Environment and Rural Development Committee, 07 Dec 2005

Meeting date: Wednesday, December 7, 2005

Official Report 291KB pdf

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Subordinate Legislation

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Plant Health Fees (Scotland) Amendment Regulations 2005 (SSI 2005/555)<br />Less Favoured Area Support Scheme (Scotland) Regulations 2005 (SSI 2005/569)

For agenda item 3, we have two instruments to consider under the negative procedure. We discussed the instruments last week and the committee decided to defer consideration of them to allow the minister to get back to us on a number of issues that members raised. We have received a response from the minister, which has been circulated.

Do members have any comments on the plant health fees instrument? Elaine Smith raised particular questions: are you happy with the minister's response?

I was able to read it only on the internet last night—I was not able to print it—but I think that it answers most of the questions. I remain slightly concerned about illegal imports, although I believe that that issue has been touched on. However, I accept most of the minister's answers. We should move on with the instrument.

Do any other members wish to comment on the plant health instrument?

No.

The second instrument to be considered under the negative procedure concerns the less favoured area support scheme. Both Rob Gibson and Alasdair Morrison raised issues last week. Are you happy with the minister's response?

The last section in Ross Finnie's letter is headed "Information on payments of agricultural subsidies".

At least two members of the committee have suggested that such information should be available to the public. The second last sentence in the section is:

"Our position is different from that taken by DEFRA because of different views on the requirements of the Data Protection Act".

The Data Protection Act 1998 is United Kingdom legislation and is applicable to all parts of the United Kingdom. I am not sure how a sub-state Government can take a different view from the national sovereign Government.

Rob, you also raised the question last week. Do you have any thoughts, having seen the minister's letter?

Indeed. At our meeting of 12 January, Ross Finnie said:

"We have not yet come to a view on what is the most appropriate way in which to do that, as we have not been able to discuss the matter as yet with the relevant people."—[Official Report, Environment and Rural Development Committee, 12 January 2005; c 1479.]

My question on the letter relates to the first paragraph of the section that is headed, "Information on payments of agricultural subsidies", in which the minister says:

"I announced last January that we would be releasing subsidy information on the new Single Farm Payment and the new Rural Development Regulation schemes. We expect to be doing that shortly after payments commence, probably early January 2006."

Although the LFASS payments seem to fall within the rural development regulation schemes, I would like to have that confirmed. I would also like the minister to confirm that, in the light of what he said last January, publication will be per applicant and not by parish as was the case in the past. Despite the minister's letter, I still do not have a clear answer to the question.

Okay. After we received the letter from the minister, Mark Brough, our clerk, went back to the Executive to ask for further clarification. I ask him to bring us up to speed on the Executive view.

The explanation that I got from officials is that a distinction is made between past subsidy information and that which will apply to future schemes. The Executive's position is that it is not appropriate to identify subsidy information for individual past claims because applicants were not forewarned that their details would be used in that way.

However, officials confirmed that information on individual payments under the new single farm payment scheme and the rural development regulation schemes—which include the land management contracts—will be published from January 2006 when the payments begin. Applicants to those schemes will be forewarned that their details will be used in that way. Officials also said that no decision has yet been taken on how that will apply to the less favoured area support scheme.

In other words, the minister did not answer our question clearly. We are mystified—or at least I am—as to why we are still unable to access individual information a year on from when the minister appeared before the committee. We should find out why. It would be a dereliction of our duty for us to pass this SSI before we have that information. We ought to have the information, especially if DEFRA can release it.

That reinforces my point. How can the Scottish Executive—a sub-state Government—take a different interpretation of UK legislation? The information that the Executive has given us does not answer the question why the Data Protection Act 1998 is being interpreted and applied in England and Wales differently from in Scotland.

Mark Brough is just whispering in my ear that the freedom of information commissioner has been asked to determine whether information can be released under the LFASS. Is that for past or future schemes?

We are not 100 per cent sure.

We know that the issue is with the freedom of information commissioner. Ross Finnie's letter does not comment on that, so we do not have the Executive's view on the matter.

We are in a difficult position. Today is the last day when we can make our report on the regulations to the Parliament. We stretched out the process to try to get more information from the minister. However, we do not want to stop the passage of the regulations because that would stop payments under the scheme.

The convener is correct; that is the responsible position to adopt.

Right. It may not be desirable for us to stop the regulations. Mark Brough has just informed me that another LFASS instrument will come before us in the next few weeks, which gives us the potential to return to the issue when that instrument appears on our agenda.

I think that members want to record our general sense that the information should be in the public domain. I think that we also want to say that we cannot understand why interpretation of UK legislation should be different in Scotland from interpretation in England and Wales. I propose that we pass those comments to the minister and say that, given that we have been waiting for such a long time for a direct answer on the matter, we hope that it will be clarified before the next LFASS regulations come before the committee. Are colleagues happy with that interpretation of our views?

Yes, very.

Yes, but with the caveat that the matter might never be determined until there is some case law. Such legislation is subject to interpretation, which is firmed up by court judgments.

My difficulty with the minister's response is that I do not know why UK legislation is being interpreted differently—

Perhaps because it has not been challenged in court there is no case law and therefore no judgment by the courts on which interpretation is correct.

The minister says:

"Our position is different from that taken by DEFRA because of different views on the requirements of the Data Protection Act regarding the processing of personal information."

What Nora Radcliffe said does not really answer that point.

I can see how the situation can arise, but I do not know how it can be resolved.

We are talking about a policy issue that centres on how legislation should be interpreted. Any challenge to the interpretation would result in case law. However, the minister seems to be saying that DEFRA and SEERAD hold different views on how the Data Protection Act 1998 should apply in this case.

But the civil servants who are involved are all members of the same body.

From what the minister has told us and from what we know of the current position, I do not think that we can interpret anything. We have not received the clarity on the LFASS that we really wanted after what happened last week. The response provides extra information on the single farm payment and new rural development regulation schemes, but we received all that last January. We now know that when payments commence in January 2006, that information will be made public, but we do not have any information on the LFASS.

I wonder whether it would be appropriate to write to the Scottish information commissioner for an estimate of when there will be a determination on the case; if it is made in the next couple of weeks, it might well inform debates on the Scottish statutory instruments that will be laid before Christmas. However, if the determination is some way off, it will be some time before we get the information.

One fundamental point should be highlighted. We are talking about different interpretations of UK legislation in different parts of the UK. It would be unthinkable for the Treasury and Her Majesty's Revenue and Customs to apply taxation laws differently in Scotland or, indeed, for legislation relating to road traffic offences or the Driver and Vehicle Licensing Agency to have a different application here. The involvement of the information commissioner is a separate although important issue; the main issue is interpretations of legislation by the same civil service in the UK.

I do not think that we can go much beyond—

I am sorry, convener—I wanted to say that you have outlined the correct and responsible approach to take. We should not delay things. The payments have to be made, but we need clarification on Mr Finnie's letter.

That is what I have proposed. We can certainly find out from the information commissioner how long any determination is likely to take.

Last January, Ross Finnie said:

"we are not entirely clear on the matter, because of the way in which the regulations are worded—indeed, our lawyers are wrestling with that problem."—[Official Report, Environment and Rural Development Committee, 12 January 2005; c 1478.]

We should make it clear to the information commissioner and the minister that the lawyers have been wrestling with the determination for far too long.

That particular interpretation issue, which was more to do with the rural development regulation schemes, has been clarified. The outstanding issue concerns the LFASS.

I think that we are all of one mind on the matter: we will raise our points with the minister, and expect responses to them. After all, the issue has been outstanding for an incredibly long time.

Notwithstanding those comments on the LFASS, are members content with the instruments and happy to make no recommendation on them to Parliament?

Members indicated agreement.

I suspend the meeting briefly to allow the minister to come to the table for item 4.

Meeting suspended.

On resuming—

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Contaminated Land (Scotland) Regulations 2005 (Draft)

Agenda item 4 is consideration of more subordinate legislation. The draft Contaminated Land (Scotland) Regulations 2005 are subject to the affirmative procedure. I welcome to the committee Rhona Brankin, who is the Deputy Minister for Environment and Rural Development, and her officials.

Parliament must approve the draft regulations before the Scottish statutory instrument can be made. We have a motion in the name of the deputy minister that invites the committee to recommend to Parliament that the draft regulations be approved. Members have a copy of the draft regulations, the Executive note and the regulatory impact assessment. The Subordinate Legislation Committee has made brief comments on the draft regulations and members have a copy of an extract from its 43rd report of 2005.

Before we move to the debate on the motion, we have the opportunity to clarify any purely technical matters or to get explanations of detail while the officials are at the table. Once the motion has been moved, the officials cannot participate in the debate. I invite the deputy minister to introduce her officials and to make any opening remarks. Once we have had asked questions or asked for points of clarification, we will debate the motion.

I am accompanied by Barry McCaffrey and Bob Cuthbertson from the Scottish Executive, and by Caroline Thornton from the Scottish Environment Protection Agency.

Do you want to make opening remarks or shall we move straight to questions?

I would like to make some opening remarks, but I do not know whether it is appropriate to make them at this juncture.

You could make some brief comments now, but we will have the formal debate later on.

Would it be more appropriate to keep my remarks for the debate?

Yes, if you want.

That is fine.

Do colleagues have points for clarification or questions?

The minister will be aware of the situation at Longannet, where it will no longer be possible to burn sewage sludge from 26 December. How do the draft regulations relate to the alternative option for dealing with sewage sludge, which is to put it on contaminated land for remediation purposes? Will the draft regulations impact on that activity in any way? Do they relate to regulation under the Water Environment and Water Services (Scotland) Act 2003?

I do not think that the draft regulations will have any direct impact on the issue at Longannet. The activity of spreading sludge on land may engage other appropriate controls if that waste is to be dealt with under the Waste Management Licensing Regulations 1994 (SI 1994/1056). If the activity in question could impact on the water environment, it may be subject to regulatory control under the Water Environment (Controlled Activities) (Scotland) Regulations 2005, which will also come into force in April next year.

The draft regulations apply to land that would fall under the contaminated land regime. As has been stated, there are other regimes, such as the Water Environment and Water Services (Scotland) Act 2003 regime, of which the Water Environment (Controlled Activities) (Scotland) Regulations 2005 are a part.

Are the draft regulations intended to implement that regime for contaminated land?

The draft regulations will update the contaminated land provisions in part IIA of the Environmental Protection Act 1990 to reflect the terminology that is used in the Water Environment and Water Services (Scotland) Act 2003. They are not intended to displace the existing controls that may be engaged to regulate activities that might impact on the environment. For example, if the spreading of sludge were to impact on the water environment, the Water Environment (Controlled Activities) (Scotland) Regulations 2005 would normally come into play to regulate that activity.

If you are talking about activities that involve the handling of waste in circumstances in which the Waste Management Licensing Regulations 1994 may come into play, then—as the minister said—controls are in place to regulate activities that might impact on the environment at large.

We have regulations on the use of sewage sludge in agriculture, but we do not have specific regulations on the use of sludge on contaminated land. Is it correct that the draft regulations do not cover that? We have the waste management licensing regulations but there are no regulations specifically about the use of sludge on contaminated land.

That is not specifically covered in the draft regulations. The provisions in part IIA of the Environmental Protection Act 1990 are designed to ensure that there is a regime to deal with the significant contamination of land in circumstances in which other enforcement regimes or regulatory regimes are not engaged.

Do you intend to introduce regulations on the use of sludge on contaminated land to meet the agriculture sludge use regulations or do you regard the draft regulations, in conjunction with the controlled activities regulations, as being adequate?

We regard the draft regulations as part of a package or as one of the tools in the toolbox. We can use them when it is appropriate to do so, but the controlled activities system under the Water Environment and Water Services (Scotland) Act 2003 also contains a series of controls.

I am sorry that I did not bring my copy of the Waste Management Licensing Regulations 1994 this morning, but I believe that they contain provisions on spreading sludge on land. A system is in place to license that activity and to issue exemptions in appropriate circumstances. It is fair to say that the draft Contaminated Land (Scotland) Regulations 2005 are not intended per se to regulate activities such as spreading sewage on land; rather, they are intended to update provisions that allow appropriate remediation powers to deal with cases of significant contamination of land. As the minister said, the regulations are an extra tool in the box and they will sit on top of other regulatory controls that already regulate activities on land that might impact on the environment at large.

I hesitate to use the phrase "watering down" in this context, but in no way could the draft regulations be described as a watering down of the regime. The change that we are bringing forward today is largely a technical change that will help to clarify matters to local authorities and other bodies that are involved in the contaminated land regime. I reassure members that the regulations will in no way lessen the existing pollution control framework.

Okay. We will return to the matter in the new year when we consider some public petitions that have come to the committee, but for now I am happy with those comments.

My reading of the draft regulations is that they seek to change the wording so that it is consistent throughout the legislation. They will not change the regulatory powers or provisions but will clarify that, when SEPA acts, a local authority would not act, and vice versa. Is that reading of the instrument accurate?

Yes. In essence, different pieces of legislation apply. In cases of more significant pollution—for example, where there is historic contamination of land—the contaminated land regime applies. We are making it clearer to bodies that are required to designate land as contaminated—such as local authorities—what the trigger mechanism would be. We want to make sure that the legislation is clear about that; that is the basis on which we bring the regulation to the committee.

There are no technical points or points for clarification. In that case, I ask the deputy minister to move the motion in her name.

I would like to offer a bit more clarification. The Contaminated Land (Scotland) Regulations 2005 (Draft) propose amendments to part IIA of the Environmental Protection Act 1990 and consequential amendments to the Contaminated Land (Scotland) Regulations 2000. The purpose of the proposed changes is primarily to prevent disproportionate regulation being applied to contaminated land that causes only trivial amounts of pollution to the water environment and to align the contaminated land regime and the relevant provisions of the Water Environment and Water Services (Scotland) Act 2003.

Under current definitions, land is contaminated if it contains polluting substances that either cause, or are likely to cause, significant harm to human health or to the wider environment. Land is also considered to be contaminated if it contains substances that cause, or are likely to cause, pollution to controlled waters. That means that although actual or possible harm must be significant, any degree of pollution or likely pollution of controlled waters may result in the polluting land being designated as contaminated. In order to remedy that anomaly, the draft regulations will amend the present definition of contaminated land. The amendment will ensure that the contaminated land regime will apply to land only where significant pollution is being caused, or is likely to be caused, to the water environment.

We are also taking this opportunity to modify the contaminated land regime to bring it into line with the provisions of the Water Environment and Water Services (Scotland) Act 2003. The purpose of the amendments is to accommodate changes in terminology—replacement of the definition "controlled waters" in part IIA of the Environmental Protection Act 1990 with "water environment". Our purpose is also to ensure consistency of approach in the operation of the pollution control regimes that are provided for under part IIA of the Environmental Protection Act 1990, and under the 2003 act, regarding contaminated land as a source of water pollution.

The committee might be interested to know that it is my intention to draft statutory guidance to accompany the regulations when they are laid before Parliament for consideration. For that reason, suitable provisions to amend the existing guidance-making powers are also proposed.

I emphasise that the amendments will place no additional financial burdens on the regulatory bodies, local authorities or SEPA. Land that causes only trivial amounts of water pollution will no longer come within the scope of the contaminated land regime. That will result in the removal of any potential remediation costs that would fall on the regulatory bodies for sites that might previously have met the definition of contaminated land. Similarly, the draft regulations will place no additional financial burden on people who own or who occupy contaminated land or who may be liable for dealing with contamination.

To conclude, the proposed regulations introduce operational and technical amendments to the contaminated land regime. The present arrangements for implementing and enforcing the regime as set out in the earlier legislation will continue. The amendments that are introduced by the draft regulations will have no material impact on those arrangements, but will provide clarification on certain aspects of the regime with regard to pollution of the water environment and its interaction with the 2003 act.

It is important to say that the protection of human health and the environment remain our top priorities, and that nothing that we propose today compromises that. I commend the regulations to the committee.

I move,

That the Environment and Rural Development Committee recommends that the draft Contaminated Land (Scotland) Regulations 2005 be approved.

I open the meeting to debate. We have up to an hour and a half, but I would not look kindly on anyone who took the meeting on that long.

This contribution may be facetious, but we could probably take an hour and a half to discuss the meaning of "significant".

Will the minister have a chance to sum up at the end?

Yes—at my discretion.

I wonder whether the guidance will attempt to define "significant". I am sorry, convener—I am now raising questions that I should probably have raised before. These things are always topsy-turvy.

When I read the regulations, I found them hard going; when I read the Subordinate Legislation Committee's report on the regulations, I found that hard going as well. The minister's comments about statutory guidance are welcome. Because we are talking about amendments to existing regulations, it is pretty hard to follow what the changes are. Anyone who has to apply the regulations would welcome an easy read giving a boiled-down interpretation of what the changes mean. Without such an interpretation, they would find the regulations hard going. You say, minister, that there will not be any significant regulatory burden on anyone, but people should know exactly what the regulations mean and how they will be applied.

Mark Ruskell spoke about the relationship between these regulations and the other ways of controlling activities—activities such as dealing with sewage sludge. People have to know which regulations apply. I therefore welcome the fact that the minister will produce guidance. That will be of help to everybody.

I am remembering the Environmental Assessment (Scotland) Bill and getting a sense of déjà vu. I reinforce what Maureen Macmillan said: the definition of "significant" will obviously be significant. A robust definition is required because we do not want to create loopholes.

As no one else wants to contribute, I ask the minister whether she wants to respond to those comments.

I agree that it is important that the regulations clarify what is meant by "significant"; they will be designed to do that. I understand that the regulations will come back to this committee and that the guidance will have to be approved. Committee members will therefore have a chance to look at it.

Hold me back.

I am sure that you are looking forward to that, Mr Morrison.

More legislative litter perhaps.

One at a time.

I also take the convener's point about the need for an easy read. This is a complex subject and the purpose of the regulations is to clarify it for the stakeholders as they try to decide which piece of legislation affects them. I accept that there should be clarification of the relationship between these regulations and other waste-control regulations.

I take on board all the points that have been made.

Motion agreed to.

That the Environment and Rural Development Committee recommends that the draft Contaminated Land (Scotland) Regulations 2005 be approved.

I thank the minister and her officials, and ask her to remain for item 5.