Net Zero, Energy and Transport Committee [Draft]

Meeting date: Tuesday, June 25, 2024

Official Report 698KB pdf

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Subordinate Legislation

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Persistent Organic Pollutants (Amendment) Regulations 2024

Agenda item 3 is on a United Kingdom subordinate legislation consent notification. We are considering a type 1 consent notification relating to a proposed statutory instrument, the Persistent Organic Pollutants (Amendment) Regulations 2024. On 21 May, the Cabinet Secretary for Net Zero and Energy notified the committee of the proposed UK SI. The instrument will involve the UK Government legislating in a devolved area of competence, and it is seeking the Scottish Government’s consent to do so.

Members will recall that we discussed our approach to consideration of this UK SI on 11 June and agreed to write to the Scottish Government and stakeholders to seek their views on the proposal. The Scottish Government’s response is provided in an annex in the committee papers. Other responses were circulated to members on Friday.

The committee’s role is to decide whether it agrees with the Scottish Government’s proposal to consent to the UK Government making the regulations within devolved competence and in the manner that the UK Government has indicated to the Scottish Government. If members are content for consent to be given, the committee will write to the Scottish Government accordingly.

In writing to the Scottish Government, we have various options. We can draw matters to the Government’s attention, pose questions to it and/or ask to be kept up to date on relevant developments. If the committee is not content with the proposal, it may make one or two recommendations, which we could come to.

Do members have any comments?

In this case, I am not content for consent to be given. I believe that the Scottish Government should legislate in this area to ensure maximum alignment with the European Union approach and regulations in the area. It is clear that persistent organic pollutants are a danger to human health and the environment, and that we should aim to drive them out of our environment as quickly as is practicable.

The European Union’s approach to the issue has been wise. It has fully considered the precautionary principle and the fact that there are numerous hazards and risks associated with such chemicals. As a result, it proposes two limits—one in 2025 and further regulatory action at the end of 2027—to allow industry and the waste management sector to make adjustments to how they deal with these toxic chemicals.

I believe that that is the right approach. I have reviewed the responses that we have had from the cabinet secretary and other stakeholders and I do not see a clear reason to diverge from that European Union thinking. The European Union has not only worked on the precautionary principle but assessed the economic impact of driving regulation in the area and considered some of the economic questions around adjustments to waste disposal. It has still come to the conclusion that it needs to increase regulation and drive these chemicals out of use.

I do not see a reason for Scotland to diverge from European Union environmental regulations. We are now eight years from Brexit. Of course, if we were still in the European Union, we would just adopt the regulations as a matter of course with some oversight from the committee, but there would not be a proposal on the table to diverge from the good work of the European Union. Given that the Scottish Government’s policy is to remain in alignment with the European Union, this is a key area where I want to stick my neck out and say that I am not content with diverging from European Union policy, which is fundamentally about protecting human health and our environment.

That is very much noted.

I have a couple of comments. We could have had more information on the issue, and it feels like the instrument is flying through. I want to refer to comments from two stakeholders that I think are important. The issue that Environmental Standards Scotland raises about indicative timelines for reviews or setting lower limits is really important. We need to ensure that industry and regulators have appropriate notice to plan for the adoption of those lower limits. It is important to monitor the impact of the change and whether we need a lower limit in Scotland.

I also want to put on the record the Chartered Institution of Wastes Management Scotland’s comments that we need a review of the approach to persistent organic pollutants that considers all aspects of risk to human and environmental health so that we do not have any unintended consequences that impact negatively on other important areas. The institution suggests that there is significant cost and environmental burden in the proposed approach and that we need the human health risks that are still to be investigated to be properly addressed and analysed.

I support the principle of a short-life industry working group because, whether or not the instrument goes through, the issue needs to be followed up. We need more action so that there is information and monitoring of what is happening. We should draw on expertise in Scotland but also link up with the rest of the UK so that we have a wider UK group as well.

Regardless of whether the committee supports the instrument, it is important to raise those issues and put them on the record.

I note colleagues’ contributions with interest, and I think that the committee will want to keep an eye on developments in this area. However, I am comforted to a large extent—to the point where I wish to give my consent to the SI—by the cabinet secretary’s response. On the second page, it states:

“It is important to note that the proposals in the UKSI will bring the UK POPs regulation into closer alignment with the EU regulation than is currently the case.”

The SI that is before the UK Parliament and that we are being asked to consent to will be a step forward in the area.

I am also comforted by the fact that the cabinet secretary sets out that, as we would expect, at ministerial and official level, the Scottish Government will continue “engagement with counterparts” at the Department for Environment, Food and Rural Affairs and continue to monitor these matters.

All things considered, I am content that we consent to the instrument.

Mr Ruskell makes reasonable points. On the question of whether, on balance, we should support the SI that is before us, I am minded to look at the cabinet secretary’s reply to the committee on 21 May, which says:

“The SI also revises and adds new conditions to substances in Annexes IV and V of the UK POPs regulation, which relate to the disposal of waste containing POPs. These proposed changes go beyond the requirements of the Convention and are designed to give certainty to operators and industry on their responsibilities when dealing with POPs waste.”

The SI goes beyond the requirements and gives certainty for operators and business, which is important.

Also, in the “EU Alignment” section, in relation to annex V, the notification document says:

“Therefore, while there is temporary EU misalignment, it is expected that the EU POPs regulation will also soon be amended in accordance with the Stockholm Convention.”

There is a temporary misalignment.

I am not seeking to block the instrument but, in allowing it to go ahead, we should ask for further information in due course on how the issue will be monitored by the Scottish Government and how realignment will be achieved. I do not dismiss or make light of Mr Ruskell’s comments, but I support the instrument as it stands.

I will come back on that briefly. Mr Doris is right to highlight that there are elements of the statutory instrument that enable alignment with the EU. However, there are other aspects, particularly when it comes to the phasing out of certain POPs within the regulations, where there is active divergence. I do not think that Mr Doris is right to say that this is a temporary measure and that the UK’s—and Scotland’s—approach will eventually align with that of the EU. Yes, it is about adopting regulation of the chemicals that are highlighted under the Stockholm Convention on Persistent Organic Pollutants, and there will be continuing alignment on that matter, but on the pace of change in ruling out and removing these toxic chemicals from our waste streams and our environment, there is now active divergence. That is why I oppose this SI; it is not to do with the other elements that Mr Doris mentioned, which are welcome.

That is helpful, Mr Ruskell. I suggest that we support the instrument, but that the committee should have an on-going role in due course to scrutinise the impact, which is important. Although Mr Ruskell and I may disagree on whether to support the instrument today, there is a common cause across the committee that this should not be a one-off act by the committee and that there should be on-going scrutiny.

Thanks, Bob—that is very helpful.

To add to what Bob Doris said, as a committee, we all agree that we have to remove these toxic chemicals. I presume that there is no doubt about that. We are seeing a practical approach to doing that, which is where there may be a slight disagreement—it is on the path to get there.

The response from the Convention of Scottish Local Authorities highlights financial pressures on councils resulting from new regulations. We have to be very mindful of that, which is why it is right that we take a practical approach. That is why I am happy enough to agree to the SI as it is before us today.

That is helpful.

As Mark Ruskell has indicated that he is not prepared to agree, we will go through the process of seeing what the committee wants to do and ask members to vote. When we have decided on that, we can decide on the next steps. The substantive question is, are members content with the SI?

I can see arguments on either side. I want to abstain, because I want to go into the issue in a bit more depth.

On the basis that the committee will carry out on-going scrutiny, I am content.

For

Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Lumsden, Douglas (North East Scotland) (Con)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mountain, Edward (Highlands and Islands) (Con)

Against

Ruskell, Mark (Mid Scotland and Fife) (Green)

Abstentions

Boyack, Sarah (Lothian) (Lab)

The result of the division is: For 5, Against 1, Abstentions 1.

The majority of committee members are content.

I suggest that we write to the cabinet secretary to indicate our views and concerns. We should say that the result of the conversation is that we think that there would be merit in the cabinet secretary considering limits on POPs, reviewing that matter and keeping the committee up to date. This was only mentioned once, but I wonder whether we would support a short-life industry working group to look at the issue to further inform our opinion. That might be a useful way to enable further scrutiny. Are members happy with that?

Members indicated agreement.

On that basis, are members happy for me to sign off that letter once it has been drafted by the clerks? We are quite up against it for timescales, so are members content with me signing the letter?

Members indicated agreement.

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Invasive Alien Species De-listing Regulations 2024

The next item on the agenda is consideration of a type 1 consent notification relating to a UK statutory instrument. On 29 May, the Minister for Climate Action notified the committee of the proposed UK SI. As with the previous item, the UK Government is seeking the Scottish Government’s consent to legislate in an area of devolved competence. Again, the committee’s role is to decide whether it agrees with the Scottish Government’s proposal to consent to the UK Government making the regulations within the area of devolved competence in the manner that the UK Government has indicated to the Scottish Government.

If members are content for consent to be given, the committee will write to the Scottish Government accordingly. In writing to the Scottish Government, we have the option to pose a question or ask to be kept up to date on relevant developments. If the committee is not content with the proposal, we can make recommendations, which I can go through. Before we do that, do committee members have any views?

11:45  

I am content to support the regulations because I do not see this as an issue of policy divergence with the EU. It is more of a technical issue about how lists of invasive species are drawn up and whether they are fully inclusive on a European basis, or whether they are drawn more tightly with regard to the likely spread of species within the UK.

I note that on the list of species that are to be effectively excluded from the list of invasive alien species, there are, for example, aquatic species such as water hyacinth, which are highly invasive. However, because they cannot survive in winter in this country, scientists have made a judgment that there is no point in including them on the list. I also note that there has been quite a lot of lobbying from the aquatic ornamental trade bodies who want to see that plant sold again within the UK.

My only point on that, which could perhaps be reflected in a letter to the cabinet secretary, is that we are obviously in an age of climate change. A mild winter might be very different in ten or 15 years’ time, as the climate gets warmer, and those kinds of invasive species may be able to get a foothold in this country as the climate changes. I am interested in what the review process looks like when the list of species that can or cannot thrive in this country is drawn up.

The other aspect on which it would be useful to get feedback from the Scottish Government is trade. As I understand it, the new regulations effectively will not apply in Northern Ireland because of the Windsor framework, and it will not apply in the Republic of Ireland, which remains a member of the EU. If those ornamental species are being sold in the UK, that raises a question about what implications there are for exports, say from Scotland through Cairnryan to Northern Ireland and the Republic of Ireland. That is just a query about how trade of those species is being regulated and the checks that exist, given that we do not have a phytosanitary agreement with the EU.

I am not against the SI, but I would like to know what monitoring will take place. Four of the 10 species were previously sold commercially in the UK, and there is an issue about what will happen once businesses are allowed to sell them again. Who will be doing the monitoring? Where will the species be coming from? Mark Ruskell made the point that our climate is changing, so we need to make sure that we keep an eye on the matter. I hope that we can put that feedback to the minister.

If no other members wish to say anything, I would like to make a couple of observations. One is that when I got the bundle of committee papers for this week—there were 206 pages of them—I looked forward to reading the UK SI notification and to finding out instantly what it all meant. However, it took quite a lot of reading to get through it. I do not think that the Government’s briefing was helpful or concise.

I then looked at each of the species, some of which I had never heard of before. They include small Asian mongoose, which I am sure cannot survive here; coati, which is another form of mongoose; whitetop weed, which is sometimes confused with hoary cress in this country; and the water hyacinth, which has already been mentioned. My concern is the fact that things are changing quickly, climate wise, and we are seeing invasive non-native species coming into this country that are never meant to thrive, but do thrive.

The example I see from home is ranunculus weed. It was never an issue on the Spey, because that was always too cold and too fast flowing, but things have changed, temperatures have warmed, and ranunculus weed now is a major problem on the Spey. I declare an interest that I have a fishery there. It does not affect the fishery but it absolutely smothers out freshwater mussels, which are an endangered species.

We need to be really careful in what we are doing. Therefore, I support the committee’s recommendation that if we are going to approve this SI, which I am minded to do, we ask the Government to keep it under review and to look at the effects of the changes. In addition, if other species are going to come off the list in the future, the Government should make somewhat clearer what it is doing. There is mention in the paper that DEFRA was asked for a comment, but that is still forthcoming. We are making this decision slightly in the dark.

Those are my comments. If there are no other comments from the committee, I move to the substantive question. Is the committee content that the provision set out in the notification should be made in the proposed UK statutory instrument?

Members indicated agreement.

When writing the letter, are we happy to say to the Government that we would like reviews to be carried out and for there to be a simplified process, should we be asked to look at the matter again, so that we understand what the species are and what reviews have been carried out to determine that it is acceptable to de-list them from the invasive non-native species legislation?

I strongly agree with that, convener. For a vast majority of us, the issue is right under the radar and it is important that somebody effectively monitors it.

Is the committee happy for me to sign off the letter on behalf of the committee when it is prepared by the clerks?

Members indicated agreement.

Is it also worth writing to DEFRA again, stating that we asked for an impact assessment and that, whether or not it has been carried out, we have not received it? We should say that we would like to see it and ask DEFRA to respond to us in future.

Absolutely. We can ask the Government for the impact assessment of the species and ask it to make sure that that is available in the future. The committee is agreed on that, so we will move into private session.

11:52 Meeting continued in private until 12:44.