Net Zero, Energy and Transport Committee

Meeting date: Tuesday, October 4, 2022

Official Report 585KB pdf

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Levelling-up and Regeneration Bill

Agenda item 2 is an evidence session on the legislative consent memorandum on the United Kingdom Levelling-up and Regeneration Bill. I refer members to the briefing papers from the clerk and the Scottish Parliament information centre.

The bill?was introduced to the UK Parliament on 11 May 2022. On 27 July, the Scottish Government lodged a legislative consent memorandum on it, which said that the bill touches on devolved legislative or executive competence in three main areas, including on environmental law through the proposed introduction of environmental outcomes reports. Those will be the focus of our scrutiny.

Today, we will hear the views of three witnesses. I welcome Lloyd Austin, convener of the Scottish Environment LINK governance group; Robbie Calvert, policy, practice and research officer at the Royal Town Planning Institute; and David Melhuish, director of the Scottish Property Federation. Thank you all for accepting our invitation. We are delighted to have you here.

We have around 60 minutes for this evidence session. I remind members that I am a qualified surveyor and that I have a planning interest behind me from when I was in private practice.

Will each of the witnesses briefly state what your general views are on the Levelling-up and Regeneration Bill? I will start with Lloyd Austin.

I will say three things not about the bill as a whole but about part 5, on environmental outcomes reports.

First, I will make a limited comment about the word “outcome”. In environmental law and environmental policy generally, it is good to have outcomes, so having those in the bill is positive. Having said that that is a positive, what the outcomes will be and how they will be determined is very unclear.

Secondly, as an overview, the provisions in general are very vague. There are lots of provisions to allow secretary of state-type regulations about this, that and the other without indicating how they will be done, what they are for, how they will interact with existing regulations and whether they will supersede or replace existing regulations and so on.

There are an awful lot of Henry VIII powers in the bill—in other words, there is a vagueness and lack of clarity with regard to what is intended, how it will be done and who will be involved. Environmental non-governmental organisations would put that in the list of issues of concern about the UK Government’s approach to the environment. Notwithstanding the high-level rhetorical commitment to the environment, when we look at some of the detail, we see that what will happen is unclear. In the context of other measures, such as the Retained EU Law (Revocation and Reform) Bill, for instance—

Forgive me, but I am going to interrupt you. I have probably not had enough coffee this morning: when asking my question, I meant to ask about your views in the context of how the Levelling-up and Regeneration Bill interacts with devolved policy. That gives the rest of the witnesses a heads-up. Will you drill down into that briefly?

My third point was going to be about that.

I thought that you were getting there.

My third point relates to devolution. It has to be said that a lot of the bill relates to England only. There is reference to some reserved matters, which, obviously, apply UK-wide, including to Scotland. Part 5 extends to Scotland—it needs to, as it covers reserved matters. However, it is a bit unclear when it comes to devolution in so far as it specifically allows environmental outcomes reports for devolved areas—in fact, clause 121 says that the UK secretary of state may make regulations in relation to devolved environmental law, subject to consultation with the Scottish ministers—but the specific references to environmental assessment regulations, for example, do not list the devolved ones. There is a lack of clarity on what is meant and whether it should or should not apply to devolved matters.

Finally, we think that, if environmental law is devolved, the secondary provisions that might be set up should be subject to the consent of the Scottish ministers and the Scottish Parliament in the same way as primary legislation is.

The committee’s consideration of this legislative consent memorandum is an example of it scrutinising a piece of primary legislation, so should the same provisions not apply to regulations made under this legislation, if they apply to devolved laws? We therefore argue that clause 121 should be amended to require the consent of the Scottish Parliament.

Thank you. I saw Robbie Calvert nodding part way through that response. I am keen to hear what you think, Robbie.

I am completely in agreement with Lloyd Austin regarding clause 121, and we also support amendments 178, 179 and 180 to that clause, which were tabled during bill readings. Those necessitate consent from devolved nations.

Even if changes are made solely to English law, we still need to consider cross-boundary special areas of conservation and special protection areas—for example, the River Tweed, the Solway Firth and the Berwickshire and Northumberland coasts. We want to see how those cross-boundary issues will be taken into consideration if there are deviating systems of environmental law.

At the moment, there is a lot of confusion and many unknowns. We expect a consultation on EORs, and I hope that that will be the beginning of an on-going dialogue. I imagine that we will be called to give evidence again when that is published.

We would like to see the changes to the environmental impact assessments and strategic environmental assessments processes to be evidenced; we also want to hear about that during the consultation. I know that there is a lot of intention to streamline processes, and we also support a move to more outcome-focused processes, but that could lead to a lot of uncertainty and complexity. It could also lead to significant delays and significant resourcing impacts on consenting bodies.

What do you think, David Melhuish? Please bear in mind that I want to hear about the impact of the bill on devolved policy

In many ways, the initial view of our members is one of uncertainty. They have discussed the bill with us, and part 5, which is the topic of today’s meeting, was the key issue that they raised.

Environmental impact assessments have been a fundamental part of the development process over a number of years. Whatever views people might have on the UK’s exit from the European Union, we knew that meant that there would be a replacement framework and that that would have to be addressed as an iterative process at some stage. However, at the moment, there is not enough detail on EORs to know what is meant.

In principle—Lloyd Austin mentioned this—the idea of focusing on outcomes is enticing, but we really need to see what that means in practice in terms of the detailed legislative proposals before commenting further. We are focusing on Scotland, but the rest of the regime is very much looking at competent authorities that—in one way or another—find their legal framework and direction through the Scottish Parliament, so there is probably concern about the potential for duplication or confusion between the regulatory regimes.

That is our initial view. Unfortunately, there might very well be more questions than answers in the submission that we make later this month. That is because of where we find ourselves in the process at this stage.

Okay. I have heard that there is a lot of uncertainty. I would like to go back round the panel and ask witnesses for a yes or no answer to my next question, if possible. Do the powers for the secretary of state that are proposed in part 5 of the bill respect the devolution settlement?

Potentially, they might not. That is about as far as we can go at the moment. As we have heard, there are powers that could potentially overwrite previous stances of the Scottish Parliament, so we can conclude only that there is potential for some conflict in the regulatory regime between the UK and Scottish Parliaments. We hope that that will not be the case. It is an important matter, and we would have liked to see more of an understanding between the UK Administrations before we got to this point.

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We support extra safeguarding in consent arrangements between the nations, which is covered by amendments 178, 179 and 180 to clause 121.

We also have a question about environmental common frameworks, such as the one on air quality, which I know the committee consulted on in June. We responded to that. I do not know how those frameworks would interface with the proposals in the bill. There is a big question mark over that.

Lloyd Austin, we already have a written submission from Scottish Environment LINK identifying specific concerns with the bill with regard to the Sewel convention and the possibility of the UK Parliament altering Scottish environmental laws. Do you want to expand on that?

I agree with David Melhuish. The bill as drafted potentially does not respect the current devolution settlement in seeking the consent of this Parliament in relation to devolved legislation.

Thank you. I think the deputy convener has some questions.

We move to questions from Jackie Dunbar next; we will come to the deputy convener later.

What are your views on the current system of environmental assessment in the UK? Is there a need to simplify the system, following exit from the EU? I will start with David Melhuish and work my way round the witnesses.

That is a hugely complicated technical area. Major modern developments are very complicated. I spoke to SPF members in the process of gathering evidence for the committee. For most developments, EIAs cost between £80,000 and £120,000—and that is just the start, because of the complexity of the framework.

We understand that the need for simplification lies behind some of the levelling-up intentions. That is enticing, but it is our suspicion that regulation tends to get more complex and demanding. To a degree, we are better with the devil we know, and we do know the devil of the Scottish system at this stage. Colleagues elsewhere in my organisation would have to speak about other regimes. Robbie Calvert will have a view on that.

The message that I want to underline to the committee is that hundreds of major planning applications are determined every year, most of which require EIAs and related assessments. That industry is worth tens of million pounds a year. The impact of the policy changes that you are considering cannot be underestimated.

We always welcome improvements to existing processes. In the first instance, that would be by providing the correct resource to consenting bodies. I am sure that the committee has been well rehearsed on our statistics about that matter: there have been 42 per cent cuts to planning departments since 2009 and a one third reduction in staffing. Effectively resourcing the consenting bodies would certainly improve the process.

We also think that digitisation and the use of digital EIAs bring clear opportunities. I hope that the committee has seen our written evidence. I have referenced a 2020 report from the Institute for Environmental Management and Assessment, which suggested a number of potential improvements to existing processes. There are also opportunities in the Scottish Government’s digital planning strategy to develop shared cloud-based resources for planning and place data, and to establish a foundation of robust and trusted data. There are good examples of that already happening—for example, in the Crown Estate offshore wind evidence and change programme. There are a number of improvements that we could make to current processes.

It is useful to consider how many projects EIAs apply to. IEMA has done some work on that in England. I think that 99.9 per cent of projects did not need an EIA. It is larger and more significant projects that do.

It would be a concern if changes were to come down the line in 2023-24, because that is quite a short period, given the timeframes that a lot of the larger and more significant infrastructure projects work to. Change could cause uncertainty and potentially delay.

So, simplifying is not always the best approach.

No, it is not.

I reiterate Robbie Calvert’s point about the number of applications that require an EIA compared with those that do not need one at all. The threshold for needing an EIA has a potentially significant effect on the environment. If you are going to reduce the number of applications that will be assessed, you will, in effect, be taking decisions about things that could have a significant impact on the environment without considering them.

That does not mean that we are opposed in principle to improved implementation or simplification. It is often the case that, when such issues are looked at, it is not the original law or the original process that is an issue; it is often a question of streamlining the implementation, the administration and the processes. Robbie Calvert talked about digitalisation. Doing such things could make the system work better for everybody.

In general, I take the view that the EIA system is very well known by all parties—by Government, agencies, developers, communities and non-governmental organisations—and I would expect those who have proposed significant change to provide some evidence on what is wrong with the existing system. I have not seen that evidence and it has not been included in the explanatory notes for the bill, for example. In principle, I have no objection to the idea of doing things in a better way. However, to get to a better way of doing things, the arguments need to be well evidenced and there needs to be a clear proposal of what will be done instead—which there is not.

My next question was going to be about whether the current regime is working, but I think that the witnesses have already answered that for me, so I will not ask it.

Thank you for that, Jackie.

The witnesses have already touched on some areas that I want to ask about. I want to get a bit more information from them about part 5 of the bill, and particularly the clauses that set out how the new system will work. Some aspects of that have already been covered, but I would like to go round the witnesses and get their views on the specifics of what is currently laid out and how it will work.

One of the challenges is that it is all about making provision for the secretary of state to make regulations, but we have not seen even a draft of those regulations or a policy explanation of how they will work, so that is very difficult to determine. However, I will draw attention to one thing. The explanatory notes and the UK Government in debates on the bill at Westminster often refer to clause 120(1), which is called a non-regression clause. It says that the environmental protection should not be

“less than that provided by environmental law at the time this Act is passed.”

My view is that that is a rather poor non-regression clause in so far as it is a rhetorical statement of good intent but it does not have very much meat to it. The full phrasing is:

“The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.”

The test is the secretary of state’s satisfaction. In my view, a meaningful non-regression clause has to involve an objective measure of that non-regression or be based on independent and objective advice from environmental agencies such as Natural England, NatureScot, the Scottish Environment Protection Agency and the Climate Change Committee instead of being based simply on the secretary of state’s satisfaction. If the secretary of state is making regulations, it is almost inevitable that he or she will say that they are satisfied.

Does that relate to international obligations? Are those baked into that provision or, again, is that part of being satisfied?

International obligations are part of the next sub-clause, which says that EOR regulations

“may not contain provision that is inconsistent with the implementation of the international obligations of the United Kingdom relating to the assessment of the environmental impact”.

That relates to a specific set of international obligations; it does not relate to wider environmental international obligations. For instance, the Aarhus convention would not necessarily fit under that definition of an obligation.

The clauses that set out how the new system will work could be both broadened and made more objective in terms of their impact.

Do you to have any other points to raise on the detail? You mentioned a sense of vagueness.

I will stick to that.

I would just like to extend the discussion about international obligations. It was confirmed at one of the bill committee hearings, on 8 September, that the UK Government would still meet its obligations under the Aarhus and Espoo conventions. We support that, and we encourage the committee to continually press for that approach.

However, we do not have a lot of detail. We understand that the proposed reforms will affect 18 different consenting regimes—one of which is planning, which itself interacts with other consenting regimes and their respective EIAs. As is set out in the legislative consent memorandum from the Scottish Government, a lot of detail is still needed on, for example, the proposed contents of the EORs, how and to what extent they are to be taken into consideration by public authorities in decision making, and what plans and consents are to be subject to procedures. There is a lack of clarity about the environmental common frameworks, as I have pointed out, and about whether different countries could have different outcomes.

That is why we have asked for the proposals to be mapped out across other proposals that are going on—not least, planning reform. For example, different approaches to biodiversity net gain have been taken in England and Scotland. How would that be taken into consideration, given that biodiversity enhancement is a potential outcome of EORs? We need to consider that thoroughly.

I will leave it there for now.

Is there clarity over which plans and programmes might be captured?

We do not have that at this stage. I expect that to come out with the consultation.

As I said earlier, the problem is that, underneath the top-level principles, the detail is not there for us to get to grips with.

Certainly, our understanding and assumption had been that the intention was not to go backwards on standards and the level of regulation. However, I must admit that, having listened to Lloyd Austin, I will again ask our members how satisfied they are with that level. Again, that just underlines the uncertainty.

Obviously, we represent mostly private sector developers and companies, but the regime is such that it is also a huge issue for the public sector as it takes forward infrastructure projects and so on. That doubles down on the uncertainty around where we are at the moment.

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I refer you to one particular clause that underlines the vagueness. Clause 117(7)(h) says that EOR regulations may include provision about or in connection with

“how, and to what extent, environmental outcome reports are to be taken into account or given effect by public authorities in considering, and making decisions in relation to, relevant consents or relevant plans”.

That does not say how the reports will be taken into account; it says that some future regulations will set that out. To take a cynical in extremis position, if the bill is passed, the secretary of state could make provisions that say that environmental outcome reports do not need to be taken into account when making a decision. I am not suggesting that that will be the case, but what is the point of a bill that allows for regulations that provide the possibility of the opposite effect from what you are trying to achieve? Because the bill is so open and every possibility is available, we cannot determine from it what will happen.

Environmental assessment is a well-established practice and relates to the habitats directive. There are a set of tests, including a public interest test, that apply. Again, we are speculating as to what may or may not happen, but do you see that practice of appropriate assessment and the application of key tests continuing? Alternatively, if we look at other bills that are being introduced, can we see a potential change in relation to habitats as well, which would seriously impact on assessment?

A couple of years ago, the habitats directive was subject to a very thorough appraisal that was called the refit process, which was led by the European Commission, at the instigation of the then UK Government. It was a good process, and it concluded that the directive was fit for purpose and that there were challenges in implementation that needed to be resolved, and the remaining EU member states are now engaged in that.

In the bill, clause 127 deals with interaction with existing environmental assessment legislation and the habitats regulations. Once again, that is incredibly open and vague. It simply says that any option is on the table in relation to what the regulations may say. They can include provision for amending and disapplying the existing regulations and so on. What will actually happen with the regulations is unknown.

I underline the vagueness and point out that the existing tests are all clear, particularly article 6 of the habitats directive, which deals with significant impact, as well as the tests in relation to ensuring protection of protected sites, and equally the tests of where protection can be overridden in cases of overriding public interest. There is lots of good case law in relation to that. How and whether that will be changed as a result of the bill are not defined in the bill or the explanatory notes.

From our members’ perspective, the industry is now very much driven by institutional investors and other types of investors with demanding requirements on environmental and social governance and related criteria. It is helpful to have good and clear regulation that gives our members a good framework with which to make their proposals in the knowledge that they will be compliant and well received not just by the authorities but by communities. That is what they want to do. It is not just the right thing to do; it is actually in their interests to do it, for the reasons that I have spelled out.

The authorities are not pushing against a negative industry that is resistant to good legislation. There is an opportunity to ensure that we agree a way forward with the authorities, whether that is with the UK Government or the devolved Administrations. However, the industry is very worried about potential schisms in the regulations if they are not as well synchronised as they could be in relation to the Scottish Parliament and other areas.

There are elements of the process that we could do better. One to focus on is better public engagement. EIAs and SEAs are as much about assessing potential impacts as they are about transparency and accountability. That goes back to my comment about potential digital innovations. We are certainly looking for improvement in that area in the new system.

We also advocate the retention of consideration of alternatives, which is part of the existing process. However, in our submission on the Levelling-up and Regeneration Bill, we asked for the expansion of assessment in relation to population health. Such assessment would have to be aligned with health impact assessments. That has come through in the Planning (Scotland) Act 2019.

Is that also coming through the EU refit process? Is the EU responding to the need for reform relating to transparency in wider public health?

I assume that it is, to some extent, but I cannot give any detail on that.

Good morning. Lloyd Austin, you began your answer to Monica Lennon by briefly mentioning EU legislation. The Scottish Government took a decision to keep pace with EU law. What impact would the bill’s provisions have on that decision? If it turned out that the provisions enhanced and improved protections, would it be right—as I assume that it would be—for the Scottish Government to use those protections rather than to dogmatically follow the EU’s position?

That is a hypothetical question, but, if those circumstances arose, I think that it would.

Thank you. Robbie Calvert, Lloyd Austin talked about clause 120 and suggested, I think, that it could be amended to make it better. In your view, clause 120 sets out safeguards that will ensure that the UK continues to meet its international obligations and includes provisions on non-regression, which are also in the UK-EU trade and co-operation agreement. Does clause 120 provide sufficient safeguards against the weakening of existing environmental protections?

We did not pick up on that issue in our written evidence. However, from what I can gather from what Lloyd Austin has said, I would be a bit wary of, and concerned about, supporting clause 120 in its current form.

As was said earlier, we understand that the intention is not to regress or drop below our obligations. That is welcome and what is mostly expected, so we would like that to be spelled out in agreement with the UK Government and the devolved Administrations, which would complement what the UK has agreed with the EU and elsewhere. That is our answer on that front.

Lloyd Austin, I will go back to the first question that I asked you. You answered the second part of the question by saying that it was a hypothetical question. However, the first part of the question was about the impact that the provisions will have on the Scottish Government’s decision to keep pace with EU law. I do not think that that is a hypothetical question.

It would depend on the nature of any regulations under these provisions, which we do not have, because the bill provides the power for the secretary of state to make regulations, but those regulations have not been seen. Not even a detailed policy proposal has been seen, because—as Robbie Calvert mentioned—the consultation is still to come.

Although your question was phrased in a way that meant that it was not hypothetical, it described a hypothetical scenario, in a sense, because of the absence of the sight of the regulations or the policy behind them. However, hypothetically, if regulations had any impact on Scottish law in a devolved area that had implemented, passed or retained—whatever you call it—EU law and the regulations made a change that regressed that in some way, it would be contrary to the Scottish Government’s policy position of keeping pace. The keeping pace provision in the European Union (Continuity) (Scotland) Act 2021 is discretionary, and it is for ministers to choose to use it, or otherwise, if they wish. They can also keep pace using existing provisions in environmental law and not only do so through the continuity act.

If regulations had an impact on that, it could create a position in which the UK Government legislated in a devolved area in contradiction to the Scottish Government’s desire, so there would be a sort of clause 121 situation, which is about consultation. If agreement were reached, it would be fine, but, if there was contradiction, the two Governments could end up submitting contradictory legislation to their respective Parliaments.

Our preference would be for a provision that ensures that, if matters are devolved, the consent of the Scottish Parliament should be required, and, therefore, agreement should be reached to achieve that consent.

Good morning, everyone. We have touched on this topic, but I would like some further explanation. How might the proposed system of EORs affect public and stakeholder participation in decision making on new developments? I put that question to Lloyd Austin first.

The answer to the question depends on what the content of the regulations that flow from the bill’s provisions. I am seeking to recall whether the bill says anything about regulations having to include provision for public engagement, consultation and so on. I think that it does at some point, but the answer has to be that it depends on what is in the regulations that follow.

So, we come back to uncertainty.

Yes, we come back to uncertainty and a lack of clarity.

Okay. I do not know whether you will both give the same answer to that question, but I will ask Robbie Calvert, too.

We do not have clarity on that at the moment. It is certainly an area where we could improve. Do we need a new set of regulations to improve on that area? I am not sure about that. As I said, some of the digital engagement tools could be used to enhance community engagement. In our response to the Levelling-up and Regeneration Bill, we set out that we want to see that part of the system enhanced.

David, do you have anything to add?

I will just complement what has already been suggested.

As Robbie Calvert just alluded, there are workstreams to improve digitalisation in the wider regime, and the experience of our members is that there was much more online public engagement during the past two years. There was a noticeable increase in participation. Those areas can be improved, but, given that not everyone will be conversant with online engagement, in-person events are still very much part of the system.

I support what Lloyd Austin and Robbie Calvert said.

Thank you. I have no further questions, convener.

Now it is the deputy convener’s turn.

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Good morning. I am interested in policy coherence. Environmental and planning legislation is devolved. I will come to Robbie Calvert first. How might part 5 of the bill impact on the fourth national planning framework?

As I mentioned, we want the proposals in the bill to be mapped out against the existing proposals, including those on planning reform. I mentioned the fact that different policy approaches have been taken on biodiversity net gain, on which there is a policy in the draft NPF4. We have a wider concern about NPF4 putting additional duties on decision makers. As well as having a resource implication, that will create an issue with skills, because planners will have to deal with huge number of additional issues.

We are concerned that any reform in this area could cause a significant problem for a planning system that is already in flux. We are struggling when it comes to resources—not just financial resources but personnel. We are working with the Scottish Government to push forward with an apprenticeship scheme to deal with that. Given that there is a huge issue around skills, is this a good time for the planning system to implement a whole new set of reforms on environmental impact assessment and strategic environmental assessment? From our perspective, there is a big question mark over that.

David, what are your views on the interaction between the bill, the LCM on which we are looking at, and the draft NPF4?

To add to what Robbie Calvert said, NPF4 will incorporate Scottish planning policy, which details the development management systems. We hope that what is proposed under the bill will not conflict in detail with the principles and requirements of EIAs as we know them and assessments, but we do not know whether that will be the case, because we have not seen the detail.

That is a concern, as is the timing. We are expecting NPF4 to come back imminently. Along with other stakeholders, we had wider concerns about the delivery and detail of some of the original propositions in NPF4. The timing is a particular concern, as is the potential conflict regarding the underlying principles.

I turn to Lloyd Austin. We know that, whether we are talking about UK Government or Scottish Government bills, there will be a lack of detail until regulations are granted. However, concerns have been expressed by English NGOs about what might happen. We have a new Government at the UK level, one of the first announcements of which was that, as of Monday, businesses with fewer than 500 employees will be exempt from reporting requirements and other regulations. It also said:

“The changed threshold will apply ... to all new regulations under development as well as those under current and future review, including retained EU laws.”

The UK Government is saying that there will be non-regression as far as environmental law is concerned. If the UK Government were to clarify that non-regression will apply in this context, that would give an early indication that non-regression will stand. Do you share that view?

Yes. An issue that I got into in answering Monica Lennon’s question—I apologise for doing so prematurely—was the fact that the context in which these provisions are being considered includes the Retained EU Law (Revocation and Reform) Bill, as well as the new proposals that have come out in the past week or so.

Many of those proposals suggest weakening of environmental law of one type or another. Indeed, NGOs in England have started a campaign about “the attack on nature”, as it is put. That is a serious concern because, if you were to exempt any business with fewer than 500 employees from all environmental regulations, which is a potential interpretation of the phrase, it would mean most businesses. It would certainly mean most farmers and landowners. It causes some degree of concern as to what the point of environmental legislation is if you exempt 99 per cent of the people who have a potential impact on the environment one way or another.

There is a serious concern, and the one clause in part 5 of the bill that calls itself a non-regression clause is weak. There are ways in which it could be improved. However, the other provisions—whether the Retained EU Law (Revocation and Reform) Bill or other policy ideas that have been floating around in the past week or so—are in other bits of legislation but, in some ways, appear to be inconsistent even with the intent of the non-regression clause in the Levelling-up and Regeneration Bill.

Early clarification by the UK Government of what it announced on Monday would at least give us some certainty about what might or might not happen.

Yes.

I am trying to understand the matter from a practical point of view. What will it mean for projects, in particular? I turn to Robbie Calvert for an answer next. Although there are some concerns about the provisions on environmental outcomes reports, you can see a sense in them from a policy point of view. However, who would make the decision on large onshore—or even, potentially, offshore—developments that environmental assessment has shown need some kind of mitigation when that mitigation might not be able to happen on a granular, small scale but will happen elsewhere? Under the bill, would a Scottish minister or the secretary of state decide where the mitigation for the environmental outcome would take place? That is a practical situation that could happen.

I am not entirely sure. Lloyd Austin might be better placed to answer that at this stage. I am not sure that we quite have the detail at the moment.

My understanding is that your question is: who would be responsible for taking a decision about mitigation? I think that the answer is: whoever was responsible for the consenting of the project. If it was a devolved matter, it would be the Scottish ministers, and, if it was a reserved matter, it would be the relevant secretary of state.

Clearly, in some areas—perhaps more for offshore projects, because planning is devolved, although energy policy is reserved—we might want to pursue clarification on who would decide where the mitigations would be because the consenting should be devolved.

Indeed. Offshore mitigation and compensation plans need to be agreed strategically because the responsibility for the mitigation and compensation could fall with the other jurisdiction but, equally, it might be delivered in a different geographic jurisdiction. For instance, you could imagine that the developer of an offshore wind farm off Northumberland agrees through the EIA process that there is a requirement for compensation and, because birds, whales, dolphins and other wildlife move across borders all the time, comes to an agreement with the Crown Estate and landowners to deliver that compensation in the Firth of Forth, which would be a Scottish jurisdiction.

There needs to be join-up between the two Administrations. That is one of the reasons why I would always fall back on the need for there to be agreement.

So, that comes back to consent rather than consultation.

David Melhuish, you talked about the importance of enabling infrastructure investments and developments. I am also interested in whether, if the environmental outcome report is in the jurisdiction of the secretary of state, with a duty only to consult with the devolved Administration, that will enable or hinder developments. We actually want to make things happen, but there is a question of the speed of decision making, and the issue is whether those decisions are better made more locally. However, land-based decisions would quite clearly be more devolved, unless they involved a big energy project such as a nuclear facility, for example.

Again, that is why we need to know who will make the decisions and the process by which the decision makers are allowed to come to the decision, because there is potential for a lot of delay in the system. At the moment, we do not know that in any detail.

We are not arguing that the current regime is flawless. There are several competent authorities for different aspects of the environmental assessment system, and there are situations in which decisions are prolonged over periods of time to the extent that the process for even relatively smallish major developments can take years and years and the developments might not materialise simply because of a lack of decision making on the part of the various competent authorities. I can think of instances in which hundreds of affordable houses have not been delivered because of that stand-off between various competent authorities. As I said, we are not arguing that the current system is flawless, but at least we know what it is.

I have a couple of questions to finish off this session.

EU environmental regulation is interesting because it ends up pickling things in aspic and not allowing things to change. We tend to feed into the process, and the approach tends to follow a precautionary principle that says that no damage can be done. Although that might be the right approach, there might also be benefits from the proposed development. I have heard Lloyd Austin’s comments on that, but I am interested in Robbie Calvert’s and David Melhuish’s views. Do you think that the EU’s precautionary approach to the environment gives enough flexibility?

We support the precautionary principle. My answer touches on the issue that Fiona Hyslop raised, too. There is no evidence that EIAs are the part of the process that delays developments—I refer you to my written evidence. IEMA produced a report on the matter, called “Levelling up EIA to Build Back Better”, which sets out a number of reasons for delays in projects. We have not seen any conclusive evidence to suggest that EIAs are what is holding up large infrastructure projects. A lot of the issues involve things that I touched on earlier, such as resourcing of not only planning departments but statutory consultees.

I am not saying that they are holding things up; I am asking whether they are preventing developments that might have benefits across the whole environment rather than just in the area that was designated or that falls within the designation for a species of flora or fauna.

I think that it changes from project to project. These decisions are not easy to make—they are tricky and are not black and white. That is why we have these processes in place. Yes, there is a desire to simplify them, but we can do that only to a certain degree, because the decision-making processes that we are dealing with are inherently complex.

I suppose that our answer would be “sometimes”, which is not very helpful. Because of the precautionary principle, concerns about species have delayed developments, but, several months down the line, those concerns have been found not to be material considerations in terms of the development. So, EIAs can sometimes cause delays.

There can be a tendency towards caution. In many ways, that is understandable, because someone might see that there might be a legal issue somewhere down the line as the result of a decision by a competent authority.

I can answer your question only by saying that the precautionary principle sometimes does bring about the situation that you suggest.

10:30  

For context, I note that the precautionary principle is one of four so-called EU environmental principles that were embedded in the Treaty of Lisbon before we left. All four principles are now incorporated in domestic law. In Scotland, they are incorporated through the continuity act. The UK Government has carried them over into domestic law for England and for reserved matters as well in the Environment Act 2021, which also applies to devolved matters in Northern Ireland—the gap is Wales, which needs devolved legislation on EU principles. Whether the precautionary principle is overzealously applied is a matter of judgment. However, as Robbie Calvert says, the situation will change from case to case, but the principle is a good principle, and it is good that all the respective Governments have put it into domestic law, in the absence of EU law, now that we have left the EU.

The issues that you raise about potential problems are about the implementation and interpretation of the principle. Both Governments have consulted on guidance around its interpretation and application. Neither Government has yet finalised and published that guidance, but that would be the place to address your concerns.

I do not necessarily have concerns; I may be delighted that the precautionary principle is there, because it overrides a lot of decisions relating to environmental law. I would argue that it is actually a good thing and the fact that it is in UK and Scottish legislation strengthens the position.

I have picked up on three areas. You feel that the word “consult” in clause 121 is not sufficiently strong; you are concerned that there are regulations that you have not seen that could be worse but are not definitely worse; and you are worried that the regression clause—clause 120—is not strong enough. If there were more detail on those areas, would that address your concerns? You could give a yes or no answer, but I suspect that you will not.

Whether we answered yes or no would depend on whether the proposals to address the concerns actually did so. It is a kind of hypothetical question.

It is possible that, when all the regulations and the guidance that goes with them are published, the proposal will turn out to be perfectly benign. However, we have not seen those things. That is why it is difficult to make a judgment. We do not necessarily think that the proposal is bad; it is just too vague for us to be clear about.

I think that you capture some of our issues. I agree with Lloyd Austin that we would need to see more detail to enable us to see whether any issues might arise.

I would just add an issue about how the legislation relates to the existing policy-making and regulatory regimes. That is critically important for people who are embarking on major and complex developments.

Thank you for taking time to come to the committee—I understand that some of you had to find the time at quite short notice. I appreciate your attendance.

10:33 Meeting suspended.  

10:39 On resuming—