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Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

Climate Change (Scotland) Bill

The Committee reports to the lead committee as follows—

Introduction

1. At its meetings on 27 January1 and 24 February 20092 the Subordinate Legislation Committee considered the delegated powers provisions in the Climate Change (Scotland) Bill at Stage 1. The Committee submits this report to the Transport, Infrastructure and Climate Change Committee as the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

2. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill (DPM).3

3. The Committee’s correspondence with the Scottish Government is reproduced in the Annex.

Delegated Powers Provisions

4. The Committee considered each of the delegated powers provisions in the Bill.

5. The Committee determined that it did not need to draw the attention of the Parliament to the delegated powers in the following sections: 9, 11, 15, 17, 20, Schedule 1, paragraphs 2(2), 6(1), 7(5), 8(2) and 9(3), sections 23, 24, , 35, 38, 39, 40(2), 42(1) and (2), 43, 44(1), 50, 52(3), 53(4), 54(3), 55(1), (2), (3) and (4), 56(4) and (5), 57(3), 58, 59 and 67.

Section 4 - Setting annual targets

6. Section 4 imposes a requirement on the Scottish Ministers to set annual targets for the maximum amount of the net Scottish emissions account, by order. Subsection (2) states for which years the targets must be set. The Scottish Ministers intend to set targets in batches; the first batch will be for 13 years (2010-2022), with subsequent targets set in batches of 5 years until the last batch, which will be 3 years in length (2048-2050). The dates in advance, by which each batch of targets must be set are also given. The annual targets must be set in accordance with provisions in section 3.

7. The Committee queried (given that there was no explanation of this in the DPM) whether there should be any requirements for consultation on the face of the Bill, on setting the annual targets by order, with specified bodies or persons who may have interest in the proposals.

8. The response from the Scottish Government noted (amongst other matters, as set out in the Annex to this Report) that annual targets shall be set for the whole of Scotland, and so far as there are no targets for specific industries or sectors, that does not indicate that specific persons or bodies should be prescribed to be consulted on an order before it is made. The Government shall also require to take into account the advice of the relevant advisory body, prior to setting the annual targets by order.

9. Following this further explanation given by the Scottish Government, the Committee concluded that there was a sufficient explanation of why there are no further consultation requirements prescribed on the face of the Bill.

10. The Committee was therefore content with the delegated power in section 4, and that it is subject to affirmative procedure.

Section 6 - Modifying annual targets

11. Section 6 allows the Scottish Ministers to modify certain parts of sections 3 and 4 by order. Subsection (1) (c) enables the Scottish Ministers to modify any of the dates set out in section 4 (the dates of the batches of annual targets, and/or the advance date by which the target must be set) and subsection (1)(d) allows modification of the criteria to which Ministers must have regard when setting the annual targets. Subsection (4) sets out that the Scottish Ministers may only exercise these powers if they consider it appropriate to do so.

12. The DPM offered no explanation as to why this flexibility to change these matters is needed, and the approach contrasts with sub-section (2) and (3), where Ministers require to show it is no longer necessary for the annual targets to be set by reference to the 3% reduction, or require to show there have been significant changes to the basis on which the annual target was set. The Committee therefore asked for further explanation.

13. The Committee considers that the Government’s response on section 6 offers a proper explanation; that it has considered how section 6(4) might possibly have been restricted by reference, for example, to changes reflecting changes in the UK, European or international position/criteria, but it was considered this would not be appropriate.

14. The response also highlighted that Parliament shall be asked to approve any changes by affirmative procedure, and that a sufficient degree of flexibility is required because the annual targets require to be set up to 2050.

15. The Committee, being satisfied with the response in relation to section 6, is content with the delegated powers in that section, and that they are subject to affirmative procedure.

Section 12 - The net Scottish emissions account

16. Section 12(2) enables the Scottish Ministers to make provision by regulations about how and in what circumstances carbon units are credited to and debited from the net Scottish emissions account, and the manner in which this is to be done.

17. Section 64(7)(a) of the Bill proposes that the first regulations under section 12(2) shall be by affirmative procedure, but the second or subsequent regulations shall be by negative procedure. However, affirmative procedure is retained where the regulations shall make provision altering the amount by which a carbon unit credited or debited to the net emissions account for a period either reduces or increases the account for that period. The DPM explains that this is because of the significant effect this could have on the account.

18. The DPM also explained that the initial regulations will set out how and in what circumstances carbon units are credited to and debited from the net emissions account, which will be a key component of the operation of that account. Affirmative resolution procedure was therefore considered appropriate for the initial regulations.

19. The Committee notified the Scottish Government that it does not generally favour the use of the lesser degree of scrutiny of negative procedure for second or subsequent regulations, as is provided for in section 64(7)(a) in relation to section 12(2), while the first set of regulations are subject to affirmative procedure. The Committee sought further explanation on this matter from the Scottish Government, on why this is appropriate for this particular Bill.

20. The Committee considered that the Scottish Government’s response gave persuasive argument for the specific reasons why the procedures for regulations under sections 12 and 18 of the Bill were chosen. The Committee considered that there is sufficient explanation that the choice of procedure is appropriate for these particular sections of this Bill. In particular, the Committee noted that it appears from the Government response that further regulations after the first regulations under these sections are likely to be highly technical in subject matter, and any changes that increase or decrease the net Scottish emissions account shall be by affirmative procedure.

21. The Committee was content with the delegated powers in section 12, and that they are subject to affirmative procedure on the first occasion, but the second and subsequent Regulations will be subject to negative resolution, other than regulations making provision to alter the amount by which a carbon unit credited or debited to the net Scottish emissions account for a period reduces or increases the account for that period. (This is provided for in section 64(7)(a)).

22. The Committee also reports that generally it does not favour the use of affirmative procedure for a first set of regulations and negative procedure for second and subsequent regulations. However, in the instance of section 12 of this Bill, it was satisfied that the Scottish Government has provided sufficient reasons why this choice of procedure appears to be suitable.

Section 14 - Scottish share of emissions from international aviation and international shipping

23. International aviation and international shipping emissions are generally not directly emitted in a specific country. Section 14(1) and (2) allow the Scottish Ministers to specify by order how certain emissions from international aviation and shipping are to be attributable as “Scottish emissions”. Section 14(3) requires the Scottish Ministers to seek advice from the relevant body defined in section 5(5) prior to making an order. Section 14(4) requires the Scottish Ministers to publish a statement if the advice of the relevant body is not followed.

24. The DPM explained in justification for this delegated power that, as international aviation and international shipping emissions are generally not directly emitted in a specific country, it is necessary to specify how certain amounts of these emissions will be allocated to the net Scottish emissions account. This allocation may also need to change over time, particularly if a European or international agreement makes such a change necessary in the future. There is no current international agreement on how to allocate these emissions to States.

25. Given the significance of this power within the Bill, the DPM contained no explanation in relation to appropriate consultation before making an order under section 14, or why it was considered appropriate that there should be no particular prescribed consultation requirements on the face of the Bill. The Committee therefore asked for further explanation on this aspect.

26. The Committee accepted the further explanation offered by the Scottish Government, as to why there are no specific requirements for Scottish Ministers to consult with specified persons or bodies on the terms of an order under section 14, within the Bill.

27. The Committee therefore reports that it is content with the delegated power in section 14, and that it is subject to affirmative procedure.

Section 18 - Carbon units and carbon accounting

28. Section 18(1) allows the Scottish Ministers to create a scheme for the purpose of monitoring the use of carbon units, including registering them and keeping track of them. The scheme may establish and maintain accounts in which carbon units may be held, and between which they can be transferred. Section 18(2) allows existing schemes, which might be established in future by Ministers, to be adapted for the purposes set out in subsection (1).

29. The DPM explains that it may be necessary (in future) to create a scheme to monitor the use of carbon units. “The trading of units across borders can be complicated and it is not yet known whether such a scheme is necessary. However, if it does become necessary, these provisions allow for such a scheme to be created.”

30. The Committee notified the Scottish Government that it does not generally favour the use of the lesser degree of scrutiny of negative procedure for second or subsequent regulations, as provided for in section 64(7)(b) in relation to section 18(1), while the first regulations shall be subject to affirmative procedure. The Committee sought further explanation on this matter from the Scottish Government. (The issue here is similar to that in relation to section 12 of the Bill).

31. The Committee considered that the Scottish Government’s response gave persuasive argument for the specific reasons why the procedures for regulations under sections 12 and 18 of the Bill were chosen. The Committee considered that there is sufficient explanation that the choice of procedures is appropriate for these particular sections of this Bill. In particular, the Committee noted that it appears from the Government response that further regulations after the first regulations under these sections are likely to be highly technical in subject matter. Also, any changes which increase or decrease the net Scottish emissions account, or which specify a new type of carbon unit which may have an effect that account, shall be by affirmative procedure.

32. The Committee was content with the delegated powers in section 18, and that they are subject to affirmative procedure on the first occasion, but the second and subsequent Regulations will be subject to negative resolution, other than regulations making provision specifying a carbon unit of a kind not previously specified in regulations which shall be subject to affirmative procedure (as provided for in section 64(7)(b)).

The Committee also reports that generally it does not favour the use of affirmative procedure for a first set of regulations and negative procedure for second and subsequent regulations. However, in the instance of section 18 of this Bill, the Scottish Government has provided sufficient reasons why this choice of procedures appears to be suitable.

Section 19 – Meaning of advisory body

Section 20 and Schedule 1- Scottish Committee on Climate Change

33. Section 19(1) enables the Scottish Ministers to designate by order, a body or person to carry out the advisory functions as set out in the Bill. In the absence of an order made under section 19(1), the Scottish Ministers will seek advice from the UK Committee on Climate Change established by the UK Climate Change Act 2008 (as set out in section 5(5) of this Bill). An order under section 19 shall be subject to affirmative resolution procedure. Such an order may in future specify the Scottish Committee on Climate Change as the advisory body.

34. By section 20, the Scottish Ministers may by order establish the Scottish Committee.

35. Schedule 1 of the Bill makes further provision for the constitution and membership of the Scottish Committee on Climate Change. By paragraph 2(3) of Schedule 1, the members of that Committee shall be appointed by the Scottish Ministers.

36. The Committee considers the delegated powers in sections 19, 20 and Schedule 1 to be acceptable. The Committee draws to the attention of the lead and secondary committees for the Bill (in relation to the effect of the delegated powers contained in sections 19, 20 and Schedule 1) that the Explanatory Notes with the Bill (paragraph 33) and the Policy Memorandum (paragraph 31) indicate that Ministers will require to seek expert, independent advice from the advisory body, but the Bill provides –

(a) in section 19(1) and (5), that a designated advisory body may be any public body as Ministers consider appropriate, which may be a person or body with functions of a public nature (not necessarily independent of the Scottish Ministers or Government), and

(b) in Schedule 1, paragraph 2, that the members of the Scottish Committee on Climate Change shall be appointed by the Scottish Ministers.

37. The Committee acknowledges, however, that in relation to those statements in the Policy Memorandum and Explanatory Notes, “independent” is capable of having different meanings and does not necessarily refer to a body which is wholly independent of the Scottish Ministers.

Section 26 – Guidance to advisory body

Section 27 – Power to give directions to the advisory body

38. Section 26 provides that the advisory body (to the Scottish Ministers) must have regard to any guidance given by the Scottish Ministers to it in relation to the exercise of its functions under the Act. However, Ministers may not give guidance as to the content of any advice or report. This includes power to vary or revoke the guidance.

39. Section 27 provides that the Scottish Ministers may, if they consider it appropriate, give the advisory body directions as to the exercise of its functions under the Act. However, Ministers may not give directions as to the content of any advice or report. This includes the power to vary or revoke the directions. Unlike guidance, directions issued in relation to the functions of the advisory body shall be binding on the body.

40. The Committee considers that the delegated powers contained in sections 26 and 27 are acceptable to be in the form of guidance and directions (respectively) issued by the Scottish Ministers, and those powers would not be more appropriately expressed in the form of subordinate legislation. The remit of the Committee in regard to these sections is to so consider whether the powers would be more appropriate to be expressed in that form.

41. The Committee draws to the attention of the lead and secondary committees for the Bill the delegated powers conferred on the Scottish Ministers in sections 26 and 27 to issue directions and guidance to the advisory body given that the Explanatory Notes (at paragraph 33) and the Policy Memorandum (at paragraph 31) indicate that the advisory body shall provide independent advice to the Scottish Ministers.

Section 36 - Duties of public bodies relating to climate change

42. Section 36 empowers the Scottish Ministers to impose ‘climate change duties’ by order, on public bodies. A public body, as defined in sections 19(5) and 65, is a person or body with functions of a public nature. ‘Climate change’ is not defined in the Bill. ‘Climate change duties’ are neither listed nor defined in section 36. Section 36(3) provides that an order under this section may, in particular, impose climate change duties on all public bodies, public bodies of a particular description, or individual public bodies. Different climate change duties may be imposed on different public bodies or descriptions of public body. Section 36(4) provides that before laying a statutory instrument containing an order before the Scottish Parliament, the Scottish Ministers must consult, in so far as reasonably practicable, with such associations of local authorities and such other persons as the Scottish Ministers consider appropriate. Section 36(6) requires the Scottish Ministers to co-operate with a relevant public body to help that body comply with its climate change duties.

43. Given the width of these powers and the lack of definition with respect to public bodies and climate change duties, the Committee asked the Scottish Government about the meaning and scope of ‘public bodies’ and ‘climate change duties’, and whether consideration had been given to the type of ‘public bodies’ which could be subject to climate change duties. It was apparent from the Scottish Government response that Ministers did give consideration to the types of bodies to be subject to the duties, but ‘felt that it was not appropriate to list the bodies to which the duties might be applied’. A public body as defined in the Bill is a person or body with functions of a public nature. ‘Functions of a public nature’ are not defined. The definition of ‘public body’ is therefore ambiguous and potentially very wide. This is in effect acknowledged in the third paragraph of the Scottish Government response, in which it is stated that ‘It is not possible to know exactly which public bodies may need to become subject to statutory climate change duties at various points over the course of the forty years which the framework is designed to cover.’ In the response, the Scottish Government stated that it was never the intention to define ‘climate change duties’ more specifically elsewhere in the Bill. The response commented on the need for flexibility to be able to respond to or in anticipation of circumstances which cannot be foreseen at the present time.

44. The Committee considered that it would be possible to provide a list of bodies in the Bill so that Parliament (in approving the Bill) could assess whether these are the bodies to which the powers should apply. A power to add bodies to the list or modify the list subject to affirmative procedure would allow Parliament to remain in control of the definition of ‘public bodies

45. The Committee reports to the lead committee that the power under section 36(1) to impose climate change duties on public bodies is extremely wide in its scope, in particular as neither the public bodies which may be subject to climate change duties nor climate change duties themselves are adequately and clearly defined.

46. The Committee also recommends that this could be mitigated to some extent by provision of a list of public bodies to whom the power is to apply along with a power to add to the list subject to affirmative procedure. This would be in line with the approach adopted to other regimes regulating public bodies such as freedom of information.

Section 37 – Guidance to relevant public bodies

47. Section 37(1) provides that ‘relevant public bodies’ are required to have regard to any guidance given to them by the Scottish Ministers in relation to climate change duties. A ‘relevant public body’ is a body which has climate change duties by virtue of section 36(1). Before issuing guidance the Scottish Ministers have a duty to consult the same bodies as those specified in section 36(5) with respect to the imposition of climate change duties. Guidance issued under this section has to be published by Scottish Ministers.

48. The guidance which the Scottish Ministers can issue and which public bodies will have to have regard to will not be subject to any form of parliamentary procedure or scrutiny. Section 37 does not give any indication of, nor does it provide any limitation on, the nature or scope of the guidance which the Scottish Ministers can give.

49. The Committee therefore asked the Scottish Government for more information as to the function and likely content of such guidance.

50. The response from the Scottish Government stated that guidance will indicate how specific climate change duties should be discharged and that it is intended to assist in developing consistency of approach across those public bodies to which climate duties apply.

51. The Committee considered that the response did not aid its consideration of this power. The Committee concluded that it would be appropriate for the Parliament to have a role in scrutinising the guidance produced under section 37 because of its potential impact, and recommends that guidance under this section should be laid before Parliament for a period prior to implementation, and any resolutions of the Parliament made in respect of the draft guidance during that period taken into account.

Section 46 - Variation of permitted times for making muirburn

52. Section 46 inserts a new section 23A into the Hill Farming Act 1946 (“the 1946 Act”). Section 23 of that Act currently prohibits muirburn between certain dates. Subsection (1) of new section 23A of the 1946 Act provides the Scottish Ministers with an order-making power to specify different dates before which, and after which, it is lawful to make muirburn in any year. Subsection (3) stipulates that the Scottish Ministers may make an order under subsection (1) only if they consider it necessary or expedient to do so in relation to climate change. The effect of this power is therefore to allow the Scottish Ministers to change the dates between which muirburn may be conducted so as to have regard to the impact of this activity on climate change. The section does not contain a requirement for consultation of affected landowners or others prior to the making of an order.

53. The committee asked the Government why it does not consider that provision for consultation is necessary or appropriate in order to take into account the impact on landowners that any changes might cause.

54. The Scottish Government acknowledges that it would be appropriate to consult with parties likely to be affected by changes to the times at which muirburn may be made. They point to their perceived difficulties in identifying a specific body or specific bodies whom they might be obliged to consult. However, they do refer to what is stated to be their standard practice of consulting on a non-statutory basis with potentially interested parties and consider that this would be appropriate and reasonable in the circumstances.

55. The Committee was content with the response in respect that it may be taken to confirm that informal consultation with potentially interested parties will take place in advance of any instrument.

Section 47 - Power to modify functions of Forestry Commissioners

56. The Forestry Commissioners were established by the Forestry Act 1967. Section 47 confers on the Scottish Ministers the power to modify the functions of the Forestry Commissioners in or as regards Scotland. The Committee was concerned about the potential scope of the proposed power to modify the functions of the Forestry Commissioners in or as regards Scotland. Section 47(2) imposes limitations on the circumstances in which Scottish Ministers may exercise the power to modify under section 47(1) but the section does not impose any restrictions or limitations on the nature, scope or extent of any modification of the Forestry Commissioners’ functions. The power could have the potential to alter, quite radically, the Forestry Commissioner’s functions, either by the addition of new functions or by the removal of existing functions.

57. The Committee asked the Scottish Government if consideration had been given to the imposition of a restriction on the power. The Scottish Government response did not address the committee’s concerns. The response refers to the limitation on the circumstances in which the power may be exercised, namely to comply with Scottish Ministers duties under sections 1, 2 and 3 of the Bill (namely the 2050 target, the interim target and annual targets) or otherwise in relation to climate change. However, it was the Committee’s view that the limitation on the circumstances in which the power may be exercised does not place any limitation on the nature, scope or extent of any modification of the Forestry Commissioners’ functions which may arise in consequence of the exercise of that power beyond that it must be for a climate change purpose. It is the absence of limitations on what may be done in consequence of the exercise of the power which was of concern, not the circumstances in which the power may be exercised, which circumstances are subject to limitations.

58. Section 47(3) gives examples of what an order may in particular enable the Forestry Commissioners to do. They indicate how wide-ranging the consequences and impact of the exercise of the power may be. The question is whether the climate change purpose should be allowed to overrule any other considerations as to what should properly be the functions of the Forestry Commissioners.

59. The Committee draws to the attention of the lead committee that the power under section 47(1) to modify the functions of the Forestry Commissioners in or as regards Scotland is, in the opinion of the Committee, very wide in its scope as there is no limitation within the power on what may be done in exercise of the power beyond that it must deliver a climate change purpose.

Section 52(1), (2) and (4) - Waste prevention and management plans
Section 53(1), (2), (3) and (5) - Information on waste
Section 54(1), (2), (4) and (5) - Recyclable waste: facilities for deposit etc.
Section 56(1), (2), (3) and (6) - Procurement of recyclate - regulations

Section 52 empowers the Scottish Ministers, by regulations, to place a duty on specified persons to prepare waste prevention and management plans. Section 53 enables the Scottish Ministers, by regulations, to require specified persons to provide information to SEPA about the waste that they produce. Section 54 enables the Scottish Ministers to make regulations which may require receptacles to be provided by persons of the kinds specified for a broad range of types of waste. Section 56 gives the Scottish Ministers powers to require specified persons to ensure that particular things procured or constructed by or on behalf of them contain or include a certain proportion of recyclate, which is waste that has been recycled.

60. The Committee’s concerns with respect to these 4 sections related to the lack of specification in the provisions with respect to the kinds or classes of persons who would be (or whom it was anticipated would be) subject to duties under the various sets of regulations. In particular, the regulations could apply to domestic activities or individuals in the absence of any express restriction.

61. In its response to questions posed by legal advisers on these sections, the Scottish Government state that it is not possible at present to be specific as to the classes of persons on whom duties may fall. They explain their reasons for this response. No firm proposals have as yet been drawn up. The Scottish Government have admitted that they are not yet clear how these powers will be used. It is not clear what restrictions if any will be applied to the exercise of these powers. There is nothing on the face of these powers to restrict their application and in particular to exclude non-commercial activity.

62. The Committee took the view that whether or not duties could be applied to domestic activities is a policy matter to be decided by the lead committee and Parliament, but that if the lead committee or Parliament considers that the powers should have no application to non-commercial activity then this should be made express on the face of the Bill.

63. The Committee therefore reports to the lead committee and to Parliament that these powers are expressed in very broad terms and that there is nothing on the face of the Bill to restrict their application to purely commercial activity.

Section 57(1), (2) and (4) – Targets for reduction of packaging etc.

64. Section 57 enables the Scottish Ministers, by regulations, to set targets to reduce the amount of packaging used and to require specified persons to comply with those targets. Targets may also be set for the reduction of greenhouse gas emissions produced by packaging.

65. Given the lack of information offered in the DPM in relation to the scope or extent of these powers, the committee sought clarity with respect to the scope of the powers and whether the powers were drawn no more widely than required.

66. In its response, the Scottish Government point out that producers of packaging are already subject to a producer responsibility regime and that in terms of waste in general producer responsibility is a requirement of community law. This is why retailers and not producers were specifically mentioned in the Delegated Powers Memorandum.

67. Section 57 places no limits on the persons who may be subject to regulations under this section. The Committee was concerned about the potential scope of the application of these regulations and to the fact that there are no restrictions within the provisions themselves on the persons who may be subject to duties under the regulations. In particular the committee was concerned that duties imposed by regulations may be extended to non-commercial applications.

68. The Committee took the view that whether or not duties could be applied to domestic activities is a policy matter to be decided by the lead committee and Parliament but that if the lead committee or Parliament considers that the powers should have no application to non-commercial activity then this should be made express on the face of the Bill.

69. The Committee reports that Parliament should be made aware that these powers are expressed in very broad terms and that there is nothing on the face of the Bill to restrict their application to commercial activity.

Section 64 – Subordinate legislation

70. This section contains the general subordinate legislation provisions, including the specification of the affirmative or negative procedures applying to the order or regulation-making powers in the Act.

71. The power to modify enactments in section 64(3) is framed at its widest. There is no express limitation placed on that power, with reference to the provisions or purposes of the Bill. This is a “Henry VIII power” which does not contain a limit on the purposes of the power and which can be attached to any other power to make subordinate legislation under the Act. The Committee considers however that it should be implied within section 64(3) as drafted that any modification shall be for the purposes of the provisions of the Act,at least. However, this is still a very wide proposed power to modify enactments.

72. Generally, the Committee would take as a starting point that such a “Henry VIII” power, framed in this way, is unacceptable, unless sufficient justification is provided for the width of the power required, which should be in exceptional circumstances. Accordingly, the Committee requested further explanation, to establish why this power may be justifiable for this particular Bill.

73. The response from the Government explains that this is a wide-ranging Bill, and “it is difficult to know in advance which powers might need to modify enactments. That is why section 64(3) is expressed as applying generally”. The response also highlights that certain powers proposed in the Bill are potentially wide in effect, for example the powers in section 36 and 47 in relation to the imposition of duties on public authorities in relation to climate change, and the power to modify the functions of the Forestry Commissioners in or as regards Scotland. The modification of, for example, the Foresty Act 1967 would be the “main method by which the power would be used, rather than being merely ancillary.”

74. In essence therefore, the response from the Government indicates that it considers that such a wide power to modify enactments (by way of affirmative procedure regulations or orders in future) is required for this particular Bill, given the potential width, or uncertain future effects, of some of the other delegated powers proposed in the Bill, and so that a general power to modify for the purposes of this particular Bill is required. The Committee accepted this explanation as sufficient, while noting that the effect of this power to modify enactments (including this Act) may be potentially very wide in effect. The Committee also noted that modifications of enactments by future subordinate legislation under the Bill shall require to be affirmed by Parliament.

75. Accordingly, the Committee considered that in the instance of this particular Bill, the proposed general power contained in section 64(3), which enables orders or regulations to modify any enactment (including the Act) by affirmative procedure is acceptable.

ANNEX

Response from Scottish Government

Climate Change (Scotland) Bill at stage 1

1. Thank you for your letter of 28 January 2009 to Paul Johnston regarding the Subordinate Legislation Committee’s consideration of the Climate Change (Scotland) Bill at Stage 1.

For ease of reference I have set out each of the points raised, followed by the Scottish Government response.

Section 4 - Setting annual targets

2. The Committee asked the Scottish Government––

in relation to sections 4 and 6, on what basis it has considered that there should be no requirements on the face of the Bill to the effect that Ministers shall consult on the terms of an order under those sections (setting or modifying annual targets) with specified persons or bodies who may have particular interest in the proposals?

3. Scottish Government response––

i. When setting annual targets (section 4) and modifying them (section 6), Ministers must first seek the advice of the relevant body (sections 5 and 7 respectively). Section 5(5) provides that the relevant body is the UK Committee on Climate Change or a person or body designated under section 19(1), in practice an existing body or a Scottish Committee on Climate Change.

ii. The Scottish Government has committed to utilising the UK Committee on Climate Change in the short to medium term before reviewing the situation. The UK Committee comprises leading experts on the subject of climate change. Paragraph 1(3) of Schedule 1 to the UK Climate Change Act 2008 sets out the areas of experience and knowledge that the national authorities, which include the Scottish Ministers, must have regard to securing for the Committee as a whole when appointing its members. This includes an understanding of the differences in circumstances between England, Wales, Scotland and Northern Ireland.

iii. If Ministers decide to lay an instrument which makes provision different from that recommended by the Committee, section 5(3) of the Bill requires that they publish a statement explaining why. This is intended to enhance transparency and scrutiny.

iv. The annual targets in the Climate Change (Scotland) Bill apply to the entire Scottish economy. The Bill contains no targets for individual sectors of the economy in order to allow sufficient flexibility for policies to be put in place to reduce emissions in the most cost effective ways possible, without disproportionately disadvantaging any particular industry in Scotland. This is reinforced by the fact that the duty to ensure that the net Scottish emissions account is reduced in line with the annual and longer-term targets in the Bill is placed upon the Scottish Ministers alone.

v. These factors, combined with the provisions requiring the advice of the relevant body, means that it is not felt necessary to require additional consultation on the proposed levels of the annual targets, or on proposed modification of these levels, both of which will be set by orders subject to affirmative resolution.

Section 6 - Modifying annual targets

4. The Committee asked the Scottish Government––

(a) to explain and justify why it is considered, in relation to the power in section 6(4), that this may be exercised in any circumstances where the Scottish Ministers consider it appropriate to do so; and

(b) whether more defined circumstances in which it would be appropriate to exercise the power (in a similar manner to section 6(2) and (3)) could be prescribed, for instance where it becomes necessary for the achievement of targets?

5. Scottish Government response––

i. The power in section 6(1)(c) enables the Scottish Ministers to amend the dates for which batches of annual targets must be set. The power in section 6(1)(d) enables the Scottish Ministers to amend the criteria which Ministers must have regard to when setting annual targets. Section 6(4) stipulates that Scottish Ministers may make orders under sections 6(1)(c) and (d) only if they consider it appropriate to do so. Consideration was given to whether it would be desirable to limit the exercise of these powers by reference to particular conditions which must be met but this was rejected because of the factors outlined below.

ii. The dates set out in section 4(2) mirror the dates for which carbon budgets will be set by the UK Government under the Climate Change Act 2008. This recognises that total emissions reductions in Scotland depend in part upon policies which are reserved and therefore that the batches of annual targets should take account of the levels at which UK carbon budgets are set. It also provides greater certainty for the many organisations which operate both in Scotland and other parts of the UK. It is necessary for Scottish Ministers to be able to amend the annual target dates should the Secretary of State ever exercise the power in section 23(1) of the UK Act to change the length or timing of the UK carbon budgets.

iii. Consideration was given to drafting this section so that the power could only be exercised in order to keep Scottish annual target batch dates in line with the UK carbon budgets or other relevant European or other international agreements. However, it was felt that this was unnecessarily restrictive given the differences between the Scottish annual target model and other emissions reduction models in place elsewhere. Any amendments made under the section 6(1)(c) provision would be subject to affirmative resolution and therefore open to considerable Parliamentary scrutiny.

iv. The target setting criteria in section 4(4) represent the areas and issues which the Scottish Ministers believe are relevant and appropriate to have regard to when setting annual targets. The framework established by the Climate Change (Scotland) Bill is designed to last until at least 2050. It may become appropriate to amend these criteria at some point in the coming four decades. Given this lengthy timescale, it is felt that there needs to be considerable flexibility to adapt these criteria to best fit current thinking and therefore it would not be desirable to attempt to try to restrict the use of the section 6(1)(d) power in a specific way. Once again, any such amendment will be subject to the level of Parliamentary scrutiny afforded by affirmative resolution procedure.

v. With regard to the Committee’s suggestion that the exercise of the power in section6(4) be restricted so that it is used only, for example, where it becomes necessary for the achievement of targets, we consider that this would be difficult to achieve satisfactorily. It would be difficult to argue that changing the dates for which batches of targets are set affects the ability to achieve those targets because it is the level at which any particular target is set which is the key factor in whether or not it is achievable. Similarly, it would be difficult to draw a direct link between changing the target setting criteria and the achievability of targets themselves.

vi. Finally, it is worth noting the duty in section 7 of the Bill which requires that Ministers seek the advice of the relevant body before making an order under section 6. If the order makes provision different from that recommended by the relevant body, Ministers must publish a statement explaining why. This provides another safeguard as to the use of the section 6 powers.

Section 12 - The net Scottish emissions account

6. The Committee notified the Scottish Government that it does not favour the use of the lesser degree of scrutiny of negative procedure for second or subsequent regulations, as provided for in section 64(7)(a) in relation to section 12(2), rather than affirmative procedure.

7. The Committee asked the Scottish Government––

(a) whether it could re-consider if all regulations under section 12(2) could be by affirmative procedure, and

(b) if it does not take this view, if it could fully explain to the Committee what types of “technical” provisions would be subject to second and subsequent negative procedure regulations under section 12(2) (but would not be provisions that would attract affirmative procedure under section 64(7)(a)); could a description of these provisions be put in the Bill; and why it is considered appropriate those provisions should be subject to negative procedure, while the other provisions should be subject to affirmative procedure?

8. Scottish Government response––

i. The Scottish Government does not take the view that affirmative resolution is necessary for all regulations made under section 12(2). The first regulations made under this section will be used to establish the circumstances in which carbon units will be credited to or debited from the net Scottish emissions account and the manner in which this is to be done. This first set of regulations will be subject to affirmative resolution, as will any amendment to them or to subsequent regulations which would have a fundamental impact on the operation of the net Scottish emissions account by altering the amount by which carbon units increase or decrease that account.

ii. It is envisioned that second and subsequent regulations which would attract negative procedure would be instruments designed to align emissions trading schemes operating in Scotland, such as the EU Emissions Trading Scheme (EU ETS), with the net Scottish emissions account. These regulations are likely to be very technical and detailed in nature but would be unlikely to change the fundamental operation of the net Scottish emissions account.

iii. For example, in Phase II of the EU ETS (up to and including the year 2012) nearly all emissions allowances are allocated to industry free of charge. Participants only have to pay for extra allowances necessary to offset emissions over and above their allocation. However, in Phase III of the EU ETS (2013-2020), auctioning will become the default method of distributing allowances, rather than free allocation. In sectors of industry not subject to specific exemptions, 20% of allowances to be distributed will be auctioned in 2013, gradually increasing to 70% in 2020. Additionally the electricity generation sector in most Member States will not receive any free allowances from 2013 onwards. The proportion they would have received will also be auctioned. Work is underway within the Scottish Government to develop section 12 regulations covering the operation of the EU ETS up to and including 2012. However, although the principles of Phase III of the EU ETS are known, there are currently a great number of uncertainties about how it will actually operate in practice. It is almost certain that the first set of section12 regulations, put in place to enable the net Scottish emissions account to operate appropriately in 2010-2012, will need to be amended to take account of the changes to the EU ETS from 2013. The aim of these amendments will simply be to enable the EU ETS allowances used by installations in Scotland to continue to be properly accounted for. The amended regulations will not change the amounts by which individual EU ETS allowances increase or decrease the net Scottish emissions account. The Scottish Government therefore considers that negative resolution is appropriate in such circumstances. This follows the approach taken in the equivalent sections of the UK Climate Change Act (sections 27 and 28).

Section 14 - Scottish share of emissions from international aviation and international shipping

9. The Committee asked the Scottish Government––

in relation to section 14, on what basis it has considered that there should be no requirements on the face of the Bill to the effect that Ministers shall consult on the terms of an order with specified persons or bodies who may have particular interest in these proposals?

10. Scottish Government response––

i. Emissions from domestic aviation and domestic shipping are considered to have been emitted from sources in Scotland and therefore fall within the scope of the Bill’s targets by virtue of section 13(a). An order made under section 14(1) of the Bill would designate a share of emissions from international aviation and international shipping as being attributable to Scotland. The effect of such an order would be to include these emissions within those which count towards the reduction targets set in the Bill. This does not amount to specific targets for either the aviation or the shipping industries because the Bill’s targets apply to Scotland’s emissions taken as a whole, not to individual sectors. This, combined with the requirement in section 14(3) that Scottish Ministers request advice from the relevant body (the expert Committee on Climate Change or Scottish equivalent), and the related requirement to publish a statement setting out any reasons for not following that advice should that be the case, meant that it was not felt necessary to require consultation on the terms on any order made under section 14(1).

Section 18 - Carbon units and carbon accounting

11. The Committee notified the Scottish Government that it does not favour the use of the lesser degree of scrutiny of negative procedure for second or subsequent regulations, as provided for in section 64(7)(b) in relation to section 18(1), rather than affirmative procedure.

12. The Committee asked the Scottish Government––

(a) whether it could re-consider if all regulations under section 18 could be by affirmative procedure, and

(b) if it does not take this view, if it could fully explain and justify to the Committee why it is considered appropriate that the first use of the regulation-making power under section 18 together with any regulations making provision specifying a carbon unit of a kind not previously specified) should be subject to affirmative procedure, whereas all other second or subsequent regulations under section 18 should be subject to negative procedure?

13. Scottish Government response––

i. The Scottish Government does not take the view that affirmative resolution is necessary for all regulations made under section 18. Once a scheme is established under section 18(1) for registering or otherwise keeping track of carbon units, including the establishment and maintenance of accounts for holding such units, and the designation or establishment of a person or body to administer the scheme, it is considered that any further regulations made under section 18(1) would be used simply to vary the operation of this scheme.

ii. For example, a second or subsequent set of section 18(1) regulations might be necessary at some point in the future to create an additional account within which carbon units may be held because of changes to the way in which carbon units are traded at a UK or international level. This is considered to be an administrative procedure. Similarly, it may become necessary to change the level of the charges that users of the scheme are required to pay, to cover the reasonable operating costs of the scheme. Changes of these types would not fundamentally alter the carbon accounting scheme established in the first set of regulations made under section 18(1) and negative resolution is therefore considered sufficient for second and subsequent regulations which seek to make such amendments.

iii. By comparison, specifying a new type of carbon unit would have a significant effect because of the direct relevance to the net Scottish emissions account. Regulations making such a specification would therefore be subject to affirmative resolution.

iv. This follows the approach taken in the equivalent sections of the UK Climate Change Act (sections 26 and 28).

Section 36 - Duties of public bodies relating to climate change

14. The Committee asked the Scottish Government––

  • Whether consideration was given to the type of ‘public bodies’ which could be subject to climate change duties and, if so, whether ‘public bodies’ for purposes of this section could be better defined;
  • Whether consideration was given to providing a definition of ‘climate change duties’ which did not refer back to section 36(1) and, if so, whether ‘climate change duties’ for purposes of this section could be more specifically defined; and
  • Given that climate change duties are not precisely defined and given that any order under section 36 could potentially affect a very wide range and large number of public bodies, whether consideration was given to providing for a broader range of persons whom the Scottish Ministers are obliged to consult under section 36(4) and (5)?

15. Scottish Government response––

i. In response to part (a) of the question, section 19(5) of the Bill provides that the term ‘public body’ means any body with a function of a public nature. This definition applies to section 36 by virtue of section 65 of the Bill. When drafting the Bill, consideration was given to the lists of public bodies in both the Freedom of Information (Scotland) Act 2002 and the Public Appointments and Public Bodies etc. (Scotland) Act 2003. However, given that the policy intention is only to use the powers in section 36 when it is considered necessary in the future (about which more detail is given below) it was not felt appropriate to list the bodies to which the duties might be applied. It was considered more appropriate to use the general term ‘public bodies’.

ii. Apart from the set of specific provisions in Part 5, the Climate Change (Scotland) Bill is principally designed to set long-term statutory emissions reduction targets for Scotland and to establish the framework of annual targets, reporting and scrutiny to drive the policies for delivering the emissions reductions necessary for meeting these targets. The public sector can act as an exemplar by reducing its own emissions in line with the Bill’s targets. The Scottish Ministers wish to work in partnership with public bodies to achieve this but recognise that as emissions reductions become more difficult and more expensive to achieve it may become necessary to place duties on certain public bodies to take specific action. If this does become necessary, section 36(6) of the Bill specifically requires Scottish Ministers to co-operate with relevant public bodies to help them comply with their climate change duties.

iii. It is not possible to know exactly which public bodies may need to become subject to statutory climate change duties at various points over the course of the forty years that the Bill’s framework is designed to cover. If the Bill were to include a list of the public bodies relevant to section 36 it would be highly likely that bodies would need to be included in the list for the sake of completeness but upon which climate change duties may never need to be applied. This approach could also limit the Bill in terms of future application to any new bodies which are created between now and 2050. It was therefore considered appropriate to retain flexibility as to which public bodies climate change duties might be applied to.

iv. Section 36(5) of the Bill contains the safeguard that Scottish Ministers must consult with associations of local authorities or other persons (it is intended that this should be the representative bodies for the part of the public sector in question or, if there are none, the specific public bodies themselves) before laying a draft of a statutory instrument containing an order under section 36(1). Scrutiny is further strengthened by the requirement that such orders be subject to affirmative resolution.

v. In response to part (b) of the question, it was never the intention to define ‘climate change duties’ more specifically elsewhere in the Bill. Given the complex nature of climate change and the long-term nature of the emissions reduction framework established by the Bill, it was felt that this power should be flexible enough to be used in reaction to or anticipation of circumstances which cannot be foreseen at the present time.

vi. It is intended that the term ‘climate change duties’ be sufficiently broad to encompass measures designed to mitigate specific public bodies’ contribution to climate change, ways in which the bodies may adapt to the effects of climate change, or ways in which they may carry out their functions with regard to the objectives of mitigation and adaptation.

vii. In response to part (c) of the question, the Scottish Ministers are required to consult with associations of local authorities or other persons as the Scottish Ministers consider appropriate. As explained above, the term ‘other persons’ is intended to cover representative bodies for the part of the public sector in question (other than local authorities) should they exist, or, if they do not, the specific public bodies themselves. However, because the specific public bodies to which duties might be applied are not listed in the Bill in order to retain the flexibility sought for this power, it was not considered appropriate to set out a more specific or broader list of persons whom the Scottish Ministers would be obliged to consult.

Section 37 – Guidance to relevant public bodies

16. The Committee asked the Scottish Government for more information as to the function and likely content of this guidance.

17. Scottish Government response––

i. Guidance issued under section 37(1) will indicate how specific climate change duties should be discharged. This is intended to assist in developing consistency of approach across those public bodies to which specific section 36 duties apply. For example, and for illustrative purposes only, a duty might be applied requiring certain public bodies to take account of greenhouse emissions in new procurement contracts. Associated guidance issued under section 37 might set out examples of best practice as to how this might be achieved.

Section 46 - Variation of permitted times for making muirburn

18. The Committee asked the Scottish Government––

whether or not it considers it would be appropriate to consult the hill farming community, landowners and others who may be affected on the dates which may be appropriate for muirburn, in advance of making an instrument.

19. Scottish Government response––

i. The Scottish Government agrees that it would be appropriate to consult with parties likely to be affected by any proposed change to the times at which muirburn may be made. However, the Scottish Government considers that the introduction by section 46 of the Bill of provision in a new section 23A of the Hill Farming Act 1946 to create a statutory duty to consult would be impractical. Unlike sections 36(4) and 37(2) of the Bill, which require the Scottish Ministers to consult with, among other persons, associations of local authorities prior to placing climate change duties on public bodies and giving guidance about those duties, there is no one organised body or group of individuals that specifically or particularly represent the interests of those who are involved in the practice of making muirburn. In addition, the Scottish Government is not aware of any existing statutory body or agency with any particular role or statutory function in relation to muirburn.

ii. Muirburn may be made by any person, both a landowner or a tenant, anywhere in Scotland. The Scottish Government considers that in the absence of any organised persons or bodies representing those who may make muirburn, its standard practice of consulting on a non-statutory basis with potentially interested parties is appropriate and reasonable in the circumstances. Such a means of consultation will help to ensure that the views of those generally with an interest in muirburn are obtained and taken into account, as opposed to obtaining views from persons or groups whose remit or experience does not in particular concern the activity of muirburn.

Section 47 - Power to modify functions of Forestry Commissioners

20. The Committee asked the Scottish Government––

Given that the proposed power under section 47(1) to modify, by order, the functions of the Forestry Commissioners in or as regards Scotland does not contain any limitation with respect to the nature, scope or extent of any such modification, has the Scottish Government given consideration to the imposition of a restriction, within the power, on the nature, scope and extent of any modification which may be made; and, whether or not any such consideration has been given, does the Scottish Government not consider that such a limitation would be both feasible and appropriate?

21. Scottish Government response––

i. The Scottish Government considers that the power in draft section 47(1) to modify the functions of the Forestry Commissioners in or as regards Scotland is limited by section 47(2) to the effect that the Scottish Ministers may only make such an order where they consider it necessary or expedient to do so in order to comply with their duty under sections 1, 2 or 3(1)(b) to meet the targets set out in those provisions, or otherwise in relation to climate change.

ii. Any modifications to the functions of the Forestry Commissioners in or as regards Scotland contained in an order under section 47(1) may therefore only be made for purposes demonstrably related to the mitigation of the effects of climate change. The Scottish Government’s position is that consideration has been given to limiting the power in section 47(1), and that it is both feasible and appropriate that the power should be limited in such a way that it requires to relate to climate change purposes.

iii. The Committee will also have noted that, in terms of section 64(4), an order to be made under section 47(1) will be subject to affirmative resolution procedure, thereby ensuring that any such order will require to be debated and approved by the Parliament before it can be made.

Section 52(1), (2) and (4) - Waste prevention and management plans

22. The Committee asked the Scottish Government––

(a) What kinds or classes of persons does the Scottish Government intend or anticipate will be subject to duties under the regulations? In particular is there any intention to apply the power to domestic activities or individuals?

(b) Would it not be possible for the Scottish Government to specify, in the section, the classes of persons to be subject to the regulations and, if so, why has this not been done?

Section 53(1), (2), (3) and (5) - Information on waste

23. The Committee asked the Scottish Government––

(a) What kinds or classes of persons does the Scottish Government intend or anticipate will be subject to duties under the regulations? In particular is there any intention to apply the power to domestic activities or individuals?

(b) Would it not be possible for the Scottish Government to specify, in the section, the classes of persons to be subject to the regulations and, if so, why has this not been done?

Section 54(1), (2), (4) and (5) - Recyclable waste: facilities for deposit etc.

24. The Committee asked the Scottish Government––

(a) What kinds or classes of persons does the Scottish Government intend or anticipate will be subject to duties under the regulations? In particular is there any intention to apply the power to domestic activities or individuals?

(b) Would it not be possible for the Scottish Government to specify, in the section, the classes of persons to be subject to the regulations and, if so, why has this not been done?

Section 56(1), (2), (3) and (6) - Procurement of recyclate - regulations

25. The Committee asked the Scottish Government––

(a) What kinds or classes of persons does the Scottish Government intend or anticipate will be subject to duties under the regulations? In particular is there any intention to apply the power to domestic activities or individuals?

(b) Would it not be possible for the Scottish Government to specify, in the section, the classes of persons to be subject to the regulations and, if so, why has this not been done?

Scottish Government response––

i. In respect of sections 52, 53, 54, and 56 the Committee asks about the classes of persons on whom the Scottish Government believes duties under eventual regulations may fall. It is not at present possible to be specific, since in none of these cases has the Scottish Government yet drawn up firm proposals for regulation. In addition to policy considerations (which might, for example, mean exemptions for small businesses or particular sectors), actual regulations, which are not foreseen in the current economic circumstances, will have to be drawn up according to the economic, market and environmental position at the time. There is, however, no intention to apply regulations made in terms of any of these sections to private individuals acting in a non-business capacity.

Section 57(1), (2) and (4) – Targets for reduction of packaging etc.

26. The Committee asked the Scottish Government to fully explain and justify (given that no such explanation is given in the Delegated Powers Memorandum) why––

(a) unlike the approach taken in Part 1 of the Bill, the Government requires to take the powers in section 57(1) and (2), in so far as they propose that any targets without limit (set by any method) may be set for the reduction of packaging or the reduction of emissions produced by packaging, or requirements on persons to comply with those targets;

(b) given that the Memorandum refers to the possibility of targets being imposed on retailers, the Government requires to impose those targets or requirements on any types of persons (individuals or legal persons) who might be specified in the Regulations, and

(c) On what basis it has considered that there should be no requirements on the face of the Bill to the effect that Ministers shall consult on the terms of the regulations with specified persons or bodies that may have particular interest in the proposals?

27. Scottish Government response––

i. With regard to part (a) of the question, concerning the power in section 57(1) to set targets, the Bill requires that this power be exercised through regulations. A different approach from that taken in Part 1 is required since producers of packaging are already subject to a producer responsibility regime. In Scotland, this is set out in the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 (SI 2007/871). These, in turn, implement the requirement in Article 7 of the Packaging and Packaging Waste Directive (94/62/EC) that return, collection and recovery systems be established. The Scottish Government does not consider it appropriate to transfer responsibilities to itself for meeting packaging targets when a statutory scheme placing considerable responsibilities on producers is already in place.

ii. Furthermore, in terms of waste in general, producer responsibility is a requirement of Community law - see, for example, Article 8 of the recently revised Waste Framework Directive (2008/98/EC). The power to set targets in respect of packaging is obviously less far-reaching in its effects on life in Scotland than the targets in Part 1 may potentially be. It is not limited because very different targets may be appropriate for different forms of packaging on different kinds of product - and indeed the appropriate targets will vary widely according to the state of the market.

iii. Part (b) of the Committee's question on Section 57 asks why the Bill refers to the imposition of targets on persons other than retailers. A great deal of the packaging in circulation does not pass through the hands of retailers, so requirements to reduce these forms of packaging would need to be set for other categories of person. Even where packaging does pass through the hands of retailers, it may well be appropriate to place reduction requirements on producers instead. (As indicated above, these persons are the object of existing producer responsibility legislation in any case.) This does not mean that the Delegated Powers Memorandum's reference to retailers was necessarily wrong. Measures to reduce the amount of packaging reaching consumers in particular, for example, would be likely to be addressed at retailers.

iv. Part (c) of the Committee's question on Section 57 concerns the lack of a specific provision on consultation. The Scottish Government's usual practice is to consult with interested parties when making secondary legislation. It seemed, therefore, unnecessary to require this on the face of the Bill.

Section 64 – Subordinate legislation

28. The Committee asked the Scottish Government––

Why (in contrast for example to the approach taken in sections 74 and 75 of the Judiciary and Courts (Scotland) Act 2008))––

(a) it is considered that section 64(3) requires to contain a power for orders or regulations to modify any enactment (including the Act) by affirmative procedure (a “Henry VIII power”), without any reference to the purposes of such modification, for example, for the purposes of making consequential, incidental, transitional, transitory, or savings provisions; and

(b) if the Government could re-consider whether the power to make supplementary, incidental or consequential provision could be limited to the purposes of giving full effect to, any provision of the Act, and the power to make transitory, transitional or saving provisions could be limited to being in connection with the coming into force of any provision of the Act?

29. Scottish Government response––

i. With regard to part (a) of the question, the Scottish Government considers that it is necessary for the power in section 64(3) to be available for use in wider circumstances than those prescribed in section 64(2)(b) for making consequential, incidental, transitional, transitory, or savings provision.

ii. For example, the power in section 47 enables the Scottish Ministers to modify the functions of the Forestry Commissioners in or as regards Scotland. It is likely that doing so will necessitate the modification of enactments, because the existing functions of the Forestry Commission are mainly set out in the Forestry Act 1967. The modification of that Act would be the main method by which the power would be used, rather than being merely ancillary. Section 36(1) provides a similar case because it might be necessary to modify enactments applying to local authorities, for example, to reflect the new climate change duties.

iii. This is a wide-ranging Bill and it is difficult to know in advance which powers might need to modify enactments. That is why section 64(3) is expressed as applying generally.

iv. Turning to part (b) of the question, the Scottish Government considers that dividing the section 64(3) powers in the way described would result in some of the ancillary powers being subject to the ‘full effect’ test and others subject to the ‘in connection with the coming into force’ test. As previously stated, it is difficult in advance to know which of the ancillary powers will be needed in practice. The Bill contains such a wide range of different powers that a particular set of subordinate legislation in a particular subject area might, for example, need to ‘mix and match’ a consequential provision with a saving. It was not felt that having to use different tests in this manner would add to the level of scrutiny which will have to be applied.

v. The Judiciary and Courts (Scotland) Act 2008, contains separate standalone “ancillary” and “transitional provision etc.” powers in sections 74 and 75, but it also contains a full list of incidental etc. powers within section 71. Section 64(2) (b) of the Climate Change (Scotland) Bill takes a similar approach to section 71(2) (a) in that Act.

I hope this information is helpful to the Committee.


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