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Environment Bill Legislative Consent Memorandum

Letter from the Convener to the Secretary of State for Environment Food and Rural Affairs, 10 September 2021

At the meeting of the Scottish Parliament’s Delegated Powers and Law Reform Committee on 7 September, the Committee considered the delegated powers in the amendments to the Environment Bill that are referred to in the supplementary Legislative Consent Memorandum lodged by the Scottish Government with the Scottish Parliament on 9 July 2021.  The Committee agreed to write to you in relation to powers that are being conferred on UK Ministers without a corresponding power for Scottish Ministers and without a requirement to obtain the consent of the Scottish Ministers.

The Committee’s consideration was limited to the amendments relating to the use of forest risk commodities (clause 112 and Schedule 17 of the Bill as amended in committee in the House of Lords), and was limited to the delegated powers in those provisions.

While the Committee acknowledged the differing views between the UK Government and the Scottish Government as to whether the amendments to the Bill are within the legislative competence of the Scottish Parliament, it agreed to highlight to you and to the Scottish Government the following points of principle. These points are consistent with the approach that the Committee’s predecessor in session 5 of the Scottish Parliament took in relation to delegated powers conferred solely on UK Ministers which may be exercisable within devolved competence:

• The Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all legislative powers within devolved competence.
• The Committee notes that in the event the powers in the bill are exercised by UK Ministers in devolved areas, there would be no formal means by which the Scottish Parliament could scrutinise such regulations or be notified that they had been laid before the UK Parliament.
• Powers which are conferred on UK Ministers alone and are exercisable within devolved competence should, in principle, be subject to a requirement for the Scottish Ministers’ consent.
• As a minimum, it is appropriate that all powers under a bill exercisable by UK Ministers in devolved areas are subject to the process set out in the SI Protocol agreed between the Scottish Parliament and the Scottish Government.

I am writing in similar terms to the Cabinet Secretary for Net Zero, Energy and Transport in the Scottish Government and am copying this letter to the Scottish Parliament’s Net Zero, Energy and Transport Committee and the Constitution, Europe, External Affairs and Culture Committee.

Yours sincerely,

Stuart McMillan MSP

Convener of the Delegated Powers and Law Reform Committee