Climate, Constitution and Party Politics

Recent developments in Scotland in relation to climate targets have presented interesting questions for both constitutional and climate law.  After proudly announcing itself as a nation with world-leading targets for reducing greenhouse gas emissions and giving these legally binding status, now that it has been realised that the 2030 target will not be reached, that target has been abandoned.  In turn, this has been the catalyst for the break-up of the two-party arrangement that supported the government and the resignation of the First Minister who faced losing a vote of confidence.

Tackling climate change has always been recognised as a difficult task, in practice and in the context of the complex governance structures in Scotland, but the recent upheaval was not something that was expected.  It is no great surprise to discover that meeting climate targets is harder than setting them, and that this is not changed by giving the targets legal status.  What was unforeseen, even in a closely balanced parliamentary context, was the potential of this issue to split a partnership in government and to focus attention on the First Minister personally, leaving an uncertain future for climate and other policies.

Devolution

The system of devolution established by the Scotland Act 1998 (with many adjustments since then) created a Scottish Parliament and Government which has power to act on many issues, while other matters remain in the hands of the UK authorities.  As a devolved, not a federal, system, the UK Parliament also retains the power to legislate on any matter, including devolved ones, and the UK Government can prevent legislation passed by the Scottish Parliament coming into effect (as happened with the Gender Recognition Reform (Scotland) Bill last year).  The Scottish Government is responsible for some taxes but approximately 60% of its funding comes from the block grant from UK sources, determined in part by how the UK Government is spending its funds and how this is divided between devolved and reserved areas.

The current crisis is affected by the balance of parties in the Scottish Parliament.  The Parliament is elected on an additional member basis, with voters voting once for a constituency Member of the Scottish Parliament (MSP) and again for a regional MSP, with 7 MSPs elected for each region on a party list system that allocates seats taking account of the results in the constituencies.  It was thought that this system would prevent any single party dominating the Parliament, but the success of the Scottish National Party (SNP) in the 2011 election gave it an absolute majority (69 of the 129 seats) and the current Parliament elected in 2021 has 63 SNP members.  Since this is just short of a majority, discussion between the SNP and the Green Party led to the Bute House Agreement, securing the support of the latter’s 8 MSPs and giving the Green Party two ministerial posts, but falling short of a full coalition government.

Devolution and the Environment

Many of the most significant environmental issues fall within devolved legislative and ministerial powers, e.g. agriculture, development planning, transport and aspects of energy policy.  However, some significant areas are reserved to the UK authorities, e.g. making any international agreements, while even in devolved areas the Scottish Government does not have complete control over the tools it might want to use to put its policy into practice.  For example, the fact that product standards (such as the rules on the construction and use of motor vehicles) and Value Added Tax are controlled by London means that such mechanisms cannot be used to implement any distinctive environmental policy.  Following the UK’s withdrawal from the European Union, the Scottish Government has committed to keeping in step with EU law on environmental and other issues, whereas the UK Government emphasises the ability to chart its own course, although what this will be is uncertain, with its rhetoric divided between promoting deregulation and ensuring high levels of environmental protection.

Effective implementation of environmental policy in Scotland can also be affected by the United Kingdom Internal Market Act 2020 which operates on the basis of not allowing national differences to obstruct a single market for goods and services across the UK.  This Act was passed without support from the Scottish or Welsh Parliaments.  The market access principles in that Act (mutual recognition and non-discrimination, mirroring the basis of the free movement of goods within the EU) in effect mean that if a product is lawfully available in any one nation of the UK it must also be available in all of the others.  There is very limited scope for avoiding the Act, giving local legislators much less freedom than is allowed under the proportionality tests applied within the EU internal market.  The granting of express exemptions has become a matter of dispute between Scottish and UK governments, with delays in reaching decisions or the refusal of exemptions by the UK Government disrupting the implementation of legislation passed in Scotland, e.g. the deposit and return scheme for bottles and cans due to begin in Scotland in 2022 has now been delayed until 2027 to allow for coordination with the other schemes across the UK.

Climate Law and Policy

The Climate Change Act 2008, applicable to the whole UK, was passed by the UK Parliament and established legally binding greenhouse gas emissions targets, including an 80% reduction of net emissions by 2050.  This was followed by a separate Climate Change (Scotland) Act 2009 from the Scottish Parliament which adopted a different basis for reporting progress (annual targets rather than 5-year carbon budgets). The Climate Change Committee has been established as an expert body, independent of governments, to advise and report on progress under both Acts.  Obligations to prepare plans and to report to the Parliaments on how far the various statutory and shorter-term targets are being met are key features of monitoring progress under each Act but it has never been wholly clear what the legal consequences would be if the statutory targets were missed.

While UK policy has also evolved, since 2009 Scottish policy has become ever more ambitious, reflecting both political choice and the greater potential in Scotland for renewable energy generation and for carbon sequestration from new woodland etc.  The two Acts were revised in 2019, with the UK setting a new target of reaching net zero emissions by 2050.  In Scotland, the revisions, approved by all parties in the Parliament, set a more challenging new target of achieving net zero emissions by 2045 with an interim legal target for 2030 of achieving a 75% reduction in net emissions from the 1990 baseline.  This interim target was recognised by the Climate Change Committee and others as being very demanding, but not impossible so long as major steps were taken quickly to make significant reductions across all sectors of activity.

Progress and Failure

The Climate Change Committee’s annual reports on Scotland’s progress tell a story of some progress but substantial failure.  The annual targets in Scotland have been missed in eight of the last twelve years and in late 2023 the Committee issued a damning report.  Although substantial reductions in emissions have been made, largely through the shift to generating electricity from renewables, there has not been enough progress in relation to buildings, agriculture, land use and waste and limited gains in only some areas of transport.  Specific proposals for achieving reductions should be contained in a Climate Change Plan, but the latest version, expected in late 2023, has been delayed.  Moreover, other detailed plans in various areas are also overdue (including on reducing car journeys, the provision of a public network for charging electric vehicles, reducing flights, agriculture and ferries) and although there are bold proposals on heat in buildings these will need rapid and effective implementation.  The Committee’s report in early 2024 stated that “there is still no comprehensive delivery strategy for meeting future emissions targets and actions continue to fall far short of what is legally required”; achieving the 2030 target is now “beyond credible”.

The result was the announcement by the Scottish Government in April 2024 that it accepted that the 2030 target of 75% reductions by 2030 “is out of reach” and would be abandoned.  Part of the blame was put on the UK Government’s decisions that had rolled back on some of its policy commitments intended to contribute to reaching the 2050 target and the consequences of financial austerity reducing the budget available in Scotland.  The target of net zero emissions by 2045 was reaffirmed, but with a move away from annual targets as the stepping-stones towards that in favour of five-year carbon budgets.  Having proudly proclaimed its world-leading laws and targets since 2009, this represents a major embarrassment for the Scottish Government.  The Scottish Act already allows for some adjustment to net emission targets, but this was intended for moves to stricter rather than looser targets and have procedural and substantive limits that would not allow the changes intended.  The Government statement proposed new legislation that will repeal the 2030 target and move from an annual to a five-year reporting cycle.  Such legislative intervention was always predicted as the way forward if either the UK or Scottish Government looked likely to miss the legal targets, being preferable from the governmental perspective than obviously breaching a legal obligation.

Consequences

This decision had proved the catalyst for more major change.  The Green Party ministers had accepted this change of policy, but many members of the party were unhappy and a special conference was planned to decide whether the party should continue in government with the SNP.  Meanwhile, the Bute House Agreement was the source of dissatisfaction on various grounds among some members of the SNP.  The SNP is facing falling electoral support and the Green Party’s influence has been blamed for a number of unpopular and poorly implemented policies.  In response to this situation the First Minister, Humza Yousaf, decided to terminate the Bute House Agreement at short notice, saying that the SNP would govern alone as a minority government.  A motion of no confidence in the First Minister was lodged and once the Green Party MSPs, upset at the abrupt end to an agreement that the First Minister had praised only days before, made it clear that they would vote against him, the First Minister resigned.  The balance of seats in the Parliament – one seat short of a tied vote which would mean survival, and no agreement possible with other parties (not even the single MSP from a party that had split off from the SNP) – made it inevitable that he would lose and so he resigned in advance.  A second motion of no confidence in the Government as a whole failed, with the Green Party willing to continue supporting the SNP, but not Humza Yousaf.  A new leader of the SNP and First Minister was needed (for the second time since the 2021 election) and after being elected unopposed as SNP leader and winning votes in the Parliament to become First Minister, John Swinney will face the challenge of governing without a parliamentary majority, albeit with the likelihood of support from the Green Party on many issues.

Lessons

This saga reveals several lessons for both constitutional and climate law.  In constitutional terms it highlights the fact that without a majority in Parliament, neither First Minister nor Government can survive, but that the fate of two can be separate.  The electoral system in Scotland was designed to ensure collaboration between parties, not single party domination; but recent electoral results have produced something different.  Now the realities of the parliamentary arithmetic are biting again, with the potential for even a single MSP to have great influence, and the SNP will have to re-learn how to govern without a majority.

On climate issues, the main lesson is that ambitious rhetoric needs to be supported by strong and decisive action if the result is not to become an embarrassment.  Detailed and effective plans need to be drawn up and implemented if we are to bring about the transformation in society needed to achieve the vast reduction in greenhouse gas emissions required to meet the climate emergency.  Setting targets is easy and placing them on a legislative basis looks impressive.  But unless these targets are given concrete legal protection, with clear and strong procedures for ensuring remedial action if the targets are not being met, the legal status adds little and in any event they remain vulnerable to future legislative action reducing the target to match what is feasible (or politically desirable as circumstances change).

Questions remain over what will actually happen next.  Will there be a majority for a new Climate Bill reducing or abolishing the 2030 target?  Although the Green Party was willing to support such a change when it was part of the government, that may not be the case now that it is no longer in a position to guarantee the delivery of other benefits that might make up for failure on this issue.   The other opposition parties supported the revised targets only a few years ago and might see political advantage in keeping them in place to further embarrass the SNP over the failure to reach them.  On the other hand, they may hope that by 2030 they will be in power and wish to avoid being the ones having to face the consequences when an unchanged target is missed.  The uncertainty may continue for some time, without actually making progress in meeting the ever more demanding challenge of tackling the climate emergency that the Scottish Government formally declared in 2019.