The climate jigsaw part one: the general framework of devolution and climate change

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This blog is one of a series that illustrates how climate change relates to policy areas covered by subject committees. It provides an overview of the general division between devolved and reserved powers and responsibilities for the matters relevant to tackling climate change and is relevant to the remit of multiple committees. An accompanying blog, The climate jigsaw part two: sectoral issues, covers some of the most significant sectors where action is needed to achieve emission reduction targets, providing an outline of how far these are governed by devolved or reserved powers.

These blogs have been produced by Professor Colin Reid, Emeritus Professor of Environmental Law, University of Dundee and current Adviser on environmental standards and regulation in a post-Brexit context to the Net Zero, Energy and Transport Committee, with contributions from the relevant SPICe researchers. As with all guest blogs, what follows are the views of the author and not those of SPICe, or of the Scottish Parliament.

A complex picture: international obligations and local powers

The issue of climate change might have been designed to illustrate the complexities of the devolution arrangements that define the powers of the Scottish Parliament and Ministers. The purpose of this blog and the accompanying blog on sectoral issues is to give an overview of what powers the Scottish authorities do and do not have to bring about the changes necessary to achieve the statutory target of Net Zero by 2045. The focus here is on the division of devolved and reserved responsibilities between the Scottish and UK authorities, but two further dimensions must be mentioned.

Firstly, domestic policy is partly shaped by international obligations and it is the UK government alone that is responsible for negotiating and agreeing to any international commitments. With a focus on climate matters, the UK is bound to meet its obligations under the United Nations Framework Convention on Climate Change (UNFCC), and particularly the Paris Agreement of 2015. Under this the UK has made a commitment to a Nationally Determined Contribution reducing all greenhouse gas emissions by at least 81% by 2035 compared to 1990 levels.

However, further obligations under other international agreements may be relevant to specific forms of emissions, e.g. ozone depleting substances. International trade agreements may impose constraints on certain policy options that must be adopted or avoided, e.g. precluding energy-efficiency product standards that would limit imports. International trade agreements are also cited as the reason for the Scottish (and UK) Government being unable to require locally produced content in energy projects.

The EU-UK Trade and Cooperation Agreement has various provisions supporting a level-playing field in regulatory standards and more specifically obliges the UK not to “weaken or reduce, in a manner affecting trade or investment between the Parties, its … climate level of protection below the levels that are in place at the end of the transition period.” The proposals from the most recent UK-EU summit for further work towards the UK linking with the EU’s electricity market and Emissions Trading Scheme might further shape what happens here. The Scottish Government’s general policy of alignment with EU law adds a further policy element to the international dimension.

Secondly, in several sectors much of the detailed decision-making power lies in the hands of local authorities. It is local authorities that exercise planning controls over specific projects, take decisions over Low Emission Zones and many other transport matters, and have responsibilities for schools, housing and many other topics that have a big impact on how people’s lives are organised. In terms of delivering practical changes, the relationship between Scottish Ministers and local government is no less significant than that between Scottish and UK governments.

Defining boundaries

The nature of the devolution arrangements is that there are several ways in which the boundary between devolved and reserved matters is defined.

The Scotland Act 1998

The most obvious is the specification of reserved matters which remain a UK responsibility in Schedule 5 to the Scotland Act 1998 (as amended), with all others in the hands of the Scottish Parliament. However, “the division of reserved and devolved responsibility is not entirely clear cut” and the boundary between them is complicated by several features. 

Adapted from: https://www.parliament.scot/about/how-parliament-works/devolved-and-reserved-powers?

Firstly, it is inevitable that there is no neat divide between topics so that the characterisation of a specific measure may be complicated, unclear or disputed. This has several aspects:

• There may be disagreement over which category a measure properly falls into; e.g. are the rules requiring reports on forest products a matter of environmental protection (devolved) or corporate reporting (reserved)?
• At times the divide is consciously adjusted by the fact that in some reserved areas Scottish Ministers have been authorised to act on behalf of the UK government, e.g. although electricity is generally a reserved matter, the granting of consent for many sorts of projects under the Electricity Act 1989 lies in the hands Scottish Ministers.
• Both Scottish Ministers and UK Ministers (who are usually able to act only with Scottish Ministers’ consent) can concurrently hold power to legislate on some matters within devolved competence, e.g. for producer responsibility obligations.
• The post-Brexit arrangements have complicated matters further, introducing powers for UK authorities to act within devolved areas where previously the legislative initiative lay with the EU, either generally (e.g. under the Retained EU Law (Revocation and Reform) Act 2023, where consent from Scottish Ministers is not required) or for specific matters (e.g. Environmental Outcome Reports, where such consent is required).

Moreover, for some matters there is still a need for implementing or supporting action by the Scottish authorities even though the way forward may be worked out on a UK basis, whether by inter-governmental agreement (which can be based on Common Frameworks) or because the root lies in reserved matters. Examples include:

• The making of Scottish Statutory Instruments (SSIs) related to international agreements (e.g. legislation related to the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC);
• Parliamentary approval where expressly required for UK Statutory Instruments (SIs) (e.g. relating to the UK Emissions Trading Scheme);
• Consent by Scottish Ministers to UK SIs where UK Ministers have power to legislate within devolved areas (e.g. on producer responsibility obligations) – such consent is subject to some scrutiny in the Scottish Parliament, e.g. under the protocol governing post-Brexit SIs.
• SIs and SSIs introduced as parallel legislation across the UK following inter-governmental agreement (e.g. on single-use vapes).

Always in the background is the fact that the Scotland Act 1998 preserves the powers of the UK Parliament to legislate on any matter, reserved or devolved, and to adjust the boundary between these.

Legal method used to exercise control

A second division between devolved and reserved matters rests not on the subject-matter but the legal method being used to exercise control. The Scottish authorities do not have control over some of the levers that might usefully be brought into play to change behaviour. It is the UK authorities that specify product standards (e.g. on motor vehicles) and are responsible for the rules on trade descriptions.  In particular, there is a complex division of economic powers which constrains what can be done in Scotland.

Looking just at taxation, the rules on VAT cannot be adjusted in Scotland to provide incentives or disincentives for climate purposes. Over time more tax powers have been transferred to Scotland, e.g. the Scottish Air Departure Tax, the Landfill Tax and the Scottish Aggregates Tax, but it remains the case that some of the most powerful mechanisms for shaping climate change related behaviour are not available to the authorities in Scotland. Moreover, the behavioural consequences of having markedly different tax rates on both sides of the border may be a practical constraint on how such powers held in Scotland are used.

Practical constraint is extended by the operation of the United Kingdom Internal Market Act 2020. In essence this means that no one part of the UK can effectively impose rules that prohibit the sale of goods or provision of services from another part of the UK which can lawfully be sold or provided there. Scottish legislation can ban the sale of certain items but will be ineffective in preventing sales so long as the items are still legally available in England, Wales or Northern Ireland.

Exemptions can be introduced, for example to enable the Scottish restrictions on single-use plastics to come into operation, but the absence of such an exemption to cover glass bottles has been cited by the Scottish Government as a key element in the delays to the introduction of the deposit and return scheme for drinks containers. There has had to be careful legislative coordination and re-adjustment to enable a ban on single-use vapes to be introduced effectively across the whole UK at the same time.

Financial aspects

Finally, and not fully examined here, there are financial aspects that will help to determine the capacity of the Scottish authorities to take climate related action. The Scottish Fiscal Commission report in 2024, Fiscal Sustainability Perspectives: Climate Change, examined the complex interdependencies between Scottish and UK finances, noting that asymmetries in spending could affect the Scottish Government’s capacity to take action.

Different patterns of spending may arise from deliberate policy choices in Scotland, but the links between UK and Scottish budgets mean that there are also knock-on effects on the resources coming to Scotland because of the UK Government’s decisions directing resources within England between what are devolved or reserved matters. Moreover, some direct funding schemes from UK budgets, such as the City Region and Growth Deals or the support for carbon capture, utilisation and storage (CCUS; e.g. the Acorn project) or low-carbon developments (e.g. at Grangemouth) further shape what can be done.

An additional element that may be significant but is not addressed here is the extent to which the Scottish Government can exercise power as a consumer to stimulate demand, create or expand markets, encourage supply-chains and support low-carbon suppliers. The UK rules on public procurement and subsidies may limit the scope for action here, but the scale of the public sector as a purchaser of goods and services has the capacity to play a major role, and legal rules do impose some requirements, e.g. on the energy efficiency of buildings becoming part of the civil estate.

Other financial aspects of climate policy are explored more fully in a related SPICe blog on Climate change and the Finance and Public Administration Committee.

As noted at the start of this blog, the division between devolved and reserved powers and responsibilities for the matters relevant to tackling climate change is far from simple or clear-cut. Moreover, any effective response requires action that joins up not only different layers of government but also different sectors of society and industry. The accompanying blog, The climate jigsaw part two: sectoral issues looks more closely at a number of major sectors to outline where the key governmental levers to bring about change sit between the Scottish and UK authorities.

Professor Colin Reid, Emeritus Professor, University of Dundee

Featured image by Walter Baxter on Geograph.