Delegated Powers and Law Reform Committee

Meeting date: Tuesday, May 30, 2017

Official Report 326KB pdf

Forestry and Land Management (Scotland) Bill: Stage 1

The purpose of agenda item 5 is to consider the committee’s approach to the scrutiny of the delegated powers in the bill at stage 1. The item gives the committee an opportunity to identify matters that it might wish to raise with the Scottish Government in relation to those powers.

The bill’s overall policy aim is to complete the devolution of forestry by transferring to the Scottish ministers the powers and duties of the Forestry Commission, in so far as they relate to Scotland, and to provide a modern statutory framework for forestry in Scotland. That framework will replace the application in Scotland of the Forestry Act 1967, which currently governs forestry in England, Wales and Scotland.

It is suggested that the committee might wish to raise four questions with the Scottish Government about the delegated powers in the bill.

Section 24 gives the Scottish ministers a power to make regulations that set out exemptions to the offence of unauthorised felling. Regulations that are made under section 24 may provide that the offence provision does not apply to particular categories of person; particular places or activities; particular circumstances; and trees of particular descriptions. Regulations that are made under section 24 may also modify any enactment, including the act that flows from the bill. As the Government acknowledges in its delegated powers memorandum, the exemptions under the section are key to determining which situations will be caught by the forestry regulatory regime in the bill, and that in turn will establish when the act of felling might amount to an offence under the bill.

Does the committee agree to ask the Scottish Government why it is considered appropriate in section 24 to take a power to create exemptions from the offence of unauthorised felling that section 23 provides for, rather than providing for such exemptions in the bill? Does the committee also agree to ask the Scottish Government to explain why that approach is considered to strike an appropriate balance between primary and secondary legislation and to ask it to consider whether the alternative approach of setting out initial exemptions in the bill and having a power to amend those exemptions by regulations could strike a more appropriate balance?

Members indicated agreement.

Section 27(7) gives the Scottish ministers a power to set out in regulations further provision in relation to decisions on applications for felling permission. Such regulations may include, but are not limited to, provision about power for the Scottish ministers to enter land in order to make a decision about the application; how decisions are to be notified; the imposition of conditions on felling permission; and situations in which persons who have made an unsuccessful application for felling permission may be restricted from making a further application in relation to the same circumstances.

The delegated powers memorandum concludes that, given the administrative nature of the regulation-making power in section 27(7), the negative procedure provides an appropriate level of scrutiny. Despite the non-exhaustive list that is provided in that section, it is not immediately clear whether the exercise of the power would be limited to matters of purely administrative detail or whether the power could be used to make provision in relation to the way in which such decisions should be taken by the Scottish ministers. If the latter is the case, that would appear to go beyond purely administrative provision, and use of the power could have a significant effect on those who apply for felling permission.

On that basis, does the committee agree to ask the Scottish Government for further clarification as to how the power is intended to be exercised?

Members indicated agreement.

Section 29 provides that a person who suffers loss as a result of a decision by the Scottish ministers to refuse an application for felling permission is entitled to compensation in accordance with regulations that are made under subsection (2). Section 29(2) provides that such regulations may include, but are not limited to, provision about persons who are entitled to compensation; the procedure for applying for compensation; information to be included in applications; the way in which compensation is to be determined; the way in which disputes about compensation are to be determined; and detail on appeals against compensation.

The delegated powers memorandum concludes that, given the administrative nature of the regulation-making power in section 29(2), the negative procedure provides an appropriate level of scrutiny. Section 29(2) provides that regulations that are made under that section may include, among other things, provision about persons who are entitled to compensation. To the extent that that could extend to provision that sets out in what circumstances persons may or may not be entitled to compensation, which would affect the scope of the compensation provision that is made by section 29(1), that would appear to go beyond purely administrative provision, and use of the power could have a significant effect on persons who suffer loss as a result of a refusal by the Scottish ministers to grant felling permission.

On that basis, does the committee agree to ask the Scottish Government to provide further clarification as to how the power is intended to be exercised? Does the committee agree to ask, in particular, for an explanation of the policy intention behind the taking of a power to make provision about persons who are entitled to compensation, and how that is intended to interact with the provision in section 29(1) that a person who suffers loss as a result of a decision by the Scottish ministers to refuse an application for felling permission is entitled to compensation in accordance with regulations that are made under section 29(2)?

Members indicated agreement.

It is also suggested that the committee might wish to raise a question about the power that is delegated to the Scottish ministers under section 64, although it is not a power to make subordinate legislation. That section gives the Scottish ministers a power, for the purposes of, or in connection with, the carrying out of their functions under the bill, to impose charges of such amounts as they consider appropriate.

Does the committee agree to ask the Scottish Government to explain the policy intention behind the taking of the power in section 64 for the Scottish ministers to impose charges of such amounts as they consider appropriate, for the purposes of, or in connection with, the carrying out of their functions under the bill? In particular, does the committee agree to ask for an explanation of the circumstances in which the power might be exercised and of the types and levels of fees that might be imposed under section 64? Does the committee also agree to ask the Scottish Government to consider whether taking a power to impose such charges by way of executive action—as opposed, for example, to a power to set and amend charges by way of subordinate legislation—is appropriate?

Members indicated agreement.

I thank members for their forbearance.