Environmental Impact Assessment (Forestry) (Scotland) Regulations 1999 (SSI 1999/43)
We move to item 1 on the agenda. Fergus, you had some concerns about this matter.
I understand from our legal advisers that this statutory instrument was made under section 2(2) of the European Communities Act 1972, and that the due date for implementation of the relevant European directive has long since passed. The Minister for Rural Affairs has indicated that there has been an unacceptable delay in laying the instrument before the Parliament, which is a matter for concern. We should find out why the delay arose in this case.
Yesterday evening I studied these regulations in some detail. I wonder—given that there has been a delay of two years—whether a further 21 days, which might have allowed some consultation, would have made a great deal of difference. Could the Executive advise this committee what consultation there has been with bodies that have an interest in, for example, the definition of "relevant projects"? Such bodies may well quibble with the thresholds of 2 and 5 hectares set out in schedule 2 and, indeed, with some of powers—which can be described as draconian—laid down in regulations 6(2) and 7(5).
Has the Executive consulted with the National Farmers Union, the Timber Growers Association and timber merchants organisations? Has there been consultation with the Law Society of Scotland on the provisions in paragraph 19, which give the Court of Session exclusive jurisdiction over whether a copse of trees is a relevant project? The Law Society may feel that we would have to wait several hundred years before a crofter went to the Court of Session to litigate in such a matter, and ask why sheriff courts have not been given jurisdiction.
I do not want to stray into the substantive elements of these regulations, but I have flagged up a few areas in which some consultation would have been important.
I endorse the first half of Fergus's contribution, in which he drew attention to our concern that there has been a substantive delay in the laying of these regulations.
This is the second time in a couple of weeks that we have considered European legislation for which the date on which we were supposed to have met our obligations and enacted them into law had long since passed. It is appropriate that we ask for an explanation of that delay. If it were to await the Scottish Parliament coming into being and being able to express a view, it would seem illogical for the regulations to have been laid only three days before they come into force, which is what happened on this occasion. We are, therefore, due an explanation of why the time between the laying of the regulations and their coming into force was so short. If it was to allow this Parliament to express a view on them, how was that possible within such a short time scale?
I would also like an explanation of the phrase "presentationally important" to describe why the regulations came into force in Scotland and in England and Wales on the same date. As I understand it, that is not a requirement. Perhaps the European Committee would also like that explained.
That is a good point.
Further to the advice that we have had from the lawyers, Fergus and Bristow have suggested that we request an explanation of why there has been a delay in the laying of the regulations. We want clarification of the time limits that are referred to in the regulations, an explanation of the purpose of regulation 2(3)(b), which appears to reproduce regulation 25(9), and clarification of various minor drafting points, which we are entitled to seek. That relates to regulations 5(1), 7(1) and 7(8). We will also pursue the point that David raised.
Before we move on to the next item, are there any other comments on these regulations?
Will you also take up the point about consultation?
Yes. I apologise for failing to mention that.