Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015

Baroness Smith of Basildon Excerpts

Thursday 22nd January 2015 Grand Committee

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his detailed explanation, which I found extremely helpful. I was struggling with the copyright changes and it is helpful to understand why they were brought forward.

I have a few comments and only a couple of questions. My understanding is that the order is purely consequential; there does not appear to be any new policy development coming through. However, what impact will it have, if any, on the development of offshore wind facilities in Scotland? Will it have a substantial impact on it?

In article 4 of the order, subsection (4) of proposed new Section 36D of the Electricity Act 1989 states:

“An application under this section must be made within the period of 6 weeks beginning with the date on which the decision to which the application relates is taken”.

Is six weeks the normal period of time, or was it chosen as the most reasonable period of time to allow for an application made under that section?

Again in article 4 of the order, subsection (2)(b) of proposed new Section 36D states, as one of the conditions that has to be met for a court to grant permission for an application to succeed, the court would have to be satisfied that,

“the application has a real prospect of success”.

That also appears as one of the conditions in proposed new paragraph 5C(2)(b) of Schedule 8 to that Act on page 4. Is it normal legislative language that the court should grant permission only if there is a real prospect of success? I am not sure whether I have seen that language; I have seen “reasonable” but I am not sure that I have seen “real”.

Could the Minister also clarify what the language in proposed new paragraph 5C(2)(a) means. It states that the court must be satisfied that,

“the applicant can demonstrate a sufficient interest in the subject matter of the application” .

I am unclear exactly what that means.

From what I have seen I think we can support the order. However, those points of clarification would be helpful.

[Lord Wallace of Tankerness (LD)]

My Lords, I thank the noble Baroness for her general support of this order. It is consequential, and it is neutral in terms of whether it will give rise to more applications for offshore wind turbines. However, in the regimes that are in currently in place, the Scottish Parliament can competently legislate for the inshore marine area but not the offshore marine area. This order is to ensure that there is consistency between the two regimes. It simplifies matters by giving direct access to the Inner House of the Court of Session—the equivalent to the English Court of Appeal—rather than having to work up through the sheriff court and subsequent appeals, as was the case previously.

The noble Baroness also asked whether the period of six weeks was normal. I rather suspect that it replicates the arrangements already in place. As to having a sufficient interest in the subject matter, it is normal, especially in more recent times, that there should be some interest or title to sue. I have to be careful about the use of that term of art. However, not just anyone can come off the street and raise an issue. There has to be some nexus between the aggrieved person and the proposal under challenge.

[Baroness Smith of Basildon]

I thought my asking a question might allow for further enlightenment when I saw the Minister seeking advice.

If someone does not have sufficient interest, why would they make an application? It seems to be a given. I do not understand why a person would make such an application to the court if they did not have any interest in it.

[Lord Wallace of Tankerness]

They might just have a remote interest and generally be interested. For the sake of argument, let us say that the development was somewhere off the east coast of Scotland and this was a person who was just generally interested in wind farm developments and was living in a stately pile in Argyll. You would not actually say that there was a sufficient interest for them to merit a title to raise an action. I am told that the six weeks replicates what was under the 2014 Act. That is certainly my understanding; if that is not the case, I will certainly write to the noble Baroness.

I will also have to check up—as we are introducing this measure, as it were, at the behest of the Scottish Government—as to whether the term, the “real prospect of success”, is normal. I know that there have been substantial reforms of the Scottish civil jurisdiction in very recent times and much of it is still to be implemented, but I will write to her and confirm whether that is a new term of art or something that goes back into the mists of time. The general point is that we are giving effect to something the Scottish Parliament could not legislate for under the 2014 Act, to ensure that there is consistency between what it can legislate for and what it can not.