Chamber and committees

Which organisation did you say? I did not quite catch it.

Yes. The reason why I have been at pains to distinguish between the substance and the transfer is that I was concerned that there might be confusion about what was up for discussion today.

I mentioned to Bob Doris that we recently consulted on proposed powers that would allow the Scottish ministers to make future amendments to the 1994 habitats regulations and to the various EIA regimes in Scotland. We are carefully considering the responses to the consultation in order to identify the best way to proceed with those powers.

Nothing stands still. We want to ensure that the regulations and the legislation that form the EIA regimes, which are the key frameworks that underpin the important environmental protections and assessment processes in Scotland on land and sea, are fit for purpose and are achieving ministers’ aims of protecting the environment, reducing biodiversity loss and meeting our climate change targets. We want all those to be fit for purpose.

I have already referred to the fact that this year’s programme for government set out our intention to include those powers in a natural environment bill, which is to be introduced in this parliamentary year. Therefore, you are absolutely right—that work is on-going.

You are asking how it operated prior to 2017.

As I said, we are already consulting on the 1994 habitats regulations. We consult on the most effective regulations within the current powers. However, the example that you put to me is a significant change, which would be subject to heavy engagement and consultation before we got to that point.

As I said, the move to EORs would be long term and complex. If you are asking whether the Scottish ministers will be back here next week to suggest substantial and widespread changes to the consenting scheme, the instrument does not enable that to a greater extent than would otherwise be the case.

Essentially, it means that the Scottish ministers do not have a like-for-like replacement of the lost function of making EIA regulations. The order does not reinstate the Scottish ministers’ ability to amend the 2017 regulations but transfers EOR regulation-making functions to ministers, to replace the lost function of making EIA regulations in the same respect. Sorry—that paragraph from my notes was confusing.

The order does not completely reinstate what we had previously, because the UK Government does not have the power to do that—because we are out of the EU. Instead, it follows through on the consultation that Michael Gove initiated to look at how a new system of environmental assessment, which would not result in a lower level of environmental protection, might replace the EU-derived environmental assessment process. It is one of the many mop-up things that are required to deal with lost functions post-Brexit.

I was going to say, “It’s as simple as that,” but I have made it sound quite complicated. [Laughter.]

I emphasise that this is a Scotland Act 1998 order, so it is very much about where powers lie. It has nothing to do with the substance of those powers, which would be the point at which we would consult widely on what environmental assessment should look like.

Those issues dominate the Scottish ministers’ discussions, and I know that they feature high on the agendas of Gillian Martin and Alasdair Allan. The fact that we constantly consider those issues is partly why I made the point in my opening remarks that the regulations process is tried, tested and well understood. There is an argument that we should ensure that the substance of the regulations is in line with ministers’ objectives, rather than going back to the beginning and completely changing the process. What we are discussing today is whether ministers have the power to fundamentally change the regulations.

The argument that I made in my opening comments was that we will consult on what the substance should be, but we have no intention, in the short term, of making fundamental changes to the processes.

Yes. I go one step further and say that, although it is not for me to defend the UK Government, the 2023 act, which I referenced in my answer to somebody, stated that EOR regulations must not result in a lower level of environmental protection than existed under environmental law at the time of the 2023 act being passed. It is not the Scottish Government’s intention to lower protections. Either way, the 2023 act is quite clear.

Yes. [Laughter.]

Independently of the process around this instrument, the Scottish Government keeps a close eye on what changes are happening at an EU level.

Stewart Cunningham will keep me right on this, but the non-regression clause in the Levelling-up and Regeneration Act 2023—the act that gives rise to this transfer of powers—includes a safeguard that means that any environmental outcomes report regulations must not result in a lower level of environmental protection than existed under environmental law when the 2023 act was passed. The 2023 act also says:

“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 of relevant plans and relevant consents.”

So, although the proposal does not represent a like-for-like replacement, it captures a moment in time—the 2023 point—and it is for the Scottish ministers to ensure that, where we have the power to make changes, concurrently with the Secretary of State or otherwise, we can do so.

If this instrument does not pass—in other words, if the power is not transferred—we are, essentially, at the mercy of a situation in which we have to either accept or reject whatever EOR regulations the UK Government makes in future in relation to electricity works in the context of environmental assessments, and so on. There is more scope for divergence if this instrument passes than if it does not because, if it does not, we would have to accept whatever the UK Government does in terms of EOR regulations.