Hansard

Many issues have been raised and I will try to work through them in a way that ensures that I take people with me.Amendment 24 asks us to insert a new paragraph in section 2(4). Perhaps at this point it would be helpful to consider the terms of section 2 in more detail, particularly in the light of the remarks of Robin Harper, whose fears about the lack of integration of departments' functions, strategies and policies I will attempt to allay.Importantly, section 2(1) requires Scottish ministers and SEPA to exercise their functions under part 1 of the bill and their functions under any other enactments specified by them in an order made under that section so as to ensure compliance with the requirements of the directive. That means that the strategies and policies relating to agriculture, aquaculture, forestry, climate change—which was mentioned last week—and so on all have to be integrated by SEPA and the Scottish Executive with the requirements of the directive.Section 2(2) requires the responsible authorities to exercise any of their designated functions in relation to the water environment that are specified in an order made by the Scottish ministers under that section so as to secure compliance with the requirements of the directive. That would provide for the integration of policy and strategy.Section 2(4) ensures that the Scottish Executive, SEPA and responsible authorities must have regard to the social and economic impact of the exercise of those functions. Again, that is an important provision that we wanted to be included in the bill as we are dealing with an environmental measure and the other two pillars of the three-pillar sustainable development strategy require us to have regard to the social and economic impact of the directive.Amendment 24 seeks to replace that qualification by imposing a wider duty on the bodies. It would also require them to act in the way best calculated to contribute to the achievement of sustainable development. I am supportive of the policy intention behind the amendment, but I am not supportive of the amendment's drafting. The revised amendment 24 talks of ecological rather than environmental impacts. I understand the reasons for the change, but the change does not, in itself, address my concerns with the drafting of the amendment, which reads:"The Scottish Ministers, SEPA and the responsible authorities must, in exercising those functions, act in the way best calculated to contribute to the achievement of sustainable development, having regard to the social, ecological and economic impact of such exercise of their functions."It is not immediately clear what that would mean in practice. We need to do a bit of thinking about how the amendment relates to sections 2(1) and 2(2). Clearly, the new duty, which concerns the achievement of sustainable development, would need to be tied to the primary duty under sections 2(1) and 2(2); I therefore ask Des McNulty to withdraw his amendment. Because I, too, wish reference to the achievement of sustainable development to be incorporated in the bill, I will consider the matter further and produce an amendment at stage 3 that will better serve our aims. I would expect that amendment to result in a new subsection, as our amendment 109 will do in relation to flooding.The proposed text in amendment 27 states:"The Scottish Ministers and SEPA, in exercising their functions under the relevant enactments, shall encourage the active involvement of such persons as appear to them to have an interest in the protection of the water environment."Again, I support in general the policy intent behind amendment 27, but its wording might create difficulties.The relevant enactments to which amendment 27 refers consist of part 1 of the bill and other enactments that ministers may by order specify. As members will know, the bill contains extensive provision for encouraging public involvement in the river basin management plan process. For example, section 11(3) stipulates:"Not less than one year before the beginning of the period to which a river basin management plan is to relate, SEPA must publish a draft of the plan."Section 11(5) makes it clear that"SEPA must—publicise the opportunity to make representations about the statement, summary or draft plan."Section 11(6) contains an extensive list of those whom SEPA must consult on draft plans and of whose views it must take account.In terms of the general principles of openness, consultation and transparency, section 12(2) makes it clear that when a river basin management plan is submitted for approval it"must be accompanied by a statement"of the steps that SEPA has taken to encourage participation in the process.On SEPA's functions under other enactments specified in an order under section 2, I do not believe that it would be appropriate or desirable to place a duty on SEPA and ministers to encourage active involvement in all cases when exercising their functions, which is what amendment 27 proposes. The relevant enactments might contain such provision, so amendment 27 would cause duplication. In other instances, public involvement would not be directly relevant to SEPA's specific functions. For example, confidentiality issues could be involved in the licensing process, abstraction, discharge consents or whatever. There is adequate provision in the bill to ensure transparent consultation with and the active involvement of the relevant people. However, we could discuss whether that process requires to be tightened up.I believe that I have provided for what amendment 30 seeks in sections 2(1) and 2(2). I agree that integration of policy is important, but I am not convinced that it is practicable or desirable in all cases. However, I believe that the best way to ensure integrated policy making and implementation is to bring together all the relevant bodies. The river basin management plan process will do that.Section 16 makes the provision, which amendment 30 seeks, for ministers to have a duty to"have regard to the river basin management plan."This issue came up at last week's meeting. However, section 16, as members will see, states:"Scottish Ministers and every public body and office-holder must … have regard to the river basin management plan for that district as approved under section 13."Therefore, in addition to sections 1 and 2, which transpose the directive for all public bodies, including SEPA and the Executive, section 16 provides a duty to have regard to the river basin management plan in all areas of policy and strategy, which includes things such as agriculture, forestry, aquaculture and climate change.Amendment 56 seeks to amend section 2(5), which requires Scottish ministers and every public body and office holder to have regard to the desirability of protecting the water environment when exercising any functions. That duty operates in addition to the duties that are specified under sections 2(1) and 2(2).As we received amendment 56 at about half-past 6 last night, Michael Kellet and others were up till half-past 1 this morning considering the terms of the amendment. In my opinion, that is not the best way to make, or respond to, legislative change. I have quite a lot to say about amendment 56 because it deals with a very complex area of legislation, so I ask members to bear with me.Principally, I believe that amendment 56 is unnecessary, but we also have technical concerns about the way in which it is drafted. The amendment would require Scottish ministers, SEPA and the responsible authorities to seek to further the protection of the water environment in exercising their functions under the "relevant enactments", which are defined in section 2(8). That is in effect what sections 2(1) and 2(2) already do. We see no benefit in duplicating that wording in section 2(5).As I have already explained, section 2(1) requires Scottish ministers and SEPA to exercise their functions under the relevant enactments—those enactments being part 1 of the bill and any other enactments specified by Scottish ministers—to secure compliance with the requirements of the directive. That is an important point that Robin Harper made. As we all know, the directive is about the protection of the water environment. Section 1 of the bill makes it clear that the purpose of part 1 is to make provision for or in connection with protection of the water environment.Section 2(2) of the bill requires that the responsible authorities must exercise their designated functions in relation to the water environment, as specified in an order by the Scottish ministers under that section, to secure compliance with the requirements of the directive. That is an important point. It is entirely appropriate that we specify for the responsible authorities the particular functions that relate to the water environment that must be exercised to secure compliance with the requirements of the directive. In that sense, we have already made provision for everything that was said about the policy intent. In a technical sense, I am not convinced that the reference in amendment 56 to the relevant enactments in relation to the responsible authorities would work.If amendment 56 were accepted, the second leg of the amended section 2(5) would reiterate the existing duty to have regard to the desirability of protecting the water environment. However, that duty would be placed only on other public bodies and office holders that were not covered by the first leg of the amended section 2(5). It is not clear how those other public bodies and office holders are to be identified and distinguished from those that already fall within the definition of "responsible authorities" in section 2(8). In practice, then, amendment 56 would be unworkable.Probably the most succinct way of putting that is to say that, as presently drafted, section 2(5) requires Scottish ministers and every public body and office holder to have regard to the desirability of protecting the water environment when exercising any function. As I stated, if we wished to impose a higher duty on such bodies or office holders—which may be the intention of Des McNulty, who lodged amendment 56—we could specify particular functions in an order under section 2 that would then have to be exercised so as to secure compliance with the directive. That seems to me to be a preferable approach. Indeed, I refer the committee to last week's discussion about whether to include the terms "agricultural activities", "mining activities" and "industrial activities". We are already able to make provision for what is being sought; indeed, in the context that I have just mentioned, we will make such provision.Amendment 56 refers to responsible authorities and other public bodies exercising their functions under the relevant enactments, whereas the power to specify relevant enactments by order under section 2 is relevant only to the Scottish ministers and SEPA. We have referred to the responsible authorities' designated functions because it is appropriate to specify their functions that are relevant to the protection of the water environment. Many public bodies have functions that are not relevant to the protection of the water environment. Amendment 56 blurs that distinction. The arguments are fairly complex, but the policy intent is covered in the existing provision.Amendment 57 would insert a subsection after section 2(5) to require Scottish ministers, responsible authorities and office holders, in exercising their functions under the relevant enactments, to"protect, enhance and restore the water environment, including wetlands and natural systems, to achieve the environmental objectives set out in each river basin management plan and to enhance biodiversity."That would be an interesting addition, but the amendment's drafting leads to problems. The same point as we just explored in some detail arises about the relevant enactments and the inapplicability of that phrase to responsible authorities. As I hope that I explained, the definition of responsible authorities includes such office holders as the Scottish ministers may specify by order under section 2. Who are the other office holders to which amendment 57 refers? How are they to be identified?Notwithstanding those problems, the amendment would place a duty on Scottish ministers, responsible authorities and office holders to protect, enhance and restore the water environment. In general, the directive and the bill, which transposes the directive, are intended to enhance and improve the water environment. That function is abundantly clear from sections 1 and 9, which more appropriately address the delivery of the environmental objectives to which Des McNulty refers.A further difficulty with amendment 57 is its inclusion of wetlands in the definition of the water environment. I suspect that we will discuss that later in considerably more detail. When we deal with the group of amendments on definitions of the water environment, we will discuss the good reasons why wetlands have not been included in the bill's definition of the water environment. Water covers only 2 per cent of Scotland's surface area. Wetlands cover almost 9 per cent of Scotland's landmass and include extensive designation of blanket bog and other peat-land vegetation, undifferentiated salt marshes, maritime grasslands and heaths, for example. For anybody who is interested in those figures, I have a statistical breakdown. Including wetlands in the definition would be a clear extension of the bill.In considering the bill, the committee and other committees were concerned to constrain and identify properly the costs that were associated with its implementation. Amendment 57 would place on the Scottish ministers, responsible authorities and SEPA the duty to enhance, protect and restore wetlands. At a stroke, that would expand the bill's coverage fourfold from 2 per cent to more than 8.7 per cent of Scotland's landmass. That would constitute a massive duplication of effort. Wetlands are already protected by several existing designations, including those as sites of special scientific interest, special areas of conservation and Natura 2000 sites.Among other things, the purpose of the water framework directive is to establish a framework for the protection of waters. As members know, wetlands are directly dependent upon those waters—indeed, Des McNulty referred to that in his introductory remarks to amendment 57. We make specific and deliberate provision for those wetlands in the general purposes of section 1(2)(a) of the bill. That section sets out provisions for the protection of the water environment. So that there can be no dubiety about them, I will read out the subsection for the record:"preventing further deterioration of, and protecting and enhancing, the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on those aquatic ecosystems".Quite apart from the difficulty with the drafting of amendment 57 that I highlighted earlier, the amendment goes much further than is required under the water framework directive. Undoubtedly, the provisions of amendment 57 constitute gold plating. We await draft guidance from the European Union on the definition of wetlands. As is the position with regard to other member states, the guidelines may be non-binding, but we will certainly take account of the EU guidance when we receive it.I could say a lot more about wetlands, but I will not do so at this juncture. We will come to discuss them when we debate the series of amendments that have been lodged by Nora Radcliffe and Maureen Macmillan among others. Suffice to say at this juncture that the inclusion of the word "wetlands" seeks to expand the provisions of the bill fourfold in terms of the landmass that it covers.I will move on to amendment 84, which Bruce Crawford moved on behalf of Fiona McLeod, who has just arrived—I am sorry to put you on the spot, Fiona. Amendment 84 seeks to amend section 2(5) of the bill, which places a duty on Scottish ministers, every public body and office holder to have regard to the desirability of protecting the water environment in the exercise of their functions. Amendment 84 would place a stronger duty on them, requiring them to "further the protection" of the water environment. In practice, that would mean that every public body would be required to further protect the water environment.Amendment 84 does not ameliorate the original concern that we had with amendment 26, which is that all public bodies and office holders would have to further the protection of the water environment. Amendment 84 differs from amendment 26 only in so far as it makes clear that public bodies and office holders must further the protection of the water environment when exercising any of their functions.Let us be clear about what that would mean. It would mean that hospitals and other public bodies would be required to take action to fulfil that duty. I think we all agree that that does not make any sense in relation to the protection of the water environment. The primary purpose of hospitals is to heal the sick and of the police to prevent crime and apprehend criminals. The same arguments that were made last week in respect of amendment 26 apply equally to amendment 84. I ask Fiona McLeod not to press amendment 84. If she does, the Executive will have to oppose the amendment, which means that it will not be agreed to.