 Yorkshire City Council's 18th meeting of 2018 of the Environment and Climate Change Land Reform Committee has already apologised for our colleague Alex Rowley before moving on to the first item on the agenda, and I remind everyone present to switch of mobile phones or other electronic devices, as those may affect the broadcasting system. The first item on the agenda is for the committee to consider whether to take items 6, 7, 8 and 9 in private. Are we all agreed? We are agreed. The second item on the agenda is for the committee to welcome Alex Neil and to ask him to declare any relevant interest. Nothing beyond the register of interest, convener. The item 3 on the agenda is to take evidence on the environmental governance report of the round table on environment and climate change. I welcome Professor Campbell Gemell, Lloyd Austin, Johnny Hughes and, by video link, Professor Colin Reid. Gentlemen, welcome. Thank you for your time this morning. We will move straight to questions. John Scott. Thank you very much, convener. Good morning, gentlemen. Thank you for coming to give us the benefit of your evidence today. I want to firstly ask about the role of the EU institutions in relation to environmental law. Might I ask you what specific functions do the EU institutions provide for member states in relation to environmental law? The answer is probably starting with the fact that that is a very big question, which has taken us 40 years or so to develop. It starts, I suppose, at a fairly simple level of intermember state and subordinate agency dialogue. Therefore, the exchange of information is a fairly fundamental part of the structures. It spans across a spectrum all the way to the ultimate powers of the European Court of Justice or the Court of Justice of the European Union. We have components that come from the institutions that involve reporting requirements in terms of environmental monitoring data. Those are shared, for example, with the European Environment Agency. They are shared with the European Commission. They are shared through a whole number of other structures with bodies that connect into the institutions of the European Union. We have reporting obligations specifically in terms of compliance with directives. We have elements that connect also with international agreements but have European institutional components. We have the approach taken and the powers that are held by the Commission to require clarification on member state performance and on institutional performance against the directives and other components of legislation within the European system. That leads to what I would call soft pursuit in terms of being asked to explain what is going on within a member state through to the more formal processes that result through the structures and the powers of the union to require recourse and process to be taken to the court. It is a very wide span of different components if I have responded to the question in that general sense. Colleagues particularly, Colin, I suspect, are able to clarify further, but it is very important to recognise the breadth of those institutional connections and consequences. Professor Weed, do you want to add to that? I think just the one thing I would add is that in a lot of recent work there has been an emphasis on the reporting monitoring enforcement stage. We have got to remember that the EU institutions are also important at the stage of creating the law, setting standards, providing guidance as well, and being cut off from those processes will be a change on the way that environmental matters are looked at as well. Thank you. John Scott. Lloyd Austin, do you want to add to that? I agree completely with what Campbell and Colin have said, but just to illustrate the way in which the report from a subgroup has tried to address these matters, in 2.3 we list five categories of activity and functions that the European Union institutions, sorry, 2.4, implementation of law and policy, monitoring, measuring, reporting, checking, compliance, enforcing and institutional co-operation. Those are the five categories that we felt as we were producing a report summarised those range of functions and the range of things that the different institutions do. I suppose, perhaps more importantly, that those things are really a matter of record as they stand. We are really more interested in what are the likely gaps in oversight and governance of environmental law after Brexit, as you envisage it. Again, we have tried to do that in a structured manner within the report by looking at difference in environmental media and subjects that do not fit into that neat air, water, land classification. We have looked at that across everything, including chemicals, nature conservation, etc. First of all, we have effectively assessed what the current arrangements were and then moved into trying to identify the gaps that could emerge. Ultimately, the report then looks at the potential ways of addressing those gaps. The gaps, I suppose, again, we have detailed the different categories, and they span from the informal, the soft, the sharing of technical expertise, the failure potentially to participate or be invited to participate in knowledge exchange groups. We could lose in terms of not being able to access technical professional information. For example, in my former core field, the individual member states benefit hugely from the scientific underpinning and technical and engineering underpinning work that is done by centres of expertise across the European Union to which we have access for best-available technology, best-available techniques, for example. Similar arrangements exist in each of the thematic areas that we have looked at, such as Reach, where chemical information cannot readily be duplicated in every single jurisdiction or subordinate component of a jurisdiction. It would be horrendously expensive potentially to do that. However, there are also gaps in terms of the citizens' rights of access to information, and the powers that citizens have to request information and to initiate a process that ultimately would result in informal court proceedings or could result in formal court proceedings. We have tried to detail the different categories of gaps, and I suspect that it is probably more efficient to, in due course, perhaps try to digest the range of what we have got in here. It is a pretty large potential set of gaps, but I would stress that, at this point, one of our challenges is simply knowing what the end of the story might be, because, frankly, a lot of that would be subject to future agreement between Scotland and the UK, as well as between the UK and the European Union. It is not entirely clear, so identification of gaps I suppose we have identified the risk of gaps rather than any certain knowledge of what gaps would emerge. Again, my colleagues might want to pick up on more detail there. Thank you for your question. It actually sparked an idea in my mind in that we covered in the report, mainly, as Lloyd Austin said, the monitoring, measuring, reporting, the checking, compliance, the enforcement and the institutional corporation side of things. However, what we did not look at was the actual beginning of that process, so the policy development. That, I think, is another major gap in terms of Scotland's influence on that policy development. Our contribution to it, through both the UK and directly, would again be lost. You could say that that is a governance gap or that that is a policy co-operation and development gap, but nevertheless very important, because, as you may know, around about 80 per cent of environmental legislation in Scotland is purported to have derived from EU legislation. I think that it is an important point to raise that there would be a gap both in policy development and in the other issues that the report seeks to explore solutions on. We will come to more detailed questions in that regard later on in the series of questions. I just wanted to pick up on what Professor Gimmo has just said. It was quite a long list of references, but the first one was knowledge exchange groups, the next one was academic access to information. Just to help us to understand, do either of those or any of the other things in the list involve non-EU actors? Yes, several of them do. At the moment, for example, the European Environment Agency involves non-EU states. There are a number of other arrangements that connect very strongly between international treaty obligations and EU law, where non-EU member states are participants. There are issues where there are different voting rights, powers and abilities to access information between those categories of membership. For example, the other EEA countries—Norway, for example—has access to a lot of the data that is provided on technologies for environment control, for example. Can I just pick that up? I think that it is very important that we understand what the boundaries are, because we are going to be the other side of the boundary. Can you identify anything that Norway does not get access to as a non-EU state that would be material and of interest to us in Scotland? Again, I suspect that colleagues could provide me with some additional detail. For example, during the water framework directive processes, we were looking at intercalibration and the way in which data was shared. Design was considered by the groupings of the way in which a directive could be operationalised at member state level. Countries that were outside the EU were able to access the results of the consideration but not to participate in the discussions around the detail and its formulation. That would just be an example where there is a matter of degree. However, in terms of a more absolute difference, I am not sure that I will have an example to hand, but perhaps colleagues will. I have been trying to think of concrete examples as well. There have been studies of all the various European collaboration bodies. Each of them is different in terms of its constitution, the status of EU members and non-EU members, and the levels of cooperation. There is no overall encompassing answer. It would be a question of looking in each individual case that the particular formulation and the way of working of the different bodies. Lloyd Austin, do you want to comment? I think Colin said it, but I was going to say that it really does depend on the terms of reference and the constitution of the individual institution and co-operation arrangement that we are talking about. The one thing that I would say is that the non-EU member states do engage much more in their informal data exchange end of the governance arrangements. They are not so much involved in the compliance and enforcement end, which rely on European law and directives, etc., which only apply to full member states. We will come to the issue of enforcement in another part of our questioning, but in the initial remarks from Professor Gemmell, you painted a hierarchy from exchange of information, if you like, at the softest end, to legal oversight and action at the most robust end. Throughout our questioning, the thing that will be of interest to us here is what we actually lose when we cross the boundary and what options we have to re-opt in to issues once we are out of the boundary. That is it, as far as the Scottish Government I imagine, but certainly as far as the committee is concerned. Other particular options for the UK, for that matter, not just Scotland, to participate in European expert bodies that we might want to focus on robustly to ensure that we are not excluded from post-Brexit. That cuts to the heart of that. That is a really good point. I would stress, though, that because we are not at the end of this process, we do not have clarity about what is negotiable in this particular space. For example, my current priority is looking at the management of radioactive waste across the UK, and how we deal with that. It is interesting to note that the Prime Minister has already indicated that she is seeking some sort of associate membership of your atom, which does not exist at the moment. You are either a member or you are not a member. We have looked at the IAEA, the international atomic energy authority, and looked at its powers and its mores in terms of sharing information, et cetera. It has a broad span in the latter, but it does not have the powers of intervention and holding to account, for example, that we have within your atom. It might be that we are allowed to have associate status, and that might mean that we have access to information, and it might mean that we are able to seek assurance about the proper management of wastes in the UK and in Scotland, but it might not. That is just one example of where being in and being out have very distinct differences and benefits and disbenefits, but we do not yet know where we stand. I am going to make a remark and then hand it out to the community for the next section. The remark that I would suggest is that we can contribute here, not simply responding to what is happening or not happening or might happen or might not happen, but to inform, because I think that there is a bit of a lacuna, a bit of a vacuum in that informing of what the real coface options are, and I think that colleagues will develop that. I was going to make a comment like Mr Stevenson's, really, that we could inform the discussion about the arrangements that go forward. Campbell is right about the radioactive and the uratom agency, but the Prime Minister has also referred to the European Chemicals Agency, not to the European Environment Agency, but I think that that would be one that would be worth us encouraging the UK to continue to engage in. Whether or not there is any possibility of Scotland engaging and the UK not is another matter, but the more we can encourage the UK to think of ways of being engaged in information exchange and co-operation bodies, the better. I think that it is important to note that we are already experiencing the potential disadvantages of being outside the ring, the horizon 2020 projects and the way in which academic institutions are being disinvited or not invited into a particular dialogue, but we are seeing plans being made for things like the civil group, which looks at best-available technologies, not inviting the UK in any shape or form to the discussion. Those things shape future industrial management policy in terms of allowing companies to make engineering investment decisions. If we do not know what is happening, that brings a significant potential disadvantage and again that is just one area. Claudia Beamish I am convener. Good morning to you all. Could I just push the panel a little further to explain the value of the European Environment Agency and if there would be any barriers to joining, and indeed Lloyd Austin has already touched on it and I think that you have as well Professor Gammill, but it would be helpful to know that. I suspect that colleagues can again add a lot of detail here. I have worked closely with the EU since 2001 and it has a complex governance structure of members and alternate members, which attempts to bring in all member states and often seeks emphasis for devolved administration areas for particular subjects and has been very open to inviting expertise to participate. It was designed initially, although it was modified when it went through the European Parliament, as a body that would ultimately hold members to account, but it has substantially played a role, as a data manager and a data interpreter effectively for the European Union—a role that it has performed generally extremely well, if I make that comment. The governance model would allow additional members, but I think that it has taken quite a pragmatic view that there are only so many times that you can have 54 people in a room and make simple, rational, quick decisions about anything, but I think that it would be entirely feasible to consider an associate membership, but I do not think that it would allow robust access to the kind of information and to the process influence that the EU has in terms of advising the commission about good and bad practice, good and bad performance. The EEA is very much that EEA. There are two EEAs, but the environment agency is very much a data collection, collation, analysis and publication body and an advisor. It is very focused on the technical support side of things. It does have associate members at the moment who are non-EU members, so Norway and Switzerland and some of the Balkan countries and so on are associate members. Engagement with it, UK associate membership of it, if Brexit happens, would be, in my view, desirable. I would think that any support that could be given to that proposal would be a positive. Just two things to add. We covered this in section 4.2.13 in our report. In the report, we tried to provide a situation analysis and we stopped short of recommending anything, but I noticed that, in that paragraph, we say that membership of the EEA should be actively pursued, so we broke our remit slightly there. I think that that gives you a very clear steer from certainly what the round table thought. I would add one thing to what has already been said, and that is the benchmarking function of the EEA in terms of gathering data from across the union and then putting in reports which are the laggards and which are the frontrunners. I think that that is an extremely useful way of trying to bring up some of those member states which are not implementing the various EU environmental directives. That would be something that would be missed if we went members of the EEA in future. I was just going to say that some of this is covered in a substantial paper that the UK Environmental Law Association published at the beginning of the year, which is one of our references that lists all the various European bodies with an environmental connection and talks a bit about what they do, what their constitution is, how far they are accessible available to non-members. There is a lot more detail in that paper. Okay, thank you for that. Let's move this along and look at what future scrutiny might look like in terms of implementing environmental legislation post Brexit. I can ask you to comment on two aspects of this. One would be what role you would see for the Scottish Parliament in that regard in its committee system, but the other point would be about the new office of environmental scrutiny and audit that has been suggested by ourselves. Can you talk us through why, what it might look like and how quickly you think it could be set up? In section 4.3, and thereafter, we've gone into that in a certain amount of detail, but I think that we also say quite explicitly that we didn't go too far, we didn't want to go too far, because working out the aspirations that Scotland might have in this context is clearly an important and potentially iterative and participatory process. Clearly, the Scottish Parliament sits currently at the sort of peak at the ceiling of oversight, as we've called it, for implementation and performance by the Government of the day and by agencies, etc. That's a perfectly satisfactory model that has worked very well. I think that we've also tried to stress that the processes at the top end, as it were, of the commission and onward to the CGEU, are to be used in extremists. They're not in everyday use and the number of cases has reduced somewhat. The numbers are slightly tricky to get and we gave a 2016 number in the report about the sort of infractions that progressed towards that stage. In a sense, we were highlighting the threat value of encouraging others, etc. It's been very much about attempting to ensure that everyone is aware that, where we're not to do the right thing, there would be consequences. Now, a parliamentary committee such as your own clearly has significant potential to highlight and, frankly, to embarrass those who maybe have something about which they should be embarrassed. There is an opportunity there to front that kind of information up in that way, but in extremists, failures to comply with the law ultimately can end up with those robust legal sanctions. We're not in any way questioning the Scottish Parliament's value. It's clearly a very fundamental part of the existing governance and pursuit model, if I call it that. I think that what we were suggesting was that there being no higher body, we would have reporting responsibilities, scrutiny and oversight responsibilities, issues of clarification that resulted in very clear evidence of failure. What is the top of that? There are no further consequences than being hauled before the Scottish Parliament. Do we want there to be a higher power? For some international agreements, there are already international bodies. Frequently, they have far fewer teeth and are even less likely to use them than the institutions of the EU. I should add that we did look at existing bodies like Audit Scotland that clearly have the power to bring things forward in a pretty robust way from an independent stance. If we do not have other bodies, there is a very serious danger that we highlighted of people marking their own homework. There may be a tendency to give a good gloss. As an ex-regulator myself, I'm slightly leery of going too far with that because I think that most people come to work in the morning hoping and intending to do a very good objective job based on their duties. They are professionals and should be treated as such, but there are always risks and who guards the guards is something that always needs to be borne in mind. We do not have a problem with articulating their being a higher level of scrutiny and potential pursuit. The office that we have identified could be a variation on existing mechanisms. It could be the allocation of additional powers and responsibilities and resources to an existing organisation, potentially like Audit Scotland. It could be a parliamentary committee of some kind that is a capitol de tuti capi that effectively has the power to operate above the Parliament but within the Parliament. Or it could be an entirely new independent body. I think that it's about credibility and the public believing that its servants are properly being held to account for performance, as expected. I think that it requires further work to fatten that out, to make it meaningful to cost it, etc. We very, very lightly looked at international practice. There is much more that could be done there. We had very limited time in which to pursue this, but there are broadly comparable bodies worldwide, including court models but others that could be tailored to our needs. However, I think that that requires a much wider and deeper conversation than we have currently had. Let's follow up on that. I know that Lloyd Austin wants to come in. I could be fair to say that in Scotland we have environmental stakeholders who are not slow to voice their opinions. That's a good thing. However, they would undoubtedly want any such body to be credible and sufficiently expert. Have you fleshed it out a little bit more in that direction? Perhaps Lloyd Austin or Johnny Hughes are the best people to come back on. I think that we do cover that in the report and that's one of the reasons, I think. There are two other options to this. One is that the collective of NGOs, if you like, could try to hold the Government to account. I think that there are all sorts of issues with that. One is that, in some ways, it's the marking of your own homework question. We'd be potentially seen as having a conflict of interest in maybe going too far and not having that independence. Similarly, if you give it to an existing body, like Audit Scotland, there's an expertise gap and a perception, even if you did bring in the expertise into Audit Scotland, that Audit Scotland is a much broader body looking rather narrowly through the financial lens. We really did come to the conclusion, although maybe it's not clear in the report because, as I say, we tried to really present it as a situation analysis, but we did come to the conclusion in the report that really an independent scrutiny and an enforcement body is required. You asked the question why we need this, and that's because one of the very, very clear things that we will be losing as we exit the European Union is the oversight scrutiny role of the European Commission and the power of the commission to then relay any infringements up to the European Court of Justice. That will go. I don't think that it's replaceable, but the closest thing that we could get to that is this independent body. I think that I would underline the word independent. I think that the key thing there is its relationship with government, the executive branch, so the Scottish Government and its agencies, etc., not its relationship with Parliament. I think that your initial question about the role of Parliament, we certainly would completely see unchanged and of value in itself. Indeed, I think it could be a situation where the independence of the scrutiny body was assured by it being responsible to Parliament in a way that the information commissioner and his or her office is a parliamentary function rather than an executive function. I completely agree with you also, convener, about the need for it to have credibility and expertise, so resource and staffing that enables it to and sufficient powers to seek information of government and its agencies and other players in whatever issue it's investigating is important, and so on. I think that in a sense it reinforces the powers of parliamentary scrutiny and oversight in the way that Audit Scotland supports the Public Audit Committee or the National Audit Office supports the Public Accounts Committee. That's the sort of reinforcement of parliamentary oversight that this provides an opportunity for rather than a competitor with parliamentary oversight, if that makes sense. Colin Millar and Richard Lyle have a question. I agree with what was said. Perhaps the two things to be said that argue for something separate from just parliamentary processes are, firstly, the potential, the desire to deal with much more specific individual cases than the parliamentary process can normally deal with, and secondly, the very long-term nature of environmental objectives and goals, that the political process as a whole may be influenced by things that are happening in economics and other things, whereas environmental goals are separate long-term, so the degree of independence isolation from short-term, political to-ing and fro-ing, which affects all parties, may be significant. I was a remainder, but we're now leaving the EU and you're now suggesting that the organisations that we're leaving, we need to set up in Scotland. I just don't get that, because, number one, it's going to cost. Number two, we've got the Ombudsman, we've got Audit Scotland, we've got High Courts, we've got the Standards Commission. Why do we need to set up something that we've just left? You're right insofar as there is a complex of different arrangements that are in place at the moment with which we are reasonably comfortable and accustomed. They do not offer the ultimate, and that was the sort of formula I was using earlier on, the sort of an extremist model, nor do they potentially allow us to maintain the complex level of knowledge gathering and information exchange that allows a sophisticated modern economy to operate effectively. For example, our environmental standards are substantially different in many areas from those that apply in the US or Australia or other parts of the world, and yet the companies and citizenry, but the companies in particular that operate in this country often have to comply with standards that are developed around the world, but are substantially dominated, Euro 6, for example, by the standards that have come from within the EU. Being able to shape those standards, being able to learn early what they are, being able to work with them, being able to share expertise and experience both ways with our European market colleagues is an extraordinarily valuable component of running the Scottish economy or operating the Scottish economy. I suppose that in a sense we don't know that which we will lose until we have lost it, so there is a preventive bit of action there, but it is very clear that there are certain areas, as I suggested earlier, where we are already being excluded from things that are potentially hugely disadvantageous. I think that the final thing that I would say before colleagues come in would be that the reassurance of the citizenry and the rights of the public to be able to be confident about what is and isn't happening is greatly strengthened by having oversight bodies and networks of contact that we have currently through the structure of the European Union. Could we survive without them? Quite possibly, but would we be healthy? That is probably the way that I would explore it. However, those are decisions that may already be being made, but I think that for us to be a successful, especially a successful small progressive nation within the global context, being outside of those networks is potentially a source of vulnerability that seems foolhardy. I am conscious of time and we have a lot of ground to cover. I will be very quick. I will simply say that, when this Parliament passes environmental laws, I assume that you want those environmental laws to be implemented properly. If there is no mechanism or if there is a deficient mechanism by which you understand how those laws are being implemented or not, I think that that would be a worry to the Parliament. With the loss of the oversight from the European Commission and the ECJ, we will have a deficient mechanism. We will have a gap. We have clearly identified that in the report, and that is a gap that we think should be replaced in some way by a structure in Scotland. We might not have a gap, but we did not have the environmental standards that we now have, which fundamentally underpin the success of the Scottish economy and indeed of our society. We are dependent upon clean water or clean air, although there are still issues around that, and our robust waste management and land protection systems. Very few of these were fundamentally embedded in the UK or Scottish legislation prior to being a part of the European process. As chair of the panel, Professor Gimel, could you perhaps sum up on this point, because I did ask it at the start? Johnny has talked about potential gaps. There is a potential gap in terms of setting something like this up, given how close Brexit now is. Realistically, it strikes me to determine the role, the scope, the remit and the resources that get them in place. It would be very challenging to do that. Have you thought about what happens between now and then if your approach was adopted? To a slight degree, we have identified that there may need to be interim arrangements to allow the position to be rolled forward. Some of that depends upon something that we have been discussing at some length—the nature of the fit with the UK models at the moment, because clearly the sharing of expertise is quite a critical part of being able to keep the show on the road if I use the vernacular. We have not gone into the detail and we were not asked to look at what we would do in the short term to prepare the foundations of what might be needed subsequently. I think that we would be very happy to offer some analysis and advice of that in due course where that is asked for, but you are absolutely right that the clock is ticking and there is not very long to pursue that. Of course, the UK has an uncertainty about how long a transition might be, and therefore we could have the European institutions still for some considerable time, and frankly that could be to our advantage. Equally, it means that some of the responsibilities that are currently not entirely robust would also need to be pursued during that period, so I hope that people will continue to pay attention. We have started to explore the questions from our convener about the scrutiny body, and we have touched on arrangements for courts. Could we explore that further and look at possible arrangements for access to environmental justice beyond Brexit? You have highlighted in your report that this is one of the at-risk areas, and I wonder if you have broad ideas, and then myself and my colleague Mark Ruskell have got some more detailed questions, depending on whether you answer initially. I suspect that colleagues here, particularly Lloyd, would have views on the access point, and I think that in terms of the strict legal column, we will also be able to amplify. In summary, it is very clear that a number of different court-based options could be pursued either through existing courts, somehow supplemented, or there could be a dedicated court. There are such bodies worldwide from which lessons could be learned. They can also suffer from a number of disadvantages, but they can be very useful parts of the mechanism. For me, it often depends culturally on the environment in which they operate, and that is exactly what compliance currently looks like, for example, is often a critical part of it. Could you, just for the record, give us any positive examples of the functioning of courts in other countries? The environment, land and resources courts of Australia, for example, in New South Wales and Victoria in South Australia, all deliver versions of what could be deployable, and particularly the South Australian model is relatively modest in scale and works relatively effectively. In New Zealand, there is a lot of case law, a lot of practice based on Maori rights and the management of land and the environment together. Of course, we have a rather focused dedicated land court in Scotland, so there are starting points from which arrangements could be made. Frankly, it could simply be done—for example, it was proposed in my time in SIPA—that we have dedicated environmental fiscal, for example, and that we could then build a model towards an environmental court. I know that there are divergent opinions about the merits of the court, but there are options there. I think that, particularly on the robust detail, Colin and Llywydd. I think that access to justice is one of the key things. Scottish Government, whilst we are part of the EU, has to implement European environmental law and does it in various ways. The Cabinet Secretary has made very welcome commitments to want to maintain those environmental standards, hopefully including the standards of access to justice. At the present time, citizens, communities, NGOs and any concerned person can ask the commission through the complaint procedure to look into any sort of decision as to whether or not something has a decision by any executive body, any national authority has complied with the provisions of that EU law. The commission carries out a first stage, as Campbell was saying earlier, quite a soft inquiry and an investigation, but in extremis it has the power to refer it to an environmental court. If we remove ourselves from those institutions, we remove ourselves from that access to oversight and inquiry and potentially justice. As Richard Lyle said, we did not have that before we went in, but then we did not have political commitments at the Arhus Convention, for instance, before we went in. The engagement between citizens, communities and a Government was in a different area. Governments now, including the Scottish Government, have strong commitments to public participation and access to justice, which we would need to reproduce. A scrutiny body that has the ability to carry out those kind of inquiries on behalf of communities or citizens and has the power in extremis to refer it to the courts, potentially an environmental court, would be one way of delivering that. Claudia Beamish has got a further question, and I am going to allow Alex Neill and Donald Cameron and Mark Ruskell to have some questions. I know that Colin Reid is chomping at the bit to come in. After Claudia has asked her question, we will bring Colin Reid in to start. I think that it would be useful if Mark Ruskell has developed the question on Arhus. Mark Ruskell? Yes, thanks for that. On Arhus, is it your impression that the Scottish Government is currently compliant with Arhus? If it is not now, how do we need to develop those structures to ensure that there is compliance with this fundamental access to justice? As you will note from the report, that is an area where the Scottish Government and some members of the round table subgroup were in disagreement. The Scottish Government asserts that it is in compliance, yet at the references at page 8, you will see that we provide references to the Arhus Compliance Committee that have found the UK and all the jurisdictions in the UK, including Scotland, not in compliance. I will leave you to reach a judgment on that point. The issues relate to costs of review procedures and whether those review procedures can consider the merits of the case. In both those situations, certainly the NGOs and some other legal practitioners believe that all jurisdictions in the UK, including Scotland, are not in compliance. That either means the need to revise the rules of court or to establish a separate entity such as an environmental court with different procedures. Just on costs, I will note that the Scottish Civil Justice Council is looking at costs. Although stakeholders have provided comments on their initial proposals, we do not know what the final proposals are. There may be progress on that point, but we have not yet seen the results. One is in relation to cost, the other is in relation to merit-based review. Is there any recourse to a merit-based review within the justice system at the moment? My understanding of judicial reviews is much more about the process of how a decision came to be made. Is there any recourse to a judgment on the merit of a decision being made? That is quite a political question. With stable development, Governments are balancing economic and environmental interests. How do you incorporate an analysis of the merits of a decision into this justice? I think that the courts are not the place to decide merit, traditionally they just regard the legality of a decision. But what we have to bear in mind is that with a lot of EU law we are faced with a very different set of duties on government from what we have been used in the domestic scene. EU law imposes a duty on the government to achieve particular outcomes. Whereas in things like planning the areas we were used to judicial review, the law provides the process by which decisions must be taken and so long as a planning authority is taken has looked at the relevant considerations and has reached a reasonable decision. It is not for the courts to intervene. That is monitoring the legality of the decision-making process. When you are looking at many of the obligations under EU law, which will become domestic law, which are imposed on the government, they are to make sure that a particular standard of air quality, standard of water quality is achieved. In deciding whether or not that law has been met, you inevitably have to start looking more at merits, the substance of decisions, rather than simply the process. Our existing courts are a way of dealing with cases. Simply is not used, is not accustomed to dealing with these issues about whether or not there has been compliance with a specific stated outcome. Can I broaden this out and have Alex Neil and then Donald Cameron ask questions when we can continue the discussion? Alex Neil Can I broaden it out from access to justice, although that is extremely important? Can I ask, are we going about this the right way? It seems to me that this is an ideal opportunity for Scotland and the UK to assess where it wants to be in terms of environmental standards in the round in 10, 15, 20 years time, and then work out, given the new arrangements vis-à-vis Brexit, how we best get there under the new arrangements. You mentioned that the EU is very often the head of the game compared to other jurisdictions, but that is not always the case. The environmental standards in California, I would suggest, are ahead of the EU in many respects. Some countries have tighter control of nuclear installations than we do in Europe. A whole range of things. There is a danger that sounds like a lament for leaving Europe, rather than how do we seize the opportunities that are now before us and how do we make Scotland, as we are in climate change, more broadly a leading nation in relation to these other things? Bear in mind that, if we take climate change, it is not driven by the EU, it is driven by global agreement, not by the EU. Is that the tangential point now, and then we will come to Donald Cameron? I think that the last point that you made was very important, because if you look at something like the convention on biological diversity or the environmental aspects of the UN sustainable development goals, the EU actually uses those and translates those into tangible outcome-based targets, as Professor Reid was referring to. It is that difference between loose process commitments and very tangible biological outcomes that we are trying to achieve, which is the difference between signing up to a... We are saying that we are congenitally incapable of doing that for our safety. No, I will come back to that. Well, I would hope not. If we are serious about our international commitments and our collaboration with others and our commitments to contribute, if you like, to the global effort to halt biodiversity loss or tackle climate change, it is really important for us, I think, to align where we can with some of those commitments that we have made at the international level and at the European level. That sense of co-operation and collaboration, I think, is very important. Notwithstanding that, of course, we can go further. Indeed, in the transposition of some of the EU environmental directives, particularly things like strategic environmental assessment, water framework directive, we indeed have gone further than other parts of the UK, so that is completely within our bailiwick and we can do that. I do think that in the future, potentially, we could actually look at targets on a domestic and existing UK level, EU level and international level and package those up in a coherent way, possibly under a piece of legislation. That would not necessarily mean that we went aligned with—indeed, there is a political commitment being made to continue to be aligned with EU environmental targets. I agree with you that a commitment to getting those in one place and having a coherent framework, I think, would be a very good idea. But also, convergence is not just within the EU. There is a global convergence in a lot of this stuff just because there has to be, because the environmental control does not stop—the good quality air does not stop when you go into or out with the air space of the EU or the UK or Scotland. It is more and more done on a global basis. You mentioned the 80 per cent of the environmental legislation going through this place. It has its derivative from EU legislation, but what percentage of EU legislation is derived from global agreements? And we are part of the global community. The UK is part of the global community. My original point, but the point is that that is very soft law, whereas when it is translated through European directives, it becomes much more outcome-focused. We can do that for ourselves. Can we answer the questions and come back? Lloyd Austin has been bursting to come in on this. I was going to underline the fact that most EU law comes from international stuff anyway, but I agree with Johnnie that at international level it tends to be softer than EU law. In a very narrow sense, this report focuses on the governance gaps post Brexit, because that was our remit. That was what we were asked to do. In a variety of sense, I would say that we should do some of the options that this report highlights to address the post-Brexit short-term issues, but I completely agree with you in terms of a long-term vision as well. I do not think that the two are incompatible. I think that we ought to do both. Actually, we very much welcome the First Minister's commitment in the programme for government to publish a long-term environmental strategy. I think that that is the phrase that is used. Slightly unclear as to when and what it will be, but I think that there is a hint in that that some thought is being given to the kind of long-term approach that you are suggesting. I think that in the short-term and medium-term, particularly in a situation where the Government is committed to moving EU law over into domestic law through the continuity bill or the withdrawal bill and then maintaining standards, we need to make sure that we have the means to be able to fulfil those commitments, as well as thinking about our long-term strategy. In a useful discussion, thank you for that, Anil Gullit, the very patient Donald Cameron. No, I am just actually picking up on that discussion without Neil. I mean, our house is a prime example of international environmental law. It seems to me that being a member of the EU has not given it greater teeth given the fact that there are questions over whether we are currently complying with it, especially when it comes to access to justice. My host has three pillars and some aspects of it have been translated into some aspects of EU environmental law, in particular things to do with public participation in relation to emissions, consents and so on. The key pillar, the access to justice pillar, is the one that has not been translated into EU law. I have to say that it was member states that resisted the commission's proposal for a directive on access to justice in order to make it harder law, in other words. Therefore, if we were still in the EU, the NGOs would be pushing for that pillar of Ahus to be converted into a directive. You are right, Ahus is a council of Europe convention under the UN procedures and its international law. Thank you for that answer, Lloyd. Can I focus in on the environmental court? It is particularly interesting. I should refer to my register of interests as a practicing advocate. It seems to me that the Scottish Land Court exists with a judge who has the same status as a senator of the Court of Session. It has a system whereby that judge sits with lay members, currently agricultural or crofting specialists, could easily be environmental specialists, and is in effect a tailor-made solution to this. I wonder what the panel's observations are on that. Also, can I just ask Professor Gellmore? You spoke about disadvantages, I think, was the word that you used about environmental courts. Could I ask you to expand on the disadvantages of an environmental court? The issue for me is one around the effectiveness of the court model and the way in which it is either good value or creates a formality to positions that are often, for me, rather softer in reality. Going to law and going to court is often a clumsy and has to be a highly specified way of pursuing a particular matter. If I put it in personal terms, receiving a phone call from Brussels about potential infraction proceedings somewhere down the line focused the mind wonderfully, rather than the sense of being absolutely at the point of going to court. The weaponry that is in place needs very carefully to be considered, but it should not be the weapon of first choice. We should be designing the whole system to be effective. I have no particular reservations about the idea of modification to the land court. That is why I refer to it. I think that it is a potentially viable model, whether it is the best model and whether it would deliver the right outcome consequences behaviourally or for the environment, is less clear. Would you not be stimulated into action by a phone call from the new UK or Scottish enforcement agency? Absolutely. I think that if we focus, for example, on propriety around the use of investigatory powers, for example, I had very similar conversations in my previous role where consideration of heading down that path was enough to question and revise or at least analyse the situation that we find ourselves in. I think that there are a number of options there. I don't think that there is a particularly pure right answer. I think that we rightly should be exploring further possible options. Expanding on that, I think that the importance of the weapon of first choice, the phone call, either from Brussels or the UK or Scottish scrutiny body, that phone call is much more effective as a soft measure if the recipient knows that if he or she doesn't take action or look into it and see whether the scrutiny body has the power ultimately, like the commission does, to refer the case to a court. I think that the in extremis at the end of a process opportunity for an issue to be addressed by a court is an important part of the range of weaponry, so to speak, that is required. If we were considering what court and how in Scotland that provision might be provided for, I think that your suggestion of expanding the land court into a land and environment court is a particularly good one. I think that it is an opportunity in Scotland where we already have a relatively informal and merits-based court that exists, and it's quite notable that many of the other similar sort of institutions around the world, as well as the ones that Campbell mentioned, there's one in Sweden, there's one in Vermont, and there's one in Hawaii, and many of the Canadian provinces as well. They often combine land and environmental matters, so land and agricultural and environmental matters get combined in similar courts, and the importance is, I think, that they have the expertise available, such as the assessors you're talking about, but they equally create a body of Judas Prudence that drives future decision-making so that, actually, standards are maintained, and, ultimately, there's less kind of uncertainty. You may be interested to know that the one in Vermont was established by a very pro-business Republican governor because of complaints about uncertainty and slow decision-making, and by creating a body of case law that created essentially set out the rules on a merits-based approach as to how decisions should be made, it meant that the decisions at first instance by the local authorities and the agencies were much more consistent and much more and much less challengeable, ultimately, and therefore made these kind of permitting systems that they have there much more efficient and effective in the long term, so it was welcomed by both the development industries and the environmentalists. Thank you, Claudia Beamish. Could I take us back to what's been described this morning as the phone call? We all want to keep everybody out of the courts. What we want is a good environment, and we want good people in acting what they need to do, in my view, certainly. Is there a role before we get to any court structure that has been a valuable conversation? Is there a role for an environmental ombudsman or commissioner in either setting up of the appropriate frameworks with appropriate expert advice or, indeed, in dispute resolution, rather than, as there is in before one got to the land court, some as a tenant and a landowner or whatever? If I could start that one. I think that yes, essentially, would be the answer to your question. I think that, for example, in Canada, the Sustainable Development Commissioner there, not now but in the past, for about six years, operated a very good model, which was effectively based on seeking alternative dispute resolution models and outcomes and also holding bodies to account by scrutinising publicly available data and sometimes eliciting hitherto non-available information. A similar sustainability commissioner in the State of Victoria in Australia operates very effectively in that space and just gives time effectively for independent consideration of issues away from the routine, because appeal mechanisms can go through the vertical chain of an agency and then to the board and onward. They often are, at least in part, defensive inevitably, because the organisation, to some extent, feels under attack. However, where there is a very good relationship with the sustainability commissioner, for example, in Victoria, she has been very effective in unnoting particular cases. I would certainly strongly support the ADR model of finding solutions. That also speaks to the point that Mr Cameron was making, because I am concerned about the increasingly litigious nature of some audiences, particularly those who are very well funded and who may have a particularly heavy axe to grind. That can be very distorting in terms of the burden that it places on a nominal notion of justice generally but also on the administrative capability of an organisation. It could easily have been resolved, in many cases, by proper genuinely robust intervention at an earlier point. It is about proportionality and about efficiency of public operations. I think that an intermediary stage—I know that in law in Scotland we are very actively exploring and developing and using ADR-type models. However, I think that suitably expert mezzanine intervention in some of those cases would actually be a very effective way of resolving a number of issues. I think that that brings us on to what role you see for third parties in terms of dispute resolution and enforcement. Do you have anything more to add on that? Third parties, by me. Do you mean citizens and communities, et cetera? In all of these areas we have to understand that the most fundamental thing is the way in which environmental law is implemented relates to decisions that are made by public bodies, by ministers, their agencies, local authorities and so on. Those decisions will be related to consent applications, planning applications, land management decisions, et cetera, et cetera. In most cases there is an applicant and there are a range of concerned stakeholders that may be neighbours, citizens, communities, NGOs, local people of one type or another. The extent to which all of those players can participate in and understand all of the issues and the procedures varies, but the overall public participation and access to justice objectives of things like the Arhus Convention is to make a level playing field and engage people as much as possible. One of the things that we would like to see is greater rights for those citizens and others to be able to participate in and have either appeal rights or review rights, et cetera, at certain times. My view is that if there is a court at the end of the situation there is a greater chance of that body of case law building up that means that decisions further down the chain become easier and more definitive and often faster and clearer. In that chain there is a range of options, which we talk about the commissioner, the ombudsman, the scrutiny body, that can help the process and can do mediation involving all parties. I do not think that in that range of options I do not think that there is any need for all of them. What we need to pick out is what are the few options that we need to fill all the gaps, if that makes sense, and a scrutiny body or a commissioner with a staff plus a court that seems to me to be there. Colin Rees wants to come in on that. Yes, it was just to say that to remember that as well as the situation that Lloyd started with, where there is an application, because the nature of the environmental obligations on the government inherited from EU law are to meet particular outcomes, it may be that the failure is a cumulative one. For example, in bathing water issues, the reason why bathing waters are failing in particular areas is often not down to one particular decision or one failure to act, it is a whole combination of things. You need a way in which concerned people can raise that problem and get it taken seriously by the appropriate people, whether that is through an ombudsman, commissioner or the courts, whatever. The challenges that I see being faced by communities around Scotland, it does not matter what environmental issue you are looking at whether it is airports, bathing water quality or planning issues, it is just the access to good quality understandable information about regulation, about legal rights. Communities often have to become experts, legal experts over a short period of time in order to engage with a particular dispute or an enforcement issue. Do you see the kind of not just access to information but capacity building within communities to understand and deal with environmental information as part of this new landscape? I just see communities putting in thousands and thousands of hours of time often on a voluntary basis just to try to understand and work with the system that we have at the moment. I think that that exists whilst we are in the EU as well as when we are out, so I am not sure that is necessarily within the remit of the work of this subgroup. I think that it exists currently as a challenge and certainly as voluntary bodies working with communities and others. We do spend quite a lot of time trying to get information from public bodies using freedom of information and other rights but that can be very long winded and can create a confrontational sort of situation rather than a mediation type situation to compare the Campbell's two examples earlier. I think that in terms of the access to advice within the Scottish environment link, there is a group looking at environmental rights generally and one of the things that we have identified is the absence of good advice on legal and technical points to citizens and communities and we are working towards trying to establish some kind of environmental rights environmental law centre or something to try and provide greater support for people interested in these issues and how they can address them. I would underline that I think that that is an issue of environmental governance that exists currently whilst we are in the EU and it will continue to exist after Brexit unless we do anything about it but we should do something about it now anyway. It is very specifically about whether Scottish courts and we have had a quite wide discussion on that. Should they be able to impose sanctions and remedy in the shape of financial penalties on Scottish ministers and public bodies in the event that there is a failure to properly apply environmental law, as is currently the case from the EU of which we know of some live examples, which I will not go into in terms of time. What should the nature and arrangements be for sanctions and remedies, both as a deterrent and in addressing the problems? We did address that quite directly and I suppose again, taking Johnny's lead, we did effectively say that we were not entirely convinced that this was a particularly good idea. I think that the public already may have some difficulty understanding why one public body pays another public body for its failures and it does not seem necessarily to be the best way of using public funds when they are in scarce supply. Financial penalties certainly do again focus the mind but is it an efficient way of delivering a satisfactory outcome? There are, back to the existing CGU model and the fines levied. Even where applied on a daily basis, the great government, for example, found it extremely difficult to deliver compliance when it was being fined, it was deeply, deeply embarrassing to them but they couldn't actually do very much about it for a whole bunch of other reasons. I'm not making the direct comparison but it seems potentially a very awkward place to end up when surely there are better outcomes to be secured at an earlier point in the process. Yes, it could be done. I think there is maybe a slightly different argument about the individual agencies that might be involved but I think a similar logic potentially applies. Certainly my personal view is that I don't think it's an attractive approach to take. I would have thought, friendly faced though you are, that you are perfectly collectively capable of being really quite scary if it came to holding to account an individual public servant who had catastrophically failed in meeting their duties. I think that that notion of public embarrassment or public focus on a particular failure is a potent weapon. Before anyone else answers briefly, could I just ask for the whole panel, if you do or don't agree with what the question was about financial sanctions and having listened to Professor Gamel, but also if not, what else? Name and shame may be valuable but we can be tough about what we hear as well as what we do as politicians and as public bodies so it's quite important to try and understand this. I do agree with Campbell about the issue of fines. I think shuffling money from one public body to another in a sense actually doesn't solve the problem and I think actually that the issue relates to I think the court and or the scrutiny body does need to have power to impose sanctions. Those sanctions might include recommending that the person or the body be called before this committee for more detailed scrutiny. It may include orders. If the investigation has looked at the merits of the case, presumably the investigation may have some ability of identifying what needs to be done to remedy the situation and therefore being able to make an order that the body should do A, B or C to implement a remedy. Those kind of orders are possible sanctions. If we look at the client earth air quality case, the court in England ordered the Secretary of State to produce the air quality plan so that effectively they told the miscreant public body what they had to do to get it right. I think that that's much more important at a sanction than moving public money from one body to another. Just to be clear, Professor Gamel, the view that you articulated, was that the unanimous view of the group? There was no significant dissent if I can put it that way. That's fine, so it's just in the interests of moving on. Thank you for that. John Scott. I want to talk about our capacity here in Scotland, particularly in timescales in terms of implementation. We note that Brexit-related work in Whitehall has attracted the idea that it may require a further 1,200 EU exit rolls in DEFRA. Do you believe that the Scottish Government and environment agencies currently have the capacity in terms of expertise, staff and funding to deliver a smooth Brexit in environmental policy areas here in Scotland? I'm being clear about the ultimate scope. It's quite hard to know what the resource requirements would be, but I think that after a fairly extended period of restraint and in some cases reduction in resourcing, it's quite hard to imagine that an increased capacity will be able to be achieved very easily. I think that it's almost inevitable that an additional resource would be required. When it comes to issues around reporting and monitoring, for example, there is already significant capacity around the various institutions involved to provide that information. There are both academic and NGO and other inputs to the model, so I would tend to suggest that, although it might be abused, we could assume that that model is reasonably robust at this point. When it comes to the oversight component and preparing material, I think that there is potentially a significant additional resource requirement, but that's obviously for those individual bodies to articulate on their own behalf. Everybody happy with that view on behalf of the group? Thank you very much. Do you believe that Scotland currently has the capacity to replicate all the different roles that are currently played by the EU in relation to environmental law, as it stands at the moment, apart from oversight? I can know, but do any of you can amplify? Yes, but we're really coming to the heart of the UK-devolved or England Scotland split in terms of what sits in a UK framework, what sits in a devolved framework, because there will be resource implications for that. If a number of environmental topic areas sit within UK frameworks, then potentially access to resources from down south could be used to then implement those frameworks. If we take some of those powers back into Scotland and decide that they need to be delivered at a Scotland framework level, there will be resource implications for that. In the end, I think that we'll probably have a combination of the two, because it will be pragmatic to have certain things operating at a UK level. Clearly, that is a politically sensitive issue, and I think that any decision to operate a UK framework will need to be a co-decision between the Scottish Government and the UK Government. However, there may be areas where we want to have much tighter control of what happens in Scotland at a Scottish level, and there will be clearly resource implications for that. We discussed that briefly, and we don't have the solution to that, apart from that there is no magic wand to that. Clearly, in some cases, the resource implications could be significant. It would be fair to comment and say that the more control that we wish to exercise here in Scotland over our own affairs, the greater the cost will be of so doing. Is that a direct question to the panel? I think that we have significant control in Scotland over a number of areas at the moment, most of the environment portfolio, arguably. Nonetheless, we still rely upon the sharing of information with our UK colleagues. If, as I said at the start, we were to try to replicate chemicals agency equivalent knowledge at all four nations or all five nations level, I think that that would be horrendously messy and unnecessary. Does it make it any less desirable or less wise, particularly if Scotland was to be pursuing higher standards than the rest of the UK? Although, again, some of that information would either exist through the ECHA at the moment or through academic supplementation or whatever, I think that those standards, WHO and FAO, provide information that could be deployed at the Scottish level. The question is whether or not you need to have a licensing model, a review model and an assessment model all replicated at the Scottish level. If I could, I would bend that back to Alex Neil's point earlier on. I strongly agree with the basic point that being clear about our own ambition would be the fundamental way of tackling that. At this point, we absolutely know where the floor is, because the cabinet secretary has said quite clearly that maintaining existing standards is what we are after. Where else do we want to go? I think that the idea of a strategy or a deeper vision, rather than what the Swedes did when they were in pretty full compliance with the Europeanarchy, decided to articulate their own ambition, and they have gone significantly beyond that in a number of areas. There are other ways of looking at that. What do we need to do to ensure that Scotland can develop the capacity and the time and allocate the resources available to ensure a seamless transition after Brexit if there are foreseeable problems at the moment? I am dreading you to ponder the imponderables, but none the less, you can see the obstacles. Not very easy question to answer. I think that this is part of it for me and for this group. We have found the discussions that we have had ourselves extremely interesting and clarifying and Colin and we have also had a couple of international lawyers as part of our group. We have looked very widely at the agenda rather thinly but widely. We need to talk about it, we need to chew on it, we need to come to contingent and interim positions on a variety of things and we need to test them against ambition. At this point, I think that we have a number of areas where there is a lack of clarity about what a good answer might be. We have become extremely used to a model that works very well. What kind of model do we want in future? It is something that merits even further discussion than we have been able to have. I think that doing anything that changes from where we are potentially requires a relocation of a number of the outcomes that we currently have and a reconsideration of the resources and processes involved in it. That is quite fundamental and certainly far too hard to do, I would argue, in the timescales available, given that we are already in the Brexit shadow effectively. Well, thank you first again, but that really did not tell us. Give us an answer. I mean, it said essentially that it is too hard to contemplate without being unkind, but we are looking for solutions here and not defining the problem again. I really do not mean that rudely. Forgive me. I would agree with what Campbell was saying, but I think that there are a few things that we could encourage to be done. To some extent, our work as a subgroup is complete because we submitted this report for the Cabinet Secretary to publish, which she has now done. I think that the key thing is that discussions like this need to happen to narrow down the options that the Government may wish to pursue. I think that the Government needs to commission more detailed work on those options that they wish to pursue. I think that getting some further impetus from some kind of sense of direction from Scottish Government in terms of where they want to look in more detail at which options to implement, that would be the next step. In terms of that, I think reflecting on what Johnnie was just saying, as you will be aware, the Secretary of State at the UK level has issued a consultation paper on principles and governance after Brexit related to England and reserved matters. We were talking about how Scotland and the UK might or might not cooperate in those things. I think that some deliberation about how Scotland might interact with the proposals in that consultation. This committee might be interested to know that the Environmental Audit Committee in the House of Commons is doing an inquiry on the proposals in that consultation at the moment, and there will be quite a lot of good evidence going into that inquiry. In particular, the Environmental Audit Committee asked a question about how that should be managed across the UK. We are not at a kind of UK imposition-type model, but how do the administrations and the jurisdictions with their different responsibilities cooperate more effectively across the UK to fill these gaps in governance arrangements, maintaining the accountability to the appropriate parliaments, but pooling expertise and resource where appropriate and useful and efficient to the participants? I will give you three recommendations. First, we should continue to implement the body of EU legislation and the principles as if we were a member of the European Union. That is something that can be done. We have already got the processes and structures in place. We should be ready with a new scrutiny body for the time when the transition period ends and we may need it to plug the biggest gap that we identified in the report. In the longer term, we may see divergence between the UK position and Scotland position in terms of keeping up with environmental law in the EU. That is when we can bring forward a piece of rationalised policy that brings together the targets of the various different levels that we talked about before to be a bit more coherent about what our ambitions are as a country, but very much in co-operation with what is happening at EU level in the longer term. That is a useful summary. I will seek out those associate memberships and equivalent arrangements that allow us to maintain access to networks from which we could otherwise be excluded. I think that you have covered most of the points, but I just want to get clarity. Other than the policy of not having any weaker environmental policies in Scotland, as Alex Neil said, we should be looking to see what we want in 10 to 15 years' time in Scotland. Do you believe that the Scottish Government is currently doing enough to give us a direction of travel of where it would like to see us being? You talked about the consultation paper that Michael Gove had published. Are the Scottish Government doing enough right now to ensure that the direction of travel and the policies that we want to see in the future will fit within the inevitable UK frameworks? Part of the answer to that is about what kind of dialogue is going on and the level to which Scottish Government is being included in the processes that are determining where we may be going. That appears to have been relatively light, I am tempted to say, minimal. It is quite hard—I would have thought—for the Scottish Government. It is certainly hard for me to know the extent to which Scottish perspectives are being fully taken into account. Before the horse, do we not need to, as a country, decide what we want to see in 10 or 15 years' time and take that to Westminster rather than sit back and wait for Westminster to decide what the framework is going to be and us fitting within it? I am not sure that it is an either-or or a curtain horse. I think that it is probably a both-and. However, in so far as we have had outcomes identified for Scotland and we have the sort of outline consideration of a strategy, that is a start, but I think that there needs to be more in that space. However, it is very difficult when, effectively within the European context, we have been used to the member state speaking, as it were, on our collective behalf, plus the dependencies that we have on the extent to which devolved the administration views are taken into account by the member state. Going much beyond that at this point is particularly challenging. However, one of the things that we identified in the report that might be helpful is to look at more systematically all the things on which we currently report, and to build a rather clearer view of the current state of our environment. Actually, there are quite surprising gaps in our knowledge of the state of the Scottish environment. If you look at, for example, the EEA's reports, quite often the UK is a blank because the UK has refused to provide information which Scotland has frequently held has offered to the UK, and that has not gone forward in the EU context. There are a number of areas in which it would be very helpful to simply work out precisely where we were in order to make any further discussion of ambition that much clearer. I think that there are some challenges there. Very briefly, Johnny Hughes. I would not necessarily agree that the UK frameworks are inevitable. You talked about inevitable UK frameworks. I think that that is a matter for negotiation between the two Governments. As I say, the probable model will be one of pragmatism and a kind of split between the two. I really think that this is a question of implementation as much as ambition. We have a body of environmental legislation, much of which is not being implemented properly at the moment. A focus on implementation, which is what the European Union came to the conclusion on a number of years ago and said, we really need now a number of framework directives, and we really need to be implementing them properly. If we implement them in Scotland, that should be a focus in the future. Where I do agree is on—and where we did not cover this in the report—agriculture policy, which has tremendous impact on the environment. We really need to start thinking quickly about what our vision for agriculture is in Scotland, and the nuts and bolts of how we implement that vision in terms of it going forward with our environmental targets, because we will not hit our agreed environmental targets unless we get agriculture policy right. I do agree with you in that sense. I get to be fair on a remit. Sorry, just to say that the agriculture area was not included in our remit, but we know that Mr Ewing has commissioned a variety of pieces of work that are pointless relevant in that area. Okay, thanks for that clarity. Moving on to an area that we've really touched on, Donald Cameron, if there's anything left. I just—you've each touched on this already and the report touches on it, but do you believe there is a need for a UK-wide approach to environmental policy post-Brexit? Oed Austin. There is a need for the solutions to cover the whole of the UK, because all of the geographic area that is in the UK will lose its EU oversight in a sense. That doesn't necessarily, as Johnny said, mean that that has to be—everything has to be UK-wide, because most of the environmental issues are devolved. We believe that there are potential benefits in terms of pooling resources and sharing information and all of those things that apply to the four countries of the UK, just the same as they apply to the 28 member states of the EU or bigger families of nations in Europe as a whole under the Council of Europe or the UN. I think inevitably there will be some areas where things might be best done across the UK in order to maintain commonalities and address cross-border issues, tweed and soulway are an important area of cross-border environmental management. We have a cross-border river basin management plan for that area, for instance. In view of the NGOs, we believe that all of the joint working needs to be co-designed and co-owned so that the appropriate authorities and the lines of accountability to the appropriate parliaments are maintained. That means that dialogue between the Governments needs to be improved. Outside stakeholders, we find the entire intergovernmental process completely lacking transparency and stakeholder engagement. We recently supported a piece of work by the Institute of Government in terms of how this intergovernmental working could be improved for the better delivery of environmental co-operation, among other things. In terms of the scrutiny bodies, the Secretary of State is proposing one for England and Reserve Matters. There is a proposal here for Scotland. Wales and Northern Ireland will obviously suffer the same need for how they go forward and how they co-operate. It is necessary that there is co-operation, but I think that the answer should emerge from a process of co-design in terms of whether or not the body is one body with four departments reporting to different parliaments or whether it is four bodies that each have a responsibility to co-operate on UK-wide or cross-board issues. That is not important. The importance is that the whole biographic area is addressed and that the proper accountabilities are maintained. That could be something that the various Government officials working together ought to be able to co-design. At the moment, it looks as though each of the Governments are working in isolation on this. Just to say that there is also the aspect of reporting in relation to international obligations. Any reporting there has to be done on a UK basis, so you have to have a way of bringing things together. However, as has been said, that does not necessarily mean a single UK body that has just got to be good ways of joint working and collaboration. Can I just add to that? In some ways, the Joint Age Conservation Committee does that collation of environmental data from the devolts and brings that up and does that reporting, but I think that the answer to the question is no. There is no need for UK frameworks in those areas of devolved responsibility, but it may well be the pragmatic and sensible thing to do in some areas such as chemicals. In fact, I would go further and say that it is probably more sensible than pragmatic to operate the chemicals regime at the European level and continue to do that, but there may be some areas, for example, where geographically and institutionally it makes more sense for us to have a fully Scottish approach and fully devolved frameworks such as, for example, debatably biodiversity policy. To wrap up the session, Richard Lyle. I have several questions, but based on your evidence, if we have to have an environmental scrutiny agency, my boss always said that he had to look at the bigger picture. We also need a transport agency, a fishing agency, a law agency, a land agency, a local government agency and so on. It is going to cost a fortune, which I would suggest makes a bit of a mockery of parliament, let's take back control. Once we leave the EU and the EU has ratified the treaty but the UK has not, then can we ignore it? In your opinion, what would be lost in environmental best practice if UK public bodies and stakeholders only relied on environmental commitments made by the UK Government? I or we are really empowered to respond in much detail to the first part of what you said. I surmised. I think that it is clear now to us, having spent some weeks reflecting on this in a small number of meetings, that there is a huge amount of complexity within the existing systems. When we look at what we might lose, we become very focused on those components, some of which were clear before and some of which were not entirely clear before. A process of careful examination of the consequences of the decisions that have been taken is potentially quite painful and has been very informative. In terms of the second part of what you said, I am partly reflecting on what Johnnie said earlier. We have gone through a series of large legislative steps that have dramatically changed the nature of environmental governance and environmental policy and environmental practice in Scotland, increasingly devolving those elements from the UK to the Scottish level. Unpicking that and if we are operating in some UK frameworks going forward that take control and take decision making away from the Scottish level to which it had previously been devolved is potentially damaging, in a number of ways in terms of outcomes, as Colin was trying to articulate, that signing up to a number of EU directives has meant that we have been much more focused on delivering outcomes rather than merely specific pieces of activity during that period. There is a coherent family of decision making and process that has given us the standards of environment protection that we have. Again, as colleagues have said, we are still weak in some areas, despite a lot of effort and a lot of investment. Our water environment is among the best, if not the best in Europe. Our air quality environment is often not, and our ability to handle waste in the circular economy has improved dramatically and is now at the better end of the spectrum. Our ability to manage our land quality is still not entirely robust. There are a number of areas in which we have made huge progress, and we do not know what would have happened. There is no counterfactual. We do not know what would have happened otherwise. However, we are taking risks. Our process has helped to articulate the nature of some of those risks and to help to focus us all, including the Scottish Government, on how to address those risks and how to at least contingency plan for handling them. However, in a sense, we are still a rebuttal. I do not think that we are in a position to offer a glib or straightforward solution at this point. We are partway through understanding just what we have got ourselves into, and there is a lot more to be done. However, I hope that our evidence has been able to articulate some of the challenges there. Other members of the panel can come in. I will try to cut this back. What are the priorities for future work and what future research and expert input is needed? Can we, one, adopt TUL laws in total, or, two, start now to amend over 40 years of legislation? That is rather political. We are getting into quite political territory here, but, as I have seen in the future, there has been a political commitment in Scotland from the current Government to keep up with the implementation and the changes and track those in the future with environmental law. That could see a divergence of environmental policy in legislation in Scotland in the future from the UK legislation. Over time, that divergence could be stark. From our perspective—correct me if I am wrong, Mr Chair—there is a lot of merit in the outcomes-focused nature of a lot of EU legislation compared to the more process-focused legislation that we see in domestic legislation. Therefore, that political commitment is a very valuable one. Signing up in the longer term to track and implement EU legislation and go beyond, if we so wish, in articulating a new vision for Scotland's environment would be our preferred option for the future. In terms of that, Colin May and my understanding is that the intention of either the EU withdrawal bill at Westminster or the continuity bill that this Parliament passed is to bring over all of the existing EU law into domestic law. Your number one point is either going to be done or has been done, but that is the starting point. The issue that we have been focusing on is the longer-term environmental ambition question that Alex Neil raised and how we may track or exceed future EU law. However, the thing that this report has focused on is the question of what sort of monitoring, measuring and reporting, what scrutiny and implementation and enforcement measures are necessary to make sure that all of that EU law that we brought over in that withdrawal or continuity bill are properly implemented and deliver the outcomes that they were intended to deliver. It is about making sure that the good intentions of bringing that law over are delivered. I give the final word to Professor Reid, who has been very patient today. I was just thinking that, as my colleagues have said, the short-term political decision has been taken to carry over all the EU law rather than wiping the slate clean and starting again. That then provides an answer on a certain date. We then need, as my colleagues have said, to make sure that it gets implemented. There are then policy decisions to be taken at the political level over whether we continue to track the changes, the adjustments in EU law as it goes forward, or whether we set off in our own direction, whether that is for a higher or lower standard deregulation environmental champions. Those are political decisions for the future, which need to be taken, but there is also the short-term issue of just keeping the machinery going with things such as chemicals approvals, and making sure that what we have today is implemented and taken seriously. Professor Reid, thank you all of you this morning, and that has been very informative. I will suspend for five minutes and then we will resume. Welcome back to the meeting of the Environment, Climate Change and Land Reform Committee. The fourth item on the agenda today is to consider the code of practice on litter and refuse Scotland 2018-18-81. Richard Lyle will be followed by Claudia Beamish. Yes, convener, I welcome this updated code and practice on litter and refuse. I adore people who throw litter on the street. I encourage people to put it in their bins. I have encouraged my kids and my grandchildren now to ensure that they deposit their litter correctly. I adore people who throw litter out their cars, going along motorways or bypasses, and that conveys to councils and focusses. I will read it just slightly. Resources were focused to clear up rather than prevent the problem, which were at odds with recommended prevention. We now should prevent people from littering and encourage people to deposit their litter in bins and ensure that street cleansing is done meticulously in order. When I go to other countries, I see streets that are absolutely clean. When some streets you walk down in Scotland, especially with respect to my residents and constituents in the central belt, require a bit of extra care. I encourage everyone to work towards the new code of practice on litter in relation to refuse. Claudia Beamish is followed by Mark Ruskell. I particularly welcome the new approach that is highlighted in the first duty, which looks very specifically at behaviour change rather than simply the process of collection of litter, and that it should not be dropped in the first place. One of the indicators that I would like to highlight is to improve the state of Scotland's marine environment, which was not there before in the previous iteration. I welcome it and am supportive. Mark Ruskell is working at the right end, which is prevention first rather than dealing with the consequences. I have a question about the clarity of organisations that may be contributing towards a litter problem, which the public sector has to pick up. If you are a local authority, you manage a park, but it is right next to McDonald's, and there is litter everywhere, and there is a duty on the local authority to ensure that the park is clean and provides appropriate bins. What is the role of the other organisation in the picture that is driving a lot of the production waste in the first place in making its contribution? The polluter pays would be good to get some further clarity from the Government about how it is approaching that side of the equation, because we do not want to be putting undue burden on to public authorities when the problem is being created by another organisation. It seems that it is a reasonable ask to write to the Government, although one might point out that there are other fast food outlets next to parks. Finlay Carson. I welcome the report. Keep Pets Scotland Beautiful has done some great work with Dumfries and Galloway Council taking some quite controversial decisions to remove bins and whatever from labis along the 75, and also working in conjunction with Stenna and PNO to try and address the issue. I look forward to some more innovative ideas coming out of this in the councils working with these organisations to try some different things to change people's behaviour when it comes to litter. John Scott I thank you, convener, and just as someone who picks up that letter both in Ayrshire and Edinburgh, can I encourage Edinburgh council to empty their bins on a more regular basis, because much of the problems in the Edinburgh area comes from bins that are overflowing and are not emptied two years later? John Scott I am sure that Edinburgh council will take note of your comments. I too very much welcome this, but I do wonder if perhaps as a committee we might want to put a marker down that we might want to take a look at the progress on this issue, perhaps a year or 18 months from now, once this has been in place, to see if it is making a real difference? John Scott Enforcement, because I mean, Matt alluded to it by enforcement, I do not mean that the local authority should pick up the tab for everyone else's litter problem, but I do think that perhaps we need to look at additional powers, for example in dealing with fast food restaurants who do not make any effort and others who do not make any effort to ensure that there are bins and all the rest of it around about them, because clearly I do not see why the council tax payers should have to fork out for wealthy fast food chains who are not doing anything to help the problem? John Scott Although to be fair, I think that some are quite active and some are in that area, so to summarise, I take it that we do not wish to make—sorry, Donald Cameron, you wanted to make a point about this. John Scott Just to formally convene support what others have said about this and also your statement about revisiting it in a year and a half time. John Scott Okay, thanks very much. I take it that we do not want to make any recommendation in relation to this instrument but to seek some information along the lines that Mr Roscoe has sought and to note that we as a committee may well wish to return to this issue in a year to 18 months time to see what progress is being made. Thank you for that. The fifth item on the agenda is petition 1646. This is a petition from Caroline Hayes on drinking water supplies in Scotland. The petition, as members will recall, is calling on the Scottish Parliament to urge the Scottish Government to, one, review the role of the drinking water quality regulator and, two, commission independent research into the safety and clearamination of drinking water. This is referred previously to the committee following scrutiny by the Public Petitions Committee, which has taken evidence on it from stakeholders. Paper 5 outlines the previous scrutiny of the Petitions Committee and suggests some possible options available to this committee. Members may, of course, wish to suggest alternative actions in relation to the petition. Again, I invite comments. Stuart Stevenson. Thank you, convener. I think that we require some additional information before we are in a position to consider coming to conclusion on this petition, in particular from Scottish Water. Looking at the two things that Scottish Water does to provide portable water to customers, one of which is the removing of physical debris in the raw water input and the other in looking at removing bacterial load that might be harmful to human health. Equally, I think that we should be interested in what the drinking water quality regulator does to enforce good decision making in Scottish Water. I do not think that there is any particular merit that I have been able to identify in looking at the role of the drinking water quality regulator, something that I, from my experience, found discharges the responsibilities very well. Thanks, convener. I was interested to read from the petitioner that there is a different approach to the use of chloramination and other solutions in other countries around the world. I think that it would be worth examining that in more detail. Alongside that, what the decision making process is within Scottish Water about the use of chloramination as a particular tool. Like Stuart Stevenson, I do not see a strong case for reviewing the role of the drinking water quality regulator at this point. I think that that is established in the correct way that it has been. However, there is still an issue around the use of this particular technique and how we are benchmarking against other countries in the use or indeed over use of it. Claudia Beamish Thank you, convener. My colleague Alex Rowley is not able to attend for personal reasons today, but he has asked me to highlight that some of his constituents have approached him on this very specific issue. They say that research has identified, if I may just read it briefly, that ammonia is a neurotoxin and is possibly a factor in Alzheimer's and that chlorine is being identified as a bad halogen, which is known to displace iodine in the body and leads to thyroid disease. Mixing of the two constituents not only kills fish, but presents itself as a toxic by product. That is a serious concern and there are other countries that the constituents have pointed out that do not use, if I can say it, chloramidation in France or in Germany. I understand that that is for health risk reasons. It would be useful if we could, on the suggestion of Alex Rowley, look at the health aspects, even if that is in a limited way that could be identified. Alex Neil and Richard Lylem I agree with Alex that it is useful to look into that, but the petition calls for us to urge the Scottish Government to look into it. To be honest, it is more appropriate for the Scottish Government to look into it rather than the parliamentary committee, because we do not have the resources at hand to commission the necessary scientific advice and all the rest of it. Just to take evidence from Scottish Water in this, I do not think that it gives you enough of a range of positions from just one body, which is a supplier at the end of the day. I would be inclined to accept that part of the petition that we urge the Scottish Government to commission the research into this, rather than us doing the research, because I think that they are much better qualified than we are. The second point is, and I would agree with what has been said by Stewart and Mark and others, that I do not see a case for looking into the role of the drinking water regulator. There is an issue about regulation of the water industry, including drinking water, and there are a number of regulators, local authorities of the role in providing drinking water in certain circumstances, as well as the water industry. There is also the Water Commission for Scotland, which is a regulator and touches on all aspects of Scottish Water, Scottish Water itself. CEPA has a role in certain circumstances. To isolate out the drinks water regulator and only look at the role of that regulator, I think that we would not be doing the job properly. If you were going to review these matters, I think that you would need to take a much more comprehensive across-the-board look at how we can improve if we need to, the regulation of the water industry in Scotland. I would be inclined not to support—I do not see an urgent need for that, quite frankly. I would be inclined not to support that part of the petition, but to support the part that asks for research into whatever it is. That may, of course, be a conclusion that we come to, having taken further evidence and gathered further information from Richard Lyle. I agree with my colleague Alex Neil on the item 2. I was going to ask who we commission on independent research into chloramination. His proposal suggests that we refer it to the Scottish Government. At the end of the day, any investigation would take at least three or six months, possibly even a year. We cannot leave the petition open. I agree that the second item would be referred to the Scottish Government for its deliberation. If that is referred to the Scottish Government, we need to look at how we can compare the different methods of disinfection that are available so that we are not making decisions based purely on financial concerns and more on health concerns. I think that there is a consensus here around getting further information and then perhaps coming at least in part to the conclusion that Mr Neil has suggested. If I am reading that correctly, we perhaps, from the regulator, want to develop a better understanding of the options and why, in their view, this particular course of action has been pursued when it appears that there are other countries that choose to take other courses of action. Do we wish to seek from Scottish Water further information as to the rationale behind that particular course? Was it driven by financial considerations and why were the other options discounted? Does that seem reasonable approach? I completely take Alex Neil's point about capacity in the Scottish Government rather than ourselves, but I would like us to be highlighting the health concerns, if only from the perspective of rise from constituents. I suspect that there is a large body of evidence available at a national and international level on this technology. I suspect that, if we wrote to the Scottish Government, we could readily access that and give us a summary of what the evidence is. As a way forward, we keep the petition open, but we perhaps extend an invitation to the relevant regulator to come before the committee post recess to answer any of the concerns that we have. We seek further information that is outlined from Scottish Water, and we write to the Scottish Government seeking the information that has been suggested. If it is part of that convener, we could also do our own research into what the international examples are. I would imagine that the policy of the Water Regulator of France or whatever information is fairly readily available. We can understand what the basis of their policy decision is, and if it is a health-related basis, we can understand that in more detail without having to do the primary research on it. I would not disagree with Alex Neil in that we should ultimately pass this to the Scottish Government. In terms of conducting our research as a committee of the Parliament rather than asking the Government to provide information, we should ask Spice to provide information that we then present to the Government, subsequently differentiating the role of Government and Parliament. I think that that might just be more reasonable in this regard and less conflicted. To summarise, we agree to keep the petition open. We seek further information through Spice on the alternative methods. We seek any further information that we feel is appropriate from Scottish Water. We seek to invite the drinking water quality regulator to appear before the committee post-recious as relevant. Is that agreed? It is always good to get the information from the international. International? Yes, absolutely. We agree on it. We agree on that. It is always good to get that clear. Thank you for that. At its next meeting on 19 June—is that the 19th of June? No, it is not. It is, yes. Is that right? No, it will be the 12th of June. No. Or is that in private? Sorry, my apologies that the meeting on 12 June is separate. At its next meeting on 19 June, the committee expects to take oral evidence on stage one of the climate change emissions reductions target Scotland bill from the Scottish Government bill team and will also hear oral evidence from Scottish Government officials and SNH on biodiversity targets. The committee will further consider the environmental protection microbeads Scotland regulations 2018. As agreed earlier, we will now move into private session a request that the public gallery be vacated as the public part of the meeting is now closed.