Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2019

Debate between Lord Duncan of Springbank and Lord Davidson of Glen Clova

Wednesday 26th June 2019 Lords Chamber

[Lord Davidson of Glen Clova (Lab)]

My Lords, I thank the Minister for introducing this brief order, which this side does not oppose. It is commendable that the Scottish Parliament has replicated the victim surcharge scheme that has operated in England and Wales since 2007. It should be a reasonable example of the cross-fertilisation of legal innovation that can occur from time to time within the UK.

What is perhaps surprising, as the noble and learned Lord, Lord Wallace, narrated in some detail, is that, having gone to the trouble of introducing this instrument into Scottish criminal law in 2014, some five years on victim surcharges have not been brought into force in Scotland. I note from the Explanatory Memorandum that it appears that some statutory amendment is required to be undertaken by Her Majesty’s Government before the relative support for victims and witnesses may be made effective.

I have a few questions for the Minister. On the assumption that the victim surcharge would be as useful in Scotland as in England and Wales, should not the scheme have been operational in Scotland some time ago? Does responsibility for the delay lie with Her Majesty’s Government, with the Scottish Government or, indeed, with both? Is there any particular reason why the scheme should not have been operational in Scotland? Is it perhaps because problems have arisen with the scheme in England and Wales that no one wishes to visit on the people of Scotland? Is there any assessment of how much money has been denied to the victims of crime in Scotland consequent on the non-implementation of the scheme? The noble and learned Lord, Lord Wallace, identified a figure of £1 million per annum. By my arithmetic, that would mean £5 million has been denied to victims in Scotland. Is that correct?

On the assumption that the scheme will be implemented, how is it envisaged that cross-border issues will be determined? Where the convicted person is resident in another part of the UK, will a special recovery procedure be required for the victim surcharge? I appreciate that the Minister may not be able to answer all these questions immediately; any written answer would be welcome.

[Lord Duncan of Springbank]

My Lords, this is one of these rather interesting areas in which I seem to be called on to explain the inscrutable workings of the Scottish Government, which I am unfortunately rather ill equipped to do. The noble and learned Lord, Lord Wallace, raised a number of issues regarding the lengthy delay. To be frank, I do not have an adequate answer to give him on behalf of the Scottish Government.

I have before me a statement which says that the Scottish Government have undertaken detailed consideration and consultation. Clearly it has taken a very long time. Exactly why that has been the case remains to be seen. Indeed, through a series of questions asked by a number of Members of the Scottish Parliament, it is quite evident that the Scottish Government were very optimistic that this would be delivered—that the answer would be arriving now—and that has simply not happened.

The noble and learned Lord, Lord Davidson, asked who is to blame for this. I would not use the term “blame”, but I suggest that the Scottish Government have responsibility in that regard. When we learned that there needed to be an amendment of the legislation which was reserved, we of course acted expeditiously to move that forward and will do so. Today is a measure of how quickly we have been able to move. I have not had sight of the details of the Scottish Government’s proposals. While I could speculate that they may look rather like the English and Welsh version—I would only be speculating in saying that—I anticipate that this will come through the Scottish Parliament in due course. I am afraid that I cannot speak on its behalf, however, so I am unable to answer that question.

The noble and learned Lord, Lord Hope, raised the issue, echoed by the noble and learned Lord, Lord Davidson, of those individuals who find themselves outwith the territorial jurisdiction of Scotland—in Wales or in England. That is a correction which we can take forward. As to the mechanism whereby that will be undertaken, I have to admit to the noble and learned Lord, Lord Davidson, that I do not have the detail on that. If it is equivalent to the English or Welsh version, I can certainly have that information placed in the Library. If it is some variation on that, we will have to wait until the Scottish Government determine what it should look like.

As to the amount of money not gathered as a consequence of the length of delay, the noble and learned Lord, Lord Wallace, is correct in his figures. The estimate is that around £1 million is available to be gathered in this way, but that of course depends on the details of the Scottish Government’s regulation, which I do not have. I am not sure whether that is an accurate reflection of the money or whether it is just speculation on our part. It may be that, once we have more detail on this, I can secure that information and place it in the Library. Of course, the avid Members of the Scottish Parliament may be better equipped to interrogate the Scottish Government further on these issues, about which I am afraid I have remarkably little information to satisfy noble Lords.

Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2019

Debate between Lord Duncan of Springbank and Lord Davidson of Glen Clova

Wednesday 10th April 2019 Lords Chamber

[Lord Davidson of Glen Clova (Lab)]

My Lords, I thank the Minister for his exposition of the order. As the noble and learned Lord, Lord Hope, has said, no one could disagree with it.

We are coming up to the 20th anniversary of the creation of the Scottish Parliament and of Scottish Ministers. At some point, it might be interesting to hear the view of Her Majesty’s Government of the performance of the devolved Executive over the past two decades, with some focus on its delivery in devolved areas such as education and health. That might be both interesting and instructive.

As for the order, the noble Lord, Lord Bruce, has raised a good and sensible point. Concurrency of Scottish Ministers and the Secretary of State in relation to the functions raises the possibility, although it may be remote, of differences of view and possibly a dispute. Do Her Majesty’s Government envisage that any disputes might arise and how, if they arose, they might be resolved?

I have asked a question about resolution of disputes. As the Minister may recollect, I asked a similar question when the forestry order came up, but I do not recall getting an answer—perhaps matters will alter. It may simply be—this is to a degree foreshadowed by the observations of the noble Lord, Lord Bruce—that this is an area where Her Majesty’s Government do not detect the possibility of differences arising between Scottish Ministers and the Secretary of State.

[Lord Duncan of Springbank]

My Lords, it is right that we as a Government reflect on the success of devolution. Devolution working is inherently a good thing, and in this order—and, I hope, the one to follow—we see how the nuances of that can work. Whisper it not, but the Scottish and UK Governments really do get on remarkably well at official level and at ministerial level—only occasionally are buns thrown. That is necessary within the devolution settlement. The noble and learned Lord, Lord Davidson, is right to say that we as a Government should perhaps do more to reflect on the successes and, indeed, some of the shortcomings of devolution to date. I know that, in the various discussions we have had in this House, challenges have been expressed by the Scottish Government about certain elements of future policy. We will need to cast our eye to the horizon and give consideration to how devolution—which is, of course, a process—can continue.

On this order, I am happy to echo the words of the noble and learned Lord, Lord Hope, when he talks of the skill and quality of the draughtsmanship and the drafters themselves of the original Scotland Act 1998. It is a good Act that has stood the test of time; the fact that we are here is testament to that. I am very happy to make that statement.

The noble Lord, Lord Bruce, asked a question about concurrent powers. I asked that question too. I will give noble Lords an answer—they may or may not decide that this is a good answer, but it is the answer I have. There are no known intentions for UK Ministers to exercise any functions relating to this order on behalf of Scottish Ministers. This is almost like the unknown unknowns and the known unknowns of the former US Secretary of Defense. As things presently stand, it is not anticipated that that will be an issue, but the noble and learned Lord is quite correct that that does not mean it will never be an issue. I say only that, should that arise, I do not doubt that it would need to be taken forward through the proper channels between the two Governments to ensure that it does not become a constitutional problem or a constitutional crisis. The Government today do not anticipate that, and nor do I.

I will go back and read Hansard to check what I did not answer last time. I will make sure that the noble and learned Lord, Lord Davidson, gets an answer; I would not like to leave anything hanging there. On that basis, I beg to move.

Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2019

Debate between Lord Duncan of Springbank and Lord Davidson of Glen Clova

Wednesday 10th April 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, it is good to be with you again. I beg to move that the draft order laid before the House on 4 March 2019 now be considered. The order is necessitated by the Regulatory Reform (Scotland) Act 2014, which sought to accelerate the procedure for how certain appeals are determined: namely, appeals on applications for consent for renewable energy generating station development and appeals against decisions to hold a public inquiry.

Today’s order will ensure that the same appeal mechanism applies whether there is a challenge against a decision of the Scottish Ministers on either an application for a marine licence or an application for a Section 36 consent for energy developments in Scotland’s waters. This order makes two amendments to the Electricity Act 1989 to ensure that this same appeal mechanism applies.

The UK and Scottish Governments have worked closely together to ensure that this order makes necessary amendments in consequence of the 2014 Act. This order demonstrates that the UK Government remain committed to strengthening the devolution settlement and shows Scotland’s two Governments working together. On that basis, I beg to move.

[Lord Davidson of Glen Clova (Lab)]

My Lords, I commend the Minister on the brevity of his exposition of this particular order. Again, it is one that Labour is not inclined to oppose. The Explanatory Memorandum describes part of the amendment as being in relation to a legislative oversight. Have any issues arisen as a result of this oversight? For example, is the Minister aware of any decisions that have been made affecting the Scottish part of the renewable energy zone that excluded Scottish Ministers from the decision-making process? Additionally, are any appeals currently outstanding regarding decisions that in fact affect the Scottish part of the renewable energy zone?

[Lord Duncan of Springbank]

My Lords, the noble and learned Lord, Lord Davidson, is quite right that this is a very short correction. In discussing this with my officials, we came up with the phrase “a technical tidy-up”, which is broadly what it is meant to do. The oversight mentioned by the noble and learned Lord—my word, I actually know the answer to this one—refers to the definition of “waters”. Because it was a reference to part of an earlier order, it was incorrect in so far as it did not encompass all of Scotland’s waters, but instead just the inshore waters. The purpose of this order is to ensure that, in essence, the entire zone out to 200 nautical miles is covered—the waters in their entirety.

As to the specific issues, there have been no occasions on which Scottish Ministers have been affected by this technical oversight. In essence, they have been exercising the powers as they assumed the provision had been drafted rather than as it was actually drafted. Only when we discovered that there was a technical problem did we recognise that this needed to be brought back to give clarity in law. So no outstanding appeals are affected in any way by this particular decision, and Scottish Ministers have not in any way been excluded from the decision-making process. In essence, we have just been diligent in correcting, literally, the letter of the law. On that basis, I commend the order to the House.

Forestry and Land Management (Scotland) Act 2018 (Consequential Provisions and Modifications) Order 2019

Debate between Lord Duncan of Springbank and Lord Davidson of Glen Clova

Thursday 28th March 2019 Lords Chamber

[Lord Davidson of Glen Clova (Lab)]

My Lords, the forestry sector is a significant contributor to the Scottish economy, to the extent of some £1 billion. It also imposes opportunity costs resulting from the tax treatment of forestry and from the externalisation of costs pursuant to the effects on the rural road network during harvesting. So an important responsibility is given to Scottish Ministers and, as my noble friend Lord Foulkes observed, it is important that this is exercised sensibly.

Article 3 deals with Scottish Ministers and cross-border arrangements. Given that there will be mixed responsibilities where, for example, a single forestry unit straddles the border, will the Minister identify the extent and distribution of responsibilities between Scottish Ministers and their English counterparts? As the noble Earl, Lord Kinnoull, identified, this may also affect other matters such as squirrels. I understand that a memorandum of understanding is envisaged, but what is to be the guiding principle for the division of responsibilities, and how would any differences between the authorities be resolved? One notes the reference to arrangements as between Scottish Ministers, Welsh Ministers and the Natural Resources Body for Wales. What is to be regarded as the content of any such arrangements, and how will arrangements with Northern Ireland be governed? There is already an allusion to that point.

In Article 4, on forestry commissioners and the cross-border arrangements, what is envisaged as being the new relationship between Scottish Ministers and the forestry commissioners? Specifically, what arrangements are envisaged? Given that the forestry commissioners’ functions will no longer be exercisable in Scotland, this may be a significant issue.

In Article 5, on renewable energy installations, the Scottish Ministers’ functions will extend to promoting electricity produced from renewable sources. There is concern in Scotland that biomass energy, which was originally hoped to be substantially dependent on forestry thinnings, has now become dependent on using mature trees as the raw material for pelletisation. Beyond the order, will there be any guidance or control that Scottish Ministers may deploy to discourage this practice? In the same context, will recently expressed concerns over the health effects of wood smoke be subject to Scottish Ministers’ guidance, so far as the Minister is aware?

[Lord Duncan of Springbank]

My Lords, I am very grateful for the detailed questions that have been asked today, and I will do my best to do justice to them.

I will start with the noble Lord, Lord Addington. On the question of what practical co-operation and co-ordination will look like—this also touches on the comments made by the noble Earl, Lord Kinnoull—the purpose here is not to undo established relationships, particularly at the research level and where the co-operation is based on intellectual engagement with the various challenges facing either the health of the forest or indeed the welfare of the forest inhabitants. There are established relationships, and it is not anticipated that these will be interrupted or disturbed. They will reach not just between—to be frank—the current commissioners and Scotland but also where information can be shared between Wales, Scotland and England. The noble Earl, Lord Kinnoull, asked whether this applies to Northern Ireland, and I have been told that the answer is no, it does not. It focuses only on Great Britain in that context.

The issue around renewables is important. The current powers exercised by the commissioners will transfer as they are. The noble and learned Lord, Lord Davidson, asked about guidance, particularly with reference to mature trees. I believe that he and I share exactly the same view—that we should not in any way be looking at mature trees for renewable electricity generation. Again, I hope that the current guidance will be operated in exactly the same fashion: namely, that mature trees should not form the basis of wood chips or wood pellets to create renewable electricity. That would defeat the purpose of the overall ambition. The guidance exists, and I hope that it will continue to be applied in that wider context.

The noble Earl, Lord Kinnoull, asked an important question about squirrels. I know that he is a passionate advocate of the red squirrel—I am fully aware that I come from a part of the country, in Perthshire, around Alyth, which has a well-established red squirrel population. The noble and learned Lord, Lord Hope of Craighead, knows what I am talking about—he knows the squirrels of Perthshire. Again, it is important that we recognise that we have established information about the squirrel communities, and we cannot lose that simply because we create different separations of powers. There needs to be a sharing of our understanding around squirrel movements, and we need to do that at the level of the island of Great Britain as a whole: that will remain absolutely essential to moving forward here.

We must be cautious—this touches on the points raised by the noble Lord, Lord Foulkes—that, as we move toward a new arrangement, it cannot be a diminution of where we are now: it must be an improvement, or certainly no worse. We must be cognisant of and attentive to each aspect, particularly where sharing relates to plant or tree health and where we have pests and various types of wood-borne disease. We cannot take any chances: our forestry estate is too important. Noble Lords will be fully aware of the challenges experienced just now with regard to ash trees, and the wider issue of contamination—how quickly it can spread if we are not careful. We must continue to co-ordinate and collaborate at a UK-wide level, because our forestry estate is too important not to.

The noble and learned Lord, Lord Davidson, touched on the issue of the rural road network. That is integral and the Scottish Government have the responsibility to take this matter forward sensitively and carefully. I hope that they will continue to do that, because it is critical to the well-being of often remote areas.

There is one block of forestry which straddles the border. It is currently managed as a block by Forest Enterprise England on behalf of Forest Enterprise Scotland, and it has been agreed that this block will continue to be managed by Forest Enterprise England on behalf of Forestry and Land Scotland—so the current arrangements will roll forward.