Official Report

Welcome to the Environment, Climate Change and Land Reform Committee’s 13th meeting of 2020.

Under item 1, the committee will decide whether to take in private items 5, 6, and 7, as well as all consideration of its approach, evidence and reports on the United Kingdom Environment Bill legislative consent memorandum, Covid-19 and green recovery, regional marine planning and the Scottish Government budget 2021-22 at future meetings.

If any member is not content, please indicate that by putting an “N” in the chat box now.

As no member has disagreed, the committee will take in private items 5, 6 and 7, as well as all consideration of its approach, evidence and reports on the United Kingdom Environment Bill legislative consent memorandum, Covid-19 and green recovery, regional marine planning and the Scottish Government budget 2021-22 at future meetings.

Item 2 is an evidence session with the Cabinet Secretary for Environment, Climate Change and Land Reform on the UK Environment Bill and legislative consent memorandum. I welcome the cabinet secretary and her officials. Don McGillivray is the deputy director of environmental quality and the circular economy, Ailsa Heine is a solicitor with the directorate of legal services, and Charles Stewart Roper is from the environmental strategy and governance unit

One thing jumps out of the bill from a parliamentary scrutiny point of view: there is no role for the committee in scrutiny of any aspect of what is proposed by the UK Government in the Environment Bill. We will not see any detail of the statutory instruments and all the decisions about the bill will be made at Government level, so the cabinet secretary has a role in deciding whether to accept everything that is in the bill. What are your feelings on that?

I understand the committee’s desire to have sight of UK statutory instruments that affect devolved areas. There was a protocol with Parliament that provided for notification in areas that related to European Union law, and we have spent considerable time on that process. Of course, that process has now lapsed.

However, a new protocol is under negotiation between the Scottish Government and parliamentary authorities, so we are actively looking at how to ensure that the Scottish Parliament has some proper ability to scrutinise what is happening in respect of a UK bill that, of course, creates issues for us all, of which there is no doubt.

As the cabinet secretary who has responsibility for the environment in Scotland, how comfortable are you with the arrangements and your oversight of and inclusions in decisions that will affect us here?

The Government feels that we have the parts of the bill that affect us in a reasonably good place. However, that is speaking purely from the Government’s perspective; I appreciate that Parliament’s perspective will be slightly different.

We have worked quite hard on the matter. The committee should remember that this is the second version of the bill. The original lapsed with the general election in December last year, and what has been introduced is a slightly different version of the bill. We are therefore looking at a matter that we have had to reconsider, and we have had to think about the reality of what we are confronting.

We expect the UK Government to seek the consent of the Scottish ministers when it plans to include devolved provision in UK statutory instruments. As I have indicated, ministers agree that the Scottish Parliament needs to have a role in that, and we are discussing a new protocol for that scrutiny. I am not personally involved, but I understand that the discussions are close to a successful conclusion. The intention is that the protocol would apply to all instruments that are made by UK ministers that legislate in devolved areas. I think that that was in the letter that we originally sent to the committee. I think that we are in the best place that we can be in, in respect of the bill.

Should we also be concerned about the processes that secondary legislation undergoes at Westminster? My understanding—I am perfectly content to be corrected on this—is that, at Westminster, unlike in the Scottish Parliament, where secondary legislation is referred to the relevant subject committee, no process applies whereby the standing committee that covers the subject area automatically sees an SI and must provide a view on it. There seems to be a new subsidiary committee that deals with secondary legislation, but I am not sure that its brief extends to covering policy. It is like our Delegated Powers and Law Reform Committee—it is simply about the construction and legal validity of the instrument.

Should we have an additional concern that Scottish laws can be changed by Westminster ministers and then not scrutinised even at Westminster to the degree that they would be in Scotland?

I confess to not being an expert on current House of Commons processes. My six years there were quite a long time ago, and I think that the parliamentary processes at Westminster have changed considerably since then.

Regrettably, I have no control over Westminster procedures. I wish that they were more aligned with what we are doing, and have done, in the Scottish Parliament, but I cannot change that. All that I can do is ensure that, at least as far as the Scottish Government and the Scottish Parliament are concerned, we look carefully at it all and that everything is done in the appropriate way.

The work on the bill so far has been on the basis that devolved competence will be respected, acknowledged and recognised.

Mark Ruskell has a question on that particular issue.

Good morning, cabinet secretary. I want to ask about instruments on devolved competence. Would a joint parliamentary procedure, in which SIs would be laid in the Scottish Parliament or the Welsh Parliament and in the UK Parliament at the same time be far more appropriate?

In some areas of my work, there are discussions about doing that. That approach is not generally provided for in the bill, but that is not to say that it will not happen. However, I again make the point that I cannot control Westminster procedure, any more than I can control Welsh procedure.

Where we take such an approach, it will be by joint agreement across Administrations, because that is the only basis on which we could reasonably proceed. The approach might be more or less appropriate, depending on the SI. It is perhaps not necessary to treat every SI in that way, but it might be useful to treat some like that. That is the case with this particular issue, which is precisely why it is felt to be appropriate. That conversation is live, but it is in respect of individual SIs rather than a blanket process.

What would be the nature of the SIs to which the cabinet secretary refers? You say that there have been discussions on individual SIs. What subject areas would SIs cover for which a joint procedure would be more appropriate?

It is not a joint procedure; it is an aligned timeline. That is perhaps what you are thinking about, rather than a joint procedure. It is about all the Administrations choosing to deal with SIs on the same timeline. We are discussing that in relation to the emissions trading system, for example.

My point is that there is no resistance to our doing that, and that it might not be necessary to have a blanket process for every SI that emerges. It is not easy just to snap your fingers and have four Administrations all do things on the same basis at the same time. Thought has to be given as to when that approach would be appropriate and necessary, and to how, in practical terms, it can be done.

Finlay Carson has questions on common frameworks.

Given the significant challenges for Parliament of the legislative process, which we have heard about, can you give more information on the common frameworks relating to the policies in the bill—in particular, their content, format and timescales?

There are no common frameworks in existence yet, although they are being discussed in relation to a number of areas. In reality, the closest that we are to having one is in relation to the ETS, which I have referred to but which is outside the scope of the bill. That is probably the framework that we are closest to achieving, but we are not there with it, yet.

Our absolute bottom line is that common frameworks must be agreed commonly and cannot simply be imposed by one Administration with the expectation that all the other Administrations will sign up. That would not be a common framework—a common framework would be agreed.

At the moment, the common frameworks that might come into existence are being developed in accordance with the principles that were agreed in joint ministerial meetings in 2017. Obviously, they have to respect the devolution settlement and the democratic accountability of the devolved legislatures, and must be agreed by all Administrations.

What would you like to see being included in the common frameworks? On the UK Government’s statement about a level playing field, particularly in relation to environmental standards, can you provide any further information on the suggestion that the LCM could move away from the commitment to a level playing field? What are the implications of that for the frameworks between the UK Administrations? Does it suggest that the common frameworks—[Inaudible.]

I missed the end of that. Did you get everything, cabinet secretary, or would you like Finlay to go over it again?

We have all agreed that common frameworks are an appropriate way to proceed in some areas. Where the most effective way of setting up a regulatory regime is to do it across the whole UK, we are not resistant to that. However, in Scotland we also have the fundamental principle that we want to keep pace with the EU.

We are developing common frameworks in certain circumstances. We will not agree to common frameworks that tie our hands on things that are now, in effect, our devolved responsibility, and on areas in which we can do things our own way. That is the basis on which common frameworks would have to be agreed. They cannot become a straitjacket for devolution.

I am not entirely certain what Finlay Carson is getting at. Obviously, there are more general concerns about environmental and other standards when we leave the EU, some of which have been re-ignited in the past couple of weeks. We are very concerned to keep pace with EU standards, and we could not allow common frameworks to become handcuffs that would prevent that from happening.

The LCM refers to a common framework for how the proposed UK office for environmental protection would work alongside the Scottish equivalent, when we find out about that. The committee was not aware of a common framework in that policy area. Can you provide further information on that, especially around content and timescale?

As I said at the start, no common frameworks have been formally set up yet. There are discussions in some areas where traditionally there has been cross-UK co-operation. We are not looking at a common framework for the OEP that the bill proposes to set up, which would have the capacity of a governance body; we do not talk about common frameworks for governance bodies, and none is planned. That does not mean that the different governance arrangements in each Administration will not talk to one another and develop their own working arrangements.

The OEP is meant to be independent. No doubt there will be conversations between people, but that is not a common framework or a joint Government arrangement. I remind you that SEPA already does that kind of thing at a UK and European level, so it is not an unusual position to be in. However, it would be wrong to call that a common framework; that is not what that is.

But the LCM refers to a common framework. If you are suggesting that there is not a common framework, how do you propose that the OEP works alongside the Scottish equivalent?

I am sure that the bodies will talk to one another. I have to be careful, because I do not want to get into too much detail about the Scottish equivalent. The proposals for that will be in the continuity bill.

We are not talking about having a common framework for the governance bodies. I think that there is a misunderstanding. Common frameworks are about regulatory regimes; they are not about having common frameworks of governance.

I have been reflecting on the comments in SEPA’s submission about environmental governance, the principles in the bill and the need to clarify those issues as they relate to SEPA and the OEP. It said:

“SEPA’s understanding is that the environment is a devolved matter under the Scotland Act 1998 and the OEP has no jurisdiction over devolved legislative provisions. The vast majority of what SEPA regulates is therefore excluded from the scrutiny of the OEP.”

Do you agree? Do you have any additional comments to make on that?

Yes, I agree with that. I do not really have any other comments. SEPA was set up in statute by the Scottish Parliament, and its responsibilities for the vast majority of what it does lie within that legislation. A handful of matters are subject to executive devolution—that is, it does one or two things on behalf of Westminster. Those are in a slightly different area.

SEPA would not expect to have much, if any, contact with the OEP. I would expect that to be the same for virtually everything that happens in Scotland, because it is Scottish environmental governance arrangements that will be relevant not just for SEPA but for other agencies and activity in Scotland.

That is the helpful clarification that I was hoping for.

I want to ask about the four EU environmental principles, which are part of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. I, and others on the committee and far more widely, including Environment LINK, have concerns about ensuring that those principles are in legislation. However, as I understand it, they are not in the Environment Bill. What are your thoughts on the principles? How can we ensure that we continue to work with them?

I have made my position clear on several occasions: in Scotland we want to continue to be guided by those environmental principles and to keep pace with developments in the EU to ensure that, where at all possible, Scotland reaches the best possible standards. There is no intention to move away from that approach.

For obvious reasons, I cannot control what the Westminster Government chooses to legislate on for itself, but this part of the United Kingdom will continue to apply and abide by those principles and comply with what follows through from them.

Do you agree that the follow-on from that position is that, if commitment to the principles is not in the UK legislation, we should enshrine it in the forthcoming Scottish continuity bill?

It is referred to indirectly in the Environment Bill—it will be put into guidance, rather than legislation. We await the introduction of the continuity bill and I do not want to be drawn too far on that. It will be in the continuity bill but, for obvious reasons, I cannot discuss the various aspects of the bill in detail.

We look forward to seeing that.

I have a simple question, cabinet secretary. Is it your view that a common framework, in so far as it sets standards, is merely a floor for what we can do? In other words, we cannot fall below the standard that is set in the framework, but it does not create a ceiling on the standards that we might set for ourselves.

The common frameworks are about co-operation. I see them as important when it continues to be relevant that we think about things on a UK-wide basis, in those areas where, notwithstanding our devolved competence, there is merit in having a regime that operates in a similar fashion across the whole of the UK. The importance of common frameworks is perhaps not even in the way that Stewart Stevenson describes but is about making a decision that a regulatory framework in a particular circumstance is best applied in a similar fashion across the board.

It is important to say that a common framework does not tie our hands in going further in our policy—nothing can. If we came to an agreement on a common framework, it would be by agreement only; common frameworks can come into being only if all the Administrations are in agreement and are prepared to continue on that basis.

Mark Russell has a supplementary question on that issue.

I want to go back to the issue of the OEP and whether we have absolute clarity on its role. I will use the example of an oil spill in Scottish waters, which would be a major environmental disaster. In that situation, there are reserved responsibilities under the Merchant Shipping Act 1995, so we would expect the OEP to lead on that, but there are also devolved responsibilities. Is there clarity on what role the OEP would play in Scotland were there to be an environmental disaster such as an oil spill? What is the crossover with SEPA and other regulatory bodies?

I would expect there to be considerable co-operation and joint working if we were in such circumstances. The OEP will have no remit over any competence of the Scottish Parliament or over the actions of Scottish ministers.

If there were an issue in which devolved and reserved responsibilities interacted, we would of course expect co-ordination and co-operation between the OEP and our future Scottish environmental governance body. However, there is a difference between the actions that are taken to deal with an oil spill and the OEP’s consideration of whether those actions were appropriate. The OEP would not actually deal with the oil spill—that would be both Governments and it will depend on their responsibilities.

So looking at the consequences of an oil spill in terms of corporate governance or the adequacy of the clean-up response will be the role of the OEP, and dealing with the immediate aftermath of the oil spill and the co-ordination of effort on the ground will be SEPA’s responsibility.

Of course. SEPA will have all the responsibility that it has now. SEPA is not an equivalent to the OEP; SEPA’s equivalent is the Environment Agency. The OEP is the UK Government’s answer to the governance gap that will open up when we remove the EU’s overarching responsibilities. Not even at the EU level did they step in and do the work themselves. There is a danger of confusing the roles. Despite the fact that the words “environmental protection” are in the OEP’s name, it does not replace the Environment Agency, much less become SEPA’s equivalent. We need to be clear about the differences between those organisations.

As with any similar body that we would set up in Scotland, we will make recommendations for it, but it will not do the job on the ground.

But if there was a concern about compliance or the adequacy of the response, or an environmental complaint was made, that would go to the OEP.

It would depend on what the complaint was about. If it was about a reserved issue, it would go to the OEP. If it was about a devolved issue, it would come under our environmental governance arrangement. If it brought devolved and reserved issues together, we would expect both governance bodies to work together.

Right.

That is joint working and not the OEP running things, if you see what I mean. The OEP would not have a remit over any of the devolved issues that were being complained about.

I want to ask about the statutory instrument process. In some cases, the committee was given less than 28 days to scrutinise the no-deal SIs that we have been dealing with. You are a former committee convener, cabinet secretary. Do you think that it is fair that the Scottish Parliament in effect shares its powers with the UK Government over such instruments? What opportunities do you think the committee will have to scrutinise the SIs before they are consented? We are really just considering them after the event.

I could give you a long list of things that I do not think are fair in the current circumstances, but it would probably not get us anywhere. As I said earlier, there are still discussions going on about how we manage this, and that will be a question specifically for the protocol. If I put on my previous convener’s hat—God forbid that I should step on the current convener’s toes in this regard—I would say that there might be some advantage in considering whether there is a proactive way to explore an issue before an SI begins to appear.

However, the truth is that we are in the process of attempting to set up a protocol that will allow scrutiny of the SIs through the Scottish parliamentary process. I agree that, with the SIs relating to no deal, it became quite frantic at a certain point, and that is not particularly helpful. However, I am hoping that that will not necessarily be the case in this regard and there will not be that slight air of panic that began to emerge.

If any of the officials is directly involved in the protocol discussions, they may want to add something specific to that. I am not quite sure how appropriate that is, but if any official wishes to come in, that would be fine. At the moment, detailed discussions are going on and, although they have not been finalised, they are relatively close to a conclusion, as far as I understand it.

I have nothing to add to what the cabinet secretary has already said. The protocol that is being discussed between our parliamentary liaison officials and the parliamentary officials goes well beyond this bill and this portfolio, so it is the officials who deal with cross-Government parliamentary relations who are leading on that.

The issue that we have is that the cabinet secretary will see and make decisions on the content of an SI, but the content will never come in front of the committee for us to even just look at—not even the text of the SI.

There will be obvious potential SIs arising from primary legislation. There is often a specific trigger for an SI, so one can often ascertain that there will be an SI in a particular area. Sometimes it is an area on which a committee may already have taken some evidence through the course of a previous legislative process.

I am trying to think about some of the ways in which all committees could make a start on some of the work that is required. SIs often require consultations as well. Perhaps the problem is that we are using the no-deal scenario as though it was a template for how this will proceed and I am not sure that that will necessarily be the case.

Clearly, there is a concern about ensuring that there is a proper process for Scottish Parliament purposes for dealing with SIs that arise in this way.

Finlay Carson will take us on to producer responsibility and resource efficiency.

Why does the Scottish Government support sharing its powers in relation to producer responsibility and resource efficiency rather than agreeing policy alignment and parallel legislation across the four Administrations in the UK?

We have had schemes operating on a UK-wide basis for a long time, and we believe that such power sharing can be achieved without comprising any devolved competence. Producer responsibility is important to a lot of the work that we do on the circular economy, so we would always want to ensure that we still had the capacity to act in that area if we deemed it necessary.

I am not sure what Finlay Carson would expect me to say in the circumstances. The agreements that we have reached so far have been arrived at by consent. The provisions in the bill allow for that to continue, but they also allow for separate Scottish schemes to be established. I think that it is absolutely right that we will be able to continue to do things by consent when that seems appropriate but that we will not be inhibited in any way when we think that differentiation is needed. I do not see why we should be in the position of compromising devolved competence, notwithstanding the fact that, at a particular point in time, there might be good reason to have agreed schemes in particular areas, such as producer responsibility.

In the past, you have told the committee that the Scottish Government has committed to keeping pace with EU directives and regulations in relation to producer responsibility and resource efficiency “as far as possible”. When do you foresee that you might rule out keeping pace with the EU “as far as possible” in that regard?

Saying that we will keep pace with the EU on producer responsibility and resource efficiency “as far as possible” means that we will do so to the extent that, in reality, that is achievable. It is not a case of ruling that out. There might be some occasions on which it might simply not be achievable, but I do not want to get into the business of compiling a long list of occasions on which we will not keep pace with EU directives and regulations in this area. My approach is that our default position is that we will keep pace with the EU.

What would happen if a UK-wide scheme was set up using powers in the Environment Bill and the UK Government decided to make changes that the Scottish Government was not willing to accept? Would you consider coming out of that scheme? How difficult would that process of disentangling from a UK scheme and setting up a Scottish one be?

I say to Mr Carson, with the greatest respect, that we are already working jointly on such schemes. We have been doing that for a while and it has not caused any difficulties. There is always the possibility that we will consider that there is a better way to proceed and choose to take that approach, but I do not think that it would be particularly helpful for us to list hypothetical situations in which that might be the case. We are not starting from nothing. There has already been agreed working in this area, and, at the moment, we do not think that that long-established agreement should cease, because it is operating effectively.

If a question arises in the future, the relevant decisions will be made at the appropriate time by the Government of the day and the Scottish Parliament authorities at the time.

I suppose that the aim of the question was just to tease out any issues. I am pleased to hear that things are working, that you do not foresee any issues going forward and that good collaborative working is taking place. I welcome your statements on that.

We have had a comprehensive response from the cabinet secretary to all our questions on the bill. Mark Ruskell would like to pick up on the response to our question 53, on the UK REACH—registration, evaluation, authorisation and restriction of chemicals—regulations. I will hand over to Mark, and then Angus MacDonald will ask questions on that.

My question actually follows on from the cabinet secretary’s previous answer. It is about the safeguarding provisions in the UK REACH regime. Your answer to our question 53 says that, if the UK Government did not agree to make regulations and you differed on that, you would be able to take “provisional action”. What does “provisional action” mean? Would that be a permanent solution or would there be more discussions? Would that be a brake on regulations? What would it involve?

The word “provisional” suggests that it would not be permanent. If you use the word “provisional”, that means that you are putting in a fix, perhaps while you consider things. The issue would need to be considered carefully at the time. All that we are trying to signal is that the agreements in areas of devolved responsibility, whatever they may be, do not tie our hands or mean that we cannot make our own decisions within the devolved area of competence.

I have a question on where there might be disagreement, and I think that Angus MacDonald might come in on this from another angle. I presume that you value the European Chemicals Agency membership, in terms of alignment with the EU REACH regime and with scientific standards and research. Will that happen at the UK level? If not, what are your options for ensuring that we continue to work with the ECHA?

I cannot say definitely what will or will not happen. Our view remains that the best option is that the UK remains part of the European Chemicals Agency and EU REACH. We want membership of ECHA, but, if the UK Government does not go down that road, we obviously need some functioning system to replace it, and the SIs in respect of that were agreed to by the committee last year. The system is based on decisions that are made on a UK basis but with consent when those decisions relate to devolved issues. If there was a significant difference of opinion, we would probably look at some form of UK-wide assessment to consider whatever the particular issue was.

There are discussions on the chemicals framework, but those have not been completed and the matter is not ready for consideration by ministers. The discussions are progressing, but we are not at the point of there being a framework in any formal sense.

I want to explore the issue of liaison and discussion. The cabinet secretary mentioned that discussions are progressing, but we have had a submission from Tom Shields, the former chair of Chemical Sciences Scotland, who said that neither he nor Chemical Sciences Scotland has been consulted by the Scottish or UK Government about protected provisions or the common frameworks. The UK Government can answer for itself, but I am curious as to why Chemical Sciences Scotland has not been consulted by the Scottish Government. Was the other industry body, the Chemical Industries Association, consulted?

That is because the framework is not at that stage yet—it is still a work in progress. As yet, there is no framework that we can discuss with the relevant areas of industry. It is not at that point yet. We will need to see the outcome of the discussions and proposals. The frameworks will not be introduced in short order; they will take a considerable amount of work and consultation to produce.

In fairness, the Environment Bill is a UK bill, and it is for the UK to ensure that consultation takes place. We have continued to argue for alignment with the EU.

That is a fair comment.

We will move on to the final area of questioning on this item.

I want to probe further the relationships between ministers north and south of the border, particularly where a power can be exercised by either—[Inaudible.]

—decision as to who will take the action will be made by agreement rather than imposition? That opens up the general question of core decision making as opposed to centralised and imposed decision making.

I am not sure what the question was.

The sound might have dropped out, Stewart. Do you want to go over it again?

I will have another shot. There are areas where either the Scottish minister or the UK minister can proceed with secondary legislation. How is the decision made on who will do it?

Decisions on the level of regulation will be made on a case-by-case basis. UK Government regulations would be subject to consent—our consent would be required.

Does that imply that the Scottish ministers are able to withhold consent? In some areas, there is clear equal and co-decision making. When I was a minister, all four jurisdictions had to agree on appointments to the UK Committee on Climate Change, and there was no question of anyone imposing their views on the others. Is that the case here?

For anything that is subject to consent, by implication, consent can be withheld. Stewart Stevenson will know from experience that we attempt to avoid that wherever possible. If consent was required but was not forthcoming, the issue would need to be worked through. Where consent is required, there is always the possibility and capacity for that consent to be withheld.

Claudia Beamish has a question on the circular economy. I think that it will be the last question under this agenda item.

I want to highlight an issue that arises, in the main, from the Scottish Environment LINK submission but is also touched on by Zero Waste Scotland. This is not a criticism, because appreciate where we are, given the restrictions and challenges resulting from the Covid situation. However, the Scottish Government’s circular economy bill has been delayed. Do you think that the—[Inaudible.]—arrangements in the UK Environment Bill, should it become an act, will be valuable to us?

I missed the bit about the things that might be valuable to us, so I do not know whether you have anything specific in mind.

Because of our inability to introduce the circular economy bill, we are considering the vehicle under which we can bring in additional charges such as for single-use items. We are looking for alternative ways to achieve some of what we wanted to achieve through the circular economy bill.

I am not sure whether that is the kind of answer that Claudia Beamish is angling for, because I missed the bit about what she thought might be useful in terms of the UK Environment Bill.

That is helpful. Environmental standards on producer responsibility are part of the UK Environment Bill. In Scotland, we now have the deposit return scheme and we are progressing a whole range of measures. I was just wondering whether the UK-wide arrangement will help us to progress them in any way.

I am not sure that we are looking at it in that way. I do not think that we regard the more general aspects of the UK Environment Bill as being relevant to us.

We want to progress a lot of the issues that we have been discussing for quite some time within the Government. As I indicated, we are looking at alternative ways of bringing forward measures more quickly than we might otherwise do if we were to wait for the circular economy bill. Obviously, we are in a slight hiatus at the moment, so I cannot be specific at this stage about what that might look like or even about what roughly might be required in order to do that. We are not dropping any of the commitments; we are just going to find different ways of achieving them.

Mark Ruskell wants to ask a supplementary question.

I am trying to get clear in my mind how we can go forward with the LCM. You are asking the Parliament to approve the Government’s position in advance of our knowing what exactly the scrutiny arrangements will be for the SIs that come to us. What could be provided to reassure us about the arrangements in advance of the committee and the Parliament considering the LCM further?

You have said that there is a lot of discussion with the Parliament about how we scrutinise and how we can get a heads-up on draft SIs before the Government lays them. I am not clear what that looks like at the moment, and there are no additional details about that today. What can be provided ahead of our next opportunity to decide on the issue?

I am not certain that I can give the level of detail that you want. I am aware that the protocol is likely to be agreed before the summer recess, but that is about all that I can say about the timing. At that point, there will be something more to discuss. However, I think that I am right in saying that the protocol is not just about the UK Environment Bill. The protocol that is being put in place goes wider than that.

I thank the cabinet secretary and her officials for giving us evidence on the UK Environment Bill.

We are a little bit ahead of time, which is great, because we can have a short break before resuming our next session at the scheduled time of 10:40.

Welcome back. Agenda item 3 is an evidence session on Covid-19 and a green recovery. We welcome back the cabinet secretary, who is now joined by the head of the policy and implementation unit in the Scottish Government’s climate change division, David Mallon.

We thank the cabinet secretary for coming to us with the concept of the green recovery and for giving us an outline briefing on that. We appreciate that that was only two months ago, so we are not expecting much in the way of specific actions. This is our last committee meeting before the recess, so we wanted to check in with the cabinet secretary on how the Government’s thinking on the green recovery has progressed.

In the interim, between when we last spoke about the matter and today, there has, of course, been Committee on Climate Change advice. The cabinet secretary will know that, last week, we had an informal discussion with Chris Stark from the Committee on Climate Change, in which we talked about some high-level ideas on how we could recover from the pandemic economically, while bearing in mind our ambitions for emissions reductions.

I will ask about the immediate opportunities that might be available to us. I am conscious of the fact that one of those immediate opportunities, in the form of the energy transition and innovation funding, was announced on Friday by the First Minister. Chris Stark talked about taking forward some of the positive—maybe “positive” is not the right word, given that we are in a terrible situation, right now—behavioural changes that we have seen as a result of the pandemic, and about holding on to the good stuff as we move forward out of the pandemic and into a different type of—[Inaudible.] What are the cabinet secretary’s thoughts on that?

That is a very general question. One of our challenges at the moment is in understanding the exact extent of behaviour changes and how they will manifest themselves in the future. For example, there has been a lot of discussion about transport changes. There are aspects of the transport changes that we would all want to continue—for example, increased use of active travel including walking, cycling and so on. Obviously, money has been committed to local authorities very quickly and straightforwardly in order to maximise its use and make it more accessible. There is also a real issue in relation to people’s ability and desire to go back on to mass public transport.

We have to be a little careful about some of the potential outcomes and about what behaviour change might drive—I do not mean that as a pun. In the transport sector, there will be welcome aspects in what has happened, but other aspects might cause issues. That is why it is extremely difficult to assess the behaviour change in some areas right now.

We will want to build on behaviour changes that we think are good and helpful, but there are other behaviour changes that we will want to find ways around. One of my concerns is about there being a rapid return to use of single-use items and regrettably careless disposal, which you will all have seen.

As I said to Chris Stark last week, because people have not been flying for the past two months, and not so many car journeys have been made, there is a danger that we might look at the resulting emissions reductions and think that we can bank them for when people start to use their cars more than they use public transport, and when they start to take advantage of flights when they start again, such that we go too far in the other direction. That has to be factored in. We have not made the gains that some people suggest that we have made since we have been in lockdown.

No—which is why real analysis of what has been happening is important. However, when we are in the midst of management of a crisis, that is quite hard to analyse. To an extent, there is a challenge for us all in that. I guess that every Government will be struggling with that challenge.

Because the transport issue covers so many different aspects of our lives, it is a real struggle. If people are not happy about getting on a train carriage or a busy bus, they will probably not get on busy flights, either. I think that the areas of transport that are more fundamental to daily life will have to find ways around the situation.

Aviation is in a particular place; we often speak about it as if it is not really a transport issue. When we talk about transport, we are talking mostly about day and daily commuting, transportation of goods from one place to another and how best they can be managed. Aviation is always seen as more of a choice than a necessity, and a lot of the focus is on reducing its use.

I genuinely do not know the answers to some of the problems. It is fair for us to admit that we cannot be certain how some areas of human behaviour will look in six months, a year or two years.

You are right to say that there is a danger of just banking reductions and making presumptions about what that means when the behaviour change is not what will happen in the future. I go back to my concern about people’s willingness to be on mass transportation.

I note in passing that I have heard that car salesmen and car manufacturers very much want to be back up running and open because they believe that there is a big pent-up demand for motor vehicles, as people will prefer to drive in their own cars rather than take public transport. Managing that is going to be quite difficult.

We heard before Covid-19 that we need to go further and faster, but we have had a long period of lockdown, which in some instances will have been habit forming. Are you planning to propose any emergency legislation or new policies to get us over some of the hurdles—for example, through councils recycling more? In my constituency, we moved back from fortnightly collection to one bin being collected per week, but the council will need to review that once we are out of lockdown and people return to normal working. Do you foresee policies to ensure that councils get back up to speed, given that they have had to deal with rubbish in different ways?

Arrangements have been put in place during the emergency because of difficulties around staffing and people maintaining proper social distancing. They have been put in place on what most people anticipate will be a temporary basis, but how long “temporary” will become is a question that we cannot answer yet. We are in a phased process in which some restrictions are being eased. We might anticipate that we will, at some point, be able to reinstate pretty much what was there before, which we would welcome.

If Finlay Carson was asking in the earlier part of his question whether there will be emergency legislation to accelerate a return to what might have been a pre-Covid normal, I cannot see what such legislation might look like. We are still in the phase of determining what will become the “new normal”—I guess that that is the phrase that we are using. We might then begin to think about whether there are other legislative requirements that could come into play.

The primary thing for us is the climate change legislation, and we are not moving away from it or dialling back on it. We cannot ignore the fact that society and the economy have taken a massive hit, so we have to wrap that into how we proceed. I am not clear about what kind of emergency legislation Finlay Carson envisages might be required.

I guess that it would be legislation to prevent local authorities from going back to the old norm, given that they had plans to upgrade their recycling and so on. For example, in Dumfries and Galloway, we have plans for a new recycling scheme, but it is staged for 2021, 2022 and 2023. Would it be sensible for local authorities to go back to the old norm before upgrading their recycling to what they had planned? It seems that that would involve additional costs. Should they accelerate the roll-out of new recycling schemes rather than revert to the old ones?

Until we know what the new norm will be, we cannot be specific about what might be done.

In more general terms, if what Finlay Carson is angling at is that there might be areas in which we could accelerate action, I say that there might be areas of activity or the economy in which, as a result of what has happened, we could accelerate changes that might otherwise have taken longer to come into play. That might happen.

In a sense, the specific thing that Finlay Carson is asking about is emergency legislation.

I will move on to your pet topic, which is peatland restoration.

We can see that there will be quite a change in our job situation. In some sectors, people will not be returning to work as quickly as they might like to. Can you see the Scottish Government accelerating roll-out of tree planting and peatland restoration by using a new workforce that could be trained to deliver those things more quickly?

I certainly hope so. Outdoor working has begun again, and there is great potential for increasing workforce skills and training in a number of outdoor areas. I would always argue for increased resource in those areas, but I do not want us to forget the enormous commitment of £0.25 billion over 10 years, which generates in the industry confidence that there is a point in training and in increasing employee numbers. There is a point to that funding, because we know that it will be sustained and consistent, which is the key. I do not want us to slide past the funding of £0.25 billion and forget what an enormous commitment that was.

I am absolutely certain that my colleague Fergus Ewing would also want to argue for increased funding for tree planting.

We always have to make sure that we have the capacity to do what that Finlay Carson is asking about, which is the capacity to grow some aspects of the rural economy. Over the past two or three months, I have been consistently saying that that is incredibly important. There are parts of the economy that we can actually grow and build on, which is very important—in particular, for areas where jobs might be more difficult to get and are in shorter supply.

This seems to be a good point at which to cross over to Stewart Stevenson, who has questions about transition.

On Friday, I had an excellent meeting with the Industrial Decarbonisation Research and Innovation Centre, which focused on capitalising on some of the vacuums in behaviours in our population that have been brought about by the Covid crisis. Less travel is the most obvious one, but the dramatic reduction in the price of crude oil is having an effect on the north-east of Scotland in particular and is likely to lead to a change in employment patterns.

The £62 million that the Government has just brought forward will help the transition to some extent. In your brief, cabinet secretary, are there particular behaviours on which we should be taking a lead and actively engaging with the general population, in order to try to reduce the possibility that they will re-engage with behaviours that are not very helpful for the climate change agenda? We have talked about the positive benefits of walking and cycling and so on. Although it is great that people could become established in a new norm, they could resume the old norm. How can we help individuals, as distinct from bodies, to sustain some of the good habits that they might have acquired?

I am not sure that there is an easy answer to that question. However, we need to be careful not to assume that, on one side, there is Government action and that, with everything else, it is down to the action of individuals. Obviously, individuals make their own decisions about their behavioural practices on the basis of what is most applicable to them and what they can and cannot do but, as Stewart Stevenson will know, in a very rural area, some individuals’ transport decisions are made for them by other people. That is just a reality.

Therefore, I would not want to presume that, when we talk about behaviour, we are talking only about individuals’ behaviour. We are also talking about the behaviour of, for example, companies and employers, which are now involved in a real-time experiment on the capacity to increase the amount of remote working that it is possible for people to do. That has been forced on employers by the current situation, but it represents a learning experience for them about what is and is not feasible. I hope that that is a kind of behaviour that people will be able to engage in, if not on the full-time basis that they are having to work in that way at the moment, at the very least on a much more flexible basis than companies might otherwise have been willing to allow for.

When we talk about behaviours, I want us to be careful that we do not talk only about the behaviour of individuals, who will often have to make decisions about specific aspects of what they are doing on the basis of what other organisations, whether private or public, have decided is appropriate. It is sometimes the case that a behavioural choice that is made is not really much of a choice at all, and we need to bear that in mind.

I think that those specific areas of behaviour and the sectoral basis on which we—[Inaudible.]—are the ones that we want to achieve. However, we need to understand what is a genuine choice and what is a choice that has been forced on people. Those are two different things.

Angus MacDonald has a supplementary on that line of questioning.

I want to follow up on the cabinet secretary’s point about behavioural change by companies. I, too, had an excellent meeting on Friday with the Industrial Decarbonisation Research and Innovation Centre, or IDRIC. We had some good discussions, in the course of which the need for behavioural change by companies as well as individuals was mentioned, along with the need for transformative innovation to achieve industrial decarbonisation. Grangemouth in my constituency will play a big part in that.

Has there been any constructive dialogue with the Department for Business, Energy and Industrial Strategy on making progress in that area, notwithstanding the current health crisis?

We have written again to the UK Government on the back of the advice that we got from the Committee on Climate Change, reminding the UK Government of the significant areas in which we need movement at Westminster level if the UK as a whole is to reach its 2050 target and if Scotland is to reach its 2045 target. The decarbonisation issue is precisely one of those areas where we require significant movement on the part of the UK Government. I have written again to the UK Government on that basis. As yet, I have not seen a great deal on that. Obviously, we continue to attempt to have that conversation—[Inaudible.]

We will certainly watch that space.

I want to explore recovery planning but, before I do so, I want to highlight one point. I completely agree with the cabinet secretary that none of us knows all the answers. She highlighted the possibility that people will, understandably, want to use private cars more after Covid. I wonder whether that might be an opportunity to accelerate action on electric and other low-emission private cars.

I am sure that my colleague Michael Matheson will already be looking at what we can do on that in a Scottish context. However, there are significant areas where the UK Government could help, if that was to be considered an appropriate way to go. I see from some reports that other countries are beginning to increase support mechanisms for people buying ultra-low-emission vehicles, so clearly other countries are considering that possibility. That is important and we want people to make that switch, but that does not remove the challenge with mass public transportation. It changes the nature of the cars that are bought, but it does not deal with our concerns and questions about the willingness to re-engage with mass public transport.

I completely agree, and nor does it solve the issues with congestion, although we might learn lessons from other aspects of Covid on issues such as home working.

More widely, I want to ask about recovery planning. What processes are in place across the Scottish Government to ensure that we deliver a green recovery as we go forward with our economy and society?

A green recovery is being progressed through all existing workstreams. That includes the early action on economic recovery that has been discussed. We know that there will be a new normal, so we want to develop plans for a green recovery now. A big part of that is building towards publication of the refocused climate change plan update in December. Work has begun on that, and it will be a key strategic document for the green recovery, as well as existing in and of itself and showing the pathway towards the 2030 target.

I am working very hard with my cabinet colleagues to ensure a joined-up approach to sustainable recovery. We have a cabinet level economy sub-committee, which meets weekly. We are trying to co-ordinate that conversation and understanding across the Government, its agencies, all sectors and local authorities. All contributions to the conversation are very welcome.

As Claudia Beamish knows, we have reconvened and slightly rejigged the working group that was previously in place to attempt to account for the change in circumstances that we are facing. The group has already met once and the next meeting will be held next week.

Thank you. I was going to ask about the co-ordination of the green recovery across the Government, public authorities and Government agencies, including Highlands and Islands Enterprise, South of Scotland Enterprise and Scottish Enterprise, as well as the new Scottish National Investment Bank, which has a low-carbon commitment. Can you tell us a little more about how those connections are working in the current circumstances, including using Zoom and other such tools?

We are trying to establish a way for the conversation to be held without everyone having to be in various versions of the same Zoom meeting. I had a conversation with Benny Higgins and other members of the advisory group on economic recovery. I am having another conversation with him this week. I have also had discussions with people from the investment bank about how they can be more directly connected to the sustainable recovery group, of which Claudia Beamish is a member. We are trying to have those conversations.

We are trying to ensure that we are not replicating everyone’s Zoom meetings in slightly different formats. We want to ensure that there is an effective network in place. I hope that Claudia Beamish is reassured by the fact that I am about to have my second discussion with the chair of the economic recovery group. We are actively considering how the investment bank can link directly to the work that the cross-party group on sustainable recovery does. One of the Scottish National Investment Bank’s fundamental purposes is to work towards the target of net zero by 2045. It is really important that it is part of the discussion and is not seen as being completely separate and sitting on its own.

We are trying to ensure that the conversation works as well as it can without ending up crashing everyone’s system by holding replicated Zoom meetings all over the place. It is not easy in circumstances in which, for big sections of the economy, there is a particular and critical need for support and thinking.

Finally, how will you engage with the Scottish Parliament?

We will engage with the committee—this is part of that engagement. The group that I set up has party spokespeople on it for a very good reason, which is to ensure that the spokespeople are able to advise their own parties about what is being considered. That is already happening.

Other than answering questions in the chamber, I am not sure what else is planned at present. Tomorrow morning at 9.30 the greenhouse gas emissions statistics will be published, so I will be making a statement on that. I rather suspect that a lot of the questioning will be about economic recovery rather than the statistics, but those opportunities will continue.

We move to questions from Mark Ruskell.

Cabinet secretary, I was listening to what you said earlier about the behavioural choices that people are able to make or are sometimes unable to make. I guess that a lot of that comes down to the systems and infrastructure that we have around us. I want to ask about the infrastructure investment plan. The Infrastructure Commission for Scotland was clear in saying that we should be maintaining the infrastructure that we have got and should not be building infrastructure that locks in emissions for the long term. What thinking is happening in the Cabinet on reviewing some of the capital infrastructure programmes?

You will, of course, be aware of the controversies around the cross-Tay link road, the Sheriffhall roundabout, the A96 and so on. Some of those projects might have more or fewer economic advantages and social benefits, but they will have an environmental cost and they will lock in emissions. Where is the Government at on that? Is there a major rethink of those capital projects, or are we trundling on as we have been doing?

There is considerable discussion of infrastructure projects. They are discussed fairly frequently. Capital projects will be seen as pretty fundamental to the recovery. There is a desire not to have them lock in bad behaviours or our changed view of what might be required. Decisions are obviously having to be made quickly, because the economy needs to be stood up as quickly as possible.

That conversation is constant. I do not want to tread on the toes of some of my colleagues who have important roles in this, such as the infrastructure secretary and the finance secretary. Announcements have been made already about various aspects of that, and they will continue to be made. Suffice it to say that there has been a real look, right across Government, for potential investment and where that would fit into our broader desire for green economic recovery.

Is the Government having that conversation with individual councils at the moment as part of the city deal partnerships? I guess that every council will now be looking at its own capital programme and thinking about whether it should be investing in schools infrastructure rather than in roads infrastructure or maintenance. To what extent is the Government having those active discussions with local authority partners about their own capital programmes?

You would probably need to speak to individual cabinet secretaries who might have some of the capital projects that you are discussing within their portfolios about the extent to which such discussions are on-going. I would be astonished if that conversation was not constant and current. I am pretty sure that local authorities would be knocking on doors if they thought that they were not open, but, as far as I am aware, those doors are all open.

As Mark Ruskell is probably aware, I am not directly involved in such conversations, so I do not want to say what is or is not happening. All that I can do is tell the committee that that conversation is happening constantly and frequently across all portfolios right now, because all of us are extremely concerned about trying to establish the best way out of the crisis that we are in.

We are running out of time, so I will make my question brief. From the answers that the cabinet secretary has given, I will probably get the answer quite quickly.

My question is about housing retrofits and building new homes that are fit for the future. We know that those things would have the direct social benefit of more comfortable homes and improved health and wellbeing, and that retrofitting can be used to improve carbon and water efficiency. Have there been any discussions on that particular matter with the Minister for Local Government, Housing and Planning?

The Minister for Local Government, Housing and Planning is pretty much looking at all aspects of housing in that respect, and the issue of retrofitting has been a consistent part of the conversation for many years. Annie Wells will know from her own experience that retrofitting works better with some pre-existing housing than it does with other housing. It is a question of establishing where and in what way one could get rapid benefit from it.

There are some real challenges with retrofitting, but I am absolutely certain that Kevin Stewart will be looking closely at it where it is possible.

We have time for one very short question from Finlay Carson. We will then have to let the cabinet secretary go.

Last week, we had a very helpful discussion with Chris Stark from the CCC—[Inaudible.]

—a Scottish office base for the CCC. We know that the CCC gives exemplary independent advice on, for example, the low-carbon economy. Chris Stark said that there would be an advantage in having a Scottish office on climate change to give advice to the Scottish Parliament and the Scottish Government. I understand that the current funding is based on population and that the cost of a new office—it would be in the region of £500,000—would be greater than the Scottish Government’s current contribution. Would having a Scottish office on climate change be worth while? Will the Scottish Government look at potentially funding that in the future?

I have said publicly that we would welcome a Scottish office of the Committee on Climate Change. We are discussing with the UK Government how best that might be achieved.

I thank the cabinet secretary for her time this morning, and I thank her officials who have joined us.