The
Committee consisted of the following
Members:
Blunt,
Mr. Crispin
(Reigate)
(Con)
Brown,
Mr. Russell
(Dumfries and Galloway)
(Lab)
Cairns,
David
(Minister of State, Scotland
Office)
Clark,
Ms Katy
(North Ayrshire and Arran)
(Lab)
Dunne,
Mr. Philip
(Ludlow)
(Con)
Hamilton,
Mr. David
(Midlothian)
(Lab)
Holloway,
Mr. Adam
(Gravesham)
(Con)
Lazarowicz,
Mark
(Edinburgh, North and Leith)
(Lab/Co-op)
McKechin,
Ann
(Glasgow, North)
(Lab)
Moore,
Mr. Michael
(Berwickshire, Roxburgh and Selkirk)
(LD)
Reid,
Mr. Alan
(Argyll and Bute)
(LD)
Reid,
John
(Airdrie and Shotts)
(Lab)
Roy,
Mr. Frank
(Lord Commissioner of Her Majesty's
Treasury)
Scott,
Mr. Lee
(Ilford, North)
(Con)
Strang,
Dr. Gavin
(Edinburgh, East)
(Lab)
Wallace,
Mr. Ben
(Lancaster and Wyre)
(Con)
Rhiannon Hollis, Committee
Clerk
attended the
Committee
The following also
attended, pursuant to Standing Order No.
118:
McCartney,
Mr. Ian
(Makerfield)
(Lab)
Third
Delegated Legislation
Committee
Tuesday
10 June
2008
[Miss
Anne Begg in the
Chair]
Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2008
10.30
am
The
Minister of State, Scotland Office (David Cairns): I beg
to
move,
That
the Committee has considered the draft Scotland Act 1998
(Transfer of Functions to the Scottish Ministers etc.) Order
2008.
I
welcome you to the Chair, Miss
Begg.
The
primary purpose of the order before us is to ensure full compliance in
Scotland with a European directivethe integrated pollution
prevention and control
directive.
The
order is made under section 63 of the Scotland Act 1998, which allows
for the transfer to Scottish Ministers of functions that are
exercisable
in or as
regards Scotland,
commonly known as
Executive devolution. The order will allow Scottish
Ministers to make regulations under the Pollution Prevention and
Control Act 1999, which in turn will allow the Scottish Environment
Protection Agency to implement the directive
fully.
Briefly,
the directive imposes a requirement for industrial and agricultural
activities with a high pollution potential to obtain a pollution
prevention and control permit, subject to certain environmental
conditions being met. Currently in England and Wales, operators must
obtain this permit from the Environment Agency in order to operate
industrial installations. In Scotland, as most of the directive relates
to devolved matters, Scottish Ministers have already made regulations
which are enforced by SEPA.
However, the
directive also requires that competent authorities must ensure that
installations are operated in such a way that energy is used
efficiently. Energy efficiencyas you know, Miss Beggis
a reserved matter, and as such Scottish Ministers cannot empower SEPA
to implement that important aspect of the directive. So, the order
empowers Scottish Ministers to give SEPA the legal authority to add and
enforce energy efficiency as a condition to these
permits and exercise connected functions, such as the issuing of
guidance to SEPA. It will also enable Scottish Ministers to exercise
functionsconcurrently with UK Ministersin relation to
any Community obligations relating to energy
efficiency.
Given
that SEPA already enforces the bulk of this directive in Scotland, it
is only sensible that it is able to enforce the energy efficiency
requirement, alongside the devolved elements. It would be an additional
burden for businesses to have to deal with energy efficiency under
separate regulations, by a separate authority. This order will allow
Scottish Ministers to make regulations that cover all aspects of the
directive, and allow SEPA to enforce that regulatory regime.
Finally,
allowing Scottish Ministers to exercise this function does not alter
the legislative competence of the Scottish Parliament; energy policy
remains reserved to this
place.
10.32
am
Mr.
Ben Wallace (Lancaster and Wyre) (Con): I welcome you to
the Chair, Miss
Begg.
I
do not like to talk when it is not necessary to talk, nor to oppose for
oppositions sake. Her Majestys loyal Opposition will of
course support this statutory instrument and the implementation of it.
I shall sound just one note of caution.
While the
order devolves the right for the Scottish Parliament to enact and
comply with the directive, it does not of course devolve the legal
responsibility of the member state to comply. Should any fine be
incurred for breach of that compliance, therefore, the UK member state
would pay the penalty, not the devolved institution; and in fact the
European Commission could take action against the member state only. I
therefore ask the Minister to set out in writing, at some stage, what
clear mechanism is in place for new environmental legislation such as
thisand the many other examples of functions now being devolved
to the Scottish Parliamentto ensure that should ever a devolved
Government, such as the current Scottish Government, fail to implement
an EU directive correctly, there would be an easy mechanism to transfer
any fine back to the Commission, without the nationalists exploiting
that for their own separatist agenda.
10.34
am
Mr.
Alan Reid (Argyll and Bute) (LD): I welcome you to the
Chair, Miss
Begg.
I
support the order. I believe in devolving more powers to the Scottish
Parliament, so I believe that this is a move in the right direction. I
have just one question for the
Minister.
I
note that the powers are now exercisable concurrently by a Scottish
Minister and a Minister of the Crown. Why are the powers not being
devolved completely to Scottish Ministers? If they are exercised
concurrently, is there not a possibility that a Minister in this place
could make an order and a Scottish Minister could also make an order
and the two orders might be in conflict? If that happened, what would
be the legal
position?
10.34
am
David
Cairns: I am grateful for the general welcome that the
Opposition parties have given to the order. I shall deal briefly with
the questions that have been
asked.
The
hon. Member for Lancaster and Wyre is quite right that where
responsibility for enacting and enforcing EU directives has been
devolved, the member state still remains liable for any infraction
proceedings. That is the case across the whole gamut of devolved areas;
it applies in Wales and Northern Ireland as
well.
Clearly,
if members of the Scottish National party wish Scotland to be a full
and independent member of the EU, they would not particularly do their
case any good if they were to be willy-nilly in violation of EU
directives that they themselves had taken on responsibility
for, and we do not reckon that that would arise. The hon. Gentleman is
absolutely right to remind us that the UK is the member state, and that
any fines following infraction proceedings would fall on the UK, but we
are confident that the risk of infractions in this particular
instancebecause we actually have missed the deadlineis
relatively
low.
The
hon. Member for Argyll and Bute picked up on a point to do with the
concurrent nature of the exercise of these powers. It is to do with the
fact that energy efficiency, in the widest sense of the word, is still
reserved. It is a reservation in section 5 of the Scotland Act 1998.
However, there is an exception to the reservation to do with the
promotion of energy efficiency, and what we are doing here is enabling
SEPA to exercise a full suite of functions within the context of a
Community directiveand it will only always be within the
context of a Community directive. So, Ministers of the Crown still
retain the right to legislate in this area for energy efficiency
outwith Community directives, should such an occasion arise, and we are
limiting the transfer of functions under the order to exercising within
the Community directives.
This is a
pretty obscure area because there is a general reservation and then
there is an exception to the reservation, and now we are putting on the
further limitation, which is to do with compliance with EU directives.
So, I do not envisage the particular circumstance that the hon.
Gentleman
mentioned.
Mr.
Reid: It does sound a bit complicated. What would take
precedence if a UK Minister had issued one order and a Scottish
Minister had issued another order and the two were in conflict? What
would the legal position
be?
David
Cairns: The legal position is that the Scottish Parliament
is a devolved body of this Parliament, and this Parliament remains
sovereign; and we can legislate in any area that we want, but we choose
not to because of the conventions contained in Sewel. The broader Sewel
conventions would apply in this case as well. If the hon. Gentleman is
asking me for the constitutional theoretical position, this Parliament
is
sovereign.
Question
put and agreed
to.
Committee
rose at twenty-two minutes to Eleven
oclock.