Draft Scotland Act 2016 and Wales Act 2017 (Onshore Petroleum) (Consequential Amendments) Regulations 2018

Alan Whitehead Excerpts

Monday 4th June 2018 General Committees

[Dr Alan Whitehead (Southampton, Test) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Henry. For the purposes of our debate, the Minister has done all the heavy lifting and explained in some detail and with great clarity what the statutory instrument before us concerns. As she set out, essentially it concerns the completion—I think it is fair to say—of a number of steps to devolve authority to the Scottish Government in particular for licensing onshore petroleum activities. Of course, it also completes the process of devolving such responsibility to the Welsh Government in principle, except we have not done the first bit: undertaking the devolution of authority to the Welsh Government. Presumably we will have to catch up with that at some stage. I see there is a provision in the regulations for those two elements to come together at the point at which it has been agreed that the Welsh Government will have responsibility for licensing onshore within Wales, as defined by the legislation.

The process is admirably straightforward, following from what was in legislation previously and trying to bring all the processes together. The notes are all there. However, as Morecambe and Wise once said, they are

“not necessarily in the right order.”

There is an issue about what happens now with the Welsh provisions. The Minister might want to say a few words about her Department’s intentions on laying provisions for Wales to complete the picture—albeit in the wrong order.

As far as Scotland is concerned, the provisions are in the right order. Essentially we are discussing the process, following the devolution of licensing authority, to ensure that the Scottish Government have the ability, currently in the purview of the Oil and Gas Authority, to require financial assurances to be given about the ability of a company engaged in onshore petroleum activities to clear up after itself: to cap and decommission wells that it may have drilled. As the Minister says, tempting though it is to think about the Scottish Government and onshore gas and oil exploration, fracking and so on, that is not, essentially, what the statutory instrument is about. It is about putting into order what is done, as far as the Scottish Government in particular are concerned.

There may, however, be a need to clarify one area of the statutory instrument, in addition to what the Minister has mentioned this afternoon: the extent to which the devolution to the Scottish Government really means onshore petroleum. The draft regulations include a provision that the competence of the devolved Administration will relate to the Scottish onshore area, which the explanatory memorandum states is

“the area of Scotland that is within the baselines established by any Order in Council under section 1(1)(b) of the Territorial Sea Act 1987 (c.49) and The Wales Act 2017”

which

“devolved onshore petroleum licensing to Welsh Ministers in respect of the Welsh onshore area (the area of Wales that is within such baselines).”

The Territorial Sea Act 1987 states that

“the breadth of the territorial sea adjacent to the United Kingdom shall for all purposes be 12 nautical miles”.

Therefore, a regime would be in place that devolved not only onshore petroleum activity but, to a limited extent, offshore petroleum activity, to the Scottish Government. What happens outside the 12-mile zone and up to the 200-mile limit of course remains a reserved matter, and is the responsibility of the Oil and Gas Authority, but there could be circumstances in which a proposal for what is essentially offshore activity would be taken under onshore petroleum legislation.

There might be something 11.5 miles offshore. By the way, the 1987 Act handily defines a nautical mile as 1,852 metres, so an offshore installation could be 12 times 1,800 metres offshore and be the responsibility of the Scottish Government. Slightly outside that, it would be the responsibility of the OGA. How will those two authorities work together in the circumstances to ensure that what is done is done properly, with respect to something that to all intents and purposes is offshore, but which the legislation effectively defines as onshore? Does the Minister have any reflections on that point, or are there legislative provisions that I have not seen, specifying that the shoreline and not the territorial sea limit is meant?

Finally, I would like brief clarification on one point. I assume that the draft regulations are the final brick in the arch and that there is nothing more to come, other than to put right the devolution to Wales to match the regulations before the Committee. I assume that the Minister will be able to confirm that. I want that clarification to make sure we have really finished the business that we set out to do under previous measures and the measure before the Committee today.

--- Later in debate ---

[Dr Whitehead]

I am sorry, but I thought the Minister was finishing her comments about bringing together the various pieces of secondary legislation relating to Wales with the commencement of the Act, but I assume she has something to say about an additional negative instrument that is to come.

[Claire Perry]

I am happy to clarify. The Wales Act 2017 provisions overall commence on 1 October 2018. I have been informed that there is one additional statutory instrument for Wales. I assume we will have to detain our colleagues one more time to ensure we have all the relevant pieces of legislation in order for the Wales Act to commence. I am looking forward to a final conversation about that. Clearly, it is right to ensure that we have the correct licensing provision flowing to the devolved Administrations, to fulfil the commitments made with our various commissions.

The hon. Gentleman asked a series of questions about what was on and offshore. I am happy to write to him to clarify further. I am told that the Territorial Sea Act sets baselines and that within 12 nautical miles is regarded as onshore.[Official Report, 19 June 2018, Vol. 643,c. 1MC.] Outside that is territorial sea. We are transferring functions only in the onshore areas. He will ask what happens if there is a field that straddles both; I assume that there will be joint responsibility. We may have to debate that at a later date. If he is not satisfied with that answer, I am happy to go away and see if there is more information that I might be able to give him.

I cannot read what has been passed to me by my officials, so we will have to leave it there, unless the hon. Gentleman has any further questions. If not, I commend the regulations to the Committee.

Question put and agreed to.