Environmental Authorisations (Scotland) Regulations 2018 (Consequential Modifications) Order 2021
Viscount Younger of Leckie
That the Grand Committee do consider the Environmental Authorisations (Scotland) Regulations 2018 (Consequential Modifications) Order 2021.
Viscount Younger of Leckie (Con)
My Lords, this order will ensure that radioactive substance activity in Scotland is controlled by a single regulatory framework, as opposed to the two different frameworks currently in existence for onshore and offshore areas.
For clarity, the onshore area is devolved to Scotland and comprises the internal waters and territorial sea of the UK that are adjacent to Scotland. The offshore area is reserved to the UK and comprises areas beyond the territorial sea. An example of activities that will be better regulated through the order is the regular movement of contaminated components, such as pumps and valves, which are transported from offshore to onshore for cleaning, maintenance and/or disposal.
The order, known as a Scotland Act order, is made in consequence of the Environmental Authorisations (Scotland) Regulations 2018, which I now refer to as the environmental authorisations regulations. Scotland Act orders are a form of secondary legislation made under the Scotland Act 1998, which forms the foundation of the devolution settlement with Scotland. This type of secondary legislation is used to update, implement and adjust Scotland’s devolution settlement. The most common type of order is a Section 104 order, which allows for necessary or expedient legislation or legislative provision in consequence of any provision made by or under any Act of the Scottish Parliament or secondary legislation made by the Scottish Ministers. In this Section 104 order, provision is required in consequence of the previously mentioned environmental authorisations regulations.
Some noble Lords may remember that I recently debated another Section 104 Scotland Act order, which was in consequence of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. Just like the continuity order, this Section 104 order has been agreed by both Governments. Officials from both Governments have been working together for over a year on this order and it stands, as do all Scotland Act orders, as an example of close co-operation between Scotland’s two Governments on issues of shared interest.
The environmental authorisations regulations repealed and replaced the Radioactive Substances Act 1993 in Scotland. That Act remains in place for the offshore area. As such, there are two distinct regulatory regimes in operation for the offshore and onshore areas of Scotland in relation to activities involving radioactive substances. As I explained earlier, the offshore area is reserved, so the Scottish Parliament is unable to amend the legislation that would extend the scope of the environmental authorisations regulations to the offshore area. It is for that purpose—to bring Scotland’s onshore and offshore areas under one regulatory regime—that we need this Scotland Act order.
I turn to the purpose and details of the order and what it does. Amendments are sought to the Continental Shelf Act 1964 and the Civil Jurisdiction (Offshore Activities) Order 1987. The aim is that both should reference the environmental authorisations regulations where they have previously read “the Radioactive Substances Act”. This change will ensure that installations in the Scottish offshore area—that is to say, fixed installations such as oil rigs and mobile installations such as floating production storage and offloading vessels—are considered to be part of Scotland for the purpose of the environmental authorisations regulations in so far as they apply to radioactive substance activities.
To put this into perspective, let me offer an example of the real world changes this order seeks to make. This year the Scottish Environment Protection Agency, known as SEPA, has received 16 applications under the current regime for Scotland’s offshore sector, which is dictated by the Radioactive Substances Act. In some instances, operators undertaking onshore and offshore activities will require authorisation under both the environmental authorisation regulations and the Radioactive Substances Act 1993. This creates unnecessary bureaucracy for operators that a single regulatory framework would avoid. Therefore, through the changes made by this order, there will be a single regulatory framework for activities using radioactive substances in Scotland.
The order will also fully implement important safety measures from the Euratom basic safety standards directive. These safety measures are transposed by the environmental authorisations regulations but do not yet apply to the offshore area in Scotland. This order must be passed to give the measures full effect.
I turn now to enforcement. SEPA has been enforcing the environmental authorisations regulations onshore since they came into force in September 2018 and will enforce the regulations in the same way in relation to the offshore area once this order is made and comes into force. SEPA’s enforcement includes ensuring that radioactive substances activities are appropriately authorised and inspected, and that enforcement measures are applied if necessary.
Under the environmental authorisations regulations, SEPA has enforcement measures including a regulatory notice, which allows SEPA to place additional temporary conditions on a person whether they are authorised or not, an information notice and an increased maximum penalty of £40,000 on summary conviction.
In summary, this instrument will ensure that the environmental authorisations regulations have the same scope as the Radioactive Substances Act had in relation to the offshore area. We believe this order is a sensible and pragmatic step to ensure that there is one framework for environmental authorisations in Scotland in relation to radioactive substances, which also includes the offshore area. I commend the order to the Committee.
Lord Bruce of Bennachie (LD) [V]
I thank the Minister for his very helpful introduction and clarification of the purpose behind this order, which is obviously mutually agreed. It appears to be sensible, reduce bureaucracy and simplify the framework. However, may I clarify one or two issues?
As a member of the Common Frameworks Scrutiny Committee, I ask the Minister: how does this order relates to the common framework process? We are in the process of finalising the radioactive substances one; we are not there yet and I think the next stage is in October. How do these two processes interact—this order and the common frameworks process going through at the moment? It would be helpful to see how they fit together.
It was interesting that the Minister made reference to the Euratom standards and the incorporation of those, given that the undertaking has been that the UK will maintain all radioactive standards at EU level or above. I would be grateful for an assurance from the him that that remains the case.
For the offshore oil and gas industry in particular, but others as well, it would be helpful to have some indication of how SEPA will apply these powers. It is implementing what it calls a “radical new approach”: the “three planets” approach. In other words, we should have environmental standards that recognise we have one planet, not three. It states:
“Our approach is ambitious. It spells out how we will use traditional regulatory tools, such as permits and enforcement, in clearer and more powerful ways, and also sets out some completely new ways, such as novel partnerships that we will develop and use to support innovation in the sectors.”
That is obviously a very noble ambition, but for people in the sector it may raise concerns of potential complication or the risk of non-compliance. Again, it would be helpful to have some idea of how this will be approached.
There is an awful lot of detail in the instrument—I have tried to go through it. There is clearly a lot of discretion, a lot of scope for negotiation and a lot of process, which should meet all circumstances—it seems to be extremely thorough. Nevertheless, reassurance that the process will not create bureaucracy and burdens that were not there before would be helpful—although the Minister has made it clear that the one disadvantage of the previous regime was that two applications could be necessary where now only one will be.
The other question is whether there is a role for the UK Government if SEPA or Scottish Ministers take a view which may not be consistent with what is happening elsewhere in the UK—for example, with what is happening in the southern North Sea. In that context, is it entirely a matter for the devolved Administration, or is there any role for the UK Government to intervene, comment or even be consulted?
Specifically, there is an exclusion for matters of national security and, again, some clarification of how this might apply would be helpful. It states that, subject to the provision of this regulation, these regulations “bind the Crown”. It does not apply, obviously, for naval, military or Air Force purposes, but presumably other Crown agencies could be impacted by it. Again, it would be helpful to have clarification of whether there is a clear line of communication, whether there is any overlap, or whether the relationship is entirely between the participants participating agency and SEPA and, where necessary, Scottish Ministers.
It is said that the process of these environmental authorisations is taken step by step. This one relates to radioactive substances, but others will be introduced on water, waste management and pollution prevention and control. Can the Minister give any indication of when and how it will be extended to those other sectors—whether it will be through the same process that we are undertaking today or through a different route?
That said, from the consultation that has taken place and from what I have seen and heard, all parties seem to be clear that this is a simplification, a necessary step, one that people have been consulted on and, as far as I can tell—I may have missed something—have not expressed any serious reservations about. However, change can always lead to misunderstanding or complexity, and I would welcome any assurances that the Minister can provide to assure me that those have been consider and eliminated—in particular, on my questions, to whatever extent he can answer them, either now or in writing after the debate.
Lord Falconer of Thoroton (Lab)
First, I thank the Minister, the noble Viscount, Lord Leckie, for his very clear exposition of the regulations. I apologise to him. Last time we appeared in Committee together, I repeatedly referred to him as “Viscount Leckie” rather than “Viscount Younger of Leckie”, but he made no complaint whatever, which is a measure of the man. I apologise for that on this occasion.
Like the noble Lord, Lord Bruce, I indicate that we on this side support the regulations. They seem sensible; we have a number of questions. The first is: my understanding is that the Environmental Authorisations (Scotland) Regulations 2018 do not have the same extent as the Radioactive Substances Act 1993 and that the purpose of these regulations is to ensure that they do.
The Environmental Authorisations (Scotland) Regulations came into effect on 1 September 2018, and my understanding is that these regulations will come into effect tomorrow, which will be 22 July 2021. Am I right in saying that some other body, apart from the Scottish Environment Protection Agency, had responsibility for authorising the use of radioactive substances in areas offshore of Scotland during that period? Can the Minister identify who it was, and whether that body acted completely in concert with the Scottish Environment Protection Agency?
I may have misunderstood what the Minister said, but I think it was that the effect of these regulations is to treat those offshore installations that deal with radioactive substances as covered by the environmental authorisations regulations. Under the devolution settlement at the moment, they would not be covered because those offshore installations are not covered, presumably, by the Scotland Act 1998. How is it—he explained but it was too fast for me to pick up—that we are making a change in what is reserved and what is devolved by secondary legislation?
Separately from that constitutional issue, can the Minister give us some examples of the sorts of activity involving radioactive substances that will be caught by this new regime, which brings the radioactive substances use offshore into the ambit of the Scottish Environment Protection Agency? What risks do those sorts of activities generally involve and what resources does the Scottish Environment Protection Agency have to deal with these issues?
Finally, the Scottish Environment Protection Agency was, not that long ago, subject to a cyberattack. Should we have any anxieties about cyberattacks in relation to SEPA when dealing with radioactive substances and, if we do, what steps are being taken by SEPA to ensure that this does not happen again? My reading of the Explanatory Notes for these regulations suggests—this is not a complaint; I just want clarity—that there have not in fact been consultations on these regulations, so they have not been the subject of comment in relation to, for example, those people who use radioactive substances offshore or green and environmental organisation that might have issues in relation to that. Have either the Scottish Government or UK Government consulted either with people involved in the industry informally or with green and environmental charities as to their view in relation to this? In particular, has the Scottish Environment Protection Agency indicated, formally or informally, what sort of process it will set up to ensure that there is a fair process for getting the necessary authorisations? By a “fair” process, I mean in the sense that it is fair to the people who seek the authorisation but also properly effective in protecting the environment.
I give a further apology to the noble Viscount, Lord Leckie, in that I gave him no notice of any of these questions and therefore I would quite understand if he wishes to write. I am obliged to have this opportunity.
Viscount Younger of Leckie (Con)
My Lords, I start by thanking the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Bruce, for their general support for this order and for their interest and questions.
I guess it is fair to say that, having spent 11 years in the Lords, I am quite used to having questions that come out of left field. It is true that I may well have to write to noble Lords on certain aspects, but I shall do my best to answer all the questions. I realise that I should say that I rather milked the opening statement, it is fair to say. I felt that I was saying the same things twice, but I wanted to be quite clear that we might want to give some clarity to the order in opening.
In no particular order, to answer a point raised by the noble and learned Lord, Lord Falconer, on whether the order pushes the boundaries of the devolution settlement, I can reassure him that no, the order is a sensible and pragmatic step on the part of the UK Government to ensure that provision required in consequence of the Environmental Authorisations (Scotland) Regulations 2018 is made. As he will probably know, a Section 104 order is a mechanism provided by the Scotland Act 1998 to ensure the effective working of the devolution settlement.
The noble and learned Lord, Lord Falconer, raised the good question of whether consultation exercises have been undertaken. He may well know that orders taken forward under Section 104 are not usually consulted on, as they are made in consequence of Acts of the Scottish Parliament, which have previously been the subject of separate consultation exercises. Consultation was carried out in 2017 on proposals for the Environmental Authorisations (Scotland) Regulations 2018. The Scottish Government engaged with the Scottish Environment Protection Agency—SEPA—as mentioned earlier, during the development of the regulations and, for both the framework consultation and the draft regulations, I am pleased to report that consultees were supportive.
The noble Lord, Lord Bruce, asked about timing and when the order will come into force. The target in-force date for this order is 1 November 2021. That is subject to parliamentary approval; as he may well know, the order is subject to the affirmative procedure under the Scotland Act 1998 and has been laid in draft for parliamentary approval before it can be made.
I think it is fair to say that the noble Lord, Lord Bruce, asked among his questions how the framework would be enforced. SEPA has been enforcing the environmental authorisations regulations onshore since they came into force in September 2018 and will enforce the regulations in the same way offshore once this order is made. To reassure him, SEPA’s enforcement includes ensuring that radioactive substances activities are appropriately authorised and inspected, and that enforcement measures are applied as appropriate if necessary.
The noble Lord, Lord Bruce, asked further about how SEPA works with its counterparts in the rest of the UK, which is a very fair question. It engages routinely with the relevant regulatory bodies and industry groups across the UK, including the other environmental agencies and offshore regulators. As SEPA has already been enforcing the environmental authorisations regulations onshore for several years, its counterparts are aware of the regulations that will be applied offshore by the Environmental Authorisations (Scotland) Regulations 2018 (Consequential Modifications) Order 2021.
The noble Lord, Lord Bruce, also asked about the movement of radioactive substances between offshore areas in Scotland and England. Again, to give a bit more detail, the concordat on the co-ordination of intergovernmental working on radioactive substances policy, which is due to be published shortly, will establish a mechanism for consensus on matters relating to the movement of radioactive substances between the four Administrations of the UK. It is a very important question, because this is inclusive of all sectors, nuclear or non-nuclear, which utilise or produce radioactive substances. It will include ensuring that, in some cases, there is agreement to proceed with common policy across the UK, including the movement of radioactive substances between the four nations. That might go some way to answering the point about security, raised, I think, by the noble Lord, Lord Bruce.
The noble Lord, Lord Bruce, also raised a point about Euratom and maintaining the standards post our exit from the EU. Euratom is already being implemented with the environmental authorisations regulations 2018 onshore; this order will ensure that Euratom standards apply across the board, which, to reassure the noble Lord, includes offshore.
To extend the answer to the question that the noble Lord, Lord Bruce, raised about security, for example, if an authorised operator moves from one offshore area to another, a new authorisation would be required. However, this is not a new requirement. It is the same position as when the Radioactive Substances Act 1993 applied across the whole UK.
It is fair to say that, in practice, it would be rare for an operator to move between jurisdictions; most installations are fixed. It would be a consideration only for floating production and storage and offloading installation facilities, which usually move only permanently at end of life, or for maintenance.
I am very aware that I have not managed to answer the question from the noble and learned Lord, Lord Falconer, on risks or his important points about cyber, so I shall certainly have to write a letter on that. I hope that I have attempted to answer most of the questions raised. With that, I thank both noble Lords for their general support for this order.