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Meeting date: Tuesday, May 24, 2022

Net Zero, Energy and Transport Committee 24 May 2022 [Draft]

Agenda: Decision on Taking Business in Private, Subordinate Legislation, High Speed Rail (Crewe-Manchester) Bill, Role of Local Government in Delivering Net Zero, United Kingdom Internal Market Act 2020


Contents


High Speed Rail (Crewe-Manchester) Bill

For the next item, we have the same panel as we had for the previous items. The next item is consideration of a legislative consent memorandum on the High Speed Rail (Crewe-Manchester) Bill. The committee put out a targeted call for views on the LCM, which attracted just one response. It is likely that this will be the committee’s only evidence session on the LCM before reporting to Parliament.

Minister, I understand that you would like to make a short opening statement.

I will be brief, convener. The Scottish Government has consistently supported high-speed rail, but not just to Birmingham, Manchester and Leeds. To realise its full benefit, high-speed rail infrastructure needs to be extended further and faster to reach Scotland. Notwithstanding that, we welcome the proposal to locate one of the HS2 train stabling and light maintenance depots in Annandale, near Gretna, and the highly skilled jobs that doing so should create. Scotland will also benefit immediately from faster train services upon completion of phase 1 of the HS infrastructure.

Although our position is one of support for the bill overall, and for the depot, it is right that we take the time required to scrutinise the implications of legislative consent. That is why the Cabinet Secretary for Net Zero, Energy and Transport, Michael Matheson, recommended that the Scottish Parliament consent only to some clauses in the bill while we work through the other issues with our UK Government counterparts. Along with my officials, I will be happy to cover the detail of those clauses in answering the committee’s questions.

Thank you, minister. We now move to questions.

Minister, the cabinet secretary has said that we support high-speed rail but that we do not want to recommend supporting five clauses, or elements, of the bill. How have the UK and Scottish Governments come to such different views on the extent to which the provisions in the bill require the legislative consent of the Scottish Parliament?

I might bring in Kevin Gibson on the technicalities, but I should say that the bill is a hybrid bill, so there is time left in 2022, and potentially into 2023, to resolve some of the issues. As Mr Kerr has outlined, we are in agreement with the UK Government on a number of the clauses that require the legislative consent of the Scottish Parliament, but the Scottish Government has identified nine relevant clauses in total, in addition to those on which the UK Government has asked the Scottish Parliament for legislative consent.

My officials, supported by legal advice, met the UK Government team to discuss that point after the bill was presented, and the view of the Scottish Government is that the Scottish schedules in the nine clauses that I have mentioned relate to matters that would alter devolved legislative controls and that have a devolved purpose. For example, they might affect the water environment, building standards or planning. In line with section 28(8) of the Scotland Act 1998 and devolution guidance note 10, the Scottish Government’s view is that those clauses require the Scottish Parliament’s consent. Many of the clauses relate to land-use planning. Planning permission is required, and the development of land is regulated for planning purposes, regardless of the nature of the underlying project.

In summary, both Governments have different interpretations of the Sewel convention. The practical implications of the bill are not yet clear. However, as I mentioned, we are working through those issues. This is a hybrid bill so, over the coming months, and potentially into 2023, officials will be working very closely to try to get to a resolution on some of the issues. We support the overall purpose of the bill, but we have reservations about some of the specifics, as I have outlined.

Kevin Gibson, would you like to say more?

Kevin Gibson

I do not have anything specific to add.

What are the practical implications of the Scottish Government taking that different view? I presume that people who are watching will say that everyone seems to support high-speed rail, but there is a potential conflict on a matter of interpretation. Notwithstanding that you have said that there is time, there could be a delay to something that everyone seems to want to happen.

I hope that there will not be a delay, but it is for the UK Government to state its position directly to the committee. The position that it has taken in discussions with the Scottish Government and its officials is that, because the additional clauses relate directly to the authorisation of a high-speed rail project—a reserved matter—legislative consent is not needed. The UK Government has quite a pure interpretation of that. It considers that any impact on devolved matters will be entirely incidental. Our view is that that is too narrow an interpretation of legislative consent, given the potentially significant impact on devolved matters.

I do not want us to get into conflict. There are months, if not years, to resolve the issues, because it is a hybrid bill. Ahead of the meeting, I discussed that with Kevin Gibson. We are not yet clear from the UK Government what the associated final timescales will be, because it is a hybrid bill, which is quite an unusual legislative feature. Kevin Gibson can say more about that, because he is a lawyer.

I do not want to get us into conflict. The associated timescales are in the UK Government’s gift, but Scottish Government officials will work very closely with UK Government officials to get to a resolution, because we all want this to work.

People who are watching might be thinking, “Well, it’s not really in the UK Government’s gift, is it?” The UK Government has set out its position, and it has presented the bill. It appears that it is the Scottish Government that disagrees with that interpretation, so it is not really about the UK Government, or is it? What am I missing, minister?

We disagree with the UK Government’s interpretation of the legislation, because it overcuts devolved competence. We can go into some of the specifics of that later. However, we want high-speed rail to work, and we want officials to work together to make sure that it is a success. That should not come at the cost of devolution being eroded, Mr Kerr. I am sure that, as a member of the Parliament, you would agree with that.

The minister is suggesting that devolution would be eroded, but that is, of course, the Scottish Government’s interpretation. I think that that is clear, is it not?

Natalie Don, who joins us remotely, will ask the next question.

Good morning, minister. I am looking for clarification on where we are with the discussions that either you or your officials have had with your UK Government counterparts to resolve the concerns that we have highlighted in relation to the LCM. How far along are we? Has there been any progress?

Officials have been working closely with their counterparts in the Department for Transport and the UK Government. Most recently, they met on 19 May, I think. There has been good collaborative working. Good progress has been made on the provisions relating to the Crown estate and Crown lands, and I am grateful to all who were involved with that. I hope to be in a position to write to the committee fairly soon—I hope that that will be later this week—about the matter. Detailed discussions about the water and building regulations and some road aspects will follow.

As I mentioned to Mr Kerr, this is a hybrid bill, so there is enough time available in 2022, and potentially into next year, to work carefully through some of the issues and concerns. Discussions are on-going between Scottish Government officials and those in the UK Government.

10:00  

I will ask about two aspects of the bill that are a bit contentious. One is about the water environment: in effect, the controlled activities regulations are not being applied through the bill, which seems a bit odd. Surely there are not lots of rivers passing through what is quite a small site. The other aspect that I want to ask about is building standards. Are there any risks to the environment or to building users as a result of not adopting those regulations through the bill?

Although it might be normal practice in England to disapply environmental regulations for major construction projects, that is not the policy in Scotland, as Mr Ruskell knows. The Scottish Government’s position is that anything that could impact on the water environment must be authorised by the Scottish Environment Protection Agency and carried out in such a way as to protect our water environment to the extent that is reasonable. In other Scottish infrastructure projects, the controlled activities regulations requirements have not been disapplied. For example, the Waverley Railway (Scotland) Act 2006 and the Forth Crossing Act 2011 were hybrid bills, passed by the Scottish Parliament, that gave the Government the powers to construct the Borders railway and the Queensferry crossing respectively.

The overarching aim of the Building (Scotland) Act 2003 and building regulations is to secure the health, safety and welfare of building occupants. Therefore, further details about the depot are needed to evaluate how the proposals would impact on the building standards that would normally apply. Again, that will be discussed in detail by the relevant teams, and a new position will be reached with the relevant ministers, including, in this instance, my colleague Patrick Harvie, given his responsibilities in that area.

I presume that these would be fairly simple matters, given the size of the site and the nature of the project. For example, would the requirement for the project developer to speak to SEPA really require a huge amount of work to be done?

I might bring in Kevin Gibson on the specifics, but I think that the assumption that the regulations should be disapplied is fundamentally wrong. We have not done that in the past, and we see no reason for that to be done in this case. As I said, we have not yet seen the details with regard to the building regulations and the depot in Annandale. Those details need to be forthcoming in order for us to reach a clear view on that, but Kevin Gibson might be able to provide more detail.

A feature of the discussions at official level is exactly that question: what would the practical implications be of the disapplication of the regulations? The bill takes a blanket approach to these matters, as it does for works in England and Wales, which are far more extensive, obviously. We need to get to the bottom of what the practical impact would be on, for example, the water environment were the regulations to be disapplied. Another set of provisions that will be disapplied in Scotland are the protections for historic buildings. Ministers have been able to recommend consent for that, because we have been able to confirm with the Department for Transport that no historic buildings will be affected by the works in Scotland. Those are the sorts of discussions that are taking place.

Acts passed by the Scottish Parliament authorising new rail lines, such as the Waverley Railway (Scotland) Act 2006, gave project promoters wide-ranging powers to build a great deal of the necessary infrastructure without the need for further authorisation from other public authorities. On the LCM, you have recommended that Parliament should not give consent to provisions that would allow the Annandale rail depot to be built, as part of HS2, without building standards and controlled activities consent. Is that consistent with previous practice? If not, why have you chosen to pursue that approach?

The approach that has been taken to similar projects authorised by acts of Parliament has been that building standards and the CAR requirements continue to apply. As I mentioned in my response to Mr Ruskell, both the Waverley Railway (Scotland) Act 2006 and the Forth Crossing Act 2011 conferred broad powers on the promoter to construct the works but did not disapply CAR or building standards requirements. Given those precedents, we are not currently in a position to recommend that Parliament consents to the disapplication of those regulatory requirements in Scotland.

However, the hybrid bill process in the UK Parliament is a lengthy one, as I have mentioned in response to other committee members. Therefore, we are continuing to discuss those issues with the UK Government, and I am happy to keep the committee updated on the progress of those discussions.

Is it your view that it would be preferable for you to be able to come back with an LCM approving consent, should those discussions over the next—

Yes, that would be preferable—absolutely.

That is great. There are no more questions. I thank the minister and her officials for taking part in the meeting and for providing us with the background for a report on the LCM, which the committee will publish before the summer recess.

I will briefly suspend the meeting in order to set up the room for the next witnesses.

10:04 Meeting suspended.  

10:10 On resuming—