RTPI Scotland's response to the call for views on Environmental Common Frameworks

1. Is the framework clearly drafted, including in relation to purpose and scope?

In terms of drafting the wording of the purpose and scope of framework is clear but considerably technical in nature. Therefore, RTPI Scotland would support improvements in the accessibility of the Framework in order to encourage and improve engagement with a wider range of stakeholders. RTPI Scotland broadly supports the purpose of the Framework as set out, which we understand is to maintain common standards, improve air quality and develop a better understanding of the sources and effects of air pollutants and emissions in the context of both current and future obligations. RTPI Scotland also broadly support many approaches to governance set out in the Framework.

Exposure to air pollution is harmful to people’s health in terms of premature mortality and morbidity, mainly related to respiratory and cardiovascular disease. It is also widely accepted that outdoor air pollution causes damage to human health across a wide range of conditions, from pre-birth to old age. Air pollution is also harmful to the environment generally, in particular to sensitive habitats and the wildlife depending on these, across Scotland, from local emission sources and more widely through dispersion and long-range transport of air pollutants. The planning system has an important role to play in improving air quality and reducing exposure to air pollution. This has been recognised in current Scottish Government policy, as set out in the Cleaner Air for Scotland 2 and the draft National Planning Framework 4. RTPI Scotland therefore wish to provide comment on the Air Quality Provisional Framework Outline Agreement and Concordat - hereon in ‘the Framework’ - on the grounds that the operationalisation of the Framework may directly interact with the future decisions made on Scottish planning policy and law. Concerns have been raised by commentators that air quality law is at risk of deregulation in the UK following Brexit, considering the problematic history of meeting targets set out in the EU Ambient Air Quality Directive[1]. RTPI Scotland is supportive of a common frameworks process that supports Scottish Government and the Scottish planning system to maintain or exceed standards currently in place.

2. Does the framework only cover areas previously governed at an EU level, or does it also include matters not previously governed at an EU level?

RTPI Scotland understands that the Environment Common Frameworks are intended to be used to make decisions in areas previously governed at an EU level. RTPI Scotland notes that the remit of the Framework has in places been potentially expanded, for example, in section 4.3 where the process is set out of obtaining consent from devolved governments in order for the Secretary of State to make certain regulations through established forums.

3. Does the framework set any measures for assessing whether divergence will be acceptable? By, for example, committing governments to maintaining certain standards.?

RTPI Scotland supports the Joint Ministerial Committee principles previously agreed between the governments of the UK[2] including the principle to maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as afforded by EU rules. However, we have some concerns that clarity has not been provided as to what level of divergence would be considered incompatible with the broad brushed principles. RTPI Scotland believes that the Framework needs to set out a substantive, standards-based framework for determining how far divergences are considered acceptable or not. To understand how potential divergences may be considered, clarity from Scottish Government on future policy approaches to air quality, including expected divergences, will enable clearer scrutiny or ‘stress testing’ of the proposed Framework in this regards. Further information on what will be considered when assessing the acceptability of divergence may also be beneficial to understand the practical implications of the Framework. It remains unknown whether divergences can be managed (including resolution of potential disputes) to avoid significant delays to the introduction of relevant Scottish policy and legislation.

4. The processes set out in frameworks will be used for the governments to decide when to align and when to diverge. Are these processes clear? Are the right people involved in decision making? Is there a role for stakeholders?

See response to Q19 regarding the need for clarity of process for handling divergences. RTPI Scotland believes there is a need to ensure that there are mechanisms for non-legislative inter-government agreements to be scrutinised by the legislatures of the UK. The processes set out in the Framework could be further improved by providing a clear mechanism to allow any one nation in the UK to trigger discussion and action regarding concerns of transboundary air quality issues.

5. Does the framework propose any significant changes to policy?

As RTPI Scotland understands it, the Framework sets out the processes for decision-making and it is therefore unknown at this stage how its operationalisation will impact upon policy formation.

6. How will the framework change decision-making processes in the policy area in comparison to pre EU exit?

See response to Q21. RTPI Scotland also wishes to reiterate concerns expressed in response to Q19 regarding potential delays in policy formation. RTPI Scotland wishes to see more detail and reflections on how the Framework has been operating whilst provisional with the aim of understanding existing impact on policy formation.  Beyond changes to decision-making process RTPI Scotland wishes to highlight concerns over the loss of existing EU enforcement mechanisms regarding air quality.  Therefore new governance systems for enforcement will need to be established in the absence of the European Commission. RTPI Scotland notes the recently published consultation on the draft strategic plan for Environmental Standards Scotland and will respond to this in due course.

7. Are the decision making processes set out in the framework transparent? By, for example, being subject to reporting requirements.

RTPI Scotland notes that as a part of the dispute resolution process set out in the Framework, if there is a disagreement on a decision, effort will be made to resolve this issue at the lowest possible level, most likely through officials engaging through framework-specific forums. Whilst acknowledging that the process set out is the most practicable approach, RTPI Scotland is aware of potential issues around transparency without a reporting procedure put in place for such discussions. RTPI Scotland is not aware of any mechanism set out in the Framework to allow for further parliamentary scrutiny of the intergovernmental decision making. RTPI Scotland further notes issues over transparency of the Framework with wording set out in Section 9.5 and 9.6 explicitly restricting information sharing.

8. Does the framework provide opportunity for ongoing stakeholder engagement, including in any review and amendment process?

Notwithstanding issues around transparency highlighted in Q23, the Framework provides opportunity for on-going stakeholder engagement and the review mechanism can include third parties which can be used by any Party to the Framework to provide advice at any stage in the process. These include other government departments or bodies as well as external stakeholders such as NGOs and interest groups. RTPI Scotland is not aware of any mechanism set out in the Framework to allow for parliamentary involvement in the review and amendment mechanism.

9. Do you have any views on how parliament should monitor the functioning of common frameworks?

As discussed in this response a process for the Scottish Parliament to scrutinise the functioning of the Framework has not been fully established. This may create difficulties in the longer-term as without the necessary information, the Scottish Parliament may not be able to effectively assess a legislative proposal in terms of their compatibility with the Framework. RTPI Scotland understands that Welsh Government has made a commitment to notify the Senedd of any disputes raised under the Framework. The exact arrangements have yet to be established although it is expected that the Senedd to be notified of any disputes that are escalated to Ministerial level[3].

 

[1] RTPI (2018) The impacts of Brexit on implementation of key EU legislation affecting land use. June. Available here  https://bit.ly/3GzsryT

[2] Joint Ministerial Committee (EU negotiations) Communique (2017) October. Available here https://bit.ly/3Q41V55

[3] Welsh Parliament Climate Change, Environment, and Infrastructure Committee (2022) Common Frameworks – Report 1 Provisional Common Frameworks for Air Quality, and Chemicals and Pesticides. May. Available here https://bit.ly/38WlPhm