Scottish Government

The Scotland Act Framework

Note: The following legislative overview is provided for the information of the Working Group and does not constitute the provision of legal advice to the Working Group. The document seeks to identify relevant legislation and should not be taken as providing advice on the circumstances in which particular powers could or could not be exercised.

1. The Scotland Act 1998 provides for the Scottish Parliament to make laws on devolved matters. It also transferred a great number of powers from the UK Government to the Scottish Ministers. Broadly speaking, Ministerial powers that were exercisable in devolved areas were transferred to the Scottish Ministers as part of the devolution settlement.

2. The Scotland Act does not list the matters that are devolved to the Scottish Parliament and the Scottish Ministers. Instead, it sets out the matters that continue to be reserved to the UK Government and Parliament.

3. The significance of a matter being reserved is as follows:

• The Scotland Act provides that an Act of the Scottish Parliament is "not law" in so far as any provision of the Act relates to a reserved matter. The Scotland Act says that the question whether a provision in an ASP relates to a reserved matter is to be determined by reference to "the purpose of the provision, having regard (among other things) to its effect in all the circumstances" (section 29). So if, for example, the aim of the legislation is to affect a reserved matter, or if, whatever the aim, the legislation has more than an incidental effect on a reserved matter, then it is likely that a court would regard the legislation as outside the legislative competence of the Parliament
• The test for Ministerial competence is the broadly the same (leaving aside powers conferred on the Ministers by executive devolution or a different UK statute). In general, the Scottish Ministers do not have power to do anything (whether that be making subordinate legislation or purporting to exercise any function or take any other decision) that would be outside the competence of the Parliament if done in a bill
• The UK Government has various powers to challenge or block legislative or other actions which it believes are outside competence, or which in its view are incompatible with international relations or the interests of defence or national security. Any other person who is able to show "title and interest" can also challenge acts of the Scottish Ministers which are beyond their legal powers

4. The restrictions on the legislative competence of the Scottish Parliament and the devolved competence of the Scottish Ministers do not prevent the Parliament from considering and debating reserved matters. Further, the Scotland Act contains mechanisms to adjust the competence of the Scottish Parliament and the Scottish Government. These mechanisms can only be exercised after consultation between the UK and Scottish Ministers, and consideration and approval at both Holyrood and Westminster. Against this background, both the Scottish Parliament and the Scottish Government have frequently made representations to the UK Parliament and Government about reserved matters or the need for changes in the devolution settlement.

5. There are a range of reservations in Schedule 5 to the Scotland Act that impact on nuclear weapons, and which therefore serve to limit the powers of the Scottish Parliament and the Scottish Government in this area. The reservations that are of greatest relevance are:

• Defence of the Realm (paragraph 9 of Part I of Schedule 5)
• National Security (Section B8 of Part II of Schedule 5)
• Control of nuclear weapons (Section L3 of Part II of Schedule 5)
• Transport of radioactive material (Section E5 of Part II of Schedule 5)

6. These reservations are all set out in absolute terms and by reference to a particular subject matter and they contain either no exceptions or very limited exceptions. There are other reservations that might impact on nuclear weapons in Scotland. But the application of the reservations may be less clear in view of the fact that they are expressed by reference to the subject matter of pieces of legislation, or contain exceptions. In particular:

• International relations, including relations with international organisations, is reserved by paragraph 7 of Part I of Schedule 5, but observing and implementing international obligations are excepted from this reservation. This means, for example, that the Scottish Government must observe and implement EU and ECHR obligations in devolved areas
• Nuclear energy and nuclear installations, including nuclear safety, security and safeguards and liability for nuclear occurrences is reserved, but the reservation excepts Part I of the Environmental Protection Act 1990 and the Radioactive Substances Act 1993
• Certain aspects of road transport are reserved in Section E1 of Part II of Schedule 5, such as traffic regulation on special roads and speed limits. However, other aspects of transport are generally devolved, such as the provision and operation of trunk roads and local roads
• Certain aspects of marine transport are reserved in Section E3 of Part II of Schedule 5, such as laws relating to the carriage of goods by sea and merchant shipping. Other aspects are generally devolved, such as laws relating to ports, harbours and works which may obstruct or endanger navigation
• Emergency powers are reserved, although not emergency planning. The Scottish Government share handling the response to any nuclear emergency with the UK Government

7. Other devolved matters that might be of relevance to the remit of the Working Group include economic development, the protection of the environment, the criminal law so far as not relating to reserved matters, policing, building control and land use planning.

THE CURRENT LICENSING AND REGULATORY FRAMEWORK IN HM NAVAL BASE CLYDE IN RELATION TO ENVIRONMENTAL, PLANNING AND TRANSPORT ISSUES

8. A considerable range of laws have an actual or potential impact on the functioning of HM Naval Base Clyde. Some are reserved to Westminster, while others are devolved. Military sites such as HM Naval Base Clyde are owned by the Crown. Historically, the Crown has been exempted from the need to comply with much of the legislative framework that governs other operations. Many exemptions continue to exist, though some have been removed.

9. The Concordat between the Scottish Ministers and the Secretary of State for Defence that was established shortly after devolution recognises that Holyrood legislation and the exercise of powers by the Scottish Ministers may directly or indirectly affect defence matters. Similarly, UK legislation and the exercise of powers by the UK Government in relation to defence matters may impact on devolved matters.

10. The concordat envisages that there will be consultation and co-operation on such matters. An annex to the concordat sets out a lengthy list of topics on which consultation between the MoD and other authorities in Scotland has taken place. It serves to illustrate the wide range of topics that may engage both reserved and devolved interests, ranging from involvement in emergency planning exercises, general policing matters, fisheries protection, health care for military personnel, environmental issues, building control and land use planning. The concordat is available at http://www.scotland.gov.uk/Publications/1999/12/mod.

Environmental issues

11. Most environmental functions have been transferred to the Scottish Ministers, though some, notably relating to nuclear safety issues, remain at Westminster.

12. The Scottish Ministers are responsible for developing environmental policy in Scotland. They also exercise a variety of controls over the environmental agencies in Scotland such as the Scottish Environmental Protection Agency (SEPA) and Scottish Natural Heritage (SNH). Ministers can, for example, issue directions of a general or specific character to SEPA.

13. It should be noted that some domestic and international environmental legislation exempts the Crown from compliance. However, MoD policy is to comply with all UK, Scottish and International environmental legislation which applies to defence activities and to adopt standards, wherever practicable, that are at least as good as those required by legislation.

14. The environmental framework that governs operations in Scotland and that could be of potential relevance at HM Naval Base Clyde is wide ranging, and includes the following:

• Food and Environmental Protection Act 1985, Part II. This governs deposits at sea and requires sea protection licences to be obtained from the Scottish Ministers in certain circumstances. The Act does not bind the Crown. However, it is intended that the Crown will act in accordance with requirements of the Act and it is understood that Crown bodies have applied for licences from the Scottish Ministers in the past
• Environmental Protection Act 1990, Parts I, II, and IIA and the Pollution and Prevention Control Act 1999 and related Pollution and Prevention Control Regulations. The Acts prescribe a system for controlling pollution for the largest and most harmful industrial processes, dealing with emissions to air, water and land. The system is overseen by the Scottish Environmental Protection Agency. However, the UK Government has power to prevent SEPA from having access to sensitive military sites. Part IIA deals with the identification and remediation of contaminated land. It contains an exception for land used by or on behalf of the MoD for purposes which would have required a nuclear site licence if the site had been a civilian one
• Conservation (Natural Habitats etc.) Regulations 1994. These aim to protect designated European special areas of conservation and special protection areas. Before authorising a project that is likely to have a significant effect on such a site, the "competent authority" must undertake an environmental assessment. Where the project would have an adverse effect the authority may only proceed if there is no satisfactory alternative and there are overriding public interest justifications. It is understood that the competent authority in relation to development at HM Naval Base Clyde would be the UK Government. The regulations also contain offences in relation to taking or disturbing certain species of wild animals and plants. The Crown has exemption from criminal prosecution
• Water Environment and Water Services (Scotland) Act 2003. Activities that may have an impact on the water environment require prior authorisation from SEPA or the Scottish Ministers. Any application for authorisation must be assessed in accordance with specified statutory criteria
• The Nature Conservation (Scotland) Act 2004 gives SNH powers to designate and enlarge areas within Scotland as Sites of Special Scientific Interest. SNH will then have a range of functions in relation to such sites, including a power to issue land management orders to conserve or restore natural features. The powers and duties of SNH and those occupying SSSIs are set out in the Act

15. Many other environment laws could be of potential relevance depending on the circumstances, such as those dealing with air quality, sewerage, bathing waters, the protection of specific types of animals, coastal protection and national parks. For more information, see the Stair Memorial Encyclopaedia Reissue on the Environment.

Planning issues

16. Planning controls are devolved to the Scottish Ministers. However, before June 2006, the Crown was exempt from planning control, although administrative procedures were in place so that notices of proposed development would be submitted to the relevant planning authorities.

17. Since June 2006, the Planning Acts have applied to the Crown, with certain caveats. In general, the Crown will now be treated in the same way as any other developer.

18. Alterations to existing facilities may not require planning permission because the alterations involve no material changes to the external appearance of existing buildings and no material change of use to land or buildings or they may benefit from deemed planning permission given by "permitted development rights". The Scottish Ministers have scope, by secondary legislation, to make changes to the circumstances in which permitted development rights arise.

19. Where an application for planning permission is required, it will be made either to the planning authority or, in urgent cases, to the Scottish Ministers. The application would require publicity, consultation and a consideration of its likely environmental consequences, including an environmental impact assessment (EIA). Special procedures could apply where the Crown considered it necessary to withhold information on the grounds of national security. In addition, there are specific exclusions from the need to obtain an EIA for projects which are deemed to serve national defence purposes in Scotland. In such cases, the Secretary of State can direct that where compliance with EIA would have an adverse impact on national defence purposes then the EIA Regulations will not apply.

20. The Crown remains exempt from prosecution. Restrictions are in place to restrict access to Crown land in order to remedy breaches

Transport issues

21. The Scottish Ministers are generally the roads authority for trunk roads and special roads provided by them. Special roads are roads such as motorways with particular rules meaning that not all types of traffic can use the roads. A local authority is the roads authority for other public roads (including any special roads for which they are responsible) for the purposes of the Roads (Scotland) Act 1984.

22. The Scottish Ministers have powers to prescribe for devolved purposes the classes of traffic that may use a special road. Motor vehicles and trailers constructed for naval, military, air force or other defence purposes, the use of which is authorised by an Order made by the Secretary of State, are set out as part of a specific class and referred to in Schedule 3 to the 1984 Act.

23. The Road Traffic Regulation Act 1984 allows the Scottish Ministers to impose either temporary prohibitions and restrictions on roads, or to make traffic regulation orders. Such orders can be used to avoid danger to persons or other traffic using a road or to facilitate the passage on the road of any class of traffic. Section 62 of the Roads (Scotland) Act 1962 allows Ministers to bring forward a temporary prohibition or restriction of traffic on roads for reasons of public safety or convenience where the powers under the Road Traffic Regulation Act do not apply.

Scottish Government Legal Directorate
April 2008