Draft Scotland Act 1998 (transfer of functions to the scottish ministers etc.) Order 2019

Paul Sweeney Excerpts

Wednesday 27th March 2019 General Committees

[Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Mr Bailey. I apologise for my tardiness—I know that I was ably substituted by my hon. Friend the Member for Edinburgh South in the interim. It is wonderful to speak in a Delegated Legislation Committee and not be talking about Brexit, which is a novelty—I am sure it will not last more than a couple of hours. Given the number of statutory instruments relating to Brexit, I am sure that hon. Members are as pleased about that as I am.

The order amends previous legislation with respect to the Scottish part of the renewable energy zone. It is designed to correct amendments made to the Electricity Act 1989 by article 4 of the order. According to the explanatory memorandum, there was an “oversight” in the 2015 order, because its definition of “relevant waters” did not include the Scottish part of the REZ. This new order corrects that oversight and ensures that the same appeals mechanism applies whether there is a challenge against a decision of Scottish Ministers or an application for a marine licence in relation to an energy generating station development to be situated in Scottish internal waters, territorial sea or the Scottish part of the REZ.

The order confirms that Scottish Ministers have certain functions concurrent with those of a Minister of the Crown relating to the assessment of environmental effects under the EIA directive in respect of the Scottish part of the REZ. This ensures that the UK meets its obligations to transpose fully this directive.

It is important to draw the Committee’s attention to the fact that the order has been laid alongside the Regulatory Reform (Scotland) Act (Consequential Modifications) Order 2019, which amends the Electricity Act 1989—passed in the same year I was born, incidentally—by extending the statutory appeals procedure for consent applications made under section 36 of the 1989 Act to apply where the infrastructure is situated in the Scottish part of the REZ. This ensures alignment with section 36 applications in Scottish internal waters and the territorial sea adjacent to Scotland, and with other applications in relation to such infrastructure. I believe that we were scheduled to debate that in the Chamber later today, although that might now have changed due to the ever-changing business of the House and subsequent important votes later.

The provisions made under section 30(3) of the Scotland Act 1998—regarding the making of EIA regulations in connection with applications for consent under section 36 of the Electricity Act 1989 for the construction, extension and operation of generating stations in the Scottish part of the REZ—will be treated as being functions exercisable in or as regards Scotland.

I will not detain hon. Members any longer. This is a straightforward, technical clarification and, as such, the Labour party will not oppose it.

DRAFT FORESTRY AND LAND MANAGEMENT (SCOTLAND) ACT 2018 (CONSEQUENTIAL PROVISIONS AND MODIFICATIONS) ORDER 2019

Paul Sweeney Excerpts

Tuesday 5th March 2019 General Committees

[Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Mr Robertson. The order in front of us today makes provisions in consequence of the Forestry and Land Management (Scotland) Act 2018, and essentially follows on from section 81 of that Act. Section 81 provides that the functions of the forestry commissioners, which are exercisable in or as regards Scotland immediately before the date on which that section comes into force, are no longer exercisable in or as regards Scotland. It would be helpful for the Committee if I give a brief overview of the order before seeking clarity on some issues within it.

First, articles 3 and 4 relate to cross-border arrangements. Article 3 makes provisions for cross-border arrangements between Scottish Ministers and other bodies. Article 4 makes provision for cross-border arrangements between the forestry commissioners and Scottish Ministers for the purposes of carrying out the former’s functions as set out in article 4(2).

Secondly, article 5 makes provision to allow Scottish Ministers to construct renewable energy installations and generate, transmit, distribute, supply and ultimately use the electricity produced from these sources for the purposes of carrying out the Scottish Ministers’ functions, as detailed in article 5(2). Finally, article 6 and the schedule make necessary consequential modifications to primary and secondary legislation as a result of the 2018 Act.

The order is fairly non-contentious and is, as I have detailed, necessary to make consequential provisions as a result of the 2018 Act. However, I would appreciate it if the Minister could clarify some areas where I have concerns.

Article 3 seems to contain a fair amount of scope for cross-border arrangements between Scottish Ministers and other persons or bodies, and Welsh Ministers are included in that list of other persons. Is there a particular reason for specifying only Welsh Ministers here, and not Ministers of the Crown in different Government Departments, for example?

As far as I can tell, regulation making is also not devolved as part of this statutory instrument. What mechanisms are in place to ensure that regulations are not being made elsewhere that would hamper the ability of Scottish Ministers to carry out their newly devolved functions?

Article 5 makes provisions for Scottish Ministers to develop, construct and operate installations for the generation, transmission, distribution and supply of electricity produced from renewable sources. I would be interested to hear the Minister's thoughts on how this works in conjunction with schedule 5, head D of the Scotland Act 1998. Head D deems that the generation, transmission, distribution and supply of electricity shall remain reserved. I understand that the difference here is about generation as part of a renewable energy programme and that these powers are already held by the forestry commissioners, but given that we live in particularly turbulent political times, what processes have been put in place to ensure that Scottish and UK Ministers are aware of the respective boundaries of their powers and do not inadvertently stray into one another's territory? There is a risk of this issue becoming politicised and ultimately confused, as the nuance is rather technical, so demarcation could be better defined.

Finally, I have more of a general query for the Minister. As a consequence of this order, a few changes are made to primary and secondary legislation covering a couple of different policy areas. How does the Minister see these changes fitting into the common UK frameworks agreed between the UK Government and the Scottish Government?

[Martin Whitfield]

My hon. Friend raises the issue highlighted in part 2 of the schedule—on modifications of subordinate legislation—and indeed the frameworks. I draw the Committee’s attention to paragraph 66, which discusses the Plant Health (Wood Packaging Material Marking) (Forestry) Order 2006. A significant amount of the palleting used in the United Kingdom to export goods into the European Union fails to meet EU regulations, which means that it cannot be used in the case of a no-deal Brexit. Does my hon. Friend therefore agree that the order may be a missed opportunity to deal with bioprotection with regard to wood offcuts, particularly dry kiln heating wood to make sure it is safe?

[Mr Sweeney]

I thank my hon. Friend for his typically forensic analysis of the detail and for making that pertinent point. Perhaps the Minister can offer a more interesting analysis of that impact. My understanding is that there is to be no divergence from current regulations in the event of a withdrawal agreement being ratified by the House of Commons, but I am not entirely clear on what happens if there is no deal and we crash out of the EU on Word Trade Organisation terms. Does the Minister see this order as having an impact on that arrangement, regardless of whether there is a deal?