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UK Environment Bill – Supplementary Legislative Consent Memorandum

Letter from the Department for Environment, Food and Rural Affairs (DEFRA) to the Convener, 21 September 2021

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Dear Dean,

Thank you for your letter of 13 September about amendments to the Environment Bill referred to in the supplementary Legislative Consent Memorandum (LCM), tabled by the Scottish Government in July. I am replying as the Minister responsible for forestry policy.

Forest risk commodities

As we have stated in previous correspondence with the Scottish Government, the due diligence legislation to tackle illegal deforestation in UK supply chains comes under the regulatory powers within Clause 112 of the Environment Bill, regarding the use of forest risk commodities, which is a reserved matter in Scotland.

The measures fall within the scope of the C1 reservation for ‘the creation, operation, regulation and dissolution of types of business association’. The obligations imposed under Part 1 (Schedule) on the ‘regulated persons’ are requirements of a formal regulatory nature, including reporting on certain matters in each financial year. As defined in paragraph 7 (Schedule), a ‘regulated person’ is a type of business association. Therefore, the Part 1 requirements amount to regulation of a business association for the purpose of the C1 reservation. This is set out in Schedule 5, Part II, Section C1 of the Scotland Act 1998. We are continuing to engage with the devolved administrations over these matters.

The Global Resource Initiative proposed a broad package of recommendations to reduce the UK’s global environmental footprint.  Our response to these recommendations was published in November 2020 and outlines our approach to actioning the proposed measures and the work already underway to deliver against these. Responding to many of these recommendations will not require legislation and we will work with devolved administrations wherever appropriate or helpful.

Guiding principles on the environment

On Clause 19(5), it is the UK Government’s view that this clause is necessary to provide legal clarity. It applies to Ministers of the Crown when making policy relating to Scotland only insofar as relating to reserved matters. It is therefore in accordance with the devolution settlement. As such, it is our opinion that a Supplementary Legislative Consent Memorandum (LCM) is not required for this provision.

As I emphasised in Parliament, the UK Government will continue to consult the Scottish Government when developing reserved policies that have an impact on Scotland.

This is not a change in approach. Our amendment looks to ensure there is no gap in environmental governance created by ensuring the principles apply to UK Ministers when making policy relating to reserved matters in Scotland. The provisions enshrined in the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, if left unaddressed, would have left such a gap because the duties set out by that Act cannot apply to UK Ministers when making policy related to reserved matters in Scotland. During the passage of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill, we raised this concern with the Scottish Government, but the issue was not satisfactorily addressed at that stage.

I hope this answers the questions you have. Officials from Defra and from the Office of the Secretary of State for Scotland remain available to answer any further questions you may have about the Bill or any of these amendments.

I am copying this letter to the Secretary of State for Scotland. Thank you once again for your letter.

With best wishes, The Rt Hon the Lord Goldsmith of Richmond Park