UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (Consequential Provisions and Modifications) Order 2021

Viscount Younger of Leckie Excerpts

Tuesday 8th June 2021 Grand Committee

Moved by

[Viscount Younger of Leckie]

That the Grand Committee do consider the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 (Consequential Provisions and Modifications) Order 2021.

[Viscount Younger of Leckie (Con)]

My Lords, I beg to move that this draft order, laid before the House on 14 April 2021, be considered. I am grateful for the opportunity this afternoon to debate this important order, which allows the Scottish Government to fully implement their new environmental governance body, Environmental Standards Scotland, which I will now refer to as the ESS. This order is part of the Government’s ongoing commitment to devolution and is made in consequence of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, which I shall now refer to as the continuity Act.

I will begin by providing some background to this order, which is to be made under the Scotland Act 1998. The 1998 Act devolved powers to Scotland and legislated for the establishment of a Scottish Parliament. Scotland Act orders are a form of secondary legislation made under the 1998 Act, which are used to adjust Scotland’s devolution settlement. The order before your Lordships today is a Section 104 order, which allows for necessary or expedient legislative provision in consequence of an Act of the Scottish Parliament. In this case, provision is required in consequence of the aforementioned continuity Act.

The continuity Act, which received Royal Assent on 29 January 2021, enables Scottish law to continue to keep pace with future EU developments, following the UK’s exit from the EU. It also establishes a new regime of environmental governance in Scotland, including the new governance body, the ESS. The ESS will enforce compliance by the Scottish Ministers and public authorities in Scotland with environmental law, and it will assume statutory powers and functions once fully vested. The ESS will also provide scrutiny of the effectiveness of environmental law and of its implementation and application. Reserved bodies in Scotland will naturally be excluded from its oversight.

It must be emphasised that the purpose of the debate is not to consider the content of the continuity Act or the powers of the ESS; rather, the amendments to reserved legislation that the order seeks to implement. The Scottish Parliament has already legislated to create the ESS, but consequential amendments are required to reserved legislation to give full effect to the ESS and allow it to carry out its functions.

I will now turn to the instrument itself and explain what it does. Its consequential purpose is twofold. First, it will make the ESS part of the Scottish Administration. This will provide for its designation as a non-ministerial office that is independent from Scottish Ministers but accountable to the Scottish Parliament. It also provides that the Crown Suits (Scotland) Act 1857 does not apply to the ESS, with the effect that the Lord Advocate cannot sue or be sued in place of the ESS. Secondly, it amends the House of Commons Disqualification Act 1975 by adding the ESS to the list of bodies whose members are disqualified from being Members of the House of Commons. This is required to ensure the independent basis of the body’s work.

The Scottish Government are unable to make these amendments to reserved law, so, without the order and the small changes it makes to UK legislation, the Scottish Government could not confirm the ESS as a body of the Scottish Administration. It would also mean that members of the ESS could stand in the House of Commons, which would undermine its purpose as an independent body.

Your Lordships may wish to note that equivalent provisions for environmental governance in England are contained in the UK Government’s Environment Bill. This Bill completed its Second Reading in this House yesterday, 7 June, and is now preparing for the Committee stage. Like the continuity Act, the Bill sets a new and ambitious domestic framework for environmental governance. The Government are aiming for the Environment Bill to have Royal Assent by the autumn.

This Bill will set up the office for environmental protection, which I will subsequently refer to as the OEP. The OEP is a similar organisation to the ESS and will hold the Government to account on their environmental commitments. Both the ESS and the OEP are still being set up. However, I can confirm that the ESS has been operating on a shadow, non-statutory basis since 1 January 2021. A transition team has been appointed to help to establish the ESS and to ensure that it is prepared to take on its statutory functions once vested. Similarly, work establishing the OEP is continuing at pace. From July 2021, the new interim office for environmental protection will be set up in non-statutory form to provide independent oversight of the Government’s environmental progress and to build a strong foundation for the OEP delivering its full statutory functions.

There will naturally be scenarios where governance bodies in different parts of the UK will have to co-operate on issues where there is an overlap or joint exercise of reserved and devolved powers. As independent bodies, it will be for these bodies to determine how best to work on these issues. However, we can be sure that good communication and co-operation will be key, and it is expected that both bodies will collaborate to maintain environmental standards across the UK.

One example here is standards for waste disposal, for which guidance documents have been produced for similar, but separate, regulatory systems in Scotland and England. Should any concerns be raised to either the OEP or the ESS with respect to the application of the guidance, it would make sense to work together to address concerns. Another example is producer responsibility, a UK-wide regime where co-operation would be needed for the regulation of compliance schemes registered in one nation but operating across the UK. Indeed, through their respective legislation, each body will be required to consult other environmental governance bodies where a particular exercise of its functions may be relevant to the exercise of the other’s.

In summary, this instrument facilitates the implementation of the ESS by adding the body to the Scottish Administration, and ensuring that its members are disqualified from becoming Members of the House of Commons. It demonstrates the commitment of the UK Government to strengthening the devolution settlement and the partnership working between the two Governments to deliver for Scotland. I commend the order to the House, and I beg to move.

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

I thank noble Lords for their valuable contributions to this short debate. Let me start by saying that I appreciate the broad support for this order from all concerned. Let me also say, particularly in relation to the six points made just now by the noble and learned Lord, Lord Falconer, that if I do not answer all the points today, I will most certainly study Hansard and write to him.

The Government are absolutely committed to working collaboratively with the Scottish Government to ensure a functioning settlement for Scotland, and I hope that this instrument and my remarks today demonstrate that commitment. However, important questions have been asked both recently and this afternoon, querying the relationship between the ESS, the OEP and other devolved environmental governance bodies. I hope that I can attempt to answer them.

My noble friend Lady McIntosh of Pickering asked how the ESS and the OEP will work together near the borders. I will answer that in a moment. She also asked about the funding aspect. Again, I have an answer for that.

Clearly, there was a mood in this debate—particularly from the noble Lord, Lord Bruce, the noble and learned Lord, Lord Falconer, and my noble friend Lady McIntosh—regarding independence. The Scottish Government have designed the ESS as they see fit, which is consistent with the devolution settlement. Similarly, the UK Government have carefully designed the OEP for it to deliver its functions effectively in England and over reserved matters.

My noble friend Lady McIntosh asked about the ESS and its engagement. I can confirm for her that the ESS has already undertaken early engagement with the OEP and the UK Government. The trade and co-operation agreement—the so-called TCA—is a complex matter. I will need to write to my noble friend, as I think she expected.

My noble friend also asked about the powers of the OEP. As she might expect me to say, I realise that this matter was raised during yesterday’s debate on the Environment Bill. I do not believe that this is the place to debate it, but I understand the gist of her question; I know that she will have time to debate it before too long during the upcoming Committee stage of the Environment Bill.

Moving on to the details of the ESS, my noble friend Lady McIntosh raised the matter of how the ESS deals with Scottish public authorities that breach environmental standards and environmental law. This is really more a question of remedies. Once the relevant provisions of the continuity Act have been commenced, the ESS will have a range of formal powers at its disposal to ensure that public authorities comply with environmental law, including powers to prepare compliance notices and improvement reports. I am aware that the organisation’s principles state that it will seek to resolve issues through agreement, where possible, with recourse to its formal powers where the ESS considers it necessary to deliver the expected outcomes. The ESS has powers to issue compliance notices to public authorities where an authority is failing to comply with environmental law and that failure is causing, or has caused, environmental harm or a risk of such harm. The ESS will also have the power to report public authorities to the Court of Session where they fail, without reasonable excuse, to adhere to the compliance notice.

On the ESS and the OEP working together within a common or similar framework, I assure the Committee that, as both bodies are independent of Ministers, it would be inappropriate for a common framework to be agreed. However, environmental bodies across the UK will need to co-operate to ensure that shared environmental objectives continue to be achieved through effective delivery. Where devolved Ministers or public bodies are also responsible for delivery through devolved functions, it would be for the relevant governance body, such as the ESS in Scotland, to agree how to co-ordinate any subsequent action, depending on the specifics of the particular issue.

As I said earlier, the Scottish and UK Governments have started discussions on co-ordination in UK governance as part of wider discussions on the implementation of the trade and co-operation agreement. In particular, there will need to be agreement on how our arrangements will meet aspects of that agreement covering good regulatory practice and co-operation on effective performance.

To come to my noble friend Lady McIntosh’s question about the ESS and the OEP working together on the border, as independent bodies it is for them to determine their approach to collaboration and co-operation. The legislation that establishes these bodies ensures clarity for parties when dealing with matters of mutual interest. The UK Government anticipate that this network of bodies will deliver effective governance across the UK.

In terms of matters European, which a couple of speakers raised, I was asked whether the ESS will look to apply policies to Scotland that are being developed in Europe. That is a key question. In exercising its functions, the ESS may keep under review developments in international environmental protection legislation to inform advice on whether changes should be made to Scottish environmental law. The power to make provision corresponding to EU law in devolved areas rests with the Scottish Parliament. Part 1 of the continuity Act gives Scottish Ministers the discretionary power to make regulations to achieve alignment with EU law where no specific powers are available.

Moving on to independence, which was raised, I may need to write more on this matter. Perhaps I may reiterate to my noble friend Lady McIntosh, and particularly to the noble Lord, Lord Bruce, and the noble and learned Lord, Lord Falconer, that the ESS, as a non-ministerial body, is accountable to the Scottish Parliament but has operational independence from both the Scottish Parliament and Government. The appointment of board members must be approved by the Scottish Parliament, and Scottish Ministers must seek parliamentary approval to remove members on the grounds of impairment or unsuitability. I feel that I may need to write further on a point raised by the noble and learned Lord on the appointment of board members. I hope that I have given some reassurance, but I may need to go slightly further.

I was asked how the ESS will be funded. The ESS will receive a budget allocation from the Scottish Government and will publish its own annual reports and accounts. Under the continuity Act, Scottish Ministers are required to ensure that the amount of resources allocated for use by the ESS is reasonably sufficient to enable it to perform its functions. In its annual report, the ESS must include an assessment of whether the resources allocated for its use in the financial year to which the report relates were sufficient to enable it to carry out its functions, so I hope that gives some reassurance.

The noble Lord, Lord Bruce, asked whether the OEP will be extended to Northern Ireland. I know that the answer is that it is very much for the Northern Ireland Assembly to decide whether to extend the OEP to cover Northern Ireland. If the OEP is to operate in Northern Ireland, it will clearly be beneficial to ensure that any gap between it becoming operational in England and Northern Ireland is minimised. I think he will know that DAERA and Defra officials are working closely with the chair-designate of the OEP to ensure that as much preparatory work as possible can be completed in advance of the Environment Bill receiving Royal Assent, thereby allowing the Northern Ireland Assembly to consider commencement at the earliest opportunity.

I believe that I have covered the majority of questions raised. However, other questions were raised, and judging by my notes I will need to read Hansard tomorrow. I think I shall have to write, as there are some questions that I still need to address, but I hope that has covered the bulk of it.

I conclude by saying that the UK’s new approach to environmental governance, which we have discussed today in relation to this order, is testament to our leadership on environmental issues. I am very aware of COP 26, which is being hosted in Glasgow. I believe the ESS will make a valuable contribution to this cause. With that, I commend the order to the committee.

Motion agreed.