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

Lord Wallace of Tankerness Excerpts

Thursday 22nd January 2015 Grand Committee

Moved by

[Lord Wallace of Tankerness]

That the Grand Committee do consider the Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments

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

My Lords, the main purpose of this order is to provide for two new statutory appeals regimes. The first is in connection with decisions regarding electricity generating stations to be situated in the Scottish offshore region and the second is in connection with Section 36 consent decisions made under the Electricity Act 1989. These new regimes aim to establish a uniform statutory appeal regime to challenge certain marine licensing decisions made by Scottish Ministers across inshore and offshore regions.

The order is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient legislative changes to be made in consequence of an Act of the Scottish Parliament. This particular order is made in consequence of the Regulatory Reform (Scotland) Act 2014, which I shall refer to as the 2014 Act.

The 2014 Act is primarily intended to improve the way regulation is developed and applied in Scotland. It is the intention of the Scottish Government to strike a balance between the need to licence offshore renewable energy projects and a right to challenge those decisions. Therefore, the 2014 Act aims to amend the procedure for challenging decisions to enable any challenges to proceed quickly to the Inner House of the Court of Session. Currently, applicants for marine licences seeking authority under the Marine (Scotland) Act 2010 to carry out all types of licensable activity in the Scottish inshore region who wish to appeal Scottish Ministers’ decisions may appeal to the sheriff court. Third parties with title and interest may raise judicial review proceedings in the Outer House of the Court of Session.

Section 54 of the 2014 Act amends the Marine (Scotland) Act 2010 to provide for statutory appeals in connection with certain decisions made by Scottish Ministers. Those decisions relate to applications for marine licences in the Scottish inshore region in connection with electricity generating stations as well as to whether to hold a public inquiry in relation to the determination of such applications. The 2014 Act allows such appeals to be made by aggrieved persons to the Inner House of the Court of Session, provided that the court has granted permission for the appeal to proceed. To ensure consistency across inshore and offshore regions, this order amends the Marine and Coastal Access Act 2009 to provide for the same fast-tracked appeal regime in relation to such decisions for electricity generating stations to be situated in the Scottish offshore region.

Similarly, this order amends the Electricity Act 1989 to provide for that same appeal regime in respect of decisions made concerning applications for consent to construct, extend or operate generating stations, which is also referred to as Section 36 consent, as well as decisions on whether to hold a public inquiry in respect of such applications under that Act. This provision is required as there is currently no statutory right of appeal against Section 36 consent decisions.

Although the main purpose of the order is to provide for the two new statutory appeals regimes which I have just outlined, the order also makes minor or consequential changes to give the 2014 Act full effect. These include the following: first, the repeal of Sections 1(1)(d) and 5 of the Health and Safety at Work etc. Act 1974—the 1974 Act, which were repealed previously in England and Wales, but not Scotland, due to a number of extant regulations made in part under Section 1(1)(d) of the 1974 Act, but which now appear to be spent and suitable for repeal. Secondly, they include minor amendments to the Income Tax (Trading and Other Income) Act 2005 and the Corporation Taxes Act 2009 to ensure that the definition of a “waste disposal licence” in those Acts includes an authorisation under the integrated authorisation framework established by Sections 16 to 19 of the 2014 Act.

Finally, they include the extension of Sections 47 and 50 of the Copyright, Designs and Patents Act 1988—the 1988 Act—to Part 3 of the 2014 Act. The sections of the 1988 Act provide, inter alia, that copyright is not breached by copying material that is open to public inspection in pursuance of a statutory requirement, or which is on a statutory register, or by acts done that are specifically authorised by Acts of Parliament. This amendment is necessary as the move from environmental regulation under various UK enactments to the new powers in Part 3 of the 2014 Act has the unintended consequence that the provisions of Sections 47 and 50 of the 1988 Act would no longer apply. The order applies those sections of the 1988 Act to the relevant sections of the 2014 Act to ensure copyright is not breached. Similar provision is also made in respect of the Copyright and Rights in Databases Regulations 1997.

I consider this order to be a sensible use of the powers under the Scotland Act 1998. It again demonstrates that this Government continue in their commitment to working with the Scottish Government to ensure that the devolution settlement works. I commend the order to the Committee. I beg to move.

[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.

Motion agreed.