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.
3 pm
However, for the UK Parliament to amend an Act of the Scottish Parliament for the reasons I have just outlined is not a matter to be taken lightly. Normally one would expect the Scottish Parliament to do this for itself. One must assume that the reason why we are being asked to accept this amendment and make the amendment here is that the Scottish Parliament is not willing to do that.
I do not find that entirely surprising, given what happened to a previous EU continuity Bill introduced to the Scottish Parliament in 2018. The UK law officers took the view that much of what it sought to do was outside the legislative competence of the Scottish Parliament. Their view was vigorously contested, so there was a reference to the UK Supreme Court, which resulted in a finding that a number of the Bill’s provisions would not be law for that reason. The Bill was not proceeded with any further, and a new Bill, which became the 2021 Act we are looking at, was introduced instead. That Bill was not challenged by the UK law officers before it became law.
As it happens, two other Bills passed by the Scottish Parliament are the subject of references to the Supreme Court which are being heard in that court as we speak this afternoon. One concerns the incorporation into a Scottish Bill of the UN Convention on the Rights of the Child, as to the competence of which there is strong objection from Westminster and an equally strong resistance to that objection from Holyrood. Common to both is the UK Ministers’ contention that it is not open to the Scottish Parliament to make laws whose effect would be to impose legal obligations on them with regard to reserved matters.
In view of that history, government Amendment 80 is taking us into a very sensitive and much-disputed area. That is why I have taken such a long time saying what this is all about. We do not have the Supreme Court’s view on this case. Nevertheless, I believe, for the reasons I have given, that Section 14(2) of the Scottish Act is in need of correction, so I support this amendment.
But there is an aspect of this matter that the amendment does not deal with: the need for consultation with Scottish Ministers when UK Ministers are making environmental policies with regard to reserved matters in Scotland. Here, geography does matter, because what is done in one subject area with regard to the environment within Scotland is bound to affect another; that is the way the environment works. In its report on this Bill, the Constitution Committee, of which I am a member, has stated:
“Close co-operation between the UK Government and the devolved administrations, including a requirement to consult where policies are being developed relating to reserved matters that affect Scotland, will be important in improving environmental protection across the UK.”
I raised this issue with the Minister when we spoke last week. For obvious reasons, he was not able to commit himself one way or the other on the point. I hope that, having had time to think about it, he will agree that a requirement to consult should be written into this clause, as it is in Clause 26(4) for example, and as has become the regular practice in many other Bills. I know that he will say that consultation does in practice take place all the time, but there are occasions when this ought to be written into a Bill and, in view of the highly sensitive nature of what it being done here, I suggest that this is one of them.
To do that would not undermine the Government’s position in any way. On the other hand, it would recognise that Scotland has a very real interest in the making of policies with regard to reserved matters that affect the environment there. I hope that noble Lords and the Minister will agree with me that this is the right thing to do, so, when the time comes, I will be moving Amendment 80A.