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UK Environment Bill – Supplementary Legislative Consent Memorandum

Letter from the Convener to the Department for Environment, Food and Rural Affairs (DEFRA), 13 September 2021

Dear Mr Eustice,

At its meeting on 7 September 2021, the Net Zero, Energy and Transport Committee agreed to write to the UK Government to request further information on the amendments to UK Environment Bill referred to in the supplementary Legislative Consent Memorandum (LCM) lodged by the Scottish Government in the Scottish Parliament on 9 July 2021.

In the LCM, the Scottish Government says that two UK Government amendments fall within the legislative competence of the Scottish Parliament and, as such, required the LCM to be lodged. These amendments are those concerning—

• The use of forest risk commodities in commercial activity (now clause 112), and
• Guiding principles on the environment (now clause 19(5)).

To assist in our scrutiny of the LCM, which includes making a report to the Scottish Parliament, we would welcome the views of the UK Government on the questions below. We will also be asking the Scottish Government related questions with regards to this legislation.

Questions on new clause 112 - The use of forest risk commodities

The supplementary LCM lodged by the Scottish Government states:

“The UK Government is of the view that these measures are reserved, arguing that they are solely concerned with the regulation of business activities (as set out in Head C, Part II, Schedule 5 of the Scotland Act 1998 – the creation, operation, regulation and dissolution of types of business association). The Scottish Government does not agree with this position and considers that the regulation of businesses for this particular environmental purpose falls within the Scottish Parliament’s devolved competence.”

1. We would welcome confirmation, first, that this is an accurate statement of the UK Government’s legal position. If so, it would also be helpful to understand the UK Government’s reasoning for the view that these measures are reserved. 

2. The Committee understands that this amendment stems from recommendations of the Global Resource Initiative taskforce, which was tasked with considering actions the UK can take to “green" its international supply chains. We note that some of these recommendations would, if applied in Scotland, likely require the use of devolved powers. Does the UK Government expect to develop further legislative proposals following on from the recommendations?

Questions relating to new clause 19(5) - Guiding principles on the environment

The supplementary LCM lodged by the Scottish Government states: “The UK Government’s amendments also change the previously agreed approach by disapplying the Scottish guiding principles on the environment when UK Ministers are acting in reserved areas in Scotland, and replacing them with the principles set by UK Government Ministers. As with provision in section 14(2) of the Continuity Act, the purpose of the amendments concerns the devolved matter of the environment. These amendments are, therefore, for a devolved purpose, and would require the consent of the Scottish Parliament under section 28(8) SA 98.”

3. The UK Government’s response to these views would again be welcome. Does it agree that clause 19(5) legislates in a devolved area and does it agree it amounts to a change in approach from what was previously agreed with the Scottish Government?

We note that the Delegated Powers and Law Reform Committee at the Scottish Parliament also agreed last week to write to the UK Government with some questions about the LCM relevant to their remit. Responses to each of these letters will be very helpful for us, as we prepare our report. Given the constrained timeline for consideration imposed by the timetabling at Westminster, we would be most grateful for a response to our letter by no later than 21 September 2021.

Yours sincerely, Dean Lockhart MSP

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