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Session 1999-2000
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Delegated Legislation Committee Debates

Draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions, Etc.) (No. 2) Order 2000, and the Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers Etc.) (No. 2) Order 2000, and the Draft Scotland Act 1998) Modifications of Schedule 5) Order 2000

Second Standing Committee on Delegated Legislation

Tuesday 21 November 2000

[Mr. Eric Illsley in the Chair]

Draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions, etc.) (No. 2) Order 2000, and the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000, and the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2000

4.30 pm

The Minister of State for Scotland (Mr. Brian Wilson): I beg to move,

    That the Committee has considered the draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) (No. 2) Order 2000.

The Chairman: With this it will be convenient to consider the draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000, and the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2000.

Mr. Wilson: In previous debates on Scottish orders, I have assured Committee members that we try to consolidate and group orders as the need arises to minimise the number of debates and to make the best use of hon. Members' valuable time. I therefore make no apology for the wide—some might say eclectic—range of subject matter covered in the orders.

Hon. Members who have served on previous Committees considering orders of this kind will recall our discussions about the level of information that is made available to hon. Members and noble Lords when considering delegated legislation compared with that available to Members of the Scottish Parliament. In the interests of informed debate, I arranged for copies of the executive notes prepared by the Scottish Executive for the assistance of MSPs to be sent to you, Mr. Illsley, and other Committee members. My officials have assisted in arranging for copies to be laid in both Libraries, and have tried to improve the usefulness of the explanatory notes attached to the orders within the existing guidance. As well as the battery of measures that I have taken, I have drawn the points raised to the attention of my right hon. Friend the Leader of the House, who proposes that the issue should be considered in detail when the report by the Procedure Committee on delegated legislation is considered. I hope that that satisfies Committee members.

The adaptation of functions order relates to cross-border public authorities. In preparing for devolution, it was recognised that some public bodies that operate in Scotland and beyond would have a remit that included devolved matters in Scotland. Section 88 of the Scotland Act 1998 provides the mechanism to designate public bodies as cross-border public authorities. Designation as a cross-border public authority means that ministerial functions in relation to the body do not transfer automatically to Scottish Ministers, as they would for bodies operating wholly within a devolved area. Instead, Scottish Ministers have a right to be consulted on appointments to or removal from the body, and on the exercise of functions in relation to the body that might affect devolved matters.

Such default arrangements will not necessarily be suitable for every cross-border public authority, so section 89 of the Scotland Act 1998 allows arrangements to be tailor-made for a particular body. That is what the order does. The first body concerned is the British Waterways Board, which is linked to the Inland Waterways Amenity Advisory Council. The authorities operate on a Great Britain basis and were specified as cross-border public authorities, as responsibility for inland waterways in Scotland is devolved to Scottish Ministers.

The order will modify the British Waterways Act 1975 and the Transport Acts of 1962 and 1968 to give the Scottish Ministers by and large the same functions with regard to those bodies as those held by Government Ministers. Those functions are set out at some length in schedules 2 and 3, and in the executive notes, which provide a useful summary list.

There is also an entry concerning the royal commission on environmental pollution. That body advises on environmental matters that are the responsibility of the Government and those that are devolved. It has been specified as a cross-border public authority so that Scottish Ministers are consulted about the exercise of ministerial functions in relation to the commission as they affect Scotland. The commission customarily sets its own lines of inquiry, but must also inquire into matters referred to it by a Secretary of State or Minister. The order gives Scottish Ministers powers to refer matters to the royal commission on environmental pollution for investigation.

The fire services examination board administers a statutory examination whereby fire service personnel qualify for promotion throughout the United Kingdom. In the past, the Scottish Office paid a proportion of the board's expenses, which are now met by the Scottish Executive. However, the power to meet those expenses did not transfer to Scottish Ministers. The order provides a statutory authority for those payments to be made from the Scottish consolidated fund and further stipulates that reports and accounts are presented to Scottish Ministers instead of the Secretary of State. From that description, hon. Members will realise that this is a tidying-up measure.

The order also makes arrangements for consultation between the Home Secretary and Scottish Ministers in relation to the appointment of a chairman and four members of the board and the period of appointment. That consultation previously took place between the Home Secretary and the Secretary of State.

The final entry in the order concerns plant varieties. It requires the consent of the Scottish Ministers for some orders under the Plant Varieties Act 1997 in relation to—[Interruption.] Members should listen to the splendid title of the next gentleman to whom I will refer. The orders involved are those in relation to the controller of plant variety rights, the Plant Varieties and Seeds Tribunal and the Plant Variety Rights Office.

I turn to the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2000. The Act recognised that, in some cases, it would be appropriate for the Scottish Ministers to be able to exercise executive powers in areas in which primary legislation continues to be a matter for this Parliament. Section 63 of the Act provides for various forms of what is known as executive devolution. In this case, the functions concerned will be transferred to the Scottish Ministers so as they are exercisable in or as regards Scotland.

Article 2, together with schedule 1, sets out the extent to which the functions concerned are to be regarded as affecting Scotland for the purposes of this order. That is a procedure provided for in section 30(3) of the Scotland Act 1998. Article 3, together with schedule 2, sets out the functions to be transferred. Article 4, together with schedule 3, changes other Acts and orders consequential to the transfer of functions to Scottish Ministers.

The entries concerning the Regulation of Investigatory Powers Act 2000 transfer powers to issue warrants under sections 5 and 32 of the Act. That is a matter of significance and interest. The warrants are to authorise the interception of communications by the police and Customs and Excise, or intrusive surveillance by the security service. In each case, the function of issuing the warrant is transferred to Scottish Ministers when the purpose is to prevent or detect serious crime. They will issue warrants for the interception of communications when the person or premises concerned are, or are believed to be, in Scotland at the time of the warrant's issue. Similarly, Ministers will issue warrants for intrusive surveillance by the security services on premises or private vehicles that are, or are believed to be, in Scotland at the time of the warrant's issue.

Observant hon. Members will doubtless recall that similar functions under the Interception of Communications Act 1985 and the Intelligence Services Act 1994 were transferred to Scottish Ministers in the main executive devolution order last year. This order updates the position in the light of the new Act.

On pipelines, the order transfers functions to Scottish Ministers, enabling them to give consent to developers to lay gas pipelines that begin and end in Scotland. It also gives them powers to approve compulsory purchase orders associated with those pipelines. For the most part, pipeline consents are already devolved, but transport pipelines and environmental impact assessment procedures relating to all pipeline developments were not covered. The order will remedy that omission. The order will also transfer powers created by the Utilities Act 2000, when it comes into force, to allow Scottish Ministers to make orders specifying the level of electricity to be produced from renewable resources in Scotland.

Schedule 12 to the Poisons Rules 1982 allows the Secretary of State to authorise the purchase of strychnine for killing moles, and to authorise officers of the Department of Agriculture and Fisheries for Scotland to purchase strychnine for killing foxes. I should stress that, in this sense, moles and foxes are in the animal, not the parliamentary, context. The order will transfer those functions to Scottish Ministers and, at the same time, change references to now obsolete Departments. At present, those powers are in the hands of the Department of Agriculture and Fisheries for Scotland, which no longer bears that name. Again, it is a tidying-up measure.

Mr. Tam Dalyell (Linlithgow): That point can obviously be a matter for considerable ribaldry, but was it not a retained power for a reason? If my memory is correct, a question was raised about the matter. It may be simple to transfer the power, but what were the reasons behind the transfer and the original decision? It is quite a serious matter.


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