§ 11.5 a.m.
§ Baroness Ramsay of Cartvale rose to move, That the draft orders laid before the House on 2nd and 13th November be approved [30th and 31st Reports from the Joint Committee].
§ In past debates on Scotland Act orders, mention has been made on a number of occasions that it is desirable to group and consolidate such orders so as to minimise the number of debates and make the best use of the time of the House. That is therefore the explanation for the wide and varied range of subject matter covered in the orders before us today.
§ Noble Lords who have attended previous debates on orders of this sort will recall comment made on a number of occasions about the level of information made available to this Parliament when considering delegated legislation compared to that available to Members of the Scottish Parliament, which was considered much wider and more useful.1068
§ The noble Earl, Lord Mar and Kellie, has been particularly exercised about the matter and in a debate on 17th July the noble Lord, Lord Mackay of Ardbrecknish, and the noble Baroness, Lady Carnegy of Lour, who unfortunately cannot be in their places today, commented on the brevity of the explanatory notes provided. Therefore, I have on this occasion arranged for copies of the executive notes prepared by the Scottish Executive for the assistance of MSPs to be sent to the opposition Front Benches. I hope that that has proved helpful and welcome.
§ Scotland Office officials have assisted in arranging for copies to be laid in both Libraries. They have also made efforts to improve the usefulness of the explanatory notes attached to the orders, within the existing guidance, which again I hope noble Lords have found helpful.
§ Finally, my honourable friend the Minister of State at the Scottish Office has made efforts to ensure that the issue is addressed by the parliamentary authorities.
§ I turn to the first order. The Scotland Act recognised that in some cases it would be appropriate for the Scottish Ministers to be able to exercise executive powers in areas where primary legislation continues to be a matter for this Parliament. Section 63 of the Act provides for various forms of what is known as "executive devolution". In that case, the functions concerned will be transferred to the Scottish Ministers so far as they are exercisable in or as regards Scotland.
§ I now turn to the content of the order. I should explain that Article 2, together with Schedule 1, sets out the extent to which the functions concerned are to be regarded as affecting Scotland for the purposes of the order. That is a procedure provided for in Section 30(3) of the Scotland Act. Article 3, together with Schedule 2, then sets out the functions to be transferred. Article 4, together with Schedule 3, makes changes to other Acts and orders which are consequential on the transfer of those functions to the Scottish Ministers.
§ I turn to the actual functions to be transferred. The entries concerning the Regulation of Investigatory Powers Act 2000 have the effect of transferring certain powers to issue warrants under Sections 5 and 32 of the Act. Those warrants are to authorise the interception of communications by the police and HM Customs or to authorise intrusive surveillance by the Security Service.
§ In each case, the function of issuing the warrant is transferred to Scottish Ministers where the purpose is to prevent or detect serious crime. Scottish Ministers will therefore issue such warrants for the interception of communications where the person or premises concerned are, or are believed to be, in Scotland at the time the warrant is issued. Similarly, they will issue such warrants for intrusive surveillance by the Security Service on premises or private vehicles which are, or are believed to be, in Scotland at the time the warrant is issued.
§ Some noble Lords will doubtless recall that similar functions under the Interception of Communications Act 1985 and the Intelligence Services Act 1994 were 1069 transferred to Scottish Ministers in the main executive devolution order last year. The order updates the position in the light of the new Act.
§ The order also transfers functions to the Scottish Ministers enabling them to give consent to developers to lay certain gas pipelines that begin and end in Scotland. It also gives them powers to approve compulsory purchase orders associated with these pipelines. Pipeline consents are for the most part already devolved, but Transco pipelines and the environmental impact assessment procedures relating to all pipeline developments were not covered. The order will remedy the omission. The order will also transfer powers created by the Utilities Act 2000, when it comes into force, to allow the Scottish Ministers to make orders specifying the level of electricity to be produced from renewable resources in Scotland.
§ Schedule 12 to the Poisons Rules 1982 allows the Secretary of State to authorise persons to purchase strychnine for the killing of moles and to authorise officers of the Department of Agriculture and Fisheries for Scotland to purchase strychnine for the killing of foxes. The order will transfer these functions to the Scottish Ministers and at the same time change references to now obsolete names of departments.
§ The second order before the House relates to cross-border public authorities. In preparing for devolution it was recognised that some public bodies which operate both in Scotland and beyond would have a remit which included devolved matters in Scotland. Section 88 of the Scotland Act provides the mechanism to designate public bodies as "cross-border public authorities". Designation as a cross-border public authority meant that ministerial functions in relation to the body did not transfer automatically to the Scottish Ministers, as they did for bodies operating wholly in a devolved area. Instead, the default arrangement is that the Scottish Ministers have a right to be consulted on appointments to, or removal from, the body, and on the exercise of any functions in relation to the body which might affect devolved matters. But these default arrangements will not necessarily be suitable for every cross-border public authority, so Section 89 of the Scotland Act allows arrangements to be tailor-made for a particular body. That is what this order does.
§ The British Waterways Board and the Inland Waterways Amenity Advisory Council operate on a Great Britain basis and were specified as cross-border public authorities, as responsibility for inland waterways in Scotland is devolved to the Scottish Ministers. The order will modify the British Waterways Act 1975 and the Transport Acts of 1962 and 1968 to give the Scottish Ministers, by and large, the same functions with regard to these bodies as those held by UK Ministers. These are set out at some length in Schedules 2 and 3 to the order. The executive note to which I referred earlier provides quite a useful summary list.
§ There is also an entry concerning the Royal Commission on Environmental Pollution. That body advises on environmental matters which are the 1070 responsibility of the UK Government and on matters which are devolved. It was specified as a cross-border public authority, so that Scottish Ministers are consulted about the exercise of ministerial functions in relation to the commission as they affect Scotland. The commission customarily sets its own lines of inquiry, but must also inquire into matters referred to it by one of Her Majesty's Secretaries of State or by one of her Ministers. The order gives Scottish Ministers powers to refer matters to the Royal Commission, into which that body may inquire.
§ The Fire Services Examination Board administers the statutory examination whereby fire service personnel qualify for promotion across the UK. In the past, a proportion of its expenses were paid by the Scottish Office and now must be met by the Scottish Executive. Power to meet these expenses did not transfer to the Scottish Ministers. The order will provide the statutory authority for those payments to be made from the Scottish Consolidated Fund and further stipulates that reports and accounts are presented to the Scottish Ministers instead of the Secretary of State.
§ The order also makes arrangements for consultation between the Home Secretary and the Scottish Ministers in relation to the appointment of the chairman and four members of the board and their period of appointment. Consultation on these issues has previously taken place between the Home Secretary and the Secretary of State.
§ The final entry in the order concerns plant varieties. It requires the consent of the Scottish Ministers for certain orders under the Plant Varieties Act 1997 in relation to the Controller of Plant Variety Rights, the Plant Varieties and Seeds Tribunal and the Plant Variety Rights Office.
§ The third order before the House concerns adjustments to Schedule 5 to the Scotland Act. As noble Lords may remember, Schedule 5 forms part of the definition of the legislative competence of the Scottish Parliament and sets out the matters which are reserved for the purposes of the Act. The devolution settlement was always intended to have scope for flexibility. Therefore, Section 30 of the Scotland Act provides a mechanism whereby Schedule 5 can be modified by an Order in Council, subject to the approval of both Parliaments. This allows the boundaries of the Scottish Parliament's legislative competence to be adjusted, either by removing existing reservations in whole or in part, by adding new ones, or by updating existing ones.
§ Under the Postal Services Act 2000 the statutory corporation, the Post Office, is being abolished and its assets and liabilities transferred to a public limited company nominated by the Secretary of State which is wholly owned by the Government. That Act also replaces the Post Office's monopoly with a reserved area. Instead, universal service providers, which are expected to include the new Post Office company and others, may operate in this area of business so long as they have been granted a licence by the Postal Services Commission. That is a new body, established by the 1071 Act, to act as a regulator. The order accordingly amends the reservation of Post Office, posts and postal services at Section C11 of Schedule 5 to the Scotland Act to include the subject matter of the Postal Services Act 2000.
§ It also ensures that the Scottish Parliament can legislate in the future to provide financial assistance for the provision of non-postal services provided from public post offices. The amendments do not make any change of policy in relation to the reservation of postal and related services, but merely bring the existing entry up to date, reflecting the changes made by the Postal Services Act.
§ As far as concerns transport strategies, put simply, this order amends Section E2 and E4 of Schedule 5 to allow the Scottish Parliament to legislate to enable the Scottish Ministers to require Scottish public authorities with mixed devolved and reserved functions exercisable only in Scotland to produce joint transport strategies covering the provision of their rail services and air services respectively.
§ The power in relation to aviation is chiefly of relevance to the Highlands and islands of Scotland. Scottish Ministers would be able to require named local authorities to prepare a joint strategy to, for example, safeguard and develop strategic and lifeline links within the region and to other parts, including particularly matters concerning lifeline air services.
§ These amendments were requested by Scottish Ministers, who plan to cover these matters in the Transport (Scotland) Bill currently going through the Scottish Parliament The devolved power does not cover cross-border public authorities such as the Scottish Rail Passengers' Committee, or reserved bodies such as the Strategic Rail Authority or the Civil Aviation Authority.
§ Article 3(2) of the order amends the reservation of rail transport at Section E2 of Schedule 5. The purpose is to enable the Scottish Parliament to transfer to, or allocate among, any new Scottish transport authorities the same rail responsibilities as any other passenger transport executive. It does not confer powers to create new types of passenger transport executive rail functions. These would continue to be determined by this Parliament. Nor does it include a power over cross-border public authorities or reserved bodies such as the Strategic Rail Authority. This fulfils the commitment, usually known as the "McLeish settlement", made during the passage of the Scotland Bill. 'This was to give the Scottish Parliament legislative competence over the rail responsibilities of Strathclyde Passenger Transport and any similar bodies that may be set up in Scotland in future within the Great Britain framework for railways.
§ Section C5 of Schedule 5 reserves the control of imports and exports, and Section C8 reserves product standards, in each case with certain exceptions. Pesticides are included in the exceptions to each of these reservations.
§ The effect of Article 4 of the order is that the exception for pesticides to each of these reservations will now cover other substances, preparations and 1072 organisms which are treated "as if" they were pesticides by virtue of Part III of the Food and Environment Protection Act 1985. These amendments are necessary to enable Scottish Ministers to make, in their entirety, two sets of proposed regulations—the Control of Pesticides (Scotland) Regulations 2000 and the Plant. Protection Products (Basic Conditions)(Scotland) Regulations 2000.
§ Article 5 of the order also amends the reservation at Section C8 of Schedule 5 on product standards, safety and liability by extending its scope. In the context of standards, accreditation is the process by which an authoritative body gives formal recognition that a body or a person is competent to carry out specific tasks. The sole body recognised by the Government for the accreditation of conformity assessment bodies in the UK is the United Kingdom Accreditation Service. It is particularly important that conformity assessment bodies are accredited by a recognised national accreditation body. Their work can then be recognised by European and other international partners.
§ Accordingly, the order extends the reservation at Section C8 to accreditation in support of trade carried out under Community law and trade matters related to competition. This recognises that, for UK businesses to gain the best competitive advantage, accreditation must be carried out by the sole recognised national body in line with European and international practice.
§ I have spent some time running through the content of the three orders. They are, I hope, uncontroversial adjustments at the margins of the devolution settlement but nevertheless necessary and useful ones. On that basis, I hope that noble Lords will feel able to support the orders.
§ Moved, That the draft orders laid before the House on 2nd and 13th November be approved [30th and 31st Reports from the Joint Committee].—(Baroness Ramsay of Cartvale)
§ 11.25 a.m.
§ The Earl of Mar and Kellie
My Lords, I should like to start my remarks by thanking the noble Baroness, Lady Ramsay of Cartvale, for making available the executive note to these three orders, as provided to the Scottish Parliament. On a previous occasion, had remarked about how much more informative were the Scottish notes. This is a small example of good practice spreading southwards.
We have before us today three "type A" orders, the most heavy duty of orders, requiring, of course, the consent of all three Houses of Parliament. Since the Scotland Act team last met, we have been saddened by the death of First Minister Donald Dewar, a friend to us all. We have to reflect on how providence has determined that Scotland must go forward without his hand on the tiller. I am confident that others will he inspired to take on the task ahead.
The transfer of functions order deals with what can probably be called administrative devolution, which is, of course, not new at all. Scottish Ministers are to be involved with the granting of consent to developers 1073 for the laying of gas pipelines and to approve compulsory purchase orders to enable that to happen, if necessary. For some reason, Transco seems to have been left out of the devolution process; that is, until now. Furthermore, environmental assessments will be required for all pipeline consents. This should ensure that pipeline works do not scar the landscape for more than the essential and temporary period.
Scottish Ministers are also to assume powers to put in place "renewables obligations". This gives them the opportunity to be innovative in this very necessary area of research and development into new forms of energy. Although this may be casting a little wider than what is specified in the order, I hope that it will include biodiesel, because that would be a useful non-food crop into which farmers could diversify.
The Regulations of Investigatory Powers Act is coming to Scotland and Scottish Ministers will have the powers to grant warrants for the interception of communications as regards persons and premises, and for the intrusive surveillance of residential premises and private vehicles. These reluctant powers should assist with the detection of crime and the gathering of criminal intelligence.
Finally on this order, it is good to know that Scottish Ministers will be handing out the strychnine. SERAD will continue to use permits for the control of moles and foxes.
The cross-border authorities order takes us into the world of public bodies with so-called mixed functions—either devolved and reserved, in Scotland and elsewhere, or both. The British Waterways Board and the IWAAC will have a new master in Scotland, the Scottish Executive. The DETR will transfer resources to the Scottish Executive for those purposes. Inland waterways have of course been devolved since the Scotland Act was passed. Canals are on the move in Scotland, somewhat belatedly. Ambitious plans for the repair and restoration of navigation on the Forth and Clyde and Union canals are already under way. It is hoped that the Lowland canals will start to make an impact again on the economy of central Scotland. Certainly, as a canoeist and small boater, I look forward to the increased recreational opportunities, but I hope that there might also be some return of commercial traffic.
For the Royal Commission on Environmental Pollution, there is clarification that Scottish Ministers can refer matters to the Royal Commission. For the Fire Services Education Board, there is clarification that the Scottish Executive will make a proportionate contribution to the board's funding, as well as recommending appointments to the board.
Lastly on this order, Scottish Ministers are given the right to give their consent to the regulation-making powers of the three bodies responsible for plant varieties and seeds. That is very appropriate given the large volume of plant research undertaken in Scotland.
Finally, we revisit our old friend Schedule 5, the list of powers reserved to Westminster. There is clarification that the Scottish Parliament can fund the 1074 non-postal services of the Post Office, or whatever name we shall be using for the Post Office after the implementation of the Postal Services Act. Given the pivotal nature of postal premises in all communities—urban, rural and remote—there are considerable opportunities for creativity in information, transport and for the reduction of non-domestic rates.
Scottish Ministers will gain the power to require Scottish public authorities to produce joint transport strategies for rail and air services, both largely reserved matters. As it has been announced that my home town of Alloa is shortly to be reconnected into the passenger rail network, I can certainly see the advantage of a strategic approach to Scottish regional transport planning. To further this, the Scottish Parliament will be able to confer PTE-style functions on joint transport authorities; presumably the Lothians and Fife area is ripe for such a new strategic status.
The mixed bag of measures in the order clarifies the devolution of pesticides and reserves the accreditation of product standards. This latter is an essential part of the control of the single British market and its interface with the EU.
These three orders will place more work before Scottish Ministers and the Scottish Parliament. I instinctively approve of measures which have a positively devolutionary flavour.
§ The Duke of Montrose
My Lords, perhaps the Minister can clarify one matter for me. My understanding is that strychnine for poisoning foxes is, at the moment, illegal. Is the Minister saying that the power to make it legal or illegal is now being transferred to the Scottish Minister?
§ Lord Selkirk of Douglas
My Lords, I congratulate the Minister on her excellent presentation of these orders. We see them as tidying-up measures and warmly welcome them.
Can the Minister confirm that in future, whenever reserved powers are under consideration because of the evolving situation, they will be kept closely under review and, should any conflicts arise, that further tidying up measures will be brought forward to deal with them?
§ The Earl of Northesk
My Lords, like the noble Earl, Lord Mar and Kellie, I am grateful to the noble Baroness for making arrangements for the executive notes to be available to us. They have been very helpful and have certainly made it easier for us to understand these orders.
The noble Baroness will perhaps be aware that I am not a great admirer of the Regulation of Investigatory Powers Act, which seems to be worming its way into many aspects of our legislation.
I have one question and one observation. My question is this. At Article 4(3)(a) of the transfer of functions order, the phrase "preventing disorder" is used in defining the scope of the Wireless Telegraphy 1075 Act 1949. Can the noble Baroness confirm that this is consistent with, and not in any way in addition to, the scope?
As to my observation, your Lordships will be aware that there are serious concerns about the legality of the Regulation of Investigatory Powers Act, which is currently under investigation by the European Commission as being in breach not only of directives but of treaties. I merely observe that, in the event that it is ruled illegal, the process of unpicking it will now reach to Scotland as a result of that order. I trust that the Government are comfortable with that prospect.
I look forward to hearing the Minister's answers to the questions of my noble friends. Notwithstanding my own quibbles, I noted the observation of the noble Baroness that these orders are,uncontroversial adjustments at the margins".We on these Benches accept that assessment.
§ Baroness Ramsay of Cartvale
My Lords, I thank noble Lords opposite for welcoming the distribution of the executive notes. If this practice is as helpful as I had hoped it would be—and, from the reactions of noble Lords, it seems that it is—we shall try to continue it and make sure that notes are available to noble Lords on the Front Benches; it is to be hoped that they will then make them available to Back-Benchers who have an interest in the subjects under discussion.
I thank the noble Earl, Lord Mar and Kellie, for welcoming the orders. He asked me one or two specific questions. As to whether the renewables obligation will include biodiesel, the content of the renewables obligation is a matter for Scottish Ministers. It concerns electricity production and the issue of biodiesel may be less relevant. The noble Earl was good enough to say that his question about biodiesel was far outside the subject of renewables. The order is about renewables and does not include biodiesel, but, of course, if Scottish Ministers wish to consider it, they will no doubt do so.
I was happy for the noble Earl—and, indeed, for the people of Alloa—to hear what sounds like good news about their future transport arrangements. In general, I am happy that he welcomed the three orders. Like him, share a positive approach towards devolution. The whole point about devolution is that, wherever possible, power should go to the devolved structures. That is what subsidiarity, efficiency and so on are all about.
The noble Duke, the Duke of Montrose, asked about: strychnine. This order will executively devolve the authorisation to purchase strychnine. If authorised, of course, it would not be illegal. However, as I hope I made clear, so far as it concerns foxes, strychnine is very much a question of rabies control. That is a matter for the Scottish Executive and the necessary means of control must be available to Scottish Ministers. That is why the ability to authorise the sale of strychnine for moles and foxes is being devolved to Scottish Ministers. I hope that that answers the point.
1076 The noble Lord, Lord Selkirk of Douglas, spoke about reserved powers. I am grateful to him for what he said about these orders. We all appreciate—no one more so than the noble Lord, Lord Selkirk, and one or two other noble Lords who are Members of this House and very much part of the process of the Scottish Parliament—that, as both Parliaments progress, we are very much in a learning process of how to deal most efficiently with adjusting the interface. I hope that the noble Lord will agree that it seems to be going along remarkably well from both points of view.
I appreciate the spirit in which the noble Earl, Lord Northesk, accepted our assurance that these are amendments and adjustments which have proved necessary through experience as we go along the path of learning. As to his specific question of whether the orders are consistent with all the points he made, the answer is yes, they are completely consistent.
I think and hope that I have dealt with all the points raised. I shall, of course, be happy to write to any noble Lord who feels that I have not. On the assumption that your Lordships are now content with the orders, I commend them to the House.
§ On Question, Motion agreed to.