Subordinate Legislation Committee, 21 Sep 1999

Meeting date: Tuesday, September 21, 1999

Official Report 103KB pdf

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Environmental Impact Assessment (Forestry) (Scotland) Regulations 1999 (SSI 1999/43)

I raised a number of points about the regulations at our previous meeting and we have now had the benefit of the response from the Executive, the supplementary response and some excellent, lucid and comprehensive legal advice.

That advice begins with the statement that the Executive has given a full response but that the replies do not appear to be wholly satisfactory. I share that view. In particular, the Executive has not explained why it has taken two years and six months to implement the European directive relating to the Environmental Impact Assessment (Forestry) (Scotland) Regulations or why the implementation was six months late. There is no acceptable explanation as to why the Executive went on to break the 21-day rule. If they took two years and six months, one would have thought that an additional 21 days would not have been the end of the world.

There seems to be no logical justification for the proposition that the regulations, which are a mirror of those that will apply in England, need to be introduced on the same date. I thought we were supposed to have devolution—or perhaps I imagined it. The fact that the directive was implemented after a delay of two years and six months, without giving Parliament the opportunity to scrutinise the detail of the regulations, is quite appalling. It is a precedent that we must not allow to stand. I fully endorse the suggestion that the committee should draw the regulations to the attention of the Parliament.

The reasons for doing so are made all the more cogent by the fact that the consultation exercise that has been undertaken is at best incomplete. The supplementary memorandum, which we received only this morning, states that there were two general consultation exercises. One concerned the central principles, the other concerned the policy approach. Neither exercise concerned the actual text of the regulations.

I note that the Law Society of Scotland—which I now see is represented at this meeting in the shape of Michael Clancy who is, I am sure, most welcome by all of us—was not consulted about the impact of the regulations, although the Court of Session—not the sheriff court for some reason—is said to have jurisdiction to consider actions about wee plots of trees of more than either one or five hectares. It seems that we will wait in vain for hundreds of years before a crofter or small farmer will litigate in the Court of Session about any of these matters. I would have thought that the Rural Affairs Committee should have had the opportunity to examine substantive issues of that nature in detail.

I could say a lot more about possible issues that concern me greatly, but the consultation exercise has not concerned the text of the regulations. I think that it should have done, and I hope that the committee will share the views that I have expressed about the importance of drawing the regulations to the attention of Parliament.

I agree with most of what Fergus has said, although I do think that we have devolution. We should perhaps argue that in another place.

I am particularly concerned about the delay in implementing a directive from the European Union. We may not agree with all the directives, but as we are in the European Union, the directives have to be implemented. People need to be alerted if that is happening in another place. We will not put up with the process taking two and a half years.

I thought that there was some European Union rule stating that if we did not implement directives by a certain time, we would be in shtook anyway. Implementation could happen in other places, but I agree with what Fergus says about the Executive response not being satisfactory. I think that we should continue the process of challenging what the Executive has said.

I agree with that, although I am coming from a very different perspective from Fergus on the devolution issue. I do not accept the argument that Scottish and English regulations have to be implemented on the same day. That sets a dangerous precedent concerning the 21-day rule. There is not a shred of evidence that the introduction of the regulations without using the 21-day period would make any difference to anyone. I do not want us to be rushed through things in this Parliament because they have been implemented on a particular day in England and Wales. We have to make it clear that we do not accept the logic of that argument.

We regard the periods of time for laying regulations before the Parliament as very important. They should be breached only in the most urgent of circumstances.

I think that we have consensus on that point.

I note from the supplementary memorandum that we received this morning that the letter from the Forestry Commission, which admittedly only relates to one aspect of the consultation, went out on 27 August 1998, and that the consultation process was to have ended on 10 October 1998. It appears that something has not been happening for a year and, all of a sudden, something has happened far too quickly without adequate consultation. We can only speculate as to how that came about, but it appears that there is too much haste, and individuals in the forestry industry may suffer the consequences.

Alasdair, are you satisfied with the general thrust of what the committee is trying to convey, in particular the points raised by Trish and Fergus?

I will incorporate them in the committee's report.