Draft Reservoirs (Scotland) Act 2011 (Restrictions On Disclosure Of Information in Relation To National Security etc.) Order 2015
The Committee consisted of the following Members:
† Baker, Steve (Wycombe) (Con)
† Banks, Gordon (Ochil and South Perthshire) (Lab)
† Benyon, Richard (Newbury) (Con)
† Cairns, Alun (Parliamentary Under-Secretary of State for Wales)
† Crockart, Mike (Edinburgh West) (LD)
† Field, Mark (Cities of London and Westminster) (Con)
† Hamilton, Mr David (Midlothian) (Lab)
† Harris, Mr Tom (Glasgow South) (Lab)
† McCartney, Jason (Colne Valley) (Con)
† McGuire, Dame Anne (Stirling) (Lab)
† Morrice, Graeme (Livingston) (Lab)
† Morris, Anne Marie (Newton Abbot) (Con)
O'Donnell, Fiona (East Lothian) (Lab)
† Roy, Mr Frank (Motherwell and Wishaw) (Lab)
† Wallace, Mr Ben (Wyre and Preston North) (Con)
† Whiteford, Dr Eilidh (Banff and Buchan) (SNP)
† Willott, Jenny (Cardiff Central) (LD)
Clementine Brown, Committee Clerk
† attended the Committee
First Delegated Legislation Committee
Tuesday 13 January 2015
[Sir Edward Leigh in the Chair]
Draft Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of
Information in relation to National Security etc.) Order 2015
2.30 pm
The Parliamentary Under-Secretary of State for Wales (Alun Cairns): I beg to move,
That the Committee has considered the draft Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015.
It is a privilege to serve under your chairmanship for the first time, Sir Edward. The main purpose of the order is to confer on the Secretary of State for Scotland powers in relation to reservoirs in Scotland that are similar to powers that the Secretary of State for Environment, Food and Rural Affairs already has in relation to reservoirs in England and Wales. It will therefore ensure a coherent national security regime is in place for reservoirs.
The order is made under section 104 of the Scotland Act 1998, which allows for necessary or expedient legislative changes to be made in consequence of an Act of the Scottish Parliament. The order is made in consequence of sections 9 and 55 of the Reservoirs (Scotland) Act 2011 and is being taken forward with the agreement of the Scottish Government.
The 2011 Act provides for a new regime for the regulation of the construction, alteration and management of controlled reservoirs in Scotland, particularly in relation to the risk of flooding from those reservoirs. When fully commenced, the 2011 Act will replace the current regime, which operates under the Reservoirs Act 1975 insofar as it extends to Scotland. Section 9 of the 2011 Act requires the Scottish Environment Protection Agency to establish and maintain a public register of controlled reservoirs in Scotland. The reservoirs must include, among other things, maps showing areas of land that would be likely to be flooded in the event of an uncontrolled release of water.
Section 55 of the 2011 Act provides for the preparation and publication of flood plans for controlled reservoirs. The plan must set out the action to be taken by the manager of the reservoirs to control or mitigate the effect of any flooding likely to result from an escape of water from the reservoir.
The Committee will readily appreciate that some of the information in the maps and plans that I have just mentioned, which will be gathered and stored by public bodies and others under the 2011 Act, could be used in a harmful way if in the wrong hands. As hon. Members are aware, the Scottish Parliament does not have legislative competence to make provision in relation to national security matters as those matters are reserved to the UK
Parliament by schedule 5 to the Scotland Act 1998. Therefore, the order will empower the Secretary of State to serve a non-disclosure notice on Scottish Ministers and SEPA if the Secretary of State is of the opinion that the disclosure of any information about a controlled reservoir in Scotland would be contrary to the interests of national security. That will prohibit the disclosure of the information by Scottish Ministers and SEPA and, in particular, will ensure that the information is excluded from the public register.The order will also empower the Secretary of State to serve a non-publication notice on any relevant person, if the Secretary of State is of the opinion that the publication of a flood plan, or any information in relation to the plan, would be contrary to the interests of national security. For the Committee’s information, a “relevant person” is defined under article 2 of the order and includes those who are required to prepare or publish flood plans.
As I have said, the Secretary of State already has similar powers in relation to reservoirs in England and Wales and the order puts in place appropriate provision for Scotland, with the support of the Scottish Government. The order will also make it an offence to fail to comply with the requirement of a non-publication notice.
Finally, the order will update the definition of “the Scottish regime” in schedule 4 to the Flood and Water Management Act 2010 to clarify that the 2011 Act will now provide for the regulation of the construction, alteration and management of controlled reservoirs in Scotland, rather than the regime that currently operates under the Reservoirs Act 1975.
I consider the order to be a sensible use of the powers under the Scotland Act 1998 and believe that the order once again demonstrates this Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I commend the order to the Committee.
2.35 pm
Gordon Banks (Ochil and South Perthshire) (Lab): I am delighted to serve under your chairmanship, Sir Edward. I welcome the Minister’s brief foray into Scottish politics this afternoon. I thank him for his comments and for his outline of the purpose of the Act. As the order is of a consequential nature, I will keep my comments brief. I am sure that the Minister and Members will be pleased to hear that—[[Hon. Members: “ Hear, hear.”] That is the only thing we ever get “Hear, hear” for.
As the Minister indicated, the order has arisen as a consequence of the Reservoirs (Scotland) Act 2011, which makes provision, among other things, for a new regime in Scotland for the regulation of controlled reservoirs. With respect to the measures contained in the order, it is important to re-emphasise that the 2011 Act contains provisions requiring the Scottish Environment Protection Agency to maintain a register of certain controlled reservoirs. It also allows Scottish Ministers to make provisions for the preparation of flood plans for controlled reservoirs—namely, reservoirs of 10,000 cubic metres or more.
However, I also recognise that the national security matters outlined by the Minister remain a reserved power, as outlined in the Scotland Act 1998. As such, it remains the competence of the UK Government to
ensure that the publication and related availability of information about controlled reservoirs and their associated flood plans does not present a risk to national security, as the Minister said. I therefore recognise the need for legislative measures aimed at achieving continuity when the 2011 Act is fully implemented this year. Indeed, we need no reminders about the importance of both maintaining the appropriate level of protection against potential national security threats and achieving the appropriate level of governmental co-ordination. I am satisfied that the provisions contained in the order achieve an appropriate balance in that respect.While I have little further to add, I would like to ask the Minister a few questions. Have discussions taken place between the Government, the Scottish Government and SEPA regarding the practical application of articles 3 and 8 of the order? Did either offer any objections to the provisions contained in the order regarding non-disclosure and, if so, what were they? Will he also confirm that appropriate processes are already designed to facilitate any operational necessity arising from articles 3 and 8? The order and the 2011 Act specifically relate to controlled reservoirs. Are any reservoir structures at controlled reservoirs excluded from the scope of that term? Finally, I want to ask the Minister what may appear to be a confused question but which has important relevance. Will he confirm that evacuation plans exist in areas of controlled reservoirs where members of the public may live or be present, even though the public may not be able to be made aware of the detail of their existence through non-publication?
This is the third Committee of its kind that I have spoken in over the past few weeks. As the Minister has already said, such Committees serve to show that devolution is a continually evolving process. I am struck by the fact that both Parliaments are able to work together constructively when legislating in this way. I would argue that such co-operation, which is not always necessarily highlighted in the public domain, shows the strength of devolution in its practical application. Provided that the Minister can answer my questions, the Opposition have no objection to the order.
2.38 pm
Alun Cairns: I thank the hon. Member for Ochil and South Perthshire for welcoming me to the brief and for his understanding, given the circumstances, of the fact that the Minister who would usually be here is not. I also welcome his support for the order.
The hon. Gentleman raised a number of questions. He asked whether any reservoir structures in Scotland were excluded from the order; none are. He also asked specifically about whether any discussions took place between the UK and Scottish Governments on SEPA. The type of information that will be disclosed about reservoirs is either set out in the 2011 Act or will be set out in secondary legislation laid under that Act prior to any disclosure.
SEPA will also seek advice from the Scottish Government and/or the UK Government if it has concerns about any information that it may hold that it considers may have national security implications. The UK Government will of course have access to any specific national security intelligence on suspected risks arising from information on reservoirs located in Scotland. There have been a number of discussions between the respective bodies to ensure that the scope of the order meets the criteria of SEPA and of the Scottish Government, as well as meeting the needs of the UK Government in seeking to maintain national security.
I should like to underline the overall purpose of the order. It aims to protect communities and to maintain national security, but is also aimed at protecting those individuals who, as the 2011 Act comes into force, will have an obligation to publish the relevant documents when they do not publish information that could bring issues relating to some communities or to national security into question.