Reservoirs (Scotland) Bill: Stage 2
Item 3 is consideration of stage 2 amendments to the Reservoirs (Scotland) Bill. Members should have in front of them their copies of the bill, the marshalled list of amendments and the groupings list. Richard Lochhead remains with us, as he will for most of today’s meeting. I welcome his officials for this part of the meeting. I remind members that officials cannot participate in the debate.
Section 1—Controlled reservoirs
The first group of amendments is on orders under section 1: consultation and procedure. Amendment 1, in the name of the cabinet secretary, is grouped with amendment 96.
These amendments have been drafted in response to concerns raised by the committee and they address issues relating to how a controlled reservoir is defined under the bill.
Amendment 1 addresses recommendation 11 in the committee’s stage 1 report. It ensures that, before making any change to the minimum volume threshold of 10,000m3, ministers must consult the Institution of Civil Engineers. That will ensure that any change is based on sound technical advice and is supported by the practitioners.
The Scottish Government agreed to lodge amendment 96 in response to a recommendation from the Subordinate Legislation Committee so that the power in section 1(4) should be subject to affirmative procedure.
I move amendment 1.
Amendment 1 agreed to.
Section 1, as amended, agreed to.
Section 2—Controlled reservoirs: supplementary
The next group is on the meaning of “controlled reservoir”. Amendment 2, in the name of the cabinet secretary, is grouped with amendments 3 and 4.
I am delighted to speak to amendments 2, 3 and 4, which have been drafted in response to stakeholder advice and concerns raised by the committee relating to how a controlled reservoir is defined under the bill.
Amendment 2 addresses recommendation 12 in the committee’s stage 1 report. It removes the inclusion of any structural feature, such as pipes, which controls the collection of water into the reservoir. Amendment 3 is consequential to amendment 2.
Amendment 4 removes the exclusion of ash and silt lagoons from the bill so that they will now be subject to the requirements of the legislation. That has been deemed necessary following the catastrophic incident in Hungary last year and is thoroughly supported by stakeholders.
I move amendment 2.
Amendment 2 agreed to.
Amendments 3 and 4 moved—[Richard Lochhead]—and agreed to.
Section 2, as amended, agreed to.
Section 3—Reservoir managers
09:45
The next group is on the meaning of “reservoir manager”. Amendment 5, in the name of the cabinet secretary, is the only amendment in the group.
In recommendation 8 of its stage 1 report, the committee raised concerns about whether the definition of “reservoir manager” captured all the appropriate parties. We have taken the opportunity to review the definition. Amendment 5 simplifies and clarifies how a reservoir manager is defined under the bill. It applies a clear test to all persons
“managing or operating a reservoir”,
and that test applies to Scottish Water and to any other person, irrespective of their status. A public or charitable body would be a reservoir manager if it managed or operated a reservoir.
That approach ensures that someone who only rents or uses the reservoir is not defined as the reservoir manager in cases where they do not have the power to manage or operate it. An angling club or another organisation might use or lease the reservoir only for recreational purposes, and the amendment ensures that it is not made responsible for supervision and maintenance requirements under the bill, unless it has the power to operate the dam.
I move amendment 5.
Amendment 5 agreed to.
Section 3, as amended, agreed to.
Sections 4 and 5 agreed to.
Section 6—Guidance by SEPA: management of reservoirs
The next group concerns guidance on the management of reservoirs. Amendment 6, in the name of the cabinet secretary, is grouped with amendment 7.
Amendments 6 and 7 require the Scottish Environment Protection Agency to publish
“by such date as the Scottish Ministers direct”
guidance on the management of controlled reservoirs and guidance on how multiple owners of reservoirs should co-operate. The measures require SEPA to consult the Institution of Civil Engineers and others before publishing the guidance. The amendments ensure that the guidance is appropriate and technically well founded, and is agreed with the practitioners of the legislation. Such guidance will provide clarity on the new reservoir safety process, both for practitioners and for reservoir managers.
I move amendment 6.
Amendment 6 agreed to.
Amendment 7 moved—[Richard Lochhead]—and agreed to.
Section 6, as amended, agreed to.
Sections 7 and 8 agreed to.
Section 9—Controlled reservoirs register
The next group is on the supervision of measures specified in inspection reports. Amendment 8, in the name of the cabinet secretary, is grouped with amendments 20, 40, 42, 45 to 47, 54, 56, 61 and 99.
These amendments have been lodged to improve the process for the supervision of any safety measure that is specified in a reservoir inspection report. The reservoir manager must ensure that such safety measures are carried out under supervision. Amendments 40, 54, 56 and 61 give persons who are qualified to be inspecting engineers the responsibility for supervising safety measures in an inspection report. The bill as introduced places that responsibility on supervising engineers. That is a change from the current responsibilities under the Reservoirs Act 1975, and the amendments address concerns that were raised by a number of stakeholders about the appropriate roles for supervising and inspecting engineers.
Amendments 8, 20, 42, 45 to 47 and 99 introduce the concept of “other qualified engineer”. Such an engineer, who must be qualified to be an inspecting engineer, can be appointed by a reservoir manager to supervise the measures that are specified by the inspecting engineer. Avoiding the situation where the measures must be supervised by the inspecting engineer will allow reservoir managers to benefit from competition between different tenders for the required work.
I move amendment 8.
Amendment 8 agreed to.
The next group is on the recommendation by a supervising engineer that a reservoir should be inspected: notice to SEPA and inclusion in controlled reservoirs register etc. Amendment 9, in the name of the cabinet secretary, is grouped with amendments 10, 57 and 58.
These amendments make minor changes to the process whereby a supervising engineer recommends inspection of a reservoir. Amendment 58 inserts a requirement on the supervising engineer to include in any inspection recommendation a date for when the inspection should take place. It also requires the supervising engineer to copy the recommendation to SEPA.
Amendments 9 and 10 are consequential to amendment 58 and require SEPA to include any such recommendations in its controlled reservoirs register. SEPA can then monitor whether the inspection has taken place. The amendments will ensure that SEPA holds a complete, holistic view of the current status of all reservoirs in Scotland.
Amendment 57 is a minor drafting change.
I move amendment 9.
Amendment 9 agreed to.
Amendment 10 moved—[Richard Lochhead]—and agreed to.
Section 9, as amended, agreed to.
Sections 10 to 13 agreed to.
After section 13
The next group is on fees for registration and administration. Amendment 11, in the name of the cabinet secretary, is grouped with amendment 12.
As was set out during stage 1, despite the cost of subsistence fees being accounted for in the financial memorandum, the power to charge such fees was omitted in error from the bill as introduced. Amendments 11 and 12 have been lodged to correct that omission. Amendment 11 inserts a power for the Scottish ministers to provide for SEPA to introduce any such charging scheme for both registration and an annual fee in regulations. Amendment 12 is a consequential, technical amendment.
I move amendment 11.
Amendment 11 agreed to.
Section 14—Registration: supplementary
Amendment 12 moved—[Richard Lochhead]—and agreed to.
Section 14, as amended, agreed to.
Sections 15 to 17 agreed to.
Section 18—First risk designation
The next group is on risk designation by SEPA: initial designation, review and appeals. Amendment 13, in the name of the cabinet secretary, is grouped with amendments 14 to 19.
These amendments address issues that were raised by stakeholders concerning the method by which SEPA awards and reviews risk designations. They build a safeguard into the bill so that SEPA must give risk designations as soon as is reasonably practicable, they clarify the date by which a risk designation takes effect after a review, and they specify that SEPA may charge only a reasonable fee in relation to any application for a review of a risk designation.
Amendment 17 allows the reservoir manager to appeal to the Scottish ministers if he or she remains unhappy with the results of SEPA’s initial review of a risk designation. Given the importance of risk designation in determining the level of supervision and inspection that a reservoir will be subject to, the Scottish Government felt that it was important to ensure that reservoir managers will have recourse to an independent appeal if they still have concerns after the option for review of the first risk designation has been exhausted.
We have lodged amendment 18 in response to a request from the Institution of Civil Engineers that SEPA should seek advice from it before publishing any guidance on risk designation. That will ensure that the guidance takes account of the most up-to-date advice from the professional body representing appropriately qualified reservoir panel engineers.
I move amendment 13.
Would the cabinet secretary care to explain further what might be meant by the phrase “reasonable fee”?
We would like SEPA to take cognisance in the level of fee that it applies that this is not a cost-generating exercise. We want SEPA to be conscious of that and therefore feel that it is important to mention it in the regulations.
In essence, the fee will cover the costs and no more.
That is the intention.
Amendment 13 agreed to.
Section 18, as amended, agreed to.
Section 19 agreed to.
Section 20—Decision following a periodic review
Amendment 14 moved—[Richard Lochhead]—and agreed to.
Section 20, as amended, agreed to.
Section 21 agreed to.
Section 22—Review of SEPA’s decisions giving risk designations
Amendments 15 and 16 moved—[Richard Lochhead]—and agreed to.
Section 22, as amended, agreed to.
After section 22
Amendment 17 moved—[Richard Lochhead]—and agreed to.
Section 23—Guidance by SEPA: risk designation
Amendment 18 moved—[Richard Lochhead]—and agreed to.
Section 23, as amended, agreed to.
Section 24—High-risk reservoirs, medium-risk reservoirs and low-risk reservoirs: further provision
Amendment 19 moved—[Richard Lochhead]—and agreed to.
Section 24, as amended, agreed to.
Sections 25 and 26 agreed to.
Section 27—Dissolution of panels etc
Amendment 20 moved—[Richard Lochhead]—and agreed to.
Section 27, as amended, agreed to.
Sections 28 and 29 agreed to.
Section 30—Application of Chapter 5
Amendment 21, in the name of the cabinet secretary, is grouped with amendments 22 to 26. I point out that there is a small error in amendment 24 as it appears on the marshalled list. It should read “leave out from
to the second ”.
I am trying to work out whether that means that stage 3 amendments are in the offing.
Amendments 21 to 26 are technical amendments to address issues that were raised by stakeholders about how the definitions of abandonment and discontinuance are met. Abandonment and discontinuance are alterations to which chapter 5 of part 1 of the bill applies.
A reservoir can be altered so that it is incapable of filling with water without reducing its capacity. For example, a service reservoir that is filled by pipes could be prevented from filling merely by cutting or capping those pipes. These amendments will ensure that the definitions of construction and alteration in section 30 take account of that possibility. Chapter 5 will therefore apply when works affect the capability of a reservoir to hold water, regardless of whether its capacity is altered.
I move amendment 21.
Amendment 21 agreed to.
Amendments 22 to 26 moved—[Richard Lochhead]—and agreed to.
Section 30, as amended, agreed to.
Section 31—Notice to SEPA and appointment of construction engineer
10:00
The next group is on construction engineers, inspecting engineers and supervising engineers, their respective duties and the timing of appointments and inspections. Amendment 27, in the name of the cabinet secretary, is grouped with amendments 29, 30, 33 to 35, 37, 49, 50 to 53, 55, 60, 98 and 100.
The amendments make a number of changes to the respective roles and responsibilities of construction engineers, inspecting engineers and supervising engineers. Amendments 27, 29, 49 and 52 amend the bill so that, during alteration works, the supervising engineer is responsible for the supervision of the reservoir. As drafted, the bill transfers the responsibility for supervision of the entire reservoir to the construction engineer who is in charge of the works. However, following consultation with ICE, the Government feels that it is preferable to retain the expertise and familiarity of the supervising engineer during that period and to leave the construction engineer to be responsible only for the works.
Amendment 33 is a consequential change.
Amendments 34, 35, 37 and 98 relate to the appointment of an inspecting engineer. Amendment 37 amends the times at which an inspection of a medium or high-risk reservoir should be carried out. The new provision will ensure that there are no inspections during a period of alteration when the reservoir will be under the supervision of a construction engineer. The other amendments remove any implication in the bill that the manager of a high or medium-risk reservoir must have an inspecting engineer appointed at all times. The inspecting engineer need only be appointed for each inspection.
Amendments 30, 50, 51, 53, 55, 60 and 100 are about the appointment and duties of supervising engineers. Amendments 50, 51 and 100 require the appointment of a supervising engineer at all times, except when a reservoir is being constructed or restored to use. The other amendments specify additional matters that the supervising engineer is to monitor and report on during his or her appointment.
I move amendment 27.
Amendment 27 agreed to.
Amendment 28, in the name of the cabinet secretary, is grouped with amendments 36 and 67.
The committee and stakeholders have raised concerns that, as drafted, the disqualification criteria for construction engineers are unworkable because of the small pool of specialist firms that deal with reservoir safety. The Scottish Government agreed to lodge an amendment at stage 2 to address those concerns.
Amendment 28 removes the disqualification of an engineer who has previously acted as the construction engineer for the same reservoir. It also removes the disqualification of an engineer who is professionally associated with a former construction engineer of the reservoir. We considered that similar issues might also apply to the disqualification criteria for inspecting engineers and referees, so we lodged amendments 36 and 67 to amend the relevant criteria in sections 43 and 59.
However, after further discussions with ICE, I will not move amendments 36 and 67 when they are called. ICE has subsequently confirmed its view that the disqualification criteria in sections 43 and 59 of the bill should be retained. That leaves the position consistent with that of the 1975 act, so that inspecting engineers and referees are as independent from the original construction engineer as they would be under the 1975 act.
I move amendment 28.
Amendment 28 agreed to.
Section 31, as amended, agreed to.
Section 32—Inspection, reports, supervision of works etc by construction engineer
Amendment 29 moved—[Richard Lochhead]—and agreed to.
Section 32, as amended, agreed to.
Section 33—Safety reports
Amendment 30 moved—[Richard Lochhead]—and agreed to.
Section 33, as amended, agreed to.
Sections 34 to 39 agreed to.
Section 40—Offences: construction or alteration
The next group is on penalties, offences and civil enforcement measures. Amendment 31, in the name of the cabinet secretary, is grouped with amendments 32, 68, 72, 82 and 85.
The amendments will change the maximum penalties for a number of offences that are set out in the bill. Amendment 31 will make reservoir managers who are guilty of failing to appoint a construction engineer under section 31(2)(a) liable to the lower penalty that is set out for summary convictions in section 40. Those are, for a manager of a high-risk reservoir, a fine not exceeding level 5 on the standard scale and, for a manager of any other controlled reservoir, a fine not exceeding level 4.
Amendments 32, 68 and 72 will increase to two years the maximum sentence that a reservoir manager can receive for more serious offences. Those offences are: failing to take measures that are directed in the interests of safety in a safety report; failing to comply with the requirements of preliminary or final certificates; failing to comply with a SEPA notice that requires appointment and notice of appointment of a construction, inspecting or supervising engineer; and failing to comply with a SEPA notice to comply with a direction on a safety or inspection report.
Amendments 82 and 85, which are a response to concerns that the Subordinate Legislation Committee raised, will ensure that, where regulations under section 80 allow SEPA to take further enforcement measures, any financial penalty that SEPA determines cannot exceed the maximum fine that could be levied in the criminal courts on summary conviction for the relevant offence.
I move amendment 31.
Will the cabinet secretary outline his rationale for reducing penalties through amendment 31?
The basis for the changes is that there should be a ceiling on the fines that SEPA can impose. Currently, there is no ceiling, which we feel is inappropriate. The Subordinate Legislation Committee raised that point with us.
Another change relates to the situation south of the border. Some owners of large reservoirs might own reservoirs south and north of the border. We do not want there to be more severe penalties south of the border than in Scotland, as that might make owners think that it was more important to look after reservoirs south of the border. We therefore want to ensure that the penalties north and south of the border are aligned.
I am slightly confused. I took it from what you said that amendment 31 will lower the penalties for offences, rather than increase them, which gives me cause for concern. I do not have a problem with amendment 32, which will increase penalties for offences, but I understand the purpose of amendment 31 as being to reduce rather than increase penalties.
We are talking about relatively minor offences compared to other offences that could be committed under the bill.
I understand that, but I want to know the rationale for reducing the penalties. If we have an offence in the bill and we are asked to reduce the penalty, I want to know what the rationale is for our doing so.
We want the bill to reflect the scale of the offence. There are minor offences and more serious ones. The level of fine that can be imposed should reflect the nature of the offence.
Can you tell us what the difference is in the level of fines?
The bill provides for the summary criminal procedure only, with a maximum penalty in the justice of the peace court of three months’ imprisonment or a level 4 fine of £2,500. In the sheriff court, the maximum for a first offence is three months’ imprisonment or the prescribed sum, which is currently £10,000, and for a second offence, it is six months or the prescribed sum. I will just find out the exact figures for comparison. [Interruption.] The previous statutory maximum fine was £10,000. If the offence were taken down to level 5, it would be £5,000, and if it were taken down to level 4, it would be £2,500.
Essentially, you are seeking to reduce the fines and remove the courts’ ability to send someone to prison for these offences.
We are just trying to ensure that what are deemed more minor offences have similar penalties.
I am trying to clarify what this amendment is seeking to do. At the moment, a person who commits this offence could, under the bill, go to prison or face a high maximum fine of £10,000. If it is made a level 4 offence, that person would pay a lower fine and would not be sent to prison. Is that right?
Yes.
That is fine.
Amendment 31 agreed to.
Amendment 32 moved—[Richard Lochhead]—and agreed to.
Section 40, as amended, agreed to.
Sections 41 and 42 agreed to.
Section 43—Appointment of inspecting engineer etc
Amendments 33 to 35 moved—[Richard Lochhead]—and agreed to.
Amendment 36 not moved.
Section 43, as amended, agreed to.
Section 44—Inspections: timing
Amendment 37 moved—[Richard Lochhead]—and agreed to.
Section 44, as amended, agreed to.
Section 45—Inspections: duties of inspecting engineers etc
The next group is on recommendations in inspection reports as to the maintenance of reservoirs. Amendment 38, in the name of the cabinet secretary, is grouped with amendments 39, 41 and 48.
These amendments seek to deal with a concern expressed by ICE and clarify that the only maintenance measures that should be specified in inspection reports are those that the inspecting engineer considers to be necessary for safety. Such measures are compulsory under section 46(1) but, because of their on-going nature, they have been kept out of the compliance certification regime set out in section 46. An inspecting engineer can still make recommendations on maintenance but if the maintenance does not affect safety it will not be compulsory to follow the recommendation.
I move amendment 38.
Amendment 38 agreed to.
Amendments 39 to 42 moved—[Richard Lochhead]—and agreed to.
Section 45, as amended, agreed to.
Section 46—Inspection reports: compliance
10:15
The next group is on minor technical amendments. Amendment 43, in the name of the cabinet secretary, is grouped with amendments 44, 69 and 87.
These amendments seek to make a number of minor technical changes to sections 46, 65 and 83 in response to comments from the Law Society and others.
I move amendment 43.
Amendment 43 agreed to.
Amendments 44 to 48 moved—[Richard Lochhead]—and agreed to.
Section 46, as amended, agreed to.
Section 47—Appointment of supervising engineers etc
Amendments 49 to 51 moved—[Richard Lochhead]—and agreed to.
Section 47, as amended, agreed to.
Section 48—Supervising engineer and monitoring of reservoir
Amendments 52 to 58 moved—[Richard Lochhead]—and agreed to.
The next group is on the visual inspection of the reservoir by the reservoir manager. Amendment 59, in the name of the cabinet secretary, is grouped with amendment 63.
Amendments 59 and 63 seek to remove the onerous and bureaucratic requirement on reservoir managers to notify the supervising engineer of every visual inspection of a reservoir that they are directed to undertake. Amendment 59 seeks to replace that requirement with a lesser requirement simply to record inspections and to notify the supervising engineer only of anything identified during the inspection that might affect the reservoir’s safety. Amendment 63 seeks to add a failure to notify safety matters to the list of offences in section 50.
I move amendment 59.
Amendment 59 agreed to.
Amendments 60 and 61 moved—[Richard Lochhead]—and agreed to.
The next group is on the meaning of “draw-down”. Amendment 62, in the name of the cabinet secretary, is the only amendment in the group.
Amendment 62 seeks to clarify that supervision of any draw-down of the reservoir by a supervising engineer is not required if it is done in accordance with the reservoir’s routine operation.
I move amendment 62.
Amendment 62 agreed to.
Section 48, as amended, agreed to.
Section 49 agreed to.
Section 50—Offences: inspection, supervision, record keeping
Amendment 63 moved—[Richard Lochhead]—and agreed to.
Section 50, as amended, agreed to.
Sections 51 and 52 agreed to.
Section 53—Flood plans
Amendment 64, in the name of the cabinet secretary, is grouped with amendment 65.
Stakeholders raised concerns that, where there are a number of reservoirs in a cascade, the flood plans for each reservoir could contain a lot of duplication. They suggested that it would be better if it were possible to prepare a single plan for the cascade, as many of the issues to be addressed would be similar. The actions taken in the event of the failure of one reservoir in a cascade would likely need to be co-ordinated with actions at the other reservoirs in the cascade in the event of an uncontrolled release. The best way to prepare for that would be through the production of a single plan.
Amendment 64 allows for a single flood plan for one or more reservoirs in a cascade, irrespective of their capacity. That will reduce the costs on reservoir managers and remove any unnecessary duplication. Amendment 65 adds flood plans to the list of documents that reservoir managers must include under section 54 in the register of relevant documents. That will ensure that the reservoir manager is aware of relevant issues or difficulties that might exist when dealing with a potential failure.
I move amendment 64.
Amendment 64 agreed to.
Section 53, as amended, agreed to.
Section 54—Maintenance of records
Amendment 65 moved—[Richard Lochhead]—and agreed to.
Section 54, as amended, agreed to.
Section 55—Display of emergency response information
Amendment 66, in the name of the cabinet secretary, is in a group on its own.
The committee and a number of stakeholders raised concerns about the requirement for the name, address and contact details of the supervising engineer to be displayed on the emergency information boards to be erected at each controlled reservoir. The concerns raised were primarily about the privacy of the supervising engineers and the possibility of malicious calls.
The Scottish Government has considered those concerns and has lodged amendment 66 to remove that requirement and replace it with one to display SEPA’s contact details. SEPA can then contact the supervising engineer if an incident has occurred, as SEPA will hold engineers’ contact details in the register. I hope that that addresses the committee’s concerns and does not lead to any malicious calls to SEPA.
I move amendment 66.
Amendment 66 agreed to.
Section 55, as amended, agreed to.
Sections 56 to 58 agreed to.
Section 59—Appointment of referee
Amendment 67 not moved.
Section 59 agreed to.
Sections 60 to 63 agreed to.
Section 64—Offence: failure to comply with notice under section 63(2)
Amendment 68 moved—[Richard Lochhead]—and agreed to.
Section 64, as amended, agreed to.
Section 65—Appointment of engineer by SEPA
Amendment 69 moved—[Richard Lochhead]—and agreed to.
Section 65, as amended, agreed to.
Section 66 agreed to.
Section 67—Enforcement notice: safety and other measures
The next group is on civil enforcement measures: review and appeals. Amendment 70, in the name of the cabinet secretary, is grouped with amendments 71, 76 to 81, 83, 84, 86, 88 to 90 and 97.
Amendment 70 inserts an order-making power for the Scottish ministers. The power allows reservoir managers to be given the right to apply for a review of a SEPA enforcement notice under section 67, and to appeal to the Scottish ministers after such a review. Amendment 97 makes any such order subject to draft affirmative procedure, and amendment 71 modifies the offence provisions in section 68 to take account of any right of review or appeal.
Amendments 76, 78, 80, 83, 86 and 88 simply clarify that appeals against decisions made by SEPA to impose civil enforcement measures under chapter 9 of the bill can be made to the Scottish ministers.
Amendment 79 allows regulations under section 76 to provide for appeals to the Scottish ministers after a SEPA review.
Amendments 77, 81, 84 and 89 remove specific requirements on SEPA to publish guidance on appeals under specific sections in chapter 9. Those requirements are replaced by a new duty, imposed by amendment 90, on the Scottish ministers to publish guidance on the process of making appeals under all relevant sections in chapter 9.
I move amendment 70.
Amendment 70 agreed to.
Section 67, as amended, agreed to.
Section 68—Offence: failure to comply with notice under section 67(2)
Amendments 71 and 72 moved—[Richard Lochhead]—and agreed to.
Section 68, as amended, agreed to.
Sections 69 and 70 agreed to.
Section 71—Stop notices
The next group is on the power to give stop notices. Amendment 73, in the name of the cabinet secretary, is grouped with amendments 74 and 75.
Where a reservoir manager is carrying out an activity that causes a significant risk of an uncontrolled release of water from a reservoir, but that activity is not an offence, SEPA is currently unable to issue the reservoir manager with a stop notice. Amendments 73 and 74 address that issue by widening the scope of the stop notice power. SEPA would be able to issue a stop notice where it considers that an activity is an offence; SEPA would also be able to issue a stop notice where an activity is not an offence, provided that it reasonably believes that the activity presents a significant safety risk.
Amendment 75 requires SEPA to consult ICE before it issues a stop notice in relation to an activity that is not an offence, and to notify the Scottish ministers at the earliest opportunity after issuing the notice. The amendment also requires that the steps specified in any such notice be steps to remove or reduce the risk of an uncontrolled release of water.
I move amendment 73.
If someone were to release water, when would it be an offence and when would it not be an offence? I do not quite understand.
SEPA has advised us that there are examples of activities that are not offences—they are not illegal—but which could impact on reservoirs. One example is speedboating, which could cause waves that overtop the dam and cause general erosion, leading to various consequences. In certain combinations of circumstances, activities that are not an offence could impact on the safety of a reservoir. In such circumstances, the amendments in this group give powers to SEPA.
To stop speedboating, if it could cause damage—
In specific combinations of circumstances, that could lead to dangerous situations arising.
Fine, thank you.
Amendment 73 agreed to.
Amendments 74 and 75 moved—[Richard Lochhead]—and agreed to.
Section 71, as amended, agreed to.
10:30
Section 72—Stop notices: procedure
Amendments 76 and 77 moved—[Richard Lochhead]—and agreed to.
Section 72, as amended, agreed to.
Section 73—Stop notices: compensation
Amendment 78 moved—[Richard Lochhead]—and agreed to.
Section 73, as amended, agreed to.
Sections 74 and 75 agreed to.
Section 76—Enforcement undertakings
Amendment 79 moved—[Richard Lochhead]—and agreed to.
Section 76, as amended, agreed to.
Section 77 agreed to.
Section 78—Fixed monetary penalties: procedure
Amendments 80 and 81 moved—[Richard Lochhead]—and agreed to.
Section 78, as amended, agreed to.
Section 79 agreed to.
Section 80—Further enforcement measures
Amendment 82 moved—[Richard Lochhead]—and agreed to.
Section 80, as amended, agreed to.
Section 81—Further enforcement measures: procedure
Amendments 83 and 84 moved—[Richard Lochhead]—and agreed to.
Section 81, as amended, agreed to.
Section 82 agreed to.
Section 83—Further enforcement measures: enforcement
Amendments 85 to 87 moved—[Richard Lochhead]—and agreed to.
Section 83, as amended, agreed to.
Sections 84 and 85 agreed to.
Section 86—Recovery by SEPA of expenses
Amendments 88 and 89 moved—[Richard Lochhead]—and agreed to.
Section 86, as amended, agreed to.
After section 86
Amendment 90 moved—[Richard Lochhead]—and agreed to.
Section 87—Publication of enforcement action
The next group is on the publication of enforcement action. Amendment 91, in the name of the cabinet secretary, is grouped with amendment 92.
I see that the section numbers are catching up with the amendment numbers, which means that I have to pay very close attention.
The Subordinate Legislation Committee raised concerns that the bill as drafted did not allow the Scottish ministers any control over what information SEPA may publish in the case of non-compliance by reservoir managers. The Scottish Government agreed to strengthen those powers and has lodged amendments 91 and 92 to achieve that.
Amendment 91 will give Scottish ministers the power to direct SEPA by order to publish information in relation to enforcement action that SEPA has taken in response to non-compliance by a reservoir manager, where SEPA has had to appoint an engineer or arrange for measures to be undertaken in the interests of safety.
Amendment 92 will give Scottish ministers the same power to direct SEPA to publish information where SEPA has issued a stop notice or a fixed monetary penalty or has imposed further enforcement measures.
Amendments 91 and 92 will strengthen the publication powers in section 87, which will result in a stronger deterrent against non-compliance.
I move amendment 91.
Amendment 91 agreed to.
Amendment 92 moved—[Richard Lochhead]—and agreed to.
Section 87, as amended, agreed to.
Sections 88 to 96 agreed to.
Before section 97
The next group is on grants. Amendment 93, in the name of the cabinet secretary, is the only amendment in the group.
The committee raised a number of concerns at stage 1 about the financial impact of the bill on small businesses, angling clubs and individuals. The concerns related largely to the potential cost of any structural work that might be required to make reservoirs safe and the cost of preparing flood plans.
The Scottish Government agreed to consider whether provision could be made for financial assistance for reservoir managers who cannot afford to implement the requirements of the bill. Amendment 93 will give Scottish ministers the power to issue grants to reservoir managers. The grants may be made to managers of medium or high-risk reservoirs that are not currently regulated under the 1975 act for the purposes of assisting or enabling them to comply with any obligations under part 1 of the bill.
The grants will be subject to such conditions as the Scottish ministers think appropriate. It is expected that providing any such grants will be a temporary measure and will not be required until 2015 at the earliest, when the previously unregulated reservoirs are expected to be brought under the auspices of the bill.
I believe that amendment 93 will address the committee’s concerns and I welcome the committee’s support for it.
I move amendment 93.
I welcome your consideration of our report and the bringing forward of grants to mitigate the effects on owners. What level of grant might be available? What effect will that have on the financial memorandum? I notice that you used the phrase “as the Scottish ministers think appropriate”. Is that an open-ended commitment? I would like clarification of that.
That is a fair question, but all I can really do at this point is indicate what we would take into account in determining the level of grant, rather than say what the level of grant would be, which we will decide in due course.
The level of grant would depend on the risk posed by each reservoir, the structural integrity of the dam and the level of maintenance that would have to be undertaken. Those factors would have to be taken into account in determining the level of grants. Until SEPA has given a risk designation to the reservoirs that are not currently regulated, we simply will not know how many of them are high or medium risk and what condition they are in, which would determine the level of work required to make them safe.
I have a similar question. Like John Scott, I welcome the approach that has been taken. We certainly wrestled with the issue, and I do not think that we came up with a magic bullet for dealing with it, but what the cabinet secretary proposes looks like a fair stab at it. Are you working with a ballpark figure for the likely liability? Will the criteria for payback be the mechanism whereby you ensure that the liability to Government is not open-ended? Although I think that all of us on the committee welcome amendment 93, we need reassurance that the burden on future Governments will not be likely to escalate quickly.
Again, I am unable to give a ballpark figure. We should certainly take on board the points that you make. There is a bit of work to be done before we use the enabling power to introduce a scheme in the next few years. The intention would be to contribute towards the capital costs of work that has to be undertaken, so a contribution of some form towards those costs is the most likely outcome of the kind of grant scheme that we are thinking about. However, we will discuss the scheme with stakeholders, the committee and others to determine its exact nature.
I welcome amendment 93. The Government has moved on the matter in an appropriate way, giving ministers wide discretion to do the right thing in the right circumstances. That is entirely correct, given the evidence that we have received.
The cabinet secretary mentioned funding to cover capital costs. Would the grants cover repair costs, which are not usually treated as capital costs?
Our intention is to be sympathetic towards that.
Amendment 93 agreed to.
The next group is on general guidance on part 1. Amendment 101, in the name of Peter Peacock—[Interruption.] Yes, we have a break from the cabinet secretary. Amendment 101 is grouped with amendment 102.
A fair amount of the evidence that we took at stage 1 revolved around guidance. Witnesses required clarity on the bill’s implications. Amendment 101 simply tries to ensure that, as time goes on and events evolve, there will be clarity on the interpretation of the bill and that the responsibilities of all concerned will be spelled out.
Under the bill, there will be many new managers of small reservoirs, and they will be required to comply with the new and necessary measures that are set out in it. It will be important to avoid confusion and ensure that there is clarity for everyone during the transition from the current situation to the new provisions under the bill.
I have here a substantial piece of guidance, which I am happy to lend to members to read. It relates to the 1975 act, and it took about 25 years to get to its current stage. It demonstrates how complex the interpretation of such acts is.
Amendment 101 tries to ensure that a similar approach will be taken to the one that was taken towards building up guidance under the 1975 act over those 25 years. Although there will not be a need for specific guidance because of the way that the act will commence and because various regulations and other secondary legislation will come into play further down the line, there needs to be a document that explains the bill and how it differs from the current situation. As time goes on, it could be added to—as in the case of the guidance under the 1975 act—as the secondary legislation is introduced.
That approach would be particularly important for owners who are brought into the system because of the bill. The base document could set out what the legislation expects and be added to by the secondary legislation and guidance over time. That would happen from about 2014 or 2015 onwards. It seems to me that there will be sufficient time between now and the commencement of some of the provisions for that guidance to be produced.
I am aware that the experience of reservoir managers—particularly Scottish and Southern Energy, which is one of the biggest, most strategic and most significant reservoir managers and operators in the country—with regulation in general is that, unless there is a statutory requirement to produce guidance, uncertainty can arise and there is potential for an ad hoc and haphazard approach to interpretation. Amendment 101 seeks to ensure that the regulations and other secondary legislation that come into play will be accompanied by guidance so that people working in the field have absolute clarity.
I fully accept that amendment 101 may not be formulated perfectly, and I am happy to address any concerns that the minister has. Indeed, if he wants to adopt the principle and do something at stage 3, that will be fine. If he wants to support amendments 101 and 102, that will be even better. However, I will listen to what he has to say.
Amendment 102 is simply consequential on amendment 101.
I move amendment 101.
10:45
Peter Peacock raises important issues. I am happy to respond to amendments 101 and 102. I congratulate him on getting them in under the wire for today’s deliberations.
Committee members will be aware that the bill is technical in nature and contains a large number of delegated powers. The bill creates the framework for a new reservoir safety regime, but its full and effective commencement will require subordinate legislation to set out the procedures and many of the details.
The bill already contains a number of guidance provisions for SEPA and ministers in relation to specific parts. I acknowledge that comprehensive guidance on interpretation of the act will be essential to assist reservoir managers, panel engineers and SEPA with their understanding of the duties and responsibilities under it, as it commences. In light of that, I assure the committee that the Scottish Government intends to commission such guidance to support the new regime and will consult fully SEPA, the Institution of Civil Engineers and other key stakeholders, such as some of the companies that Peter Peacock mentioned, before producing it. That comprehensive guidance will be supplemented by the specific SEPA and ministerial guidance for which specific parts of the bill already provide.
Amendments 101 and 102 require the publishing of holistic guidance by a certain date after royal assent. That may set a deadline that comes well before key elements of the bill are commenced, which would jeopardise the quality of the guidance and might render it unfit for purpose at the time. It would be much more sensible to produce guidance for each part of the bill as it is commenced and as the supporting secondary legislation is further developed.
For those reasons, I ask Peter Peacock to withdraw amendment 101 and not to move amendment 102. However, if the member still feels that it is necessary for the bill to refer to such guidance, I will be happy to speak to him and to the committee about a stage 3 amendment.
I welcome the minister’s comments and accept his assurance that the Government will commission guidance and consult a wide range of parties. I also take the point that the deadline may be too tight. I will not press amendment 101, but I will take the opportunity to discuss the matter with the minister or his officials prior to stage 3, to see whether some reference may be included in the bill to strengthen it and to give the reassurance that others are seeking.
Amendment 101, by agreement, withdrawn.
Sections 97 and 98 agreed to.
After section 98
The next group is on SEPA: ministerial directions. Amendment 94, in the name of the cabinet secretary, is the only amendment in the group.
Amendment 94 simply requires SEPA to act in accordance with directions that are provided by Scottish ministers, while carrying out its functions under the legislation. That gives Scottish ministers the power to direct SEPA as to the manner in which it accomplishes its obligations under the bill.
I move amendment 94.
Amendment 94 agreed to.
Sections 99 to 105 agreed to.
After section 105
The next group is on consequential amendment and repeals. Amendment 95, in the name of the cabinet secretary, is the only amendment in the group.
Amendment 95 is consequential on the repeal of the Reservoirs Act 1975 for Scotland. It repeals or replaces references to the 1975 act in other acts, where appropriate, with references to the bill.
I move amendment 95.
Amendment 95 agreed to.
Section 106 agreed to.
Section 107—Orders and regulations
Amendments 96 and 97 moved—[Richard Lochhead]—and agreed to.
Section 107, as amended, agreed to.
Section 108 agreed to.
Schedule—Index of defined expressions
Amendments 98 to 100 moved—[Richard Lochhead]—and agreed to.
Schedule, as amended, agreed to.
Section 109—Commencement and short title
Amendment 102 not moved.
Section 109 agreed to.
Long title agreed to.
That ends stage 2 consideration of the Reservoirs (Scotland) Bill. I suspend the meeting for five minutes.
10:51
Meeting suspended.
11:01
On resuming—