Clause 85 - Exploitation of areas outside the territorial sea for energy production
Energy Bill [Lords]
2:30 pm
Mr Michael Weir (Spokesperson (Environment & Food; Health; Rural Affairs; Trade & Industry); Angus, Scottish National Party)
The amendments relate to the three clauses setting up the renewable energy zones and the civil and criminal law that will apply to them. There is some confusion in these matters. Clause 85(5) states:
''The Secretary of State may by order designate the whole or a part of a Renewable Energy Zone as an area in relation to which the Scottish Ministers are to have functions.''
Subsequent clauses deal with the application of civil and criminal law within the zone and the Scottish Ministers may have a function determined by Order in Council. The Library research paper on the Bill gives a background to the clause with reference to article 2 of the United Nations convention on the law of the sea, which recognises that coastal states have jurisdiction and sovereignty over territorial waters, and part VI of the convention gives coastal states certain rights in relation to the sea bed of their continental shelf. In the UK, that is given effect by the Continental Shelf Act 1964. Part V gives coastal states the right to establish economic zones.
I understand that a renewable energy zone is to be designated by Order in Council. The Bill states that Scottish Ministers are to be consulted. So far so good, but earlier the Minister seemed to indicate that the size and extent of the zone have not been finalised. It is not clear how much of it will be off Scotland's shores and to what extent Ministers and Parliament will be involved in the issue.
In response to a query on the matter in the other place, Lord Whitty replied:
''An Order in Council could potentially cover civil or criminal law matters that are wholly reserved under the Scotland Act 1998, wholly devolved or a mix of both . . . In the case of wholly reserved matters the Order in Council would be subject to the negative resolution procedure in the Westminster Parliament . . . Where the Order in Council deals with wholly devolved matters it would be subject to annulment of a resolution of the Scottish Parliament. Where the content of the Order in Council includes both reserved and devolved matters it would need to be subject to the procedures of both the Scottish and Westminster Parliaments.—[Official Report, House of Lords, 3 February 2004; Vol. 657, c. GC335.]
Again, so far so good, but it is not clear exactly which part of the area will be subject to Scottish law.
As the hon. Member for Vale of York (Miss McIntosh) said earlier, a footnote to the regulatory impact assessment states that the renewable energy zone extends beyond the territorial seas of Scotland, Wales and Northern Ireland and is excluded from the devolutionary arrangements set out in the Scotland Act 1998, the Wales Act 1998 and the Northern Ireland Act 1998. The legislative proposals in regard to territorial waters recognise where appropriate the competence of a devolved Administration. That suggests that there is no Scottish involvement outwith the immediate territorial waters, but that is wrong in principle and in practice.
The United Kingdom is different from most coastal states in that it has two completely different legal traditions—Scots law and English law. It is not correct to say that the Scottish Parliament's jurisdiction, and therefore Scots law, extends only to territorial waters. I refer hon. Members to section 126 of the Scotland Act 1998—