriate limitations on the use of the power, we gave considerable thought to what was balanced and proportionate. That will be an entirely legitimate debate to continue as the bill goes through the legislative process. The significant additional limitations on the power to align that are proposed in amendment 1 would not help that matter; they would simply restrict it unduly. They would also undermine all our ability to respond effectively and proportionately to the challenge of maintaining the highest standards outside the EU, which I understood to be an objective of the Scottish Liberal Democrats.

The bill provides that the provisions that amendment 1 proposes should be restricted are to be subject to the affirmative procedure, which is balanced and proportionate. That is also the view of the Faculty of Advocates in its response to the call for evidence at stage 1. It said:

“Section 4(2) of the Bill lists a number of purposes for which legislation will require the affirmative procedure. We consider those are appropriately identified as requiring the affirmative procedure because of the importance of the subject-matter. There are no additional categories which suggest themselves as requiring the affirmative procedure.”

I agree with that view and am pleased that it supports the outcome of the considerable thought that went into drafting a balanced and proportionate approach. Amendment 1 fails to recognise that. Alas, Scotland is no longer part of the EU. The amendment completely undermines the purpose of the power to align and risks primary legislation being required for technical matters to ensure that our domestic law can operate effectively.

Amendments 2 to 5 are consequential on amendment 1. I cannot lend any more support to them than I can to amendment 1.

Finally, the amendments in my name are technical ones and have been made at the request of the Equalities and Human Rights Commission. As drafted, section 2(1)(i) of the bill provides that the power to align with EU law cannot be used to

“modify the Equality Act 2006 or the Equality Act 2010.”

Section 2(2) qualifies the limitation on the modification of equalities legislation if

“alternative provision is made in the regulations that is equivalent to the protection being removed or the provision being modified.”

Having section 2(2) apply to the 2006 act is intended to provide that, should provision in that legislation not be reserved, the protection afforded to it by section 2(1) would not prevent the removal of a protection, as long as equivalent alternative provision is made.

However, the Equalities and Human Rights Commission has expressed a desire that section 2(2) should not apply to the Equality Act 2006. The Government does not consider those amendments to be essential. Following discussions with the commission, we are happy to lodge technical amendments to provide that the qualification at section 2(2) of the continuity bill will no longer apply to the 2006 act. If that is agreed to, the result of those amendments will be that the power under section 1(1) cannot be used to modify the 2006 act in any way. I ask the committee to support those technical amendments.

John Mason (Glasgow Shettleston) (SNP)

The cabinet secretary has already touched on all the amendments in the group. I probably would have intervened on Murdo Fraser if that had been possible, and I would invite him to intervene on me if that were possible, because, frankly, his amendments 29, 32 and 34 puzzle me. Murdo Fraser is normally quite a logical person, but his amendments seek to set out that the Government or the minister cannot do something that is reserved. That is already absolutely clear in the law.

It is a political question—many of us would like to see different powers not reserved, but every member of the Parliament totally accepts the fact that certain powers are reserved. The Presiding Officer has a responsibility to ensure that we do not legislate in areas that are reserved. I express my real puzzlement as to why Murdo Fraser considered that it was necessary to lodge an amendment to say that we could not get involved in reserved matters. We all know that; that is already perfectly clear in legislation.

Similarly, as has been said on amendment 32, the fiscal framework is largely an agreement between the Governments, and it would become problematic if we try to define it too tightly. We know that a review will take place, which could be quite wide ranging. I am keen that both the Scottish and UK Parliaments should scrutinise the fiscal framework review. It should not be a stitch-up between the two Governments. I do not consider that this bill is the place for amendment 32 and do not see what it adds to what we already expect to happen.

The Convener

I see that Dean Lockhart wants to come back in. Do you have a question, or do you want to make a stronger point?

Dean Lockhart

My request was to do with my amendments, so there is no need for me to come in at this stage.

The Convener

Okay. I call Patrick Harvie.

Patrick Harvie

I would like to place on record why I will oppose all the amendments in this group with the exception of the two technical amendments, 13 and 14.

Mike Rumbles makes a fair point that Government generally likes to keep power to itself, and the use of secondary legislation is sometimes one means by which it does that, and that Parliament, regardless of which political party is in office at any one time, often seeks to curtail or constrain the powers that Government has taken to itself. However, Parliament should do so in a coherent way, and I fear that Mike Rumbles’s amendments do so in a scattergun way, with perhaps a lack of respect for the basic principles of the bill. Most MSPs, and the committee, have supported those principles, but some amendments in this group, which could fairly be described as wrecking amendments, seek to undermine them.

As for Murdo Fraser’s amendments, particularly the desire to restate the obvious fact of the reservations of powers in the Scotland Act 1998, I am not at all inclined to restate such an unhappy fact and do not think that we need to put those reservations in the bill.

Tom Arthur

I echo the cabinet secretary and John Mason’s comments. Amendment 29, in the name of Murdo Fraser, is superfluous. In all my experience of legislating in this place, I do not think that I have ever had to specify that we would not legislate on a reserved matter. That is a given. I hope that I am wrong, but I suspect that a political motive might be behind the amendment. Similarly, I will not support amendment 32, which seeks to define the fiscal framework in the bill.

On amendment 31, in the name of Dean Lockhart, I simply note that we have not yet agreed on the long title of the bill. This is a continuity bill and, as such, it has to be dynamic and recognise how EU law will evolve, rather than try to freeze it at the point of retained law. For that reason, I cannot support amendment 31.

I recognise what Mike Rumbles is attempting to do, but the measures that he proposes, along with Dean Lockhart’s amendments in this group, seek to render the bill if not inoperable then close to it. For those reasons, I cannot support those members’ amendments.

I will, however, support the technical amendments in the name of the cabinet secretary.

Alex Rowley

I accept the arguments that the cabinet secretary makes about Murdo Fraser’s amendments: I do not think that there is any need for them.

The fiscal framework that the Scottish Government negotiated must go down in history as an example of how not to negotiate and how to get a bad deal, so the sooner we can change the fiscal framework, the better. Irrespective of that, I agree that there is no need to include a provision on the framework in the bill.

When I heard Mike Rumbles eloquently argue his case, it reminded me of Tavish Scott coming to a Local Government and Communities Committee meeting to move an amendment. In doing so, he acknowledged that, when he was in Government, he had argued against the very same measure. It seems that members who are in Government take a different view from when they are in Opposition. The problem with what Mike Rumbles has said is that he goes too far the other way in seeking to strike a balance. We need the flexibility, so I would not be able to support his amendments.

Likewise, Dean Lockhart’s amendments take away that flexibility, so I would not support them.

I am happy to support the cabinet secretary’s technical amendments.

The Convener

Mike Rumbles wants to come back in. You have already had a chance to speak, but I will let you come back in to make a short comment, if you wish to do so.

Mike Rumbles

Thank you, convener—I appreciate being called. I want to respond briefly to Patrick Harvie and Alex Rowley’s comments. I do not disrespect the bill at all; I support the bill, and I would like to vote for it. I think that Patrick Harvie misunderstands my point of view. I voted against the previous continuity bill because I supported the direction of the Presiding Officer, who said that parts of it were not legal. I would not support such a bill—I am a parliamentarian. That is why I am focused on that aspect, and it is why I would not support that bill. For the same reasons, I have lodged my amendments at this stage. They strengthen Parliament, as against the Executive.

I heard Alex Rowley say that I am going too far with my amendments—they do relate to major issues—and Patrick Harvie is generally supportive of the principle. I am not precious about it—I want us only to do things properly and to respect Parliament properly, rather than the Executive. Prior to stage 3, if my amendments are not successful today—as I say, I understand that people think that I have gone too far with my proposals—I will be happy to talk to those members and to propose amendments that they would, I hope, support at stage 3 if they really are supportive of the principle that I am trying to argue.

The Convener

I call Murdo Fraser to wind up, and to press or withdraw amendment 29.

Murdo Fraser

I will just wind up briefly on this group, as we have had a lengthy discussion on the matters that the amendments cover.

I have listened with great interest to what the cabinet secretary and committee colleagues have said. They did not seem to have any substantive argument against amendment 29 and my other amendments, other than that they restate the current law and are therefore unnecessary on that basis. The biggest offence that my amendments cause is simply one of repetition: I would be repeating in the bill what the understanding of the law is. I do not think that that does any harm; I think that it is useful to remind people of the context of the bill and of the exercise of its powers. On that basis, I press amendment 29.

The Convener

The question is, that amendment 29 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 29 disagreed to.

Amendment 4 not moved.

Amendment 30 moved—[Dean Lockhart].

The Convener

The question is, that amendment 30 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 30 disagreed to.

Amendment 31 moved—[Dean Lockhart].

The Convener

The question is, that amendment 31 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 31 disagreed to.

Amendment 32 moved—[Murdo Fraser].

The Convener

The question is, that amendment 32 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 32 disagreed to.

Amendment 13 moved—[Michael Russell]—and agreed to.

Amendment 1 not moved.

Mike Rumbles

For your information, convener, I will not move amendments 2, 3 or 5 when we come to them.

The Convener

Okay, but I will still have to ask you when we get there, I am afraid.

I suspend the meeting for a five-minute comfort break.

The Convener

Amendment 33, in the name of Dean Lockhart, is grouped with amendments 38, 39, 8, 9, 40 and 42.

Dean Lockhart

My amendments in this group seek to increase parliamentary and stakeholder scrutiny of the keeping pace powers, as recommended in evidence that we heard in the committee.

Amendment 38 seeks to increase parliamentary scrutiny by providing that the Parliament has the ability to consider the relevant procedure that should apply to regulations that are brought forward by the Scottish ministers and, should the Parliament consider it necessary, agree that a different procedure should apply to those regulations. In particular, the Parliament would be able to require that regulations be subject to the negative procedure, as set out in the bill, the affirmative procedure or the super-affirmative procedure, or that the proposals should instead be subject to primary legislation.

Amendments 39 and 42 set out the additional procedures that would apply if the Parliament decided that the super-affirmative procedure should apply. They include the requirement to undertake impact assessments and stakeholder consultations. Those amendments are based on submissions from the NFUS and other stakeholders. I remind members that a duty to consult was included in section 15 of the previous EU continuity bill, as drafted. I simply aim to restore the duty to consult.

At stage 1, the committee heard evidence that section 1 would transfer unprecedented power to the Scottish ministers to legislate by way of secondary legislation. The committee’s adviser referred to those powers as substantial Henry VIII powers. Professor McHarg told the committee that

“secondary legislation is always sub-optimal”

and that

“the provisions in the bill are not justified in respect of their current breadth.”—[Official Report, Finance and Constitution Committee, 26 August 2020; c 6, 10.]

Amendments 38 and 39 seek to address those concerns and restore power back to the Scottish Parliament to choose the appropriate level of scrutiny for regulations that the Scottish ministers bring forward under section 1.

My other amendments in the group are consequential to those amendments.

We will support Alex Rowley’s amendments 8 and 9, which also seek to increase scrutiny of the regulations by increasing consultation and requiring the Scottish ministers to lodge an explanatory statement in respect of the regulations with the Scottish Parliament.

I move amendment 33.

Alex Rowley

My amendments were lodged as a result of concerns that were set out by the Law Society of Scotland. Amendment 8 paves the way for new subsection (1A), and amendment 9 contains new subsection (1A).

Amendment 9 states:

“the Scottish Ministers must not lay before the Scottish Parliament draft regulations for approval unless they have ... consulted in accordance with subsection (1B) ... had regard to any representations that are made to them within 60 days of the date on which the copy of the proposals is laid before the Parliament ... laid before the Parliament an explanatory statement setting out ... details of the consultation undertaken ... a summary of any representations received”

and

“the changes (if any) made to the proposals”.

New subsection (1B) requires the Scottish ministers to

“lay before the Parliament a document setting out their proposals ... make such a document publicly available ... consult ... such persons or organisations as appear to them to be representative of interests substantially affected by the proposals”.

That also applies to bodies and “such other persons” as the Scottish ministers may think appropriate. That is important, because the EU law with which the Scottish ministers wish to align will not have been subject to any democratic input in the Scottish Parliament or, for that matter, in the UK Parliament. It might be possible for the Scottish Government or the UK Government to make representations or lobby the EU, but that is not the same as direct democratic engagement with commissioners, members of the European Parliament or the EU institutions.

Patrick Harvie

Alex Rowley’s amendments in the group are a little bit of overkill. Essentially, they take a whole group of measures and in effect make them super-affirmative by default.

Dean Lockhart’s amendments seek to achieve something that is important, but they do that in an unwieldy way. The cabinet secretary might say that they are entirely unworkable and unnecessary. They are unwieldy, but they are trying to achieve something that should be considered further at stage 3. Some form of sifting mechanism, and some type of requirement on Government to indicate what level of consultation has taken place, might be achievable.

I fear that those amendments, in the form in which they appear before us today, are unwieldy and perhaps unworkable. I nevertheless urge the cabinet secretary, in responding to the amendments in this group, to indicate whether he would be open to other amendments that would seek to achieve something of the type that Dean Lockhart’s amendments in this group are aimed at achieving.

The Convener

You have the chance to do so right now, cabinet secretary.

Michael Russell

I hope that I will be able to satisfy Alex Rowley and Patrick Harvie, although I do not think that I will be able to satisfy Dean Lockhart. The Scottish Government considers that the scrutiny procedures that have been chosen for the power represent a good balance between allowing for effective and thorough scrutiny and ensuring that there is flexibility. Flexibility is important, as it would enable us to respond quickly where legislative changes are needed.

As I set out this morning, we are committed to working with the Parliament to agree an appropriate and proportionate decision-making framework. That is a work in progress, and I think that we are all indicating that we want to get to stage 3 having done that.

It remains the Government’s view that using such a framework to provide for an appropriate level of consultation at the earliest stage of policy development is preferable to devising and prescribing procedural requirements to take effect at the end of the process. We are committed to publishing information on the factors that will be considered when deciding whether alignment is appropriate. I have made clear the Government’s support for amendment 41, in the name of Tom Arthur, which will require us to publish a statement. I have also indicated that the amendments from Liam McArthur and Patrick Harvie in the previous group, and elements within them, could be worked on in that regard.

I lodged amendments 22 to 27 to provide that the reporting requirements that are set out in section 7 should include a requirement to set out ministers’ intended future use of the power. I have lodged amendment 20, which is in group 7, to provide that, alongside an instrument or draft that is laid using the power, ministers must make a statement that confirms whether there has been any consultation with local authorities and other persons, and if there has been, they must set out the details of that consultation.

The approach that amendment 20 sets out recognises the importance of consultation but, rather than being prescriptive, it allows for a proportionate and appropriate approach. However, it will expose to parliamentary scrutiny the nature of any consultation that has or has not taken place, and ministers will have to justify any decisions in that regard. There is a strong commitment to consultation, which I know is an issue that Alex Rowley is concerned about.

We think that those measures, taken together with what I have said and the balanced scrutiny procedures, provide for a proportionate response and a proportionate balance. We agree that we should work together, so if Alex Rowley wishes to pursue further the question of ensuring that there is additional sanction and oversight, I am happy to discuss that as we move to stage 3. I think that we are pretty close to a solution, but if there is more that we need to do, I am happy to discuss the matter with him—and with Patrick Harvie, if he wishes to be part of that process.

Patrick Harvie correctly predicted that I would find Dean Lockhart’s proposal unwieldy and overly burdensome. It is a rigid, inflexible system, and in some cases it might lead to 68 days of additional scrutiny on proposals that have already been made known to Parliament and consulted on in the policy development process. In my view, that would be unreasonable.

In addition, there would be no flexibility in such a system at all. If urgency was ever needed—this year has shown us that there are circumstances in which urgency is sometimes needed—it would simply be impossible under the amendments. I urge Alex Rowley not to move his amendment. I think that we are moving to an agreement in this area, and I am happy to do more. I urge Dean Lockhart not to press or move his amendments, which are wholly disproportionate to the issue that we are trying to resolve.

The Convener

I ask Dean Lockhart to wind up and indicate whether he wishes to press or withdraw amendment 33.

Dean Lockhart

I thank the cabinet secretary for his response. However, his response mainly dealt with reporting requirements in relation to how the Scottish ministers will use the powers, as opposed to the question of giving Parliament the power to consider the procedure that is applicable to regulations that are laid by ministers, thereby giving the Scottish Parliament additional powers of scrutiny.

I recognise that the provisions that I propose might be unwieldy, but there is no requirement that Parliament scrutinise every set of regulations that is made by the Scottish ministers. It is a residual power that would be available to Parliament it if was thought that the procedure that had been applied by the Scottish ministers did not allow sufficient scrutiny by Parliament, or provide enough opportunity to consult stakeholders on the process.

Before I decide whether to press my amendment, I should be grateful if the cabinet secretary would indicate whether he would welcome a discussion between now and stage 3 about providing for a sifting mechanism, which would perhaps deal with his points about urgency, and address my concerns about increasing Parliament’s power to scrutinise regulations.

The Convener

That is unusual but, in the interests of trying to find a consensus, I will allow the cabinet secretary to come back in.

Michael Russell

Yes, I am always open to discussions about any element of the bill. If there is a need to discuss sifting mechanisms with Dean Lockhart, I would be happy to do so.

The Convener

Dean Lockhart, are you pressing amendment 33?

Dean Lockhart

For the sake of understanding the views of committee members, I will press amendment 33.

The Convener

The question is, that amendment 33 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 33 disagreed to.

Amendment 14 moved—[Michael Russell]—and agreed to.

Amendments 34 and 5 not moved.

Section 2, as amended, agreed to.

Section 3—Duration of the section 1(1) power

The Convener

Amendment 15, in the name of the cabinet secretary, is grouped with amendments 35, 16, 36 and 37.

I remind members of the note that was issued on Monday to say that amendments 35 and 15 appear in the wrong order in the marshalled list and the grouping that were issued last week. We apologise for that error and for any inconvenience caused. Amendment 15 will be taken before amendment 35. I also refer members to the procedural information noted on the groupings that amendments 15 and 35 are direct alternatives, which means that a decision will be taken on both amendments in that order. If both amendments are agreed to, amendment 35 will succeed amendment 15, and amendment 15 will cease to have effect. If amendment 16 is agreed to, I cannot call amendments 36 and 37 because they will be pre-empted.

I am sorry if all that was a bit convoluted. I now ask the cabinet secretary to move amendment 15 and speak to all the amendments in the group.

Michael Russell

On the contrary, convener, it was perfectly clear.

This is an important group of amendments. In the bill as introduced, the length of the sunset period was an attempt to provide some stability during all the current uncertainty, to avoid the potential need for numerous bills in a short space of time, to allow time for the Scottish Government to assess the impact of Brexit and to determine what more permanent legislative solutions might be needed. I am still of the view that the uncertainty and lack of clarity since 2016 means that the powers should be available, but I have given thought to the Delegated Powers and Law Reform Committee’s recommendations in its stage 1 report and have lodged an alternative amendment that, I believe, addresses the concerns raised, although the solution is not exactly the same.

Amendments 15 and 16 are intended to restrict the maximum duration of the section 1(1) power to a total of 10 years from commencement, while reducing the initial duration of that power to a period of six years. I am not going to get involved in speculation about what might happen within the 10-year period that might affect that; I am simply going to address the legislation as it is now and as it might be.

Amendment 16 allows the initial six-year period to be extended, subject to the approval of Parliament, on one or more occasions. That power may not be used to extend the duration of the section 1(1) power so as to exceed the overall maximum of 10 years. That means that no single extension, or combination of extensions, may amount to more than four years in total. That will afford the incoming 2026 Parliament, if it remains a devolved Parliament, the opportunity to decide in its first year whether the power to align is still necessary. It will also ensure that the power is available to the 2021 Parliament, and will therefore provide the stability that was sought by introducing the power. I invite the committee to support amendments 15 and 16.

Amendments 35 to 37, in the name of Murdo Fraser, would restrict the default duration of the power under section 1(1) to a period of just three years, with scope to extend that period twice using affirmative regulations for separate periods of up to one year. That means that the power would be available for an absolute maximum of five years from commencement. Given the instability and on-going uncertainty arising from our shambolic exit from the EU, I do not believe that it will be in Scotland’s best interests to curtail this ability. Murdo Fraser’s amendments do not take account of the circumstances in which we find ourselves, nor do they take account of the recommendations of the DPLRC. The Scottish Government cannot therefore support those amendments.

I move amendment 15.

Murdo Fraser

Amendments 35 to 37 seek to restrict the duration of the section 1(1) power—the keeping pace power—and are similar to amendments that I introduced during the earlier continuity bill, which were supported by the committee at stage 2 of that bill. The sunset provisions in the current bill are much more wide ranging than those in the previous continuity bill.

I listened with interest to what the cabinet secretary had to say about amendment 15. The cabinet secretary and I agree that the 10-year period in the bill as drafted for the duration of the power is too long. The cabinet secretary proposes to reduce that period from 10 years to six years, but that does not go far enough. I would prefer the proposal in amendment 35, which seeks to restrict the duration of the power to three years initially, including a power to extend that.

Amendment 36 seeks to restrict the power of the Scottish ministers to extend the keeping pace powers by regulation to one year, rather than five years, and amendment 37 seeks to restrict any further extension to one year, rather than five years; the extension would be for three years and then for one year and one year, with the potential for five years altogether. If that is deemed to be insufficient, the Scottish Government of the time could come back to Parliament with new legislation that seeks to extend the keeping pace power. However, it seems to me that a five-year period is more than sufficient for the very wide-ranging powers to introduce secondary legislation that are being given to the Scottish Government by Parliament.

I cannot support the cabinet secretary’s position in amendment 15 and I cannot support his amendment 16, as it introduces a timeframe that is too long and too wide ranging.

In the interests of giving more control to Parliament than to ministers, I will move amendment 35.

Patrick Harvie

I place on record my support for amendments 15 and 16 and my opposition to the other amendments in the group.

There is a good case for limiting the time compared to what is currently in the bill, but the cabinet secretary’s suggestion of six years with modest possible extensions is a reasonable one. I place on record my hope that, before we reach the end of that period, we will be well into negotiating Scotland’s accession to the EU in our own right.

Michael Russell

The argument is clear and obvious. We require a reasonable period of time, and the definition of “reasonable” is longer than the one that Murdo Fraser suggests.

Amendment 15 agreed to.

Amendment 35 moved—[Murdo Fraser].

The Convener

The question is, that amendment 35 be agreed to. Are we agreed?

Members: No

The Convener

There will be a division.

For

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The Convener

The result of the division is: For 3, Against 8, Abstentions 0.

Amendment 35 disagreed to.

The Convener

I remind members that, if amendment 16 is agreed to, I cannot call amendments 36 and 37 as they will be pre-empted.

Amendment 16 moved—[Michael Russell].

The Convener

The question is, that amendment 16 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)

The Convener

The result of the division is: For 8, Against 3, Abstentions 0.

Amendment 16 agreed to.

Section 3, as amended, agreed to.

After section 3

Amendments 38 and 39 not moved.

Section 4—Scrutiny of regulations under section 1(1)

The Convener

Does Alex Rowley wish to move amendment 8?

Alex Rowley

I am happy to take up the cabinet secretary’s offer of further discussion before stage 3, so I will not move the amendment.

Amendment 8 not moved.

Amendments 9, 2 and 3 not moved.

The Convener

Does Dean Lockhart wish to move amendment 40?

Dean Lockhart

No. I will take up the cabinet secretary’s offer to discuss the possibility of some form of sifting mechanism at stage 3.

Amendment 40 not moved.

Section 4 agreed to.

After section 4

Amendment 41 moved—[Tom Arthur].

The Convener

The question is, that amendment 41 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Harvie, Patrick (Glasgow) (Green)

The Convener

The result of the division is: For 10, Against 1, Abstentions 0.

Amendment 41 agreed to.

Section 5 agreed to.

Section 6—Explanatory statements: good reasons, equalities etc.

The Convener

We come to the last group. We can probably manage to do it, if we rattle along. Amendment 17, in the name of the cabinet secretary, is grouped with amendments 18, 19, 20, 43 and 21.

Michael Russell

Thank you, convener. During stage 1, the Human Rights Consortium Scotland and Angela Constance raised concerns that the Human Rights Act 1998 is increasingly being challenged at the UK level, and Angela Constance felt that it was important that the act be secured in Scots law. The Scottish Government is committed to ensuring that everyone in our society can live with human dignity and enjoy their rights to the full. We have been consistently clear that we will do whatever is within our power to ensure non-regression on the rights guaranteed by membership of the European Union.

As Scotland’s Government, we understand that ensuring that internationally recognised human rights have a meaningful everyday effect is a core function. Indeed, the national task force for human rights leadership, established by the First Minister following the recommendations made in December 2018 by the First Minister’s advisory group on human rights leadership, is working to establish an ambitious new statutory framework for human rights that will bring internationally recognised human rights into Scottish domestic law. The key element of that advisory group’s remit was to recommend next steps in the Scottish Government’s human rights journey, particularly in relation to finding a way forward in the context of post-Brexit uncertainty. The advisory group recommended that the new legislative framework should include: civil and political rights and freedoms; economic, social and cultural rights; environmental rights; and further specific rights belonging to children, women and persons with disabilities, rights on race, rights for older persons and rights for lesbian, gay, bisexual, transgender and intersex communities.

The task force is developing proposals for the new statutory human rights framework to enhance the protection of the human rights of every member of Scottish society, to ensure that Scotland is a world leader at putting rights into practice. Members might wish to note that part of the task force’s consideration is about reporting on and monitoring how committed the Scottish Government is to being open and transparent on matters relating to human rights.

Therefore, significant work is happening in Scotland to protect human rights in the context of any challenges that the UK Government might make to the Human Rights Act 1998, but I appreciate the desire of the consortium and others to act now, through the bill and other steps, while the task force’s work is on-going, especially given the concerns that have been raised by the actions and unpredictability of the current UK Government.

Human rights can never be taken for granted. They need to be protected, cherished and argued for. If we look around the world, we see that there is a genuine danger that these lessons are being disregarded, so it is more important than ever that countries such as Scotland stand up for human rights. By doing so, we can send an important signal to the wider world, and we can ensure that human rights make a real and meaningful difference to people’s everyday lives.

Therefore, I am obliged to the Human Rights Consortium Scotland for raising the issue, which has resulted in the Government lodging an amendment that will require the Scottish ministers to publish a written statement when a draft SSI is laid before the Scottish Parliament under the section 1(1) power, in order to explain the effect on human rights, if there is any.

We have always been clear that Scotland should set standards and show leadership on human rights. Openness and transparency are essential components of being a human rights leader, which is why the proposed amendment to the bill is so important. Although the Scottish ministers will always act in accordance with their obligations—I remind members that any proposed legislation that did not adhere to convention rights would be outwith the competence of the Scottish Parliament and, therefore, could not be passed—I am pleased to have lodged amendment 17, which requires ministers to set out specifically what effect regulations that are made under section 1(1) might have on human rights.

We are proud of the close and constructive working relationship that exists between Government and civil society. Our shared commitment to making human rights real and to delivering equality for everyone is at the heart of what we do. I am glad that the consortium has raised the issue, and I am grateful for the time and assistance that it has afforded my proposals in preparing amendment 17. I invite the committee to support it.

Amendments 18, 19 and 21 are minor technical amendments that change the word “equalities” to “equality” where it appears in the bill. Although the word “equalities” has occasionally been used as an alternative to “equality”, the use of “equality” is far more prevalent in Scottish legislation. The change will therefore provide consistency with the language of the Equality Act 2006 and the Equality Act 2010, which are the principal relevant statutes. I ask the committee to support those amendments.

In exercising the powers in the bill, it is clearly important that we listen to people who will be affected by them. Much of EU law impacts on local authorities. That is why we have lodged amendment 20, which requires that, when making or laying draft regulations using the power to align with EU law, ministers must make an explanatory statement that sets out the consultation that has taken place with local government and others. I referred to that in an earlier debate this morning.

Amendment 20 will not have the effect of requiring that consultation take place in every instance, given the breadth of EU law. Not all measures will affect a particular group, and some measures might be very minor and technical, so full consultation would be disproportionate in those circumstances. As the past few months have demonstrated, there might be unforeseen occasions when there is a need to legislate urgently. However, requiring such a statement to be made will expose the consultation—or lack of consultation—to appropriate parliamentary scrutiny, and it will ensure that the use of the power is transparent. I understand that the Convention of Scottish Local Authorities is supportive of such a measure. As such, I invite the committee to support amendment 20.

Amendment 43, which was lodged by Murdo Fraser, would require the Scottish ministers, when laying before Parliament a draft instrument that contained regulations under section 1(1), to publish a statement that explained the likely financial implications of the regulations. That would be unnecessary, given that a business and regulatory impact assessment would be published to provide the Parliament with the effects of the provision for business and regulation. Those assessments would be presented to Parliament in order to assist scrutiny, as is normal when making regulations.

However, I recognise that Murdo Fraser has sat through the entire meeting without having success with any of his amendments so far. There is no harm in amendment 43. Indeed, it might focus minds on the costs of Brexit, because such statements would point out how costly Brexit will be to every citizen in Scotland, so I am not minded to oppose amendment 43.

I move amendment 17.

The Convener

I call Murdo Fraser to speak to amendment 43 and the other amendments in the group.

Murdo Fraser

My amendment 43 is a simple amendment that seeks to ensure that affirmative regulations are accompanied by a statement of their financial implications. The amendment came out of something that the committee heard in its stage 1 evidence, which was that some uses of the keeping pace power in section 1 could have cost implications—for example, the transfer of regulatory functions to existing public bodies in Scotland, and the creation of new public bodies. My amendment will require the Scottish ministers to add a financial statement to regulations to allow the Scottish Parliament to adequately scrutinise them. I welcome the cabinet secretary’s comment that he has no objection to the proposal, which is helpful.

I will briefly address the other amendments in the group. Amendments 17 to 19 and 21, which deal with human rights, will require the Scottish ministers to provide

“A statement explaining the effect ... of the instrument or draft on”

rights under the European convention or

“other human rights contained in any international convention, treaty or other international instrument ratified by the United Kingdom.”

The committee discussed that issue at stage 1.

We are happy to support those amendments, but we will not support the cabinet secretary’s amendment 20, on the basis that it does not go far enough. It contains only a duty to report on whether a consultation has been carried out. It does not impose a duty to consult, and for that reason we do not believe that it is sufficient.

Patrick Harvie

I welcome the amendment on convention rights. It is an important restatement of the fact that most of our political landscape strongly supports the convention and the rights that it confers.

As for the other amendments in the group, I take the cabinet secretary’s point that Murdo Fraser’s amendment 43 might be manageable and tolerable even if it is not particularly necessary. I will happily support it as well, but it does reopen the question of whether some other amendments in which members have sought to place additional requirements on the Government might also be reasonable. We will probably return to those issues at stage 3.

I will also support amendment 20 but, again, I want to be clear that the requirement in that amendment to report on consultation is not the last word on the matter. We will probably return to that at stage 3 as well, and there may be a majority to go further than the Government has gone with amendment 20. For the time being, however, I will support the amendments.

The Convener

I invite the cabinet secretary to wind up on the group.

Michael Russell

On the point of amendment 20, the matter has been discussed with COSLA, and I think that it will welcome the amendment. If there is a possibility of strengthening the amendment, I will be happy to consider that, but I would want to make sure that anything that we do is effective and that it does not add to the bureaucratic burden of the bill, but actually affects those who will be consulted. I think that that is the criterion that I will set for any further discussion on the matter. However, I am glad that members seem to be united on most of the amendments in the group.

I cannot understand Murdo Fraser’s position that he will oppose amendment 20 because it does not go far enough. If the provision was not in the bill at all, it would mean that we would go no distance at all, so that position would seem to be illogical.

Amendment 17 agreed to.

Amendment 42 not moved.

Amendments 18 and 19 moved—[Michael Russell]—and agreed to.

Amendment 20 moved—[Michael Russell].

The Convener

The question is, that amendment 20 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Harvie, Patrick (Glasgow) (Green)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)

The Convener

The result of the division is: For 8, Against 3, Abstentions 0.

Amendment 20 agreed to.

Amendment 43 moved—[Murdo Fraser]—and agreed to.

Amendment 21 moved—[Michael Russell]—and agreed to.

Section 6, as amended, agreed to.

After section 6

Amendment 11 moved—[Liam McArthur].

The Convener

The question is, that amendment 11 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

Abstentions

Harvie, Patrick (Glasgow) (Green)

The Convener

The result of the division is: For 5, Against 5, Abstentions 1.

I therefore have the casting vote and I use my vote against the amendment.

Amendment 11 disagreed to.

Section 7—Reports relating to the exercise of the section 1(1) power

Amendments 22 and 23 moved—[Michael Russell]—and agreed to.

Amendment 44 moved—[Patrick Harvie].

The Convener

The question is, that amendment 44 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 44 agreed to.

Amendment 10 not moved.

Amendment 45 moved—[Patrick Harvie].

The Convener

The question is, that amendment 45 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 45 agreed to.

Amendment 46 not moved.

The Convener

I remind members that, if amendment 24 is agreed to, amendment 47 will be pre-empted.

Amendment 24 moved—[Michael Russell].

The Convener

The question is, that amendment 24 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

In the brief pause while the clerks record the vote, it is time for me to have a wee drink of juice.

For

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 24 disagreed to.

Amendment 47 moved—[Patrick Harvie].

The Convener

The question is, that amendment 47 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 47 agreed to.

Amendment 25 moved—[Michael Russell].

The Convener

The question is, that amendment 25 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Lockhart, Dean (Mid Scotland and Fife) (Con)

The Convener

The result of the division is: For 7, Against 4, Abstentions 0.

Amendment 25 agreed to.

Amendment 48 moved—[Patrick Harvie].

The Convener

The question is, that amendment 48 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 48 agreed to.

Amendment 26 moved—[Michael Russell]—and agreed to.

The Convener

I remind members that, if amendment 27 is agreed to, amendment 49 will be pre-empted.

Amendment 27 moved—[Michael Russell].

The Convener

The question is, that amendment 27 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 27 disagreed to.

Amendment 49 moved—[Patrick Harvie].

The Convener

The question is, that amendment 49 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Burnett, Alexander (Aberdeenshire West) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Harvie, Patrick (Glasgow) (Green)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Rowley, Alex (Mid Scotland and Fife) (Lab)

Against

Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Mason, John (Glasgow Shettleston) (SNP)

The Convener

The result of the division is: For 6, Against 5, Abstentions 0.

Amendment 49 agreed to.

Section 7, as amended, agreed to.

Sections 8 and 42 to 47 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. The bill will be printed as amended at stage 2 and will be published at 8.30 tomorrow.

The Parliament has not yet determined when stage 3 will be held. When that is decided, members will be advised of the deadline for lodging amendments. In the meantime, stage 3 amendments can be lodged with the clerks of the legislation team.

I thank my colleagues, the clerks and the legislation team for helping me get through this process this morning.

The Presiding Officer (Ken Macintosh)

We turn to stage 3 proceedings on the UK Withdrawal from the European Union (Continuity) (Scotland) Bill. In dealing with the amendments, members should have with them the bill as amended at stage 2, the marshalled list and the groupings of amendments. I remind members that, as usual, for the first division of the afternoon the division bell will sound and proceedings will be suspended for five minutes. The period of voting for each division after that will be one minute. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.

Section 1—Power to make provision corresponding to EU law

The Presiding Officer

Group 1 is on the power to make provision corresponding to European Union law. Amendment 4, in the name of Michelle Ballantyne, is grouped with amendments 5, 6 and 8.

Michelle Ballantyne (South Scotland) (Ind)

I want to set out the reasoning for lodging my amendments. I will try to keep my remarks on each group short and to the point, because I am conscious that this will be a long day.

My amendments throughout stage 3 speak to the fact that, fundamentally, it is for the Parliament to legislate. I welcome the changes that have been made at stage 2, particularly with regard to limiting the duration, which the keeping pace power should continue, but I remain concerned that the process of leaving the EU should not open the door to bypassing parliamentary procedure.

When the Parliament decides to delegate powers, there should be clear, good reasons for doing so, and it is important that the limits of that delegation are clearly defined. In doing so, we