Section 7 — Exemptions: pre-screening

Environmental Assessment (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:15 pm on 9th November 2005.

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Photo of Trish Godman Trish Godman Labour 3:15 pm, 9th November 2005

Group 5 is on pre-screening. Amendment 6, in the name of Rosie Kane, is in a group on its own.

Photo of Rosie Kane Rosie Kane SSP

The inclusion of the term "strategies" in the bill is broadly to be welcomed. However, a number of important definitional gaps remain, particularly in relation to the phrase "minimal effect" in section 7(1)(b). It has proved difficult to identify any precedent in legislation for the concept. The term "minimal effect" might mean something different to the responsible authority and to the community, but it will be the responsible authority's definition that has authority, while the community will bear the brunt of the minimal effect. From an initial reading of the bill, there is dispute as to the meaning of "minimal effect". That will be resolved only by going to court, which is often not an option for concerned communities. We want amendment 6 to be passed because it would remove the ambiguity that surrounds the term "minimal effect".

I move amendment 6.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

At stage 1, I said that there is a danger that the phrase "minimal effect" would turn into weasel words. I still think that that is the case. No accepted legal definition of the term exists. The minister attempted to clarify the issue during the bill process, when he stated:

"The very wide gap between minimal and significant is covered by the screening process; minimal should be seen as a difficult test to meet and is always assessed in the context of each individual plan."

That is not clear.

The minister has just rejected an amendment relating to the Ministry of Defence on the basis that the term "operational capability" does not have a legal definition. Now, with a different amendment, we are arguing that we should get rid of a term because it does not have a proper accepted legal definition. I believe that the term "minimal effect" is a hostage to fortune and that it will certainly delight lawyers, who will no doubt try to test the issue in the courts.

Photo of Rhona Brankin Rhona Brankin Labour

As drafted, the bill provides for pre-screening exemptions for plans and programmes that have no, or minimal, environmental effects. Amendment 6 seeks to limit pre-screening to plans and programmes that have no environmental effect, which is an almost impossible standard to meet. The Environment and Rural Development Committee gave due consideration to a similar amendment during stage 2, which was rightly disagreed to. Amendment 6 would undermine the positive benefits that the pre-screening provisions as drafted will provide, such as the reduction of administration and the targeting of resources at plans that have significant effects. Those benefits were welcomed by respondents to our public consultation, particularly local authorities.

I reiterate the commitment that I gave at stage 2 that guidance will be produced to provide as much clarity as possible. Achieving clarity on the meaning of the term "minimal effect" is at the heart of the issue, as that will help us to retain the full benefits of pre-screening while giving reassurance that pre-screening decisions will involve a tough and clearly understood test. Therefore, clear guidance, rather than amendment 6, is the way forward. Members should be further reassured by our commitment to establish a pre-screening register, which will render the whole pre-screening process more transparent. Also, the Scottish ministers will have powers to direct an SEA to be carried out, which provides a suitable safety net.

I ask members to resist amendment 6.

Photo of Rosie Kane Rosie Kane SSP

The Parliament has promised on many occasions to ensure environmental justice. Mark Ruskell made the point that lawyers will have a field day with the wording "minimal effect". If amendment 6 is not agreed to, a consultation authority may exempt a plan that it believes will have a minimal effect when the community that is affected by the plan may believe the effects to be more than minimal. The wording is crucial. I ask members to support amendment 6 to ensure, once again, that a safety net is in place.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 6 be agreed to. Are we agreed?

Members:

No.

Photo of Murray Tosh Murray Tosh Conservative

There will be a division.

Adam, Brian (Aberdeen North) (SNP)

Baird, Shiona (North East Scotland) (Green)

Ballance, Chris (South of Scotland) (Green)

Ballard, Mark (Lothians) (Green)

Canavan, Dennis (Falkirk West) (Ind)

Crawford, Bruce (Mid Scotland and Fife) (SNP)

Cunningham, Roseanna (Perth) (SNP)

Curran, Frances (West of Scotland) (SSP)

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)

Ewing, Mrs Margaret (Moray) (SNP)

Fabiani, Linda (Central Scotland) (SNP)

Fox, Colin (Lothians) (SSP)

Gibson, Rob (Highlands and Islands) (SNP)

Grahame, Christine (South of Scotland) (SNP)

Harper, Robin (Lothians) (Green)

Harvie, Patrick (Glasgow) (Green)

Hyslop, Fiona (Lothians) (SNP)

Ingram, Mr Adam (South of Scotland) (SNP)

Kane, Rosie (Glasgow) (SSP)

Leckie, Carolyn (Central Scotland) (SSP)

Lochhead, Richard (North East Scotland) (SNP)

MacAskill, Mr Kenny (Lothians) (SNP)

Marwick, Tricia (Mid Scotland and Fife) (SNP)

Matheson, Michael (Central Scotland) (SNP)

McFee, Mr Bruce (West of Scotland) (SNP)

Morgan, Alasdair (South of Scotland) (SNP)

Robison, Shona (Dundee East) (SNP)

Ruskell, Mr Mark (Mid Scotland and Fife) (Green)

Scott, Eleanor (Highlands and Islands) (Green)

Stevenson, Stewart (Banff and Buchan) (SNP)

Swinburne, John (Central Scotland) (SSCUP)

Swinney, Mr John (North Tayside) (SNP)

Turner, Dr Jean (Strathkelvin and Bearsden) (Ind)

Welsh, Mr Andrew (Angus) (SNP)

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 34, Against 71, Abstentions 0.

Amendment 6 disagreed to.

Photo of Murray Tosh Murray Tosh Conservative

Group 6 is on a pre-screening register. Amendment 7, in the name of the minister, is grouped with amendment 1.

Photo of Rhona Brankin Rhona Brankin Labour

I promised the committee at stage 2 that I would lodge a further amendment requiring a pre-screening register, and I have done so. I thank Rob Gibson for lodging amendment 1, which clearly demonstrates that we share the same concerns regarding the transparency of pre-screening decisions. However, I believe that amendment 1 does not address the concerns of the committee quite as thoroughly as amendment 7 does. In particular, amendment 7 asks responsible authorities to provide some details of the plan or programme, which improves transparency and enables a greater degree of public scrutiny. Amendments 7 and 1 have a similar purpose but, because I consider amendment 7 to be rather more effective, I ask Rob Gibson not to move his amendment.

Pre-screening is an immensely useful administrative tool, which has been welcomed by the vast majority of practitioners, because it avoids wasting valuable time and resources. Pre-screening achieves that by empowering responsible authorities to exempt plans and programmes from SEA that have no or only minimal environmental effects.

Having said that, I fully acknowledge the concern that the Environment and Rural Development Committee and others expressed that pre-screening as originally proposed might not be sufficiently transparent. Amendment 7 addresses such concerns by, first, requiring responsible authorities to notify pre-screening decisions to the consultation authorities, along with a brief description of the plan or programme; secondly, by requiring Scottish ministers to make arrangements for a register to be kept of all such notification; and thirdly, by empowering the Scottish ministers to make that register publicly available.

A publicly available register, as proposed in amendment 7, must reassure anyone who had concerns over transparency. The fact that the register is to include a description of the plan must reassure anyone who had concerns about the level of scrutiny that the register will enable. I urge colleagues to accept amendment 7 and to resist amendment 1.

I move amendment 7.

Photo of Rob Gibson Rob Gibson Scottish National Party

As members will see from the number of my amendment, I ensured that a debate would take place on pre-screening activity. I am glad to say that, following the committee's scrutiny of the bill at stage 2, the minister has come back with a much more detailed approach, so that both screening and pre-screening can be done and so that pre-screening is done in an open and accountable way. The details of the provisions in amendment 7 are entirely acceptable to me and, I hope, to the rest of the chamber, so I am happy not to move amendment 1.

Photo of Mr Mark Ruskell Mr Mark Ruskell Green

I will take a slightly more positive tone now. I withdrew an amendment at stage 2, on the publication of a pre-screening register, on the understanding that the minister would introduce an amendment on the matter at stage 3. Amendment 7 does the job—it is a thorough amendment and I welcome it. I still believe that the whole process of pre-screening is a bit of an irrelevance but, if we are going to have it, it needs to be done in an open and accountable way, and amendment 7 will achieve that. I support amendment 7.

Photo of Sarah Boyack Sarah Boyack Labour

I welcome the amendment in Rhona Brankin's name. Other members of the committee have referred to the fact that there was extensive and detailed debate about the subject and the committee split between those of us who did not agree with having any pre-screening at all and those of us who felt that the idea was important, as part of a proportionate act that will cover every issue under the sun, and that the responsible authorities have to be prepared to be accountable. For those reasons, I am glad that we are now much clearer about what to expect. If an authority decides that it is going to pre-screen something, it has to come out and say what its decision is and make that decision available publicly. There must be openness and transparency in the process.

I note that this amendment is welcomed by Scottish Environment LINK and I acknowledge the constructive comments that Rob Gibson made when he was speaking to his amendment. I think that we can all agree on this subject and that the fact that we have scrutinised the amendment carefully at stage 3 will reassure people who had concerns about the situation.

The amendment will ensure that the rules in the bill are straight and that we will have proper openness, accountability and transparency, which is what everyone wanted.

Amendment 7 agreed to.

[Amendment 1 not moved.]