Draft Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015
The Committee consisted of the following Members:
† Bain, Mr William (Glasgow North East) (Lab)
† Banks, Gordon (Ochil and South Perthshire) (Lab)
† Benyon, Richard (Newbury) (Con)
† Cairns, Alun (Lord Commissioner of Her Majesty's Treasury)
† Clarke, Mr Tom (Coatbridge, Chryston and Bellshill) (Lab)
† Field, Mark (Cities of London and Westminster) (Con)
† Hamilton, Mr David (Midlothian) (Lab)
† Heath, Mr David (Somerton and Frome) (LD)
† Hemming, John (Birmingham, Yardley) (LD)
† Leslie, Charlotte (Bristol North West) (Con)
McGuire, Dame Anne (Stirling) (Lab)
† Mundell, David (Parliamentary Under-Secretary of State for Scotland)
O'Donnell, Fiona (East Lothian) (Lab)
† Roy, Mr Frank (Motherwell and Wishaw) (Lab)
† Uppal, Paul (Wolverhampton South West) (Con)
† Zahawi, Nadhim (Stratford-on-Avon) (Con)
Lloyd Owen, Committee Clerk
† attended the Committee
Sixth Delegated Legislation Committee
Wednesday 28 January 2015
[Mr George Howarth in the Chair]
Draft Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015
2.30 pm
The Parliamentary Under-Secretary of State for Scotland (David Mundell): I beg to move,
That the Committee has considered the draft Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015.
It is a pleasure to serve under your chairmanship for the first time, Mr Howarth. The order was laid before the House on 4 December 2014. Its main purpose is to provide for two new statutory appeals regimes, the first in connection with decisions on electricity generating stations to be situated in the Scottish offshore region, and the second in connection with section 36 consent decisions made under the Electricity Act 1989. The new regimes aim to establish a uniform statutory appeal regime to challenge certain marine licensing decisions made by Scottish Ministers across inshore and offshore regions.
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. This particular order is made in consequence of the Regulatory Reform (Scotland) Act 2014, which I will refer to as the 2014 Act. That Act takes forward the Scottish Government’s better regulation agenda on a range of regulatory issues and is primarily intended to improve how regulation is developed and applied in Scotland.
One of the Scottish Government’s clearly stated intentions is to strike a fair balance between the need to license offshore renewable energy projects and to give aggrieved persons a right to challenge those licensing decisions. The 2014 Act therefore aims to amend the procedure for challenging decisions, enabling any challenges to proceed quickly to the inner house of the Court of Session. Final determination of legal challenges will be achieved more quickly than under the present regime, which will benefit Scottish businesses applying for licences as well as those seeking to challenge Scottish Ministers’ decisions.
Currently, applicants for marine licences seeking authority under the Marine (Scotland) Act 2010 to carry out all types of licensable activity in the Scottish inshore region may appeal to the sheriff court if they wish to appeal Scottish Ministers’ decisions. Third parties with title and interest may raise judicial review proceedings in the outer house of the Court of Session. Section 54 of the 2014 Act amends the 2010 Act to provide for statutory appeals in connection with certain decisions made by Scottish Ministers. Those decisions relate to applications for marine licences in the Scottish inshore region which are in connection with electricity generating stations, as well as to whether a public inquiry should be held to determine such applications.
The 2014 Act allows such appeals to be made by aggrieved persons to the inner house of the Court of Session, provided that the Court has granted permission for the appeal to proceed. In order to ensure consistency across inshore and offshore regions, the order amends the Marine and Coastal Access Act 2009 to provide for the same fast-tracked appeal regime in decisions on electricity generating stations being situated in the Scottish offshore region. Similarly, the order amends the Electricity Act 1989 to provide for that same appeal regime in decisions made on applications for consent to construct, extend or operate generating stations—also referred to as section 36 consent—as well as decisions on whether to hold a public inquiry on such applications under that Act. That provision is required as there is currently no statutory right of appeal against section 36 consent decisions.
Although the main purpose of the order is to provide for the two new statutory appeals regimes for Scottish marine licensing decisions that I have outlined, it also makes minor or consequential amendments to give other aspects of the 2014 Act full effect. First, it will repeal sections 1(1)(d) and 5 of the Health and Safety at Work etc. Act 1974. Those were previously repealed in England and Wales but not in Scotland due to a number of extant regulations made in part under section 1(1)(d) of the 1974 Act which now appear to be spent and suitable for repeal.
Secondly, the order makes minor amendments to the Income Tax (Trading and Other Income) Act 2005 and the Corporation Tax Act 2009 to ensure that the definition of a “waste disposal licence” in those Acts includes an authorisation under the integrated authorisation framework established by sections 16 to 19 of the 2014 Act.
Finally, the order will extend sections 47 and 50 of the Copyright, Designs and Patents Act 1988 to part 3 of the 2014 Act. The sections of the 1988 Act provide, inter alia, that copyright is not breached by copying material which is “open to public inspection” in pursuance of a statutory requirement or which is on a statutory register, or by acts that are specifically authorised by Acts of Parliament.
That amendment is necessary, as the move from environmental regulation under various UK enactments to the new powers in part 3 of the 2014 Act has the unintended consequence that the provisions of sections 47 and 50 of the 1988 Act would no longer apply. The order applies those sections of the 1988 Act to the relevant sections of the 2014 Act to ensure that copyright is not breached. Similar provision is also made in respect of the Copyright and Rights in Databases Regulations 1997.
I consider the order to be a sensible use of the powers under the Scotland Act 1998 and believe that it 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.
2.36 pm
Gordon Banks (Ochil and South Perthshire) (Lab): It is a pleasure to serve under your chairmanship, Mr Howarth. The Minister has gone through the modifications made by the order, and I thank him for the outline given in what I thought was a relatively
detailed and complex contribution. This is the fourth order of its kind that I have been involved in in recent weeks, which highlights the continuing demonstration that both Parliaments can work together in a constructive manner when legislating in these areas. He pointed out that the order is consequential in nature, and I will therefore keep my comments brief.The Minister indicated that the order arose primarily as a consequence of section 54 of the Regulatory Reform (Scotland) Act 2014, passed by the Scottish Parliament almost exactly a year ago. The order seeks to amend the Marine and Coastal Access Act 2009 and the Electricity Act 1989 as outlined in the 2014 Act, with regard to the statutory appeals system provided. I recognise a need for legislative measures aimed at achieving continuity in this area when the 2014 Act is implemented fully. As such, the steps outlined in the order appear to be entirely sensible.
While the main purpose of the order is to provide for the two new statutory appeal regimes, the Minister also made reference to some of the minor changes that will be implemented by it—namely, changes to the Health and Safety at Work etc. Act 1974 and the Copyright, Designs and Patents Act 1988. I thank him for that information because it stopped me asking him about them.
While I have little further to say, I would not like to let the Minister off scot-free. I would like him to answer a couple of questions. New section 36E(2)(b) of the 1989 Act, inserted by article 4, highlights one of the necessary conditions for a court to grant permission for an application to proceed—namely, it would have to be satisfied that
“the application has a real prospect of success.”
Is the Minister aware of what would be defined as a “real prospect of success” in such cases? If so, will he elaborate? The objective is obviously to provide a uniform appeals regime across these areas, but will he confirm that that would be achieved in this instance?
Subsection (2)(a) states that an application can only proceed if
“the applicant can demonstrate a sufficient interest in the subject matter of the application”.
Will the Minister elaborate on that language or give some examples of where an applicant would not have sufficient interest to make such an application? Will he also outline how “sufficient interest” can be defined in respect of the order? I have no more to add, other than that the order has our support, providing the Minister can address the points I have raised.
2.40 pm
David Mundell: I agree with the hon. Gentleman that the number of orders that we have seen passing through the House in recent weeks demonstrates the clear commitment of this Government and Parliament to work with the Scottish Government and Scottish Parliament and to respect decisions taken there.
The hon. Gentleman asked what a “real prospect of success” might mean. Perhaps we all might wonder what those words mean as we go through the next 100 days, but in relation to the order, that will be for the court to determine.
Mr Mike Weir (Angus) (SNP): Is it not also the case that in other enactments in Scots law, the court has to determine whether there is a reasonable cause for success before allowing any appeal to go ahead, so there is nothing unusual implied in the wording of the order?
David Mundell: I am happy to confirm that. Indeed, as the hon. Gentleman knows, their lordships often react rather adversely to being told what a “reasonable prospect of success” or any other term might mean.
Gordon Banks: There is a debate on that and I understand the point made by the hon. Member for Angus, but the legislation says “real”, not “reasonable”.
David Mundell: Indeed, and I am sure that the courts will determine what a “real prospect of success” is. As is the practice in Scots law, they will try to have a clearly consistent approach. Those who believe that the test has not properly been applied will inevitably make it the subject of continuing legal debate.
The other point raised by the hon. Member for Ochil and South Perthshire was about the applicant being able to demonstrate
“a sufficient interest in the subject matter”.
That means not just that anyone can raise an issue, but that the subject matter of the proceedings is a condition of being granted permission by a court to proceed with a petition for judicial review. The sufficient interest test is precedented in Scotland and its meaning has been clarified in a number of previous cases. It would be clearly identifiable at the outset, or with legal advice, for an aggrieved person to ascertain whether they were likely to be determined to have sufficient interest. I hope that both of those responses satisfy the hon. Gentleman.