Environment and Rural Development Committee, 22 Jun 2005

Meeting date: Wednesday, June 22, 2005

Official Report 313KB pdf

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Natural Environment and Rural Communities Bill

The Deputy Minister for Environment and Rural Development and his officials have arrived, so we move on to item 4, which is consideration of proposed United Kingdom legislation. The minister advised the committee that the Executive intends to seek the Scottish Parliament's consent to the UK Parliament legislating on certain devolved matters—[Interruption.] I ask members to allow me to continue; we must scrutinise the matter and the minister is here. The Natural Environment and Rural Communities Bill, which is being considered by the Westminster Parliament, contains provisions on cross-border public bodies.

Under the Sewel convention—there is a debate about whether we should continue to use that term—the UK Parliament seeks the consent of the Scottish Parliament before legislating on devolved matters. At our meeting on 1 June, we agreed to consider the bill before the Parliament considers the Sewel motion. We decided to invite the minister to give oral evidence and to seek written evidence from interested parties. Members have copies of the Executive's memorandum on the bill and the written submissions, as well as an extract from the minutes of the Westminster Environment, Food and Rural Affairs Committee, which is scrutinising the bill—I found the extract helpful.

Without further ado, I welcome Lewis Macdonald and his large team of officials—I do not know what questions he anticipates having to answer. Ross Finnie was unavailable today; he is on his way back from Brussels, where I think he attended a meeting of the agriculture and fisheries council. I invite Lewis Macdonald to introduce his officials and make a short opening statement, after which members may ask questions.

Thank you. I am accompanied by an unusually large delegation, not—I hasten to add—because of the substance and weight of the matters that we are considering but because of the range of areas in relation to which the bill's provisions will have relatively minor and consequential impacts, which it is important that we should be able to address. Scott Carmichael and Callum Percy can comment on the environmental aspects of the provisions; Aileen Bearhop can comment on the agricultural aspects; and Pamela Stott, who is from the Enterprise, Transport and Lifelong Learning Department, can comment on the provisions that relate to water.

I will quickly go through the impacts of the bill. Clearly, the bill is concerned mainly with matters affecting other parts of the United Kingdom. On the Joint Nature Conservation Committee, in which Scotland is a partner, the main changes in the bill relate to England and to the extension of the JNCC to take in Northern Ireland. Through the Sewel motion, we are taking the opportunity to clarify the basis on which the JNCC advises Scottish ministers and might also lay reports before the Scottish Parliament.

The Sewel motion allows the removal of the word "amenity" from the name of the Inland Waterways Amenity Advisory Council in order to reflect more accurately the role that it now plays in relation to our canals. Its advisory role will now extend beyond amenity to cover other matters such as urban regeneration, freight and environmental impacts, on which it will advise Scottish ministers. We have also taken the opportunity to remove the statutory link between the advisory council and British Waterways, to reflect the fact that the advisory council's primary role now is to provide advice to ministers rather than to the British Waterways Board.

As a consequence of measures that are potentially being taken forward at a UK level, the Sewel motion allows the opportunity to amend the bill to enable British Waterways to sell water to businesses and industry in Scotland, which achieves three aims: it increases commercial activity on our canals; it secures environmental benefits, which will be possible because, as a canal manager, British Waterways is in a strong position to act as a supplier of grey water; and it brings consistency, as British Waterways, which is a cross-border body, already has such powers in England and Wales.

The other measures in the bill, as reflected in the Sewel motion, are relatively minor. The bill creates a power to dissolve existing levy boards and establish new ones in agricultural sectors, thereby avoiding any significant delay in implementing the recommendations that we are expecting to come out of the current review of levy boards, which is expected to be completed in the next few months. UK and Scottish ministers will have powers jointly to abolish such boards or to establish new ones, including one that would cover Scotland alone. Clearly, any such measures will require parliamentary approval and the purpose of the Sewel motion is not to pre-empt the recommendations of the review but to enable them to be carried out.

We are also taking the opportunity to remove a number of obsolete committees from statute across the UK, such as consumers committees, committees of investigation and the Hill Farming Advisory Committee for Scotland, as the purposes for which those committees were established are no longer relevant or their purpose is being met in other ways.

Among the measures of a minor or consequential nature, we want formally to extend the purposes of national and local nature reserves for wider public enjoyment. Under the National Parks and Access to the Countryside Act 1949, the statutory position is that those reserves are for the study of and research into matters relating to the fauna and flora of Great Britain or the preservation of the same; there is no recognition that they are also used by the public for other things. The measure will not change the use of nature reserves but will formalise the current position.

I think that members will agree that most of those measures are relatively limited in their implications for the general public in Scotland and, in the main, serve only to tidy up or consolidate matters. However, they make administrative mechanisms more efficient, which is the basis on which I commend them to the committee.

As I mentioned earlier, we have quite a few submissions from various organisations because we put this matter out to consultation.

I would like to clarify a point relating to levy boards. Out of the five, I am a contributor to three and I am perfectly happy to continue on that basis. My question relates specifically to the function of Quality Meat Scotland, which I understand took on some of the responsibilities of the Scotch Quality Beef and Lamb Association and the Meat and Livestock Commission. Is that interpretation correct? How will that operate? Will the bill affect the arrangements in Scotland?

The interpretation is correct that Quality Meat Scotland has acquired some of those powers. Aileen Bearhop is familiar with the detail.

QMS has delegated powers from the MLC; changes were made a couple of years ago. The remit of the review that is under way says clearly that QMS will not change, so the arrangements that are in place will not change as a result of that review. The bill provides the potential for change in the future, but that is certainly not intended at the moment.

We have had several representations about various aspects of the Sewel motion. I will discuss the Scottish Environment Protection Agency's submission before I talk about the submission from the Scottish Inland Waterways Association. SEPA's submission says:

"It is not readily apparent, from anything in"

part 3

"or other parts of the Bill, what the geographic coverage of, for example, the biodiversity duty or the pesticide control measures is intended to be … In SEPA's view, it would be undesirable for public bodies in Scotland to be subject to two similarly worded duties for biodiversity, with varying levels of responsibility. Similarly, clarification of the geographic coverage of the pesticide powers is necessary to identify whether they apply in Scotland."

What is your response? It is clear that SEPA has concerns, which I certainly share. Is it necessary to amend the bill?

I do not think so. My reading of SEPA's submission was not that SEPA had substantial concerns.

I cannot quote chapter and verse, but I understand that those provisions do not apply to Scotland.

Further clarification might be needed, because the committee takes seriously what SEPA says.

If I recall correctly, SEPA did not say that the provisions applied to Scotland. I think that it was referring to matters that do not apply to Scotland.

SEPA's submission says:

"The NERC Bill should therefore make clear that the geographic coverage of this duty does not include Scotland."

The quotation that Richard Lochhead read out relates to that point, which it would be useful to clarify.

I see the point. In a sense, the devolution settlement is the answer. It is clear that the responsibility for setting a biodiversity duty lies with the Scottish ministers and has been met under the Nature Conservation (Scotland) Act 2004.

Perhaps the committee can reflect on that afterwards.

The second issue on which we have received pretty strong representations is the proposal to establish an inland waterways advisory council, which would basically be the existing advisory body renamed with some other changes. The representations that we have received from the chairman, the membership secretary and a member of the Scottish Inland Waterways Association, among others, are that they do not trust a UK advisory body to look after Scotland's interests and to give the Scottish ministers appropriate advice on relevant matters, because the body will be based outwith Scotland and it is presumed that its members will mainly be from outwith Scotland and will not be familiar with the Scottish situation, which is distinct from that of waterways elsewhere in the UK.

The association's chairman, Robin Black, says:

"with 2000 miles of waterway to deal with in England and Wales they do not have sufficient interest or knowledge of the Scottish waterway system to devote the time or the effort needed to deal adequately with the situation up here."

He also says that the only effective set-up could be one that is

"constituted in Scotland with members who are fully aware of the Scottish waterways situation, their beauty, their potential and the problems associated with their operation. This is not achievable with an English based body even with a token Scottish representation."

The other people whom I mentioned make similar representations. Michael Coates, who is one of the association's members, says:

"The proposed ‘Sewel Motion' would seem further to complicate matters".

He refers to complications in obtaining information from the current UK body, which he thinks will be replicated with any new body, for the reasons that the association's chairman stipulated.

I will not go through all the representations, but they are all similar and I share the concerns that are expressed. Will you respond to those concerns and explain why it would be complicated to set up a Scottish advisory council? Why can we not address the issue in the Scottish Parliament?

It is interesting that Mr Lochhead says that he shares the concerns. Members will know that I have experience of receiving advice from the existing advisory body, the Inland Waterways Amenity Advisory Council, from my time as deputy minister with responsibility for transport. If I am not mistaken, I appointed both of the Scottish representatives on the council. The best indication that the council is effective is that, when we consulted a couple of years ago as part of our review of the IWAAC, not a single waterway user group in Scotland argued that the council should be abolished or replaced. Based on my experience of the council's advice as a minister and my observation of the way in which British Waterways carries out its investment in Scotland—the Falkirk wheel is perhaps the most well-known example of that, but there are others in the central Scotland canal network and in the Highlands and Islands—my view is that the advice that ministers receive is pertinent, accurate and helpful.

Although we are decoupling the advisory council from British Waterways, the council will continue to advise ministers on matters that relate to British Waterways. Given that British Waterways operates on a GB-wide basis, it makes good sense that the advice to ministers should come on that basis, too, and that the council should advise us in Scotland and our UK counterparts.

Although most of the submissions that we have had on the Sewel motion are from Government agencies or Government-sponsored agencies, the concerns that I have expressed come from users of waterways in Scotland who have encountered many problems in the past. The committee and the minister should take those concerns relatively seriously. Many people see it as an easy option to allow the UK to legislate on Scotland's behalf on such matters; indeed, some see it as the lazy option. Of course, I argue that, in most circumstances, it is the inappropriate option. We should take the concerns seriously, as they come from users of the waterways.

I would not suggest that any representation should be taken less than seriously but, for balance and proportionality, I point out that a consultation was carried out a couple of years ago that was open to many people, during which we received no negative comments. Although the representations to which you refer are to be taken seriously, they must be balanced with the other representations that you received and the absence of wider concerns.

I will raise a further point that is referred to in the submissions, but I point out that we are two years on since the consultation that you mentioned and that we are talking about the Sewel motion procedure.

The briefing that we have received—the Executive's memorandum—states that the Executive is sympathetic to the idea of extending the powers of British Waterways

"on the sale of water to Scotland."

The minister also mentioned that matter in his opening remarks. The memorandum continues that such a measure is

"desirable in order to encourage British Waterways Scotland to increase its income from other sources and decrease its dependence on grant from Scottish Ministers."

It then states:

"Given the difficulties in the short term of securing this change through Scottish legislation these powers might best be achieved by enactment at Westminster … although the Committee is asked to note that this presents some complexities for the NERC Bill which are the subject of continuing discussions between DEFRA and Scottish Executive lawyers."

That sounds slightly messy and uncertain. Will you explain why it would present difficulties to introduce Scottish legislation, which you suggest is possible? Will you also say what complexities such a measure would cause in the UK bill?

It is important to preface my comments by making it clear that the matter in no way impacts on the decision that the Scottish Parliament made a few weeks ago through the Water Services etc (Scotland) Act 2005 to prohibit access to common carriage by bodies other than Scottish Water, a measure that came into force on Monday.

The Sewel motion is framed in the way that it is to allow for the legislative measures that come forward to be enacted without our having to come back to the committee. It is important that we deal with these matters in as comprehensive a way as possible. I do not know whether Scott Carmichael or Callum Percy wants to comment on where the process has reached at Westminster and how it will go forward.

Are you thinking about what stage the bill has reached?

Yes, in respect of the potential for amendment at the next stage.

We still do not know what the position will be. My understanding is that it is likely that any amendment will be introduced when the bill goes to the House of Lords.

That is why we are keen to flush out the issues now and get a sense of the choices that the Executive has had. I presume from the memorandum that if the matter is not dealt with in the NERC bill, the Executive will have to wait for some time before it can respond through Scottish legislation as nothing is in the pipeline.

The advantage of using the NERC bill is that it puts the measure in place in different parts of the United Kingdom at the same time. That is clearly desirable for all sorts of reasons. Rather than return to the committee at some future point, given the possibility of amendment of the bill at Westminster, it seems appropriate to encompass the matter within the Sewel motion.

I will make a couple of observations. First, I am completely satisfied with the minister's explanation about the preferred legislative mechanism. Secondly, I will take no instruction from Mr Lochhead on the seriousness with which we deal with any item that comes before the committee.

A further observation is that I have never heard such spectacularly parochial attitudes being paraded at a committee. Mr Lochhead has seriously suggested that we can never be advised by people who happen to reside south of the border, although the Scottish nationalist party consistently and continually cites as examples Finland, Norway and Ireland. The attitude that Mr Lochhead displays is regrettable. I urge the committee to progress the matter sensibly and bring it to a conclusion.

Good scrutiny of a Sewel motion.

Hang on. Anyone else? I just have a couple of comments—[Interruption.] One at a time, please.

It is a joke.

Rob Gibson and then Mark Ruskell.

Pass the Sewel because the SNP is a bad party.

Grow up.

One at a time.

If we want to keep the discussion on an even keel, it should be noted for balance that, as the minister said in a previous statement, we were interested in ideas from England for our rural inquiry earlier. There was a most interesting passage in that discussion, which I hope our friend from the Western Isles was listening to.

What is your question?

My question is about the minor and consequential amendments in schedules 11 and 12 in relation to nature reserves. I would like to know whether the Nature Conservation (Scotland) Act 2004, which we passed, covers the matter and whether it needs to be covered again by stating that nature reserves are available for more than just scientific purposes.

The answer is that the matter is not specifically covered. An amendment is to be made to the National Parks and Access to the Countryside Act 1949, which laid out the statutory basis for both national and local nature reserves. It is a minor and consequential amendment, which does not alter matters but simply modernises GB-wide legislation.

I will ask about the JNCC and Scottish Natural Heritage. There is concern among some of the environment non-Governmental organisations that some of the proactive guidance that is being issued by ministers to SNH, for example on control of non-native plant species, could be restricted in some way by the JNCC. What is your view on that?

I am aware of the concerns that you mention; I understand that they were raised specifically by Scottish Environment LINK in its response to the committee. I point out that clause 34(2)(a) of the bill restates section 133(4) of the Environmental Protection Act 1990. In other words, it confirms the status quo in respect of the responsibilities of SNH on the one hand and the JNCC on the other. Therefore, I do not think that there is any reason to anticipate that the restatement of the position in the context of the NERC bill and the Sewel motion will alter the way in which those bodies operate. We certainly would not expect to see any change. Of course, SNH is an active partner and participant in the JNCC, and it is important that matters such as the introduction of non-native species are taken into account, given the potential for cross-border spread. That is an important issue, but there is nothing in either the bill or the Sewel motion that should impact on that work in any way.

I want quickly to pick up where Richard Lochhead left off. You say that a consultation took place a couple of years ago and that the Scottish Inland Waterways Association did not recommend any change in the structure of the organisations at that time. Do you have any idea why there has been a shift in the position? Do you have any intelligence about other waterways groups? Has their position changed in the past couple of years?

Not that I am aware of, and you will note that others have not raised the same concerns as that organisation. To understand better the relationship between the Scottish Inland Waterways Association and IWAAC, it would probably be better for you to speak to the association rather than to me. It is a voluntary organisation that makes representations on behalf of its members. It is clear to me that there are some difficulties in the relationship between those two bodies but, in my experience, that does not reflect any difficulty in the quality of advice or directions that come from the advisory council.

How representative is the Scottish Inland Waterways Association?

Pamela Stott may have some background information on that. I do not recall having dealt with that association during the time that I had responsibility for canals. My officials may be more up to date on the situation than I am.

The members of the advisory council are appointed under the Nolan rules.

I was wondering about the Scottish Inland Waterways Association rather than the advisory council.

I do not know much about the association, to be honest. I think that it is a voluntary organisation that brings together users of the canal network.

Can we ask the clerks to invite the association to send us a written submission?

The association is one of a range of consultees that would be expected to be consulted about any change to the canals in Scotland.

I have one comment to make, having read through the detailed submissions from SIWA. I dealt with the whole range of water organisations when I was a minister. The concerns that have been raised are partly to do with the fact that it has asked a number of questions of British Waterways but has not been given an answer. That has provoked some unhappiness about the relationships and the transparency of British Waterways, which I do not think are covered by the bill. I have read the bill, and I do not think that that is a relevant issue for it, but I wonder whether the minister could get back to us on that.

The response that talks of questions that were asked of the Scottish information commissioner makes it clear that people do not necessarily understand the relative responsibilities of the UK and Scottish authorities. The issue is a lack of confidence about what the relationships are and whether they are working. I do not see how that should be affected by the changes that are proposed in the NERC bill, but it reflects other concerns that people have, which run parallel to what the bill deals with. That is the issue that needs to be looked at. It is perhaps not relevant to consideration of the bill, but it is clearly an outstanding concern.

As far as freedom of information legislation is concerned, the position is clear. As British Waterways is a cross-border public body, it is subject to the UK Freedom of Information Act 2000.

I have a follow-up question on that. I have read the submissions on the subject and understand the concerns of the people who made those submissions. First, is it true that the issue is not entirely relevant to the substance of the bill that we are discussing? Secondly, could that or similar problems be dealt with in the structure of the bill at a later date?

In answer to your first question, those concerns are not pertinent to the central matter of the bill. The bill will remove the restriction on the range of areas on which the Inland Waterways Amenity Advisory Council can advise ministers. Currently, the council's name implies that it advises only on amenity issues, although in practice it provides advice on a range of matters. The bill will simply formalise the existing situation; it will bring about no practical change in the council's work.

It is worth noting that British Waterways has set up a British Waterways Scotland group, which comprises representatives of a range of users of Scottish waterways and provides the advice to British Waterways that used to come from the advisory council, which advises the Executive. That is a sensible development. Moreover, in a situation in which the advisory council advises ministers and the British Waterways Scotland group advises British Waterways, if a voluntary body or individual is not happy with the response that they have received, they will be able to complain to Hilary Bainbridge, who will shortly become the waterways ombudsman. The questions that have been raised are of interest, but they are not directly pertinent to the bill. If people have concerns they can use the existing mechanisms to take them forward.

Will you confirm that the bill contains no provisions that set out what will ultimately happen to levy boards? There is a degree of nervousness about the matter. Will you confirm that the bill will simply give ministers the power to act after there has been consultation and discussion and a report has been produced?

That is absolutely right. There is nothing in the bill that would determine or influence the decisions that we make. It might well be that for most sectors, GB or UK-wide boards will continue to represent the best basis on which to operate. The bill will simply give the Scottish ministers the power to continue the current system or to have Scotland-only boards, depending on the outcome of the review. The bill simply contains enabling provisions to allow the Scottish ministers to make provision on the matter, which we will do in the usual way.

Richard Lochhead asked about the bill's coverage in relation to SEPA's submission. Clause 98 clarifies the extent of the bill's scope and should reassure members about the matters that he queried. I can circulate a copy of clause 98 to members, if they want one.

I note that gendered language is still being used. I remember making a point about that to UK ministers four years ago, but the bill talks about the appointment of a "chairman". Any opportunity to convert UK ministers to the use of gender-neutral language, such as we use in the Scottish Parliament, would be gratefully received. We are required to consider the equal opportunities implications of proposed legislation, so we should not let the matter pass.

If there are no further comments, I thank the minister and his officials for answering our questions. The committee must decide how to proceed. If we are content that there should be a Sewel motion, as is proposed, we need not produce a separate report, because we can communicate our views through the minutes of the meeting. However, if we want to make a substantive comment on the bill, we should make a formal report to the Parliament. There is scope to do that next week. Members have a paper from the clerk that sets out issues and marker points that we might want to include in a report. However, before we get into the detail of the matter and given our scrutiny of the bill in committee, is the committee content that a Sewel motion on the bill be lodged in the terms that were put to us this morning?

Yes, but with the proviso that if the bill is substantially amended and changed out of all recognition, it should come back to us. However, I do not expect that that will happen.

Mark Brough's paper suggested caveats that we can consider.

Do we need to report to the Parliament on the matter that we are discussing?

Yes. That is the purpose of this discussion.

First, we have to decide whether we are happy with a Sewel motion. If we are not happy, we will have to go down a different route when considering the kind of report that we will put together.

Mark Brough suggests a few caveats in his paper. We should consider any impacts on devolved matters and whether we might want amendments to the UK bill; we should consider whether there should be a Sewel motion or whether it would be more appropriate to have a separate Scottish bill; and—as Nora Radcliffe has just suggested—we should seek an assurance from the minister that, if the bill were substantially amended during its passage through the UK Parliament, the Executive would inform the committee, would return to the committee for a further question-and-answer session, or would lodge a further Sewel motion.

We have learned of a potential amendment and have heard an explanation for that. I assume that there would have to be another Sewel motion if that amendment were accepted.

Which amendment?

The one that could come from the House of Lords.

On the British Waterways issue.

The Sewel motion encompasses that.

So the issue will be included in the motion that we will vote on.

Nora Radcliffe's suggestion is sensible; we would want the minister to report to us if anything new came up. Karen Gillon's point has been answered. We will be taking a view on it when we take a view on the Sewel motion.

There was dissent earlier when I asked whether there should be a Sewel motion, so we will have a formal vote.

The question is, that there should be a Sewel motion on the Natural Environment and Rural Communities Bill.

For

Boyack, Sarah (Edinburgh Central) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Johnstone, Alex (North East Scotland) (Con)
Macmillan, Maureen (Highlands and Islands) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Radcliffe, Nora (Gordon) (LD)
Ruskell, Mr Mark (Mid Scotland and Fife) (Green)

Against

Gibson, Rob (Highlands and Islands) (SNP)
Lochhead, Richard (North East Scotland) (SNP)

The result of the division is: For 7, Against 2, Abstentions 0.

Do we wish to send a formal report to Parliament or are we happy with having raised the issues in committee? Nora Radcliffe has suggested that, should there be substantial amendment to the bill during its passage through the UK Parliament, the minister should report back to the committee to allow us to consider the matter further. That is a sensible proviso. Are members happy?

Yes.

We should report to the Parliament to raise some of the issues that we have discussed.

But it is all in the Official Report.

We have a choice. We can go away and produce a report that picks up on issues that we have raised, or we can simply submit the Official Report of this meeting to the minister. The minister has made assurances on the record and we would expect him to keep to them. Do you think that we should write a separate report? Members have raised issues and they will be recorded in the Official Report. If members are happy for us to do so, we will attach the Official Report as part of our formal report to Parliament next week.

Asking the minister questions is an important part of scrutiny. However, we have also received information from people who use the waterways, but we have not had those people before the committee. The whole system of scrutinising Sewel motions is clearly inadequate. It would have been useful to have those people before the committee.

But—

Please. One person at a time.

I am not arguing with the vote; I am just putting my views on the record.

There has been discussion of new powers for the British Waterways Board, or a change in its existing powers. The Scottish Parliament has not scrutinised that adequately either, despite the fact that we all accept that the waterways are very important to Scotland. The Government even has its own canal strategy. The committee has not had an adequate opportunity to scrutinise those issues on behalf of the Parliament.

Okay, you have recorded your dissent.

I do not hear support in the committee for having a separate report. I read the mood of the committee as being that we are happy to use the Official Report, which will have picked up on all the different representations that have been made to us. We have sought clarification from the minister and members have taken a view and voted. Does anyone want to challenge that? I am happy to put it to a vote. Are members happy that we submit the Official Report of this meeting to the Parliament, along with our other comments?

For the record, I resent Mr Lochhead's suggestion that the committee has not scrutinised the Sewel motion adequately. He has made similar suggestions on previous occasions. If Mr Lochhead is unable to scrutinise a matter, that is his responsibility. I am content that the committee has scrutinised the bill adequately. The committee has voted and decided on the motion on the basis of the evidence and reassurances that we received from the minister. I resent the implication that we take such decisions lightly.

The Official Report will record that, after considering the issues in a question-and-answer session, seven members voted in favour of the Sewel motion and two voted against it. We will submit that record of our meeting to the Parliament. We will also seek the minister's reassurance that any substantial amendments that are made to the bill by the UK Parliament will be reported back to us for our further consideration.

I am happy to do that, convener.

That is now on the record, which will be included with our report.

We have completed our business for today. I remind members that our next meeting will take place at 2 pm next Tuesday, not Wednesday.

Meeting closed at 12:56.