Forestry Commissioners (Climate Change Functions) (Scotland) (Consequential Modifications) Order 2012

Lord Wallace of Tankerness Excerpts

Tuesday 23rd October 2012 Grand Committee

Moved By

[Lord Wallace of Tankerness]

That the Grand Committee do report to the House that it has considered the Forestry Commissioners (Climate Change Functions) (Scotland) (Consequential Modifications) Order 2012.

Relevant document: 7th Report from the Joint Committee on Statutory Instruments.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I will provide the Committee with a brief summary of what this order seeks to achieve. It is made under Section 104 of the Scotland Act 1998, which allows for “necessary or expedient” changes to UK legislation in consequence of an Act of the Scottish Parliament and subordinate legislation. This order is made in consequence of the Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012, made by Scottish Ministers under Section 59 of the Climate Change (Scotland) Act 2009. For convenience, I shall refer to this as the Section 59 order.

Scottish Ministers are keen to make full use of the national forest estate in Scotland for generating renewable energy. The national forest estate is land owned by the Scottish Government and put at the disposal of the Forestry Commission. While the commissioners have powers to enter into joint ventures in Scotland for the purpose of exercising their functions under the Forestry Act 1967, these functions do not expressly include the development of the renewable potential of the land put at their disposal by Scottish Ministers.

Section 59 of the Climate Change (Scotland) Act 2009 enables Scottish Ministers to modify the functions of the forestry commissioners in or as regards Scotland where this is necessary or expedient in order to comply with their duties as regards emissions reductions or otherwise in relation to climate change. The Section 59 order amends the 1967 Act to place upon the forestry commissioners a new general duty to use land placed at their disposal by Scottish Ministers in the way best calculated to contribute to the delivery of the targets set under Part 1 of the Climate Change (Scotland) Act 2009.

However, the Section 59 order does not itself enable the forestry commissioners to use the National Forest Estate to generate electricity. The Scottish Government have indicated that because the forestry commissioners will have a duty to use land to contribute to the delivery of climate change targets, it would be expedient in consequence of this new duty for the commissioners to be able to use the national forest estate for renewable energy purposes.

This Section 104 order will modify the forestry commissioners’ functions under the 1967 Act in order to confer express powers on the commissioners to use the national forest estate for the purposes of generating and supplying electricity from renewable energy projects, thus developing the renewable energy potential of the land put at their disposal by Scottish Ministers. Of course, the generating and supplying of electricity from renewable energy projects is a reserved matter, hence the need for this order.

I can assure your Lordships that this Section 104 order will not affect the requirements under the Electricity Act 1989 with regard to consents. It will not exempt the forestry commissioners from the requirements of Part 1 of that Act.

This order is necessary or expedient in consequence of the Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 and demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I hope the Committee will agree that this order is a sensible use of the powers in the Scotland Act, and that the practical outcome is something to be welcomed.

I commend the order to the Committee. I beg to move.

[Lord McAvoy]

My Lords, I thank the noble and learned Lord the Minister, who, as usual, has made his staff available for any advice and/or assistance. I have a slight regret about the noble and learned Lord’s ever so polite attitude because, being used to another place, I sometimes like a wee bit of aggression but I am still waiting for the Minister to show that quality.

Turning to the legislative context, where in Scotland did the push for this come from? Although I do not stay near a lot of forest, nevertheless it is quite a big issue in some parts of Scotland. Why was this initiative taken, and what was the background to it? The policy background mentions wind farms. That is not an uncontroversial issue. I was wondering how that came about.

I have always tended to suspect the reporting of consultations because it is usually in the eye of the beholder, who wants a particular result. What is the current position on the consultation? Is it completely finished or are there still ramifications because people are making complaints or expressing their support? Is it still an issue? In addition, it is stated that a number of the concerns that were expressed have been addressed. Does the Minister know the specific issues that were identified and then responded to? Can he give an indication of how the consultation was handled? Was it just an exercise from on high or was there a definite consultation?

Paragraph 10 of the Explanatory Memorandum is headed “Impact” and states:

“This instrument has no impact of a regulatory nature”,

and goes on to say that the,

“impact on the public sector is insignificant”.

The one thing missing from that is public opinion. If it was insignificant, that is fine, but if there was a reaction, it would be a crucial factor. I would like to know if there were any expressions of public opinion. Is that the reason why a full impact assessment was not produced?

Although paragraph 12 states that the:

“Forestry Commission Scotland publishes an Annual Report and Accounts which is laid before the Scottish Parliament”,

is that the scope of the accountability? I know about devolution, but is there any further scope for the Westminster Government to be consulted? In short, is the whole issue of accountability now devolved to the Scottish Parliament? Obviously this is a comparatively minor arrangement, but never the less it is right to ask questions here in your Lordships’ Chamber and thus subject the order to a bit of gentle scrutiny.

[The Earl of Mar and Kellie]

My Lords, speaking as a backwoodsman, I approve of giving explicit powers to one of the largest landowners in Scotland and thereby removing all the Forestry Commission land from the renewables area. I certainly approve of the widening of the geographic scope for renewables, especially as it takes the pressure off other areas that may be more beautiful and which are worth retaining in that context. The order considerably widens the already broad remit of the Forestry Commission, which is now far wider than its remit in 1919, which was to produce timber. The commission will now get involved with leisure, recreation, health, landscape management, footpaths, cycle paths, biodiversity, wood fuel and still, indeed, the production of timber. I support all forms of renewable energy, and especially hydro. I am pleased to see that two hydro schemes have already been identified. I would encourage the commissioners to have another look at small-scale hydro projects on the hill burns. I also suspect that they are bound to put up some wind turbines, or allow a partner to put them up.

My final point is particularly related to that. Once a site has been established, it is grid-connected pretty much for all time. It is hoped that the generating technology may well improve and something other than wind farms will come to take their place. The important point is that the sites themselves are grid-connected.

[Lord Wallace of Tankerness]

My Lords—

[The Deputy Chairman of Committees (Lord Geddes)]

My Lords, there is a problem with the sound system. The Grand Committee will adjourn.

--- Later in debate ---

[The Deputy Chairman of Committees]

My Lords, it is now 7.05 pm—oh! Let us try that again; it seems like an eon. It is 4.05 pm. Perhaps now peace and quiet has been resumed, the Minister would also resume.

[Lord Wallace of Tankerness]

My Lords, I thank my noble friend Lord Mar and Kellie and the noble Lord, Lord McAvoy, for their contributions to this debate and for their general welcome for the proposals. The noble Lord, Lord McAvoy, asked from where the impetus for this had come. The origins go back to the Climate Change (Scotland) Act 2009, which in its generality was setting targets for carbon emissions and the amount of electricity that can be generated from non-fossil fuel renewable sources. The Scottish Government were very keen to make full use of the renewable potential of the estate, which is operated by the forestry commissioners. Indeed my noble friend Lord Mar and Kellie remarked that widening the geographical scope of renewable energy production perhaps takes the pressure off other parts of the country, bearing in mind that the Forestry Commission’s estate is almost 10 per cent of the Scottish land area.

My noble friend asked if there were any further potential hydro locations. I am advised that the commission is taking a proactive approach with developers and communities to identify further locations. I think it is important to emphasise the fact that this embraces electricity generation by means of hydropower. It is not solely wind power. The forestry commissioners, however, made it clear that they do not intend to go down the route of biomass, because that could lead to a conflict of interest with their role as timber suppliers. My noble friend expressed the view that it was vital that sites should be connected to the national grid. I can confirm that proposals would only go ahead if there were grid connections.

The noble Lord, Lord McAvoy, asked about the position with regard to consultation. The consultation took place in relation to the 2009 legislation. It took place ahead of that, although part of the consultation specifically related to the role of the forestry commissioners. The consultation document explained that the provision would facilitate the development of renewable energy potential of the land in Scotland put at the disposal of the forestry commissioners by Scottish Ministers. There were 368 responses to the specific question:

“What are your views on allowing the Forestry Commissioners to enter into joint ventures, with the intention of participating in renewable energy programmes on national forest estate?”.

Seventy per cent of respondents expressed positive views on the option, although a number added caveats; 15% expressed negative views; and the remainder appeared to be neutral or undecided. The noble Lord, Lord McAvoy, asked about some of these concerns and whether indeed they had been taken into account. I can confirm that, yes, there were concerns that related to a possible conflict between the regulatory activities of the Forestry Commission Scotland in respect of renewable developments. As a consequence, a forest renewables unit has been set up; it separates the operation of the development role of the commission from its regulatory role.

The noble Lord, Lord McAvoy, also asked why no impact assessment had been prepared for the order. The position is that orders made under the Scotland Act are required to be laid in draft if, among other things, they vary the legislative competence of the Scottish Parliament, executive competence of Scottish Ministers or make changes to reserve UK primary legislation in consequences of Acts of the Scottish Parliament. Usually such orders do not in themselves have a direct or indirect impact, whether in benefit or cost on businesses, charities or the voluntary sector. They would therefore not normally have any regulatory impact. On this occasion, a full impact assessment was not produced as this instrument simply allows the forestry commissioners to enter into voluntary joint ventures with commercial partners should they wish. It does not impose on private sector or civil society organisations.

I conclude on the point made by the noble Lord, Lord McAvoy, that wind developments tend to be controversial. I reiterate what I said in my opening remarks, that any specific proposal that is brought forward will be subject, if it is 50 megawatts or over, to the regime under Section 36 of the Electricity Act 1989. If it is lower than 50 megawatts, it will be subject to the planning regime. Therefore this order does not in any way detract from the planning arrangements that are already in place.

Motion agreed.