Devolution

Part of the debate – in the Scottish Parliament at 2:32 pm on 3rd June 1999.

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Photo of Henry McLeish Henry McLeish Labour 2:32 pm, 3rd June 1999

Before going into the details of the two orders, I will try to put them into context. The white paper "Scotland's Parliament" of 1997 recognised, in paragraph 2.10, that there would be areas where public bodies with a UK or GB remit operate in devolved areas. It will be for the Scottish Parliament to decide whether to put in place separate Scottish bodies, but we should recognise the advantages of current arrangements that allow sharing of knowledge and expertise and greater efficiency.

Section 88 of the Scotland Act provides mechanisms for cross-border public authorities to be specified. Some 65 such bodies have been identified. Section 88 provides for them. Scottish ministers will have the right to be consulted on membership and on other functions relating to such bodies, as the white paper set out. Section 88 also gives Parliament the chance to scrutinise reports of the bodies.

Section 89 provides opportunities for case-by- case examination of bodies and for transferring additional functions to the Scottish ministers, or otherwise adjusting the basic position provided by section 88. That is what the present order does. It also offers an opportunity to move forward, with Westminster, to put in place suitable arrangements for cross-border public authorities that will give UK and Scottish ministers and the two Parliaments appropriate control.

I would like to commend-perhaps surprisingly-the guidance notes that have been published on two of the orders, which, unlike some guides that I have read, are reasonably straightforward and put into a wider context the orders that we are discussing. The guide on cross-border authorities identifies the 30 bodies in question and goes through the type of consultation and the type of decision making that will apply to each of them.

I will speak first to the draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) Order 1999. The purpose of this order is to put in place customised arrangements for the control and accountability of certain public authorities that have been specified as cross-border public authorities.

Section 88 of the Scotland Act 1998 has been used to designate a number of authorities as cross-border public authorities. They are bodies, Government departments, offices or office holders with mixed functions, in that some of their functions relate to devolved matters in Scotland and some do not. Examples include bodies such as the Forestry Commissioners, which deal with devolved matters in Scotland and England and Wales. Another example is the Scottish Committee of the Council on Tribunals which, although operating only in Scotland, deals with both reserved and devolved matters.

It is worth noting that the border to which I refer, in talking about cross-border public authorities, need not be the geographical border between Scotland and England. Rather, those bodies are partly within devolved Scotland and partly not. Because of that, certain of the general provisions of the Scotland Act 1998-in particular, the provisions on the transfer of ministerial functions-could cause problems when they are applied to such bodies. As I will explain, designation of such a body as a cross-border public authority, under section 88 of the Scotland Act 1998, is designed to address those problems.

The Scotland Act 1998 (Cross-Border Public Authorities) (Specification) Order 1999, which was made by Her Majesty in Council on 11 May, specifies 65 cross-border public authorities. Specification as a cross-border public authority applies what might be called the default provisions in section 88 of the Scotland Act 1998. That means-and I stress this-that the ordinary transfer of ministerial functions, under section 53 of the Scotland Act 1998, is disapplied to functions which are specifically exercisable in relation to the authority, such as powers to give directions specifically to that authority.

The Scottish ministers will not, therefore, automatically acquire such functions in connection with the authority. However, ministers of the Crown must, in such cases, consult Scottish ministers before exercising certain functions in relation to the body-in particular, powers of appointment or removal of members of the authority or functions which might affect Scotland otherwise than wholly in relation to reserved matters. Requirements for reports relating to the authority to be laid before Parliament are now extended so that the reports are also to be laid before the Scottish Parliament.

Section 89 of the Scotland Act 1998 goes further. It provides a wide-ranging power to make provision, by Order in Council, in relation to a cross-border public authority. The default provisions in section 88 can be adjusted by an order under section 89. The draft order that is before us today uses that power to supplement or replace the default provisions for 30 cross-border public authorities. The provision that is made for each authority is tailored to that authority, and it is not possible to describe those arrangements fully in general terms. However, the general theme of the order is to give the Scottish ministers and the Scottish Parliament greater control than is afforded by the default arrangements. That means, for example, providing for certain functions to be exercised by the Scottish ministers rather than by a minister of the Crown.

For the assistance of members, we have prepared a guide to the order, which sets out the background to each of the bodies that are dealt with in the order and explains the overall effect on them of the Scotland Act 1998 and the order. That was the guide to which I referred earlier. As I said, I think that in this constitutional context the guide is a reasonable read, which is quite surprising.

It may be helpful to members if I cite one example. One of the more important authorities that is dealt with in the order is the Forestry Commissioners. Forestry is a devolved matter. Decisions on forestry in Scotland will therefore be taken by the Scottish ministers and the Scottish Parliament. Nevertheless, in devolving forestry it would be a mistake to abandon structures that have served the forestry sector well for so many years. Allowing the Forestry Commission to continue to operate on a Great Britain-wide basis will ensure that Scotland, England and Wales can take advantage of access to shared knowledge and expertise, and will ensure greater efficiency in the use of resources. It is for those reasons that the Forestry Commissioners have been specified as a cross-border public authority. The devolution of policy responsibility means that the powers of the forestry ministers over forestry in Scotland will transfer to the Scottish ministers. Responsibility for financing the commission's activities in Scotland will also be transferred.

The primary intention of the order is that the power of direction over the commission currently exercised by the Secretary of State for Scotland should transfer to the Scottish ministers in relation to the exercise by the commission of its functions as regards Scotland. The Scottish Parliament will also be responsible for funding forestry in Scotland. The order provides for the Scottish activities of the commission to be funded out of the Scottish consolidated fund and similarly for proceeds from the commission's activities in Scotland to be paid into the Scottish consolidated fund.

The order makes sensible provision to ensure that cross-border public authorities can continue to operate after 1 July with appropriate input and control for the Scottish ministers and for the Parliament.

I come now to the Scotland Act 1998 (Border Rivers) Order 1999.

The border between Scotland and England crosses the Tweed and Esk rivers. Unless otherwise addressed, that would have meant that legislative responsibility for fishery matters in those rivers would have been split between this Parliament and Westminster. Most members of this Parliament would agree that that would have been a ludicrous state of affairs. Fish are obviously no respecters of national borders and it would have been bizarre to contemplate the prospect, however remote, of conservation measures being taken on one side of the border and free exploitation on the other.

What section 111 of the Scotland Act 1998 therefore provides is the scope for whole-river management of the two rivers by this Parliament and by Westminster, acting by means of Orders in Council, of which this is the first.

In essence, the order before us does several things. First, it allows the continuation of the status quo in management terms. In other words, the Tweed throughout its length will continue to be regarded as essentially a Scottish river, managed by the River Tweed Council. For its part, the Esk will continue to be regarded, throughout its length, as an English river and, as such, it will be regulated by the Environment Agency.

Secondly, the order clarifies the powers of the Environment Agency in relation to the Esk, places an obligation on the Environment Agency to provide an annual report of its activities to this Parliament, and enhances enforcement powers.

Thirdly, the order seeks to address the age-old problem of fishery rights in the Solway where the Esk tends to meander, sometimes to the north of the border that runs down the middle and sometimes to the south. In brief, the order allows Scots netsmen to fish out to the middle of the Esk from the north side and English netsmen to fish out to the middle of the river from the south side, regardless of the position of the river at the time. The proviso, of course, is that the netsmen must be properly licensed or authorised to do so. That is obviously a matter of vital importance. None of this affects the exclusive right of the good people of Annan to fish within what is known as the Annan box, bestowed on them by royal charter in the 16 th century.

All of this, I think, demonstrates our commitment to the principle of whole-river management for the two border rivers. At the same time, it offers proof, if proof was needed, of the democratic accountability of the process to those on either side of the border with fishery interests in the rivers. The key part of this order is to ensure that there is consistent management of both rivers, north and south of the lines that we have identified.

I commend these orders to the Parliament.

I move,

That the draft Scotland Act 1998 (Cross-Border Public Authorities) (Adaptation of Functions etc.) Order 1999, which was laid before the Parliament on 26 May, be approved.