 S booth Knight. The 14th meeting of 2018 of the environment climate change and land reform committee. We have apologies from our colleague Gill Patterson. Before we move to the first item in the agenda, I want to remind everyone present to switch off mobile phones and other electronic devices as those may affect the broadcasting system. The first item in the agenda is for the committee to consider whether to take items 4, 5, 6 and 9 in private. Are we all agreed? We are agreed. The second item on our agenda this morning is to take evidence on the EU environmental and animal welfare fair principles. We are joined by Amy Hill of Client Earth, Richard Leslie and his role as co-convener of the Scottish branch of the UK Environmental Law Association and Professor Gavin Little, Professor of Environmental and Public Law at the University of Stirling. I should say that we were to have been joined by a representative of the Law Society of Scotland, but they are unable to attend due to unforeseen circumstances. Ladies and gentlemen, we'll just move to questions. I'll kick this off. Can I ask each of you in turn what you believe would be the effect of relying on the inclusion of environmental principles and international law post Brexit and how those could be enforced? I'll start. The paper that I submitted was co-authored with Dr Annalisa Savarese, who couldn't be here today, unfortunately. She is an international law expert. I'm a domestic governance specialist, so I have a working knowledge of international aspects, but I wouldn't claim to have expertise in it. If we imagine ourselves in the Brexit situation, the simple answer would be that Scotland and Scottish ministers and the Scottish Government would continue to be subject to international law obligations that include the environmental principles. That would be the case if it was either treaty law, and there are a number of treaties, of course, which involve different principles. It would also be the case in terms of international customary law. Professor Leslie, do you want to come in on that? I think that, after Brexit, the principles will remain unless repealed. At some future stage, we may go back into Europe, so there may well be an opportunity for us to keep and retain the principles, but beyond that, I don't have any other comment. Amy Hill? I'll just add a quick addition. One of the issues with the principles sitting solely in international law is the ease with which citizens and civil society can hold decision makers accountable to them. I echo what others have said. Client Earth is still quite concerned that there will be a place for them in domestic law so that they continue to be more accessible and more applicable in the domestic context rather than in a state-to-state kind of context. Okay, let's move us on to John Scott. Thank you, convener. Just on following on from the convener's question, what are the advantages and disadvantages of placing environmental principles on a statutory footing, and is this next? In terms of the advantages, one advantage is quite clearly that we have been subject to environmental principles via EU law for some decades. If we were to imagine ourselves in a Brexit situation where that was no longer the case, that would be quite a significant change and it could impact adversely in terms of the certainty and clarity that attaches to the way in which we make environmental law and arrive at environmental policy. We should not lose sight of the fact that we have been and are, at the moment, subject to the environmental principles through EU law. Therefore, as we embark on Brexit, we need to think quite clearly about how we ensure continuity with that. Will the continuity perhaps be there in terms of elsewhere in other parts of international law? Are there similar environmental principles? Not to the same degree or to the same extent. I think that the environmental principles are not, of course, EU principles. They are principles that are common to any developed system of environmental governance and environmental law. However, what is true, I think, is that the EU has developed those principles to a very high degree by comparison with other jurisdictions and other legal structures, and we are currently part of that. I think that what we need to be alive to is the possibility that Brexit is going to take us from being, perhaps, without necessarily thinking that much about it, in a position in which we are subject to really quite a developed idea of what environmental principles are, all of a sudden to being one where we are not. That is a potential issue in terms of ensuring continuity, uncertainty and clarity in the way that we approach environmental governance. I think that some of the principles are already enshrined in many of our statutes. For example, in the contaminated land regime, we have the concept of the polluter pays that we look out to find out who caused the pollution and they have to then pay for the cleanup. We also have the preventative action or precautionary principle in the fact that we have to have environmental impact assessments for big developments. Those principles are already sitting behind or enshrined in our legislation. We already use those principles. They are general concepts and, although they are not silver bullets and the only important thing in environmental law, they provide a benchmarking standard and have been used by EU policy makers and decision makers and courts and, indeed, Scottish policy makers and decision makers and even Scottish courts, although less frequently. They provide something extra as a benchmark and an overarching set of goals that will drive in a certain direction. In the treaty on the functioning of the EU, where the EU principles are currently set out, it prefaces the list in article 191, too, with the fact that those principles are aimed at a high level of environmental protection. I think that Professor Eloise Scottford has written on this. She sees them as working together as a unit and as quite a coherent list. You will often see them used together in environmental directives in the EU. For example, the water framework directive references the prevention principle, the polluter pays and the principle of remediating environmental damage at source and uses them as a grouping to develop an approach to controlling environmental damage and protecting the environment. Their general nature does mean that they can apply in a nuanced way in different circumstances. That could be seen as an advantage in that the Government can perhaps provide policy direction in particular contexts for how it sees the precautionary principle applying to chemicals, but we still have these benchmarking overall and agreed principles that guide environmental law. I am concerned that the law society has some reservations about this. Did you co-author the evidence with the law society professor a little? You did not forgive me. I misunderstood that. Specifically, the law society says that a principle may be incapable of being legally enforced due to a lack of certainty as to how it applies in a particular situation and how it interacts with more specific provisions of substantive law. Directly enacting principles in legislation is generally not an effective way of lawmaking unless a subsidiary role is made clear. There is no instance of principles being relied upon in place of sufficiently precise legal rules being developed. However, there is huge skepticism throughout the law society's evidence. Is that a skepticism that you share? It is not a skepticism that I share. No, I think that the environmental principles do, as has just been said, provide an important big picture narrative and an overarching set of ideas on how to approach what is often a very complex and fragmented regulatory area. Having them on a statutory footing or having them in the EU treaties, it ensures that they are not overlooked in policymaking and implementation and decision taking and in the exercise of discretion. It also can guide statutory interpretation. The law society seems to me to be quite a narrow issue, because the extent to which the environmental principles have legal effect depends on whether they are put into statute on how they are put into statute. For example, if you have statutory provision, including the environmental principles that explicitly state, the courts may and shall use the principles in statutory interpretation, or the environmental principles may be viewed as a standard for decision takers. The court should have cognisance of that. In that context, it can be quite significant and muscular elements. It is a great shame that the gentlemen from the law society sadly cannot be with us, but he specifically says that we do not consider that there will be a need to expressly incorporate principles into the statute book. I think that what they are trying to say here is that they do not want to have a specific statute where the principles are enshrined in Scott's law, where they would prefer to have them, is in specific areas of law. We have already mentioned the water framework directive that we have in the water legislation that a polluter will pay. If you are going to discharge to water, you have to obtain a consent that you pay. I think that the law society's view is that it should be a case-by-case piece that we should have cognisance. Eucalae, who I represent, would say that we would want to have these as general binding guidelines. This is as if we have a national planning framework that we have the sitting behind and that legislators would have to take into account the principles when looking at legislation at a specific point, but the principles themselves would not be in statute. Right, so there are not two irreconcernable positions. Before coming back to John Scott, he has got further questions. Finlay Carson, followed by Mark Ruskell. Thank you, convener. I hope that you will indulge me for a second. It is just a very quick question, but I cannot miss the opportunity to have three experts in front of me without asking it. Local authority polluters must pay. Prior to local authority reorganisation, if a district council was to pollute and that council was then incorporated into a larger regional council, can the original council still be held responsible as a polluter? This is an excellent example of how sometimes these principles feel intuitively very easy and can obviously things can get quite complex. I cannot speak to the specific legal Scottish situation there in terms of the analysis, but the polluter pays principle does run into issues sometimes with identifying a polluter. It does have its limits. For example, there might be a sound policy reason why you might not always want the polluter to pay. For example, if a Government was trying to put in place some kind of encourage and insurance regime around say the movement of a particularly hazardous substance, if they wanted to make sure there was insurance in place available to companies doing that, if there were a spill so that we could be sure that there was no kind of environmental damage that left unremediated because a company was in liquidation or didn't have the assets or things like that, then you can conceive of a situation where a Government may wish to say cap liability, which isn't a strict application of the polluter pays, but might therefore encourage insurers to provide insurance for a particular thing. I think there's always going to be intricacies in applying these principles to particular contexts, but I think that's where Government decisions and say a policy guidance document accompanying a list of the principles in statute would be helpful because Government can turn its mind and Parliament can turn its mind to those issues to have more detailed direction in terms of particular instances and how those principles would apply, but that principle would also be obviously used alongside remediation at source and things like that to guide the approach to a contaminated land issue. The case is that we have to look at the local government acts and see what obligations and responsibilities were taken on by the new authority, just as there would be other responsibilities and obligations in terms of social care, et cetera. I would have thought that any liabilities that the former authority had would be passed on to the new authority depending on the council area that they were in. If there was landfill that was incorrectly disposed of, my guess, and we would have to look at the legislation would be that the new authority would take on that liability and would have to deal with the remediation under the polluter principle pays scenario unless you can find somebody else who did it. Under that, if you cannot trace the polluter, often it then falls to the landowner to remediate, and if the land is then owned by that new local authority, then I am afraid that the cost would have to be borne by that landowner. If it was causing harm, we have to look at it and see if it is just sitting there not doing anything, it is cased in a landfill site, not escaping, then perhaps nothing needs to be done. Mark Ruskell, can I come back to what you were speaking about earlier, Amy Hill? I hear what you say about the application of the principles, but I wonder about, isn't there a very queer deterrent effect of having the principles very much enforced and enshrined? The likelihood, I would have thought, would be that, for someone who is considering polluting because they are playing fast and loose with the environment, the knowledge that you will be pursued because of the existence of those principles in itself may have a behavioural effect. Absolutely, and perhaps I was unclear earlier. I think that that is one of the strengths of the polluter pays principle and one of the reasons why it has developed to deter as well as to ensure that the remediation is done. So, it would have a deterrent effect and the strength of all of these principles is also how it flows into more detailed legal rules and we see how the polluter pays principle flows into detailed legal rules in the contaminated land regime. What are your thoughts on how the principles have now been incorporated into the Scottish Parliament's continuity bill? We had quite a few discussions around the nature of the principles, whether they should be seen as general principles for enshrining in the legislation or whether they should be there as guiding principles to inform future legislation. I think that we ended up perhaps more on the guiding principles side of things, perhaps taking account of some of the concerns that the Law Society has expressed in their written submission, but I just wondered what is your thought and where we ended up with that. I think that the clause that I am assuming had to be put together extremely quickly in the circumstances is, in many ways, a solid piece of legislation. The reason I say that is because it does, obviously, state them in legislation. I think that that view is better not to be too prescriptive or specific about what they are. They should be referred to in the terms that they are, which is, in some respects, similar to the provision in the treaty on the function of the European Union. I think that there is benefit in that. The one observation that could be made about it is that it is very much targeted on Scottish ministers, so it is not an attempt to establish a more general duty that could apply to other public authorities or perhaps to other selected public authorities. Something that it does, which is important, is that it clearly links the Scottish Parliament's ideas of what the environmental principles are with the European Union provision. That is important because, as I said a few minutes ago, we have been part of the EU regime for decades. Therefore, we are contiguous to that regime in, I suppose, cultural terms but also in terms of our approach to what the law is and how it should be implemented and used in the environmental context. I think that sticking quite close to the EU provision is the right thing to do. I do not think that we should be thinking in terms of trying to develop a specific Scottish or specifically UK view on what those principles might mean. I would fav the guidelines scenario as well. I just wanted to make a contribution in the light of the question from Finlay Carson, because it has taken me a minute to find it. Under the Local Government Scotland Act 1994, section 152, transfer of all rights, liabilities and obligation of an existing local authority in 1 April 1996, such new authority are authorities. In other words, they continue to exist across the reorganisation. They merely are now with different bodies. I thought, just to avoid that one running away from us, we just won't get it in the record, convener, thank you. Thank you for that witness evidence, Mr Stevenson. Amy Hill, did you wish to come back on that point? Yes, thank you. I need to say that I would agree also with what Professor Little has said, and Client Earth has been campaigning for the inclusion of these environmental principles in the EU withdrawal bill in Westminster. I was very pleased and encouraged to see them in the Scottish continuity bill. I would echo that Client Earth would hope that the principles would be applicable to all public authorities, rather than just Government ministers. We also agree that I think simply listing them in statute and perhaps following up with a more detailed policy document that sat alongside would be better than potentially including some sort of rigid definition in statute. Okay. Mr Scott. Thank you. I think that to some extent the questions have been answered. So what are the alternative options to putting the principles into Scott's law, just what you are saying, Llywydd, in grouping them in terms of guidance and having them sitting behind the law? Have I understood that correctly? I'm sorry for the minute. Can I add that if we enshrine them into Scott's law, our public authorities have a number of other environmental duties and there may be a clash if we put this in as well. If I just read out what some of these other duties are, public authorities have an obligation to look after the natural heritage, look after biodiversity under the Nature Conservation Scotland Act, they have climate change targets and sustainability and that's an obligation in terms of the Climate Change Scotland Act and the requirements of the Habitat Directive. So they have a number of obligations already and if we introduce new obligations there could be conflict between the two. As we've seen with wind farms, macro, we've got renewable energy, micro, it's not a good site and it may be an opportunity for Scottish Parliament to look at which ones get priority or are there too many obligations on public authorities, should we streamline them? That's perhaps for another day. Well no, for another question and my colleague will just come on to that in a moment in terms of hierarchy of competing demands and principles. My final question to you, but thank you for your answer to that one was what would be the consequence of having different approaches across the United Kingdom in terms of priorities and competing principles? Well I think that in the areas that are very clearly devolved it should be a matter for the Scottish Parliament as to whether or not it wishes to have principles in legislation irrespective of the position that we understand is going to be taken south of the border where there is going to be no statutory provision for them. I suppose that the difficulties could potentially arise in those areas where there is a shared interest, if you like, the crossover areas. The marine environment, the moorland environment across the border. Do you think that there is not an opportunity for frameworks or overarching frameworks? I mean I appreciate not yet resolved but you think that it should be a matter for Scotland. As we say in Scotland, do you take the high most as far as others are concerned on other parts of the United Kingdom? Well I think that if Scotland chooses to have a particular position whereby it seeks to put the environmental principles into statutory form because that is felt to be in the Scottish public interest and it is within a devolved area then I think that the Scottish Parliament should do that. There may be issues arising from that, but... I could answer that. We understand that in England, DEFRA proposes an independent statutory body to champion and uphold environmental standards and we wonder if Scotland should either appoint its own body to look at environmental standards or should explore with the UK and other devolved authorities the ways of enabling environmental oversight so it is joined up. There will be occasions, for example, animal welfare when we are trading with other nations where we do have to have this joined up thinking. We cannot simply go our own way if it is a UK imposition although our law may be different because there are now opportunities for us to have our own environmental law. We want to make sure that the principles that are already established in Scotland are not watered down by the other jurisdictions. There is a non-regression policy that we do not want to make our environmental policies weaker or watered down simply because we are now going to trade, for example, with the United States or Brazil as opposed to the European Union. We have to be careful and it is useful to have a body that is championed in saying, well, that is a backward step. The client earth would be very keen if it is all possible for there to be some sort of co-designed, co-owned UK wide framework obviously respecting the devolved settlements. One model which we are looking at at the moment which might possibly provide a framework could be the marine policy statement which I understand is co-designed and co-owned with mechanisms for, I believe, if one devolved administration at some point does not wish to continue to be jointly working on the marine policy statement, I think they can drop away but the statement will remain and apply in the remaining jurisdictions. If it were possible, we think that there would be advantages to a UK wide framework of some sort. Why when you could, in theory, run the risk of a lowering of standards? Mainly because there are things like the marine environment which are joined up or national climate change targets. Obviously, some environmental issues are more localised and if it were to result in a lowering of standards that would not be preferable, but there are some that maybe a political will issue if you are working cross-border or allowing Governments to have that as a baseline but go above and beyond in their own jurisdictions, not limiting upwards. Would you like to develop that theme? That is the question that I wanted to ask you in that regard. I mean, there might be a baseline, a minimum standard, so to speak, and others, if they wanted to go beyond that, could improve on it. Is that a tenable position perhaps that Scotland wants to have better or different standards? There is an overarching framework and then you move to an enhanced position if that is what we perceive that we want to do in Scotland? I think that that would be tenable. It is already quite frequently seen in areas of EU law. Member States are allowed to improve and, as a general principle, the other way is not acceptable, but if there were an agreed UK-wide baseline and Scotland wished to improve upon it, that would be. Do you already have that in terms of the Climate Change Act? We have far tougher targets in Scotland than they do for the UK, so it is no different if we could impose the same for Scotland. A development of an existing principle. Donald Cameron at last. Thank you, convener. I refer to my registered interest as a practising advocate. My questions touch on what the convener and the deputy convener have also asked you about, and that is Brexit and international obligations. I think that the most obvious example of this is the Arhouse Convention, which is of course a UN document. It enshrines important principles such as access to information, public participation in decision making and access to justice. After Brexit, this will persist. I suppose that if you can look into the future, as it were, do you see that being an opportunity for us to raise standards or, realistically, are we going to see a luring of standards? What do you think will happen? Richard Leslie. Donald, it is a question of political will. Ultimately, we have had this debate, should we have environmental courts and there has not been an appetite or there has not been the funding for it. My concern is that Scotland being a fairly small jurisdiction. Do we have the manpower to deal with us to have that, or do we then follow the lead in the rest of the UK? However, Arhouse would continue beyond that and would be developed by our courts, rather than by our politicians, although politicians have an opportunity to do something about it. On access to justice, there is a healthy debate as to whether Scottish courts or Scots law is allowing that principle or to the extent to which that principle is being realised. If there is a divergence between the devolved administrations of the UK, could you see Scotland allowing greater access to justice in environmental cases than other forums in the UK? Potentially, yes. I agree that it is a matter of political will, ultimately, and resource. It also touches on something that I know has been raised before the committee in the past. That is that, in a post-Brexit situation, we may well find ourselves in a situation where environmental issues are far more politicised at a local level and there may well be much more in the way of, say, lobbying activity here in this Parliament and of the Scottish Government. That, too, could be quite a profound influence in this sort of dynamic. Can I probably betray my lack of legal understanding and ask in this question, but I will ask it anyway, because this is all about what applying these principles would look like in the future. Quite recently, the committee concluded that the precautionary principle was little evidence of it having been deployed in relation to aquaculture expansion. I recognise that there are contrary views to that. However, how do we get to a set-up in future that ensures that Government or its agencies cannot ignore such principles and must pay heed to them? What would be the best set-up going forward to get us into that position? What client earth proposes is to have the principles listed in statute and with accompanying policy guidance and then with some clear duties on public authorities to have regard to them or possibly act in accordance with the policy statement, something along those lines. A lot of the success of statutory duties comes down also to political will. There is an example that I have recently come across. There is an act to do with fisheries from 1993, which only has one clause or two clauses and says that all authorities that are making fisheries management decisions should do so taking into account wildlife conservation. I do not think that that has been particularly influential or effective, but sometimes they are. For example, the counterterrorism prevent duty is a similar statutory wording taken very seriously. A lot of it is political will and developing practices that routinely pick up the principles document, have a flick through, have a think about it, consider it and build that up that way. I think another adding to that. A statute that sets out the principles and makes them applicable to public authorities could also have a reporting requirement where the authorities are required to report on a regular basis. There could also be provision for information on specific decisions that have been arrived at by authorities to be provided, for example, to this Parliament. There are a range of things that one can do that would channel decision takers down a particular line for thinking about the precautionary principle that they should, as a matter, of course consider precautionary issues. It might be, depending on the situation, that they would consider the precautionary principle and decide that the precautionary action was inappropriate in that case, which I think would not be unreasonable at all, depending on the circumstance. However, the important thing that it would seem to me is that there would be a requirement to report on that and, if necessary, to provide reasons not only to this Parliament but also publicly that should be transparently done. That is very interesting. Richard Leslie. In terms of aquaculture, as you mentioned, you might want to look at the consenting regime to see whether changes could be made to that, that they do take into account the precautionary principle because there is a question mark as to what the longer-term effects are going forward. Let's move on, Richard Lyle. Some people have strayed into my question, so I will try to rephrase it slightly. It has been suggested that further consideration should be given to as to whether additional principles should be included in Scots law. Colin Reed, Professor of Environmental Law at University of Dundee, proposed that a non-regression principle should be introduced, which would propose that any changes in law or policy should maintain or increase the level of environmental protection and not allow any deterioration. Therefore, can I ask the panel should other principles such as the non-regression principle be incorporated into Scots law ahead of Brexit, stunned? It certainly could be, and I can see that there are strong arguments for doing so. I think that the inclusion of a principle of that sort, its value would primarily be as a baseline for decision takers. Again, it is something that could usefully be reported on by decision takers. However, it is certainly one of those things, one of those criteria for decision takers that sits well with the other principles. I know that later on there is perhaps going to be some discussion of the hierarchy of principles. One thing that we have not really touched on is the potential for having the principles that are in clause 13b of the continuity bill made subject to a more general objective of pursuing a sustainable environment. If you had a principle of that sort introduced, then arguably the requirement for a non-regression principle might fall away to some extent. I think that there is certainly a debate to be had around the inclusion of that principle and other principles, but it would need to be worked out quite carefully so that they work in a rational way together. Anyone else who wants to come in on that? Do you want to come back to that specific point and then Mr Lyle can follow up? I think that we just have to be slightly careful that we don't try to stick to beat ourselves with in the future. There may be good reason why laws have to be changed, so whilst a non-regression might be a principle, I wouldn't necessarily want to see it put into statute. We don't know who in the future would come along and say that that's a regression and it becomes very subjective. I can't pass up the opportunity to ask you this. In your opinion on leaving the EU, do we need to review, update or accept every law passed by the EU since we joined or just accept all those laws entirely? A quick general point. Initially, it's very important that there's no loss, from a climate perspective, no loss of environmental protections. Initially, that would be about retaining and then, hopefully, improving upon, but we certainly wouldn't want to lose anything that's currently in the EU law. I would agree with that. I would also observe that the UK has very often been a major driver of large parts of EU environmental law, so I think that it would be very much a retrograde step if we were to take that course. The great repeal will simply retain all existing legislation, so it's up to individual parliaments to legislate if they want to change that. From day one, we will be accepting everything that we've previously accepted, and most of our environmental law is derived from Europe, such as Habitat's Directive, Water Framework Directive and so on. I think that we are in a good footing and I don't see any need for change unless there's a specific need to do that. Mark Ruskell in John Scott. I was just looking back at an answer to a written question on this principle of non-regression and how we keep pace. To summarise, the Scottish Government's response to this is that the mechanisms that have been put into the continuity bill as it sits at the moment, they believe to be adequate. That's the enshrining of the guiding principles and the keeping pace provisions, as you've already mentioned, under section 13 and the duty to consult on a governance structure going forward. What's your view on that? If you take that alongside the political commitment of the current administration to keep pace with EU laws, is that effectively non-regression or perhaps as Professor Little is saying, we need to go further perhaps within the keeping pace provisions? Does that reassure you that that effectively is non-regression? I think that in the vast majority of cases it would likely to be just that, yes. I think that the point that I was making about a broader overarching principle of pursuing a sustainable environment, having that as a key objective, was more aimed at the idea of trying to make the provision for the principles more coherent, rather than necessarily saying that if that provision wasn't there, it would result in a serious regression. I won't speak on the details of the Scottish bill, but the Government's approach is not to regress in terms of its bringing EU law into UK and Scots law. I think that where a non-regression principle might be useful is, say, 10 years in the future as we develop our law independently provided the UK doesn't end up back in somehow, or anything like that. Then benchmarking as law reform happens domestically. We also don't know what the future of Europe is going to be. They may change. They may regress. It's important that we don't necessarily simply keep step with European law. We very much look after our own. We've already mentioned aquaculture, where we are very different to the rest of the UK. It doesn't have a big salmon fish farming industry, so I think that we do want to keep an independent line and not necessarily always follow Europe, especially if they go backwards. John Scott. Just to take you back to where the broader picture of a hierarchy of principles in that regard, the law society has said to pick out specific principles and give them special status, which goes beyond that. Currently applying runs the risk of unintentionally giving the principles a greater status than other relevant principles. Richard Leslie spoke of rods to beat our own backs with. Is that the sort of thing you mean? Therefore, what would you suggest in terms of the reference of the committee on environmental stuff by and large? I should have declared an interest earlier, although I'm doing that now. How would you suggest that a hierarchy should look like, perhaps, if there were to be such a hierarchy? I think that one thing that it should not be is set out in statute. If such a hierarchy was to be developed, one could have a statutory provision as in clause 13b, but the issue of how those principles are addressed by decision takers is something that can be dealt with as a matter of policy. Any view on how a hierarchy might be established would be a matter of policy, rather than something that you would necessarily want to set out in statute. In fact, under the law of unintended consequences, setting it out in statute could potentially be quite a risky step to take. You're almost going to say that it would be a bad idea. Others share that view. There is currently a hierarchy of these principles, and I don't see why we need to have a hierarchy that they will all sit together to be looked at in the round. Thank you, that's very clear. Thank you very much, Mark Ruskell. Trade and trade deals, and the way that principles may or may not have an impact or otherwise on trade deals. Richard Leslie has already touched on that, but can we get some more thoughts on how that may play out? I think that it's going to be difficult. The UK Government is going to be responsible for trade deals with other countries. On the radio this morning, Liam Foxx was saying that the UK would have its own standards. We're talking about importing chicken from United States of America, which is currently not allowed. There may be pressure put on the Scottish Parliament, the Scottish Government, to look at the wider UK picture. In those circumstances, there may be regression, and we may have to look at our own farmers and our own producers in those items. After all, the environment is a devolved subject. We don't have to agree to UK standards. Any thoughts? As they are currently enshrined in the continuity bill, having an impact on the negotiation of any UK trade deal? Not necessarily, is the answer to that. I suppose that the position would be that the UK Government would also be considering those environmental principles but would be viewing them solely as policy principles. The Scottish authorities would be looking at them because they are in statute, and therefore they would consider them for that reason. It doesn't necessarily mean that they would take a different view on how the principles are to be interpreted in an instant case. We would see them as perhaps informing the Government's approach to its trade policy. Client Earth would hope that the UK Government continues to push for high environmental standards and environmental protections in its international relations and trading, and perhaps having those as the domestic background could inform that. The principles don't, from my limited understanding of trade agreements, tend to feature in trade agreements themselves, although they are increasingly having environmental chapters and things like that now. Michelle Beineier spoke of a non-regression clause in a future free trade agreement. I think that that is conceptually quite different to having a domestic non-regression clause, which is about our environmental standards domestically. That is about actually trade competition. I think that Beineier sees it as making sure that the UK doesn't undercut the EU by lowering its standards. It is a different thing in the trade context, and it is a tool for that. Could future trade agreements prevent the Scottish Parliament from putting environmental principles into Scott's law at a future date? I am not an expert in international trade. I am more of a domestically focused specialist, but, on the face of it, I cannot see how they would prevent the Scottish Parliament from passing legislation that would apply to devolved areas, particularly if it is a fairly general, non-specific provision of the sort that is in clause 13b of the continuity bill. The issue is not so much whether or not those principles are considered in decision-taking. The issue would be what the decision was in terms of how they should be applied. In terms of that, that would suggest that some form of an impact assessment around a particular trade deal would need to be produced that would enable citizens and devolved administrations and others to look at the impact and about how the principles have been applied. What would be your view on that? How should the principles inform an impact assessment around a trade deal or any subsequent consultation? Are there particular issues that you could... Well, I suppose there could be debates around issues of public health, depending on particular trade deals, food standards, things of that nature. If we take, for example, GMOs as an example, we are currently, at the moment, subject to a strongly precautionary regime. If we fall out of the EU and we are still wishing to apply a strongly precautionary regime in the Scottish context but find ourselves unable to do so because of a trade deal, that would, at the very least, initiate quite a considerable debate in Scotland about what the nature of the precautionary principle is and how we view it. Any other thoughts on how we assess the impacts of trade deals using the principles at all? I just wanted to take us to a slightly different view on the whole subject. Do the panel agree, first of all, that trade deals are of necessity bilateral? In other words, it is about one country imposing conditions on the other for trade in one of the directions and vice versa. The conditions that might be imposed on what will be imported into Scotland are a separate thing from the conditions that we might have to meet to export to someone else. I just want to get the nodding heads that agrees that that is the point, which I think I did. Therefore, in terms of our own production—I am thinking of food in particular, but it would not just be food—we are likely to be able to set our own standards in that regard, although it is possible that, just for the sake of argument in the United States, might require all chickens exported from Scotland to the United States to have gone through a chlorination process. That would not matter too much to the Scottish consumer. We ought to be able to retain authority over how we do things for ourselves in Scotland. Is there any difficulty with that statement that anyone can identify? I think that Amy Hill is on the brink of saying something. I do not know if that is quite answering your question. I am, by no means, a trade expert, I should say. I think that Scotland would be free to put whatever standards it chooses, high standards in place or higher standards than other countries, for example. I do a bit of work also in the fisheries context and one thing that industry is thinking about at the moment is the divergence from, for example, EU standards will require certification and things like that in the border and the compliance with—sometimes complying with—the technical requirements of another country or a trading partner can create barriers. That may therefore mean that Scotland wishes to align itself, for example, closely with the EU rules for the sake of removing friction, but I think that that is all I would have. Therefore, in terms of our own production, we will always need to, as a minimum, meet the standards that are the minimum that is acceptable to the trading partner to whom we are exporting. I mean that is self-evident. Is not this particular issue for us in this discussion really about what comes into the country? Of course, trade deals are a matter for the UK Government, and the Scottish Parliament has all but zero direct legislative competence in that regard. It may have influence, but no legislative competence. That is where the issue is. Probably the issue ends up being about labelling of origin so that people can decide to buy coordinated American chicken if they wish to do so. I would not recommend it, but that is what other people would decide, but we need to know that they are doing so. It is unclear what our powers might be there. Is that probably a fair thing to say and that they are in lies the difficulty? I think that you are right. We have had this recently with export of salmon to America, which has a different standard. We have to then either comply or choose not to trade with them in terms of salmon, and the same applies where we are bringing something in. Where it is more difficult is something like a genetically modified soya that comes in as part of something that is built into prepared food. We might not have that ability to stop it at the border of Scotland saying that we will not let it in. I think that it is going to be a difficulty, but I do not think that there is an easy answer for that. The difficulty, though, in the negotiation of a trade deal in the principles that we are talking about is not too much. The conclusions that we may come to by applying the principles, but the principles are treated differently in different countries and in different parts of the world. We heard in written evidence that there is a difference in the US in terms of application of sound science compared with our application of precautionary principle. Is that gap significant enough to create friction and tensions around how principles are considered? You are absolutely right to say that the US, for example, takes a very different view of what the precautionary principle means. In a sense, it is cleaving to a more traditional view of risk regulation of the sort that we used to employ in the UK until, really, the BSE, CJD crisis. Going back to the point that was made earlier, as far as the precautionary principle is concerned, the process is likely to open up quite wide-ranging discussion about what we mean by the application of the precautionary principle. At the moment, we are very much in an EU tradition, if you like, of thinking about the precautionary principle, but, post Brexit, we may have to at least have a discussion about what it actually means to apply a precautionary decision-taking. Different views exist as to when the precautionary action should be taken and can quite reasonably differ. But in them? Forgive me. You are saying that there are different interpretations of the precautionary principle in Australia, in New Zealand and in South Africa to American conversion? Not so much interpretations of it, but different ideas of when the precautionary action ought to be taken. For example, in the United States, they would consider themselves to be applying the precautionary principle in relation to, for example, the regulation of GMOs. However, their view of how risk is to be balanced would differ, but the principle itself is the same. However, different authorities can quite reasonably have different views of how to balance risk against benefit, if you see what I mean. It is just a quick comment. Is not that always going to be the case? That is why in terms of courts and things that will come on to later, but why the precautionary principle is sometimes challenged by judicial review or whatever? Different local authorities, with respect, may interpret the precautionary principle differently. Even within Scotland, a little on Britain, there are going to be differences. I think that that is right. I suppose that the way that we think about the precautionary principle here in Scotland at the moment is very heavily conditioned by the fact that we have been part of a very strong EU culture since the 1990s of precautionary decision taking. That is a very powerful influence on us, but we have to be aware that different trade blocs might well take a different view of what the application of the precautionary principle means in a given situation. Alex Rowley, thank you for that. Are there countries in what we can learn from other countries? Are there countries that include environmental principles in legislation, and what can we learn from that? Are there examples of other countries in which environmental principles are included in policy guidance rather than legislation? How effective are they? I think that I would echo what was in a number of submissions about being cautious treating the grain of salt and how other countries do it, just because the legal culture is always different and the political culture is too. One interesting example is the recent Trinidad and Tobago case study, which is in the client earth written submission. The reason why that might be useful for the committee to think about is because Trinidad and Tobago have environmental principles. This case study is particularly about the polluter pace principle in a policy statement, which all public authorities are under a duty to apply. The Privy Council has recently considered a case involving that policy statement. That might give an indication about how UK courts might look at something like that, although it is not in a UK setting. The policy statement operated to impact upon how a local authority could charge for water permits, discharge permits. The Privy Council found that the authority's current way of doing things, which was just a flat, fixed rate fee, was inconsistent with the polluter pace principle in the policy statement and required them to go back and reconsider how they levy charges for discharges, because it was supposed to be about keeping money aside for the cost of remediation. At least giving the public authority, the Privy Council considered that the polluter pace principle, as it was in that policy statement, was also about ensuring that the public authority left itself the powers to charge for pollution, to levy higher than a flat fee, if necessary, if a permit holder did pollute. That is an interesting case study to think about here. I think that there are, as Amy has just indicated, a number of potential examples that we could draw on, but I think that we also always have to be very careful about the idea of legal transplants, as it were. Yes, we can learn, of course, from the experience of other jurisdictions, but we have to be aware that those other jurisdictions are operating in different contexts, so there are different constitutional contexts, different legal contexts, also different socioeconomic contexts, all of which are relevant, if we are thinking about how they could be drawn across into the Scottish context. I come back to a point that I made earlier, which is probably the most relevant international and inverted commas scenario for us to continue thinking about is the EU, because we are currently still part of the EU. Its thinking on environmental principles has been absolutely fundamental to our own law. We have a huge intellectual and legal contiguity with it, and that is going to continue for some time post Brexit. I am wary about casting the net further afield or much further afield and saying, we will look at what they do here, we will look at what they do there, because there is a danger that we could introduce inconsistencies into the way that we think about the principles. This is a very good line of questioning, and given that the academic community was very quick off the mark when Brexit occurred to identify the risks that we were facing and the potential pitfalls, presumably someone somewhere in the academic community has been doing such a piece of work looking at environmental principles and how they are applied elsewhere across the globe and looked at how they might be adapted. Are you aware of anybody having done that? There are academics in other jurisdictions who obviously do work on environmental principles. I am not aware of any work that is specifically related to what the implications of Brexit might be in that context, for example, on how we could adopt models elsewhere, but no doubt that that will come. Will you get any further? Do you want to come back on this, Mr Llywydd? That's fine. I'm moving on, then. A number of written submissions suggested that it was important that there were enforcement mechanisms to ensure that compliance with environmental principles. UKELA and the link have suggested that that should be the case. KleinEarth wrote that a new independent statutory body should be established. Can you give me your opinions on what the benefits and the risks are on establishing a UKE-wide enforcement body? Speaking to KleinEarth's submission, it's a colleague of mine who's doing the majority of the work on that, so I can also send some information afterwards if that would be useful. The benefits that KleinEarth sees are that, when we leave the EU, we're leaving the structures and institutions such as the European Commission, which presently provides a watchdog function and allows member states to be held account. KleinEarth would see the watchdog body as providing an enforcement function on public authority, so perhaps being able to review policy practices or conduct investigations where we have these principles in place, perhaps take complaints or act as almost an ombudsman-style body and investigate whether it did consider that, say, public authority X had considered the precautionary approach, if not, how might it better do that? We would see that as an important function of the commissions and an external enforcement function that should be replaced in the UK. Again, KleinEarth would like to see this UK-wide respecting the devolution settlements and co-designed, but I obviously entirely respect the devolution settlements and know that there are great difficulties at the moment getting through those. I think that the establishment of any commission would have to, if it was to have any hope of purchase, be very much drafted in line with the principles of devolution. Of course, whether or not that is possible would depend on the political sphere. I think that it is also possible that there could be an independent Scottish commission established to do broadly the same thing in the Scottish context. Indeed, there might well be quite a strong weight of argument behind that, given that the devolution of environment is a fundamental area of devolution. One could reasonably see areas where Scottish practice and Scottish considerations differ, so that a Scottish institution might be appropriate. At a local level, of course, if legislation is introduced that has principles within them, for example, such as water or contaminated land, the Scottish Environment Protection Agency already has an enforcement ability. We already have a structure of enforcing environmental principles, if they are breached, and there are the usual appeals mechanisms, sanctions and the courts process. I would not see anything different there, as principles are applied to individual aspects of legislation. It is this macro level of whether we are adhering to these principles of local authorities or of Parliament. That is where the commissioner would come in. Thank you, convener. Could I just push this a little further and ask you all about what role an independent Scottish enforcement agency or body would have? If you look at SEPA, one could question its independence while I respect its work, and how would it relate to Scottish Government and public bodies and other enforcement agencies across the UK. Just in answering that, there has been a lot of consideration by various parties and by Scottish Government of the possibility of an environmental court or courts, perhaps not dissimilar in my own opinion to that of domestic abuse courts, but there are a range of models that would be possible. Is that a viable situation? If so, where would any of you see it going in terms of where the final decision-making in those courts would be? Would it then have to go to the UK? Could it stay in Scotland? Obviously, it is about political will in a sense, but it is about what could work. I think that there is every reason for it to continue within the Scottish jurisdiction. There has obviously been a lot of thought and debate about the issue of having a separate environmental court. There is, I suppose, the related question of whether or not the ordinary courts could be made to work more effectively in the environmental context. For example, one could have specialist judges sitting within the ordinary court system. The point that was touched on earlier about the role of a commissioner, perhaps operating rather like an ombudsman, is a rather different role. Clearly, if there was to be a dispute resolution mechanism focused on an environment that was not solely or narrowly legally based but was also taking into account broader considerations of injustice through mal-administration, an ombudsman-type model could be much more appropriate for many environmental disputes. Even if the commissioner was essentially an ombudsman-type figure, there is every reason why that should again be within the devolved ambit and within a specifically Scottish ambit. The main reason is that we have a situation where the Scottish Parliament and the Scottish Government have the lead role on issues of nature, conservation and environmental protection. Therefore, it falls even notwithstanding Brexit. It is still a subject area that falls very largely within the devolved boundaries. Therefore, there is a strong case for saying that any dispute resolution mechanism should be essentially part of that devolved structure. Where would you then see any ultimate before I go on briefly to other panellists? Where would you see the ultimate court being? If we are talking about civil disputes, then one could have a system of appeals on point of law to the court of session and thereby ultimately to the UK Supreme Court. Are there comments from other panel members on the issue? There has been some debate over time whether we should have a separate environmental court for environmental matters. Often, those are criminal if you are polluting and they go before the sheriff court. The Procurator Fiscal is not used to dealing with them. They are far used to dealing with usual crimes. We have seen the sanctions and fines in Scotland far less than those in other parts of the United Kingdom. They were thought of as a dedicated environmental court. The environment would be looked after in a better way. However, that has gone on for some time and we are no further forward. What Professor Little was saying is that Ombudsman is a good idea from this macro level of looking at wide areas. However, I do not think that we should discuss the courts as still the first point of reference and we should not also discuss the fact that third parties have an interest in looking to enforce whether there are environmental issues, whether it be fracking or wind farms or whatever. That should also be looked at. It is not just the polluter and the enforcer that third parties should have an interest. I do not think that I have anything to add beyond what I have said. I am just going to add that SIPA has recently reformed its enforcement procedures. In fairness to that, we perhaps need to wait and see whether they are more effective than they are taken to have been. That would take a couple of years before we could start to see results feeding through on that. Thank you. The final word to John Scott. Can I just pick you up from your last point, Mr Leslie? Did you imply that we are less efficient in the way that our courts operate in terms of environmental law here in Scotland? I mean, I ask not to make any point at all, but just as a point of information, are we needing to upper game? I am not wanting to tempt you in saying anything outward, but I would be grateful for a straightforward view. If you think that there are shortcomings, then this is the place to tell us, please. I do not think that there is a shortcoming in enforcement. I think that some of the penalties and sanctions are less than other parts of the United Kingdom. Is that sufficient deterrent for people to stop doing what they are doing? I am thinking of fly tipping or disposing of tyres or what have you. The fines seem to be less in Scotland than they are in England, in Wales. That is the general point. Historically, that has definitely been the case. The issue is whether or not the new mechanisms that have been adopted recently will have a significant effect on that scenario. In the past, has that been leading to reduced environmental protection? I think that there have certainly been concerns that there has been a regulatory arbitrage of potentially north and south of the border on issues such as fly tipping. However, my understanding is that there has been quite determined action by SIPA and, I think, to the Crown Office to try and remedy that situation. Thank you very much for your time this morning. That has been very useful. I am going to suspend for a couple of minutes and then we will reconvene them. Welcome back to this meeting of the Environment, Climate Change and Land Reform Committee. Agenda item 3 is subordinate legislation. We will consider the law current urgent marine conservation number 2 order 2017 urgent continuation order 2018 SSI 2018-100. The committee has previously considered instruments relating to the status of law current last year and I invite any comments from members. I am happy to support that. I would quite like some clarity from the Government about why we are moving from a temporary order to a temporary order with the eventual end point of a permanent order. I notice that the business regulatory impact assessment has been published for the permanent order. Just some clarity on the process and why we are going through temporary orders would be good, because it seems like a very obvious case to be made that we should just move to permanent order and protect this important site. Thank you convener. I was just very encouraged that the Marine Scotland Scottish Government acted so quickly and I think that that should serve as a warning to anyone who wants to flout the regulations and also that anyone fishing should really be aware of where these places are and make sure that they do not impinge on protected features. Can I just follow up on that point? It is a very good one and perhaps we should also raise with the Government what steps they are taking on the back of what happened at law current to remind fishing interests of their responsibilities to the marine environment. Although what happened here was not illegal at the time, it nevertheless was deeply damaging to the environment. Thank you convener. Might it also be worth asking the Government just for an update on the situation? Is it stabilised? Has it been retrieved? Is there a betterment of the damage that has been inflicted on the site and not an in-depth investigation, but perhaps they will have some knowledge of how the situation is currently following the imposition of this order? Are we agreed to the points that have been raised by members that we should write to the Government on these issues? Have I agreed that? We are content that the SSI should pass. We are indeed. At its next meeting on 8 May, the committee will hear from the Cabinet Secretary for Environment, Climate Change and Land Reform and from the Minister for UK Negotiations in Scotland's place in Europe on the EU environmental and animal welfare principles inquiry. We will also hear from the Cabinet Secretary on the advice received from the UK Committee on Climate Change on the forthcoming climate change bill. As agreed earlier, the committee will now move into private session and request that the public gallery be vacated as the public part of the meeting is now closed.