Environment Bill — House of Lords, 2021-06-28
Topic: International Affairs
James Hope (Crossbench, Unknown): My Lords, as always, it is a pleasure to follow the noble Lord, Lord Wigley. I am speaking about devolution as well, but devolution in relation to Scotland is the topic that I wish to concentrate on. I will speak to Amendment 80, which is the first of the three government amendments in this group, and to my amendment to that amendment, which is Amendment 80A. I am grateful to the noble Baroness, Lady McIntosh, for what she said about them If your Lordships will forgive me, I need to take a little time to explain which problem Amendment 80 seeks to deal with. Both these amendments in fact address the legislative competence of Section 14(2) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. That subsection states that UK Ministers must have regard to the guiding principles which are set out in Section 13 of that Scottish Act. Those principles are derived from the equivalent principles provided for in the EU legislation, which Scotland has decided to adopt. The UK Ministers are told by subsection (2) that they must have regard to them in making policies extending to Scotland. Amendment 80 seeks to qualify that provision by saying that it "does not apply to policies so far as relating to reserved matters." In other words, it seeks to amend the Scottish Act by saying that it does not apply to environmental policies made by the Secretary of State under the provisions of this Bill. Your Lordships are being asked to accept that amendment and I am afraid that this raises a question of law The question is whether the direction by the Scottish Parliament to UK Ministers, which we are being asked to qualify in this way, is compatible with the devolution settlement as set out in the Scotland Act 1998. Its wording seems to assume that, in this context, the distinction between what is devolved to the Scottish Parliament—and thus within its legislative competence—and what is reserved to Westminster with regard to the environment can be determined entirely by the geographical area to which the policies relate. In other words, it assumes that environmental policies directed to what happens in Scotland, whatever their subject matter, must be for the Scottish Parliament and the Scottish Ministers The problem, however, is that a provision in an Act of the Scottish Parliament is outside the competence of the Parliament if it relates to reserved matters. Guidance from the Supreme Court tells us that the phrase "relates to" requires one to consider the purpose of the provision under challenge. If its relationship to a reserved matter is merely loose or inconsequential, it will not be outside competence. Speaking for myself, I do not see how a direction to Ministers of the kind contained in Section 14(2), with regard to which environmental policies they must have regard, could be said to be loose or inconsequential. In other words, it seems that the Scottish Parliament’s competence in regard to environmental matters is determined by the subject matter of the reserved matters, not by the geographical area to which they relate Environmental policies with regard to energy and transport, perhaps the most important examples in this context, are therefore for Westminster and not for Holyrood. That extends to things such as the transmission, distribution and supply of electricity; restrictions on navigation, fishing and other activities in connection with offshore installations; the provision and regulation of rail services; and the regulation of aviation and air transport. These activities happen within Scotland but the statute says that they are reserved matters. This means that the making of environmental policies that are to be applied to them must be left to Westminster.