Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) (No 2) Order 2000 (SI 2000/draft)
The first item on the agenda is for Iain Gray, the Deputy Minister for Justice, to move motion S1M-1339, on the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) (No 2) Order 2000 (SI 2000/draft). Iain Gray has 90 minutes, but he need not use all that time.
If I get close to running over time, I am sure that the convener will let me know. I will need not 90 minutes but, perhaps, 90 words to give a brief explanation of the purpose of the order and what it covers. I will be happy to answer any questions.
The Scotland Act 1998 recognised that, in some cases, it would be appropriate for Scottish ministers to be able to exercise executive powers in areas for which primary legislation continued to be reserved to Westminster. That has become known as executive devolution. Section 63 of the Scotland Act 1998 allows functions in reserved areas to be transferred to Scottish ministers, or for Scottish ministers to be given a role by introducing requirements to consult them or to obtain their agreement to the exercise of functions by United Kingdom ministers. The functions that are stipulated in the order that we are discussing are being transferred to Scottish ministers.
The powers that the order covers fall under three headings, to which it is worth drawing the committee's attention. Members will have seen the note that was prepared to explain the entries in the order in detail. First, under sections 5 and 32 of the Regulation of Investigatory Powers Act 2000, the secretary of state can exercise functions in or as regards Scotland, in relation to the issue of warrants. Those functions will be transferred by the order to Scottish ministers. For the purposes of preventing or detecting serious crime, section 5 of that act provides for the issue of warrants that authorise the interception of communications by the police and HM Customs and Excise. Section 32 provides for the issue of warrants that authorise intrusive surveillance by the intelligence services.
Broadly, the effect of the order will be that only Scottish ministers will be able to issue warrants under the specified sections of the Regulation of Investigatory Powers Act 2000. Those sections authorise the interception of communications in respect of a person or a set of premises that are located, or are believed to be located, in Scotland at the time that the warrant is issued. They will also be able to authorise intrusive surveillance by the intelligence services in relation to residential premises in Scotland, or a private vehicle that is, or is believed to be, located in Scotland at the time that the warrant is issued.
The second area that the order covers concerns pipelines. The order transfers functions to Scottish ministers to enable them to give developers consent to lay certain gas pipelines that begin and end in Scotland. It also gives Scottish ministers powers to approve compulsory purchase orders that are associated with those pipelines.
The third topic concerns schedule 12 to the Poisons Rules 1982. That schedule allows the secretary of state to authorise persons to purchase strychnine for the killing of moles and to authorise officers of the then Department of Agriculture and Fisheries for Scotland to purchase strychnine for the killing of foxes. The order will transfer those functions to Scottish ministers and, at the same time, will change references to officers of the obsolete department to references to members of the Scottish Administration.
That was a swift description of the three main areas that are covered by the order. I am happy to respond to any comments or questions that the committee has.
I move,
That the Justice and Home Affairs Committee recommends that the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) (No 2) Order 2000 be approved.
Do any members wish to contribute to the debate?
May I ask the minister a question?
We are in formal debate, but you can ask your question in the form of a short speech to which the minister will reply in summation.
That will be a bit tricky for me at this time of the morning, but I will try to formulate my question as a statement.
Further orders might be on the way to deal with devolved matters—will the minister give us notice of any other such orders that might be en route to the committee, apart from the order we are debating?
I would also like to request from the minister a point of information on something that I do not know about. Paragraph 5 of the Executive note on the order states:
"The Order also transfers powers under the Utilities Act 2000, when it comes into force, to permit the Scottish Ministers to make orders to put in place a renewables obligation in Scotland."
I will be interested to hear the minister explain what that means.
The functions that will be transferred to Scottish ministers were held by the Secretary of State for Scotland. How will the transfer work? To which ministers will the powers fall, and in which cases? I presume that the powers do not fall to the First Minister—if that were so, the order would specify it. Will the deputy minister clarify the position?
Do any more members want to contribute to the debate? If not, I invite the minister to sum up.
I am aware of two similar orders that will be subject to scrutiny by the Westminster Parliament and the Scottish Parliament. Orders that are made under section 30(3) of the Scotland Act 1998 come up from time to time. I might be stepping beyond my knowledge, but I think that the matter depends on new legislation from Westminster, which might require a further order. As the orders are presented to Parliament, they are assigned to a relevant committee that has the most significant interest. The order that we are discussing was assigned to the Justice and Home Affairs Committee probably because it affects powers on interception of communications and surveillance. The two further orders might not be assigned to the committee. I have no more information than that.
The renewables function is an important aspect, to which I should have referred. When the Utilities Act 2000 comes into force, the order will transfer powers under it to Scottish ministers, to permit them to make orders to put in place a renewables obligation in Scotland. That will allow the Scottish Executive to discharge its commitment to promoting renewable energy and to acknowledge the role that renewable energy has in matters such as tackling climate change. We intend to release a consultation paper soon, which will cover the implications of the imposition of such a renewables obligation. I am sure that that will become a topic of debate among the public and members of Parliament.
Pauline McNeill asked which minister the powers would be devolved to. Technically, any Scottish minister could exercise the powers. However, it is relatively clear which would be the appropriate minister to take the decision in most instances, but it is perhaps less clear for the intrusive surveillance powers. The importance of those powers means that either the First Minister, or the Deputy First Minister deputising, would take such decisions. For some of the pipeline orders or poisons functions, I imagine that the decision would be likely to devolve to the Minister for Rural Development. However, the transfer is technically to Scottish ministers collectively.
Transferring the exercise of a function from one person to a number of people—however many there are in the Cabinet—is a significant change. A range of people could exercise the function. If any Scottish minister can issue a warrant, I want to be assured that some mechanism will check that process. Perhaps some guidance would be in order, to make it clear who would issue warrants and in what circumstances. The matter is controversial.
The position that Pauline McNeill describes follows from the Scotland Act 1998. The powers are vested in the Scottish ministers collectively. Another example that occurs to me is planning legislation. Planning decisions that were previously considered by the secretary of state have passed to the Scottish ministers collectively. I imagine that practice and convention will develop over time. It is certainly the Executive's intention that only the First Minister or Deputy First Minister should take decisions on intrusive surveillance.
The question is, that the motion be agreed to.
Motion agreed to.
That the Justice and Home Affairs Committee recommends that the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) (No 2) Order 2000 be approved.
I thank the minister for attending.
The committee will publish a report on the order, which will set out its recommendation. The report will be brief and in a standard form. We will e-mail that report to the committee and if any member has any problems with it, the member should notify the clerks right away. The time scale does not allow us to consider that short report at the committee's next meeting, but there should be no problems—the report is formulaic.