Protection of the environment must come first for SNH, as well as SEPA, says Rural Affairs Committee

28.06.2013

Legislation that aims to simplify regulation that protects our environment and introduces enforcement and sentencing powers for tackling environmental crime has been supported by the Rural Affairs, Climate Change and Environment Committee.

Whilst the Committee welcomed the clarification of the Scottish Environmental Protection Agency’s (SEPA) primary purpose, above all other, being to protect the environment, it called on the Scottish Government to extend this clarification to the role of Scottish Natural Heritage.

MSPs also outlined a number of concerns relating to the Regulatory Reform (Scotland) Bill, which introduces a duty on regulators to contribute to sustainable economic growth, without defining what that will mean.

The Rural Affairs Committee has been scrutinising the parts of the Bill that affect its remit before reporting to the Economy, Energy and Tourism Committee, which is  leading on scrutinising the bill at Stage 1 and will report later on in the autumn.

Committee Convener, Rob Gibson MSP said:

“Our Committee welcomes the principle behind this legislation. It will strengthen the ability of the environmental regulator, SEPA, to target its time and resources where most needed in order to protect the environment.

“The Committee welcomes the new general purpose given to SEPA but recommends that this be extended to Scottish Natural Heritage on the grounds that it also plays a key role in protecting Scotland’s environment.

“However, it also includes provisions for regulators, like SEPA, to help deliver sustainable economic growth and adhere to a code of practice, without defining what this will actually mean or the impact it will have on the day to day activities of regulators.

“Whilst this seems well meaning, it is important that we have the detail behind the proposals, in order to effectively understand the impact this will have.”

The Committee concluded the following:

• The Committee has concerns in relation to the proposed duty on regulators of sustainable economic growth as set out in Part 1 of the Bill. The Committee is concerned that there is no statutory definition of sustainable economic growth and it is unclear how the duty and the code of practice in respect of that duty will impact on the day to day activities of regulators within its remit.  The Committee agrees with stakeholders that if such a duty is to be included in the Bill then, to ensure clarity and to safeguard against any reinterpretation of its meaning at a later date, a definition of the term should be included on the face of the Bill.
• The Committee remains unclear as to why the term sustainable economic growth has been used in the Bill rather than sustainable development on the grounds that while neither has a statutory definition sustainable development has international recognition and is understood legally across a number of regimes and jurisdictions. The Committee recommends that the Scottish Government bring forward amendments to the Bill at Stage 2 to include a definition of sustainable development in section 38 of the Bill.
• The Committee welcomes the Scottish Government’s explanation that the policy intention of the new general purpose for SEPA, as provided for by section 38, is to acknowledge the three elements of sustainable development and give primacy to the environmental element.  The Committee agrees with the Scottish Government that this is right and proper for a body whose primary function is to protect the environment and recommends that this, or a very similar provision, should be applied to SNH, who also have a primary role in protecting Scotland’s environment.
• The Committee is disappointed at the lack of available information in relation to both section 4 and the proposed code of practice provided for by section 5. It believes the lack of information available in the Bill and its accompanying documents makes it difficult for the Committee, regulators and stakeholders to understand the impact of the Bill at this stage.
• The Committee is also concerned about how a code of practice set at a high level in order to be applicable to a wide range of regulators can be meaningful and effective, and would welcome additional information from the Scottish Government on what it sees sitting below the high level code of practice. The Committee believes it is important that the code of practice includes clear guidance to regulators on how to resolve any conflict between compliance with primary functions and achieving sustainable economic growth.
• The Committee welcomes SEPA’s approach of working in partnership and providing advice to those organisations that are willing to work with it to protect and improve the environment.  The Committee fully supports the Scottish Government’s intention to bring forward amendments to strengthen SEPA’s powers to take enforcement action against those engaging in criminal activity and in some instances making serious threats of violence and intimidation towards SEPA’s officers.  The Committee agrees this behaviour cannot be tolerated.
• The Committee welcomes confirmation from the Scottish Government that regulations made under the Bill will now enable SEPA to consider issues on a company-wide basis in addition to an individual site basis. 
• The Committee considered proposals for fines set out in Part 2 of the Bill.  A concern was raised by stakeholders as to whether or not SEPA would be able to use the ‘balance of probability’ approach to decide to impose fines in cases where there was insufficient evidence to refer the matter to the Procurator Fiscal.  The Committee heard from SEPA and the Minister for Environment and Climate Change that the guidelines which are to be issued to by the Lord Advocate on how SEPA should use the powers given to it under the Bill will provide a safeguard against this.  The Committee welcomes confirmation that work is already underway with the Lord Advocate, the Scottish Government, SEPA and stakeholders to discuss the detail of the proposed guidelines.
• Issues in relation to a lack of clarity arose in relation to the processes for consultation set out on Parts 1 and 2 of the Bill.  Whilst the Minister confirmed that any consultation would be open to the public, the drafting of the Bill does not readily lend itself to that view.  The Committee welcomes the Minister’s undertaking to review the consultation processes in the Bill.
• Subject to the fact that much of the detail of the Bill remains to be developed over time – through codes of practice, guidance and subordinate legislation – the Committee welcomes the Bill, as enabling legislation, and is generally supportive of its aims.  The Committee believes that scrutiny of the Bill at Stage 1 could have been improved if the Policy Memorandum had contained more detailed explanations of the policy intent behind the provisions in the Bill.

Background

The Rural Affairs, Climate Change and Environment Committee, as secondary committee, were looking at the parts of the Bill that affect their remit and how the Bill will affect the Scottish Environmental Protection Agency, Scottish Natural Heritage and the Food Standards Agency Scotland.  The Committee has submitted its report to the Energy, Economy and Tourism Committee, who as lead committee, will continue its Stage 1 consideration of the Bill after the summer recess before publishing its Stage 1 report on the general principles of the Bill in the Autumn.