Subordinate Legislation Committee, 26 Apr 2005

Meeting date: Tuesday, April 26, 2005

Official Report 114KB pdf

---

Delegated Powers Scrutiny

---

Environmental Assessment (Scotland) Bill: Stage 1

Welcome to the 13th meeting in 2005 of the Subordinate Legislation Committee. I have received apologies from Mike Pringle.

The first item on our agenda is delegated powers scrutiny of the Environmental Assessment (Scotland) Bill. The main purpose of the bill is to provide for assessment of the environmental aspects of certain plans and programmes, including plans and programmes that are covered by directive 2001/42/EC of the European Parliament and of the Council.

The legal advisers raise a number of points, the first of which relates to the fairly broad Henry VIII powers in sections 5(5), 6(2), 7(3) and 14(5). At the moment, those powers are subject to the negative resolution procedure and the committee needs to decide whether they should be subject to the affirmative procedure instead. We have not received much explanation from the Executive as to why those powers are subject to the negative procedure.

This committee has consistently taken the view that, other than in extremely specific cases—such as the one that we will come to shortly—Henry VIII powers should be subject to the affirmative procedure. We should stick to that general rule. It is good legislative practice and gives the Parliament an additional opportunity to scrutinise the use of such powers. In the interest of good law making, it makes sense from the point of view of those who have to implement the regulations.

Given that we have enough time and that there are many instances in the bill of Henry VIII powers that are subject to the negative resolution procedure, we should write to the Executive to ask for an explanation.

Is that agreed?

Members indicated agreement.

I believe that you wanted to raise an issue relating to section 6(1)(a), Stewart.

My query is to do with whether the power in that section will be exercised only in relation to individual schools. That is not clear. Could we ask the Executive to confirm exactly what its intention is with regard to the use of that power? The situation might be fine, but it would be helpful to have the issue clarified.

There are two issues. One concerns section 6(1)(b) in relation to section 6(1)(a), and the other concerns section 6(2).

The Executive has to be careful here, given that many of the major schools procurement exercises could be seen to fall within this definition, where the Executive is the promoter—not at first-hand, but at second remove—and is certainly the funder of many schemes, some of which are controversial in themselves and others of which are controversial on environmental grounds. The Executive must be absolutely clear about how and why the order should or should not impact on procurement projects in which the Executive participates and on which it is the arbiter of when an environmental impact assessment will and will not be required. The Executive must be very careful about that.

That is a good point. Do we further agree to write to the Executive about the sensitive issue that Murray Tosh has raised?

Members indicated agreement.

I welcome Adam Ingram and Gordon Jackson to the meeting.

Section 2(4)(f) relates to the provision for the Scottish ministers to specify further responsible authorities in addition to those listed in section 2(4)(a) to (e) and gives ministers the power to add to the list of responsible authorities, set out at section 2(4),

"any other person, body or office-holder of a description (and to such extent) as may be specified … by order."

The Executive argues that it is not possible to include an exhaustive list of bodies at section 2(4) until evidence is available from the operation of the environmental assessment regime, as established by the bill. Orders made under this power are subject to annulment in pursuance of a resolution of the Parliament.

The legal advice suggests that the situation is okay, as the provision will have been subject to scrutiny through the bill process. Are members happy with the power?

Members indicated agreement.

Section 6(1)(b) provides for the Scottish ministers to make additional exclusions and allows them to specify, by order subject to the negative resolution procedure, types of plan or programme to be excluded from the description of plans and programmes set out in section 5(4). The legal advice is that the situation is okay. Are members happy with that?

Members indicated agreement.

Section 22 is on ancillary provision. I know that we have long-standing issues about the concept of supplemental provisions. Our legal advice is that the power is okay. It is subject to the draft affirmative procedure—in fact, it is the only Henry VIII power in this bill that is subject to the draft affirmative procedure. Are members content with the power as drafted?

Members indicated agreement.

Are members happy with section 25, which is the commencement power and appears to be fairly standard?

Members indicated agreement.