Energy Bill

Lord Mackay of Clashfern Excerpts

Wednesday 6th November 2013 Lords Chamber

[Lord Berkeley of Knighton (CB)]

My Lords, earlier this evening, I found myself in agreement with the noble Lord, Lord Forsyth, about transparency. I feel even more strongly about this issue. It seems that we are challenging the rule of law. I know that a lot of people in this country feel that their ability to object to something is often overruled by big business and large amounts of money, and that they do not really have a voice. The Government promoted a Localism Act which is often in conflict with what they wish to see for energy generation.

The noble Lord, Lord Teverson, mentioned an argument which planners are always throwing back at objectors: “Well, they wouldn’t do it if it didn’t make sense and they didn’t know what they were doing”. I repeat: Mammon has a role to play here. The objectors must be allowed to put their point of view. If you are now going to insult them by saying, “We are even going to take judicial review and the law away from you”, where does that leave them?

[Lord Mackay of Clashfern (Con)]

My Lords, it is some little time since I did applications for power stations in Scotland; the last one was about 35 years ago. However, I have some understanding of the way in which these matters were approached.

As your Lordships know, in order to generate, transmit or supply electricity you must have a licence and there is a pretty good reason for that. Section 36, which my noble friend mentioned, provides for an application for consent to construct or operate a power station. Of course, a wind farm is a generation system which amounts to a power station. In order to operate that you must have a licence, or have an exemption from a licence, usually because the power station you want to operate is very small. It does not seem very strange to require that as a condition for applying for a station. It would seem a little odd that the relevant authorities could grant consent for a station if you were not authorised to operate it. It could happen, I suppose, but it seems a little unlikely. Therefore it is not at all surprising that it is assumed in the definition of the conditions for consent that that would be so.

Schedule 9 to the Electricity Act 1989 is a set of requirements for the protection of the environment, basically, which a person—it is described in the amendment of the noble Lord, Lord Teverson—who is either a licence holder or exempt for a licence must take account of in his proposals. It is pretty obvious that the proposals are for the construction of a generating station and that you would therefore be a person who would have a licence to operate the generating station if, in fact, it is agreed and consented to by the relevant authority.

The judgment of the noble and learned Baroness, Lady Clark, which is well reasoned and a little longer than my speech so far, is just to that effect. Schedule 9 starts with the condition that you are either a licence holder or exempt and then you have to ensure that your proposals, in effect, do not damage the amenity, or the environment. That is the crux of this and I find her reasoning rather convincing. In fact, it is what I always understood. As I say, it is a long time since I understood it, but it was my understanding at the time. The last application I made, as it happens, was for Torness power station, which was the last nuclear power station to be built in Scotland and is now coming near its decommissioning. I was under the instruction of the noble Lord, Lord Tombs, who was at that time the chairman of the South of Scotland Electricity Board, whose station it was. Anyway, so far as I have an interest in this matter it is a very aged interest and it has nothing to do with finance or anything of that sort.

In my submission, it seems that what the noble and learned Baroness, Lady Clark, who was a law officer in the previous Government, has decided is right. However, it is, of course, subject to appeal and as the noble Lord, Lord Teverson, said, the appeal is to be a reclaiming motion, strictly speaking, in the Scottish terminology, and to be heard by the Inner House of the Court of Session in February. The rule in relation to sub judice does not apply when we are discussing legislation, so we are free to discuss this matter, but I think that the judgment of the noble and learned Baroness, Lady Clark, is extremely cogent and I will look forward to hearing what happens on appeal. In the mean time, that is the highest assertion of what the law of Scotland is, and, indeed, for that matter, anywhere else where the same rules apply. In the law of Scotland the Supreme Court of Scotland, the Court of Session, has decided that to be the fact. Therefore it is highly undesirable for this House to alter that position at this moment. It seems pretty sensible that before you get consent to erect a power station you should be qualified to operate it. As I said, that is the crux of the decision. I therefore hope that the Government will not accept this amendment, which is not very well placed from the point of view of logicality.

[Lord Forsyth of Drumlean]

Before my noble and learned friend sits down, will he comment on the conduct of the Scottish Government, who say that they will continue as if this judgment had not been made because they do not agree with it?

[Lord Mackay of Clashfern]

I have made known my view about what the judgment says and my noble friend Lord Forsyth has made his view known about how the Scottish Government approach these matters. I do not particularly wish to comment on what they have done so far as I do not know fully enough the facts about these other applications. However, certainly in so far as the application from Shetland is concerned, there is no doubt that the decision of the Court of Session until reversed will set that consent aside. There is no question at all of going ahead to erect the station in Shetland at present. That would be completely without sanction, because the judge has set aside the consent as being unlawful. The rule of law will certainly be applied in Shetland, so far as that is concerned; the noble Lord has said whether the Shetland law applies more generally, and I will leave it with what he said.

[Lord Lang of Monkton (Con)]

My Lords, I had not intended to speak in this debate; I know that the hour is late, so I will be brief. However, when I saw that my noble friend Lord Forsyth had tabled an amendment that seemed to be almost in diametric opposition to the preceding amendment—we have not yet reached my noble friend’s amendment—it seemed that there was probably something of interest to be debated. Having heard what has been said, I am glad that I was here to hear it, and I am appalled at what I have heard. However, I am greatly reassured by the views of my noble and learned friend Lord Mackay.

My own views on windmills, which I first made clear in this House some 12 years ago, is of strong opposition to them. They are an appalling waste of time and money; they ruin the environment and damage wildlife; they do not deliver power when the wind is too strong or when there is no wind at all; and when they do deliver power, there is so little of it that it is completely worthless and has to be backed up by other forms of energy. I will not repeat all those views again to the House tonight.

What is at issue is not a matter of energy generation but of the rule of law. I am aghast to hear that the Scottish Government are now cheerfully setting aside a judgment in the High Court in anticipation of an appeal, which may or may not go in their favour. My noble friend referred to his time in the Scottish Office, and my noble and learned friend Lord Mackay referred to his experience many years back. I was present at the opening of the Torness power station, although I had no hand in its design or in the legalities behind it. However, I served in the Scottish Office for nine years, ahead of my noble friend, so between us we did about 12 years.

At no time, then or before, when I was the Scottish Whip for five years, do I ever recall any contemplation of defying the will of the courts. That is the fundamental issue that we are addressing underneath these two amendments. The issue of the licence is fundamental, and this amendment seems to set aside one of the few controls that are in place to try to impose some kind of discipline and proper judgment on the relevant importance of windmills in Scotland. We read every day of how the country is being covered with them like a rash, ruining the environment and all attraction to tourism, with no regard to the future or to the value of these excrescences. Therefore, setting aside my strong views on windmills, this rule of law issue has to be addressed very seriously indeed.