« Previous | Contents | Next »
Listen
8. EXAMPLES OF LEGISLATION NOT PROPOSED FOR DESIGNATION
There are a number of pieces of legislation which may appear to be candidates for designation as WEWS Relevant Enactments. On closer scrutiny however, we believe that many of these do not require to be designated, for a number of reasons. Some examples are discussed below.
The Water Scotland Act 1980 ("the 1980 Act")
Section 17(2) of the 1980 Act gives powers to Scottish Ministers to authorise Scottish Water to acquire compulsorily the right to take water from any watercourse. Clearly the decision to grant such rights to Scottish Water could have significant impacts on the water environment.
As it was essential to ensure a degree of synergy between the conferral of water rights under the 1980 Act and the environmental regulation of those rights under CAR, steps have already been taken to clarify how these key decisions should work in tandem, through textual amendments to the 1980 Act. Therefore it is not considered necessary to designate the 1980 Act as a WEWS Relevant Enactment.
The Electricity Act 1989 ("the 1989 Act")
The 1989 Act gives powers to Scottish Ministers to authorise the construction of schemes to generate energy including hydropower. This has the potential to overlap with the environmental regulation introduced via CAR for the protection of the water environment.
As with the 1980 Act, it was essential to clarify the operation of these separate authorisation processes, and thus the 1989 Act has been textually amended to provide such clarification. Therefore it is not considered necessary to designate the 1989 Act as a WEWS Relevant Enactment.
The Land Management Contracts (Menu Scheme) (Scotland) Regulations 2005 ("the LMC Regulations")
The LMC Regulations provide for payments of aid to be made by the Scottish Ministers to farmers who enter into a Land Management Contract (" LMC") to carry out a number of activities from a "menu", for example animal health and welfare programmes and farm woodland management. The LMC system is essentially a whole farm system of support, which makes payments for the delivery of environmental, social and economic benefits. In addition to adhering to the principles of each "menu" that is chosen, the farmers must also comply with the general environmental requirements set out in Schedule 2 to the LMC Regulations.
As the purpose of the funding is not specifically to promote water environment objectives, it is not considered necessary or appropriate to designate the LMC Regulations as a WEWS Relevant Enactment.
Nevertheless there are clearly benefits to be gained from ensuring that the application of the LMC scheme fits alongside WFD objectives within a river basin management planning framework. The Scottish Government is considering how best this might be done.
Conservation (Natural Habitats &c) Regulations 1994 ("the 1994 Regulations")
The 1994 Regulations (as amended) transpose the provisions of the Habitats Directive, and it is a condition of the WFD that the Habitats Directive be complied with throughout the River Basin Districts in Scotland. In addition, the 1994 Regulations have recently been amended to oblige the Scottish Ministers and SEPA when exercising their functions under the WEWS Act and CAR to exercise those functions so as to secure compliance with the Habitats Directive.
While the provisions of WFD provide for a relaxation of standards in the case of social and economic factors, the Habitats Directive provides less scope for such relaxation and the WFD provides that where a stricter standard applies under Community law in relation to an area that the WFD shall concede to that stricter standard. As such, we are of the view that there would be little practical effect to be achieved from specifying the functions of the Scottish Ministers and SEPA under the 1994 Regulations. Where the two regimes interact, it will be likely that the Habitats Directive imposes the more stringent standard.
The Transport and Works (Scotland) Act 2007 ("the 2007 Act")
The 2007 Act takes forward the Scottish Ministers' commitment to introducing an efficient regime for the authorisation of certain transport systems in Scotland. With this in mind, Part 1 of the 2007 Act confers powers on the Scottish Ministers to enable them to authorise, by Order, the construction or operation of specified types of transport system, as well as connected matters. Consequently, the effect of Part 1 of the 2007 Act is to remove the requirement for individual Private Bills for specified types of transport development in Scotland (for example, the types of rail developments that have been brought forward for Glasgow Airport and Airdrie-Bathgate over the last few years.) Such developments will now be regulated according to the procedures established by the 2007 Act regime, including the range of subordinate legislation to be made in due course.
An overriding objective of the 2007 Act is to ensure that consideration and authorisation of such transport proposals can take place as expeditiously as possible. Although the Scottish Ministers have been conferred with powers for an Order under the 2007 Act to disapply the statutory requirements for other related consents, permissions, licences etc, it is generally expected that CAR will be the vehicle for delivering our WFD obligations. Ultimately the Scottish Ministers will not approve any such Order that is in breach of any environmental obligation, including those to be met under the WFD. The 2007 Act also requires that SEPA is notified at an early stage in the process, such that consideration of the relevant WFD obligations can proceed in a timely fashion.
« Previous | Contents | Next »