Official Report 103KB pdf
Nature Conservation (Scotland) Bill: <br />Stage 1
I welcome everyone to the 12th meeting this session of the Subordinate Legislation Committee. We have received apologies from Gordon Jackson and Christine May.
We discussed a statutory duty to consult last week and we wrote to the Executive about it, albeit on a different matter. It would be wise for ministers to consult, even if they are not under a statutory duty to do so. We should make that point to the Executive. It is a wider issue and it has come up more than once.
I agree with the points made about the statutory duty to consult. In practice, the Executive is likely to consult widely and, indeed, to make a virtue of consulting on a strategy. It seems strange, therefore, that ministers are not under a statutory duty to consult. We should not have to be grateful to ministers for consulting. Parliament should be expecting ministers to consult across the board, and that applies to all legislation, including the bill that we are considering.
Neither Mike Pringle nor Alasdair Morgan have further comments to make, and Murray Tosh's points summed up what Stewart Maxwell was saying. When we write to the Executive, we will reflect the three options that we have received from our legal adviser, as well as what Murray Tosh was saying about greater parliamentary input and how to go about achieving that. At the same time, we should mention our concern about the duty to consult.
We should leave it to Scottish Natural Heritage. They are the experts and we do not need to get further involved.
That is the advice that we have received. Are we agreed?
Section 15(2) concerns the power to identify a relevant regulatory authority in relation to operations that affect SSSIs. It is suggested that we might want there to be an illustrative list. We have had debates about whether illustrative lists become firm lists and are then misunderstood. What are the committee's views on that?
I did not understand the suggestion in paragraph 27 of the legal brief to be for an illustrative list. I understood that any list would be definitive to the extent that it would require amendment by order. I am not sure if that is the same point as an illustrative list becoming definitive.
You are talking about a final list that would be made up. We were talking about a list of examples to give guidance. Mike Pringle had some views on that point.
My point is the same as the one that you made, convener. If there is a list, people might think that the organisations on the list are the only ones that have to be consulted. However, if the ministers have to consult and then make up the list, they are responsible for making sure that they notify everyone on that list. An illustrative list could be put in, but how long is it going to be and where will it stop?
That is the point that the Scottish Executive argued previously. The lists could be a bit misleading.
I know that. There is an argument for both sides.
Perhaps we should leave the section as it is.
That is my view. We should leave it as it is and make sure that everyone who goes on any such list is notified. If there is no list, no one will be missed out. Is that the point that Murray Tosh was making?
Regulatory authorities are specific bodies. It is not as if we will be adding a community council here and a local amenity group there. We are talking about bodies that have statutory powers. I would not have thought it unreasonable for those to be listed. I take the point that regulatory bodies change and that their functions can be merged or separated, so there would have to be changes to such a list and it would have to be kept up to date. However, I think that there should be a list.
The committee will note that there is no obligation on ministers to make any order. That is in paragraph 27 of our legal briefing paper. Is that an issue?
I am concerned about that. It seems to be a wide power that allows the section to be effectively ignored. At the very least, we should write to the Executive and ask its opinions and intentions.
Yes, because there would be concern if that were not proceeded with.
I agree.
We will write to the Executive on that last point.
Section 22(4) is on the SSSI register. The Executive's reason for taking delegated powers is the need for flexibility to make provision for the register from time to time as appropriate. Are we all okay with that?
Section 23 is on nature conservation orders. We have to be sure that the power is administrative. Orders made under the power are not statutory instruments, but SNH will have to include in its annual report—which is laid before the Parliament—details of all nature conservation orders and amendments that come into effect during the year, so they will be picked up by the Parliament. Are we happy that that is sufficient?
Section 29 is on land management orders. Again, any orders made under the power are not statutory instruments. Are members happy with that?
May I query—because it is not entirely clear from the brief—whether the same points that were made in relation to nature conservation orders about reporting to the Parliament will also apply to land management orders? If the answer is positive, that is a satisfactory position for us to take.
We will check for you, Murray, if you give us two seconds. Can you leave us to check that? If it is not clear, we will make that point to the Executive.
I would have thought that a similar level of scrutiny would be appropriate for land management orders as for nature conservation orders. However it is done, and wherever it is written down, that should be the principle.
We will double-check that and, if what you suggest is not the case, we will include your point.
I have what may be a niggling point. Under section 42(4) it appears that there is no requirement on Scottish ministers to publish guidance that they have not issued—in other words, that has been issued by somebody else—but which has subsequently been approved by them. There may be a slight incompleteness there, so we should seek clarification.
Okay. Section 49(4) is on the power to amend the list of interested parties. The question is whether annulment, which is what is being suggested, is sufficient. It could be said that the power is quite wide, but having said that, it could be argued that flexibility to add to or remove from the list is needed. How do members feel?
I do not know enough detail to be able to make that judgment. I would have thought that if, as a matter of principle, we require secondary legislation that amends primary legislation to be subject to the affirmative procedure, it is difficult for us to justify circumstances where we say, "This isn't all that important. We'll allow annulment." I would like to have more information, examples and discussion about that before I feel comfortable accepting that exception. I am happier with the principle that says, "If this is what we do, we do it even if it doesn't seem all that significant in its own right." However, there may be good practical reasons, across the whole corpus of secondary legislation, why we should make some exceptions to the general principle.
I know what Murray Tosh is saying, but the list is a list of bodies that SNH or Scottish ministers have to tell that something is happening. Clearly, an order is not going to change the rest of the legislation; it is just going to change that list. The most obvious reasons why the list would be changed are if some of the bodies no longer existed, in which case their names would be deleted at some stage, or if new statutory bodies were created, in which case their names would be added to the list. Being added to the list would give a body an absolute right to be notified, rather than just an optional right under section 49(2)(k). that seems to be a reasonable proposition. I cannot see a Machiavellian reason why any minister might remove a body from the list. While I understand the principle to which Murray Tosh refers, this is one case where, for the sake of good and speedy administration, annulment should be allowed.
Is that the general view?
That seems to be reasonably argued. I have no difficulty with specific decisions not to apply the usual principle, if that decision is based on credible and consistent grounds. Alasdair Morgan's explanation seems satisfactory to me.
So it is agreed that we will leave section 49(4) as it is.
We were not convinced last time—I hope that I am reflecting the committee's views accurately—with the response to our argument that supplemental was unnecessary or that, if it did convey any extra meaning, it was one that we did not welcome. Despite the Executive's stance, our view stands; therefore we should object or make representations in the same manner as we did previously.
Yes. The context is that we are going to take this up in future. Our legal advice tells us about one case that gives us some comfort, as it was about what could be judged as supplemental. However, I take your point and agree that we should raise it.
I point out that the exercise of the power will be subject to the negative procedure, except where it amends primary legislation, where it will be subject to the affirmative procedure. We have recommended that approach and talked about it since this committee started, so I am pleased that that principle is being adopted.
Okay. We will also make Alasdair Morgan's point, and continue to make it to be consistent.
I am happy with what is in the bill. It certainly tightens up the Wildlife and Countryside Act 1981.
Good. That deals with paragraph 10. Are there any points on paragraph 12? Are members happy with that?
Yes, likewise.
Paragraph 17 deals with amending the list of species in the Wildlife and Countryside Act 1981. Is that okay?
I have a query about that. We are advised to accept that that is all right, on the basis that the existing procedure is negative—or was that simply an observation, rather than a guiding principle?
It was an observation.
Okay, but the same point that I made before applies here. We would normally want the affirmative procedure to apply. I would like to be clearer about why, in this particular instance, it is felt that the negative procedure is adequate.
We will ask the Executive that question.
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Executive Response