|
Clause 86
Application of criminal law to renewable energy installations
Question proposed, That the clause stand part of the Bill.
Miss McIntosh: I have a brief query for the Minister, and it is similar to a point raised earlier. The Order in Council may provide that a constable is allowed to extend and apply criminal law to the renewable energy installation. Subsection (7) says that
Column Number: 293
'''subordinate legislation' includes an instrument made under an Act of the Scottish Parliament.''
My question is simple. If such an instrument made under an Act of the Scottish Parliament conflicted with an Order in Council, who would have the last word? Would it be the Secretary of State for Trade and Industry, the Secretary of State for Scotland or the Scottish Parliament?
There is a separate system of criminal law under Scots law. Will that remain devolved under the provisions of part VI? We are told in the explanatory note—
The Chairman: Order. May I ask the hon. Lady to speak up please?
Miss McIntosh: We are told:
''This clause provides a power to establish, by Order in Council, criminal jurisdiction over any 'renewable energy installation'''.
Although one would not want to plant the thought in anyone's mind, presumably that also covers any terrorist activity in relation to installations based in the renewable energy zone. Presumably, it is covered by an Act of Parliament passed by Westminster as opposed to Scotland.
How will the Bill apply? I repeat that there is a distinct application of criminal law in Scotland, and subsections (7) and (3) are not as clear as they might be.
Mr. Weir: This small matter follows on from what the hon. Lady has said. Subsection (6) refers to:
''Proceedings for anything that is an offence by virtue only of an Order in Council''.
What does the Minister think might be imposed by an Order in Council that might be a criminal offence under Scots law? Scots law is a wholly devolved matter and this House would legislate for criminal law in Scotland only if a Sewel motion was passed in the Scottish Parliament, as has been done many times. It is difficult to see how an Order in Council, promulgated by Ministers in Westminster, could impose a criminal penalty under the jurisdiction of Scots law. Can he clarify that point?
Mr. Timms: The Government need to have the ability to apply criminal law to installations in the renewable energy zone created by virtue of clause 85. To ensure uniformity of criminal jurisdiction for all offshore renewable energy installations, the clause extends not only to installations in the renewable energy zone, but to those located further inshore, in tidal waters adjacent to Great Britain up to the seaward limits of the territorial sea.
We legislate with the agreement of the Scottish Executive in respect of the aspects of clause 86 that are within their competence. Clause 89, which we shall come to shortly, provides a parliamentary procedure for the Orders in Council that cover matters that are either wholly devolved to the Scottish Executive or of mixed competence.
In response to the points raised by the hon. Member for Vale of York, there does not need to be a difficulty on this issue. Scottish Ministers make Orders in Council on devolved matters and the Secretary of States makes them on reserved matters. I do not think
Column Number: 294
that there is a danger of conflict; the relevant provision is clause 89. The hon. Member for Angus asked me for specific examples. I am afraid that I do not have any to hand, but perhaps I may send him a communication that will satisfy his curiosity on that point.
Mr. Weir: I am still not clear about the procedure for an Order in Council as laid down in clause 86; it is not clear how that fits with Scottish criminal law. As the Minister said a moment ago, there should be clarity in the criminal law, but Scottish law is different in some respects—not so much in the nature of the offence, but the procedure. I am still not clear how an Order in Council will be able to impose on Scottish jurisdiction. That reinforces my earlier point about the certainty of jurisdiction. The Minister is wandering into possibly dangerous waters—no pun intended—regarding the jurisdiction over installations in the Scottish sector and those in the English sector, with no clarity as to which law applies.
Mr. Timms: I do not think that the problem the hon. Gentleman fears we might be in danger of raising here exists. Westminster will not deal with Orders in Council on devolved matters. The Secretary of State at Westminster will do what needs to be done on reserved matters, but Scottish Ministers will make an Order in Council under procedures of the Scottish Parliament on devolved matters. If that leaves a gap, I am happy for the hon. Gentleman to draw my attention to it, or he can write to me and I shall give him the benefit of specialist advice on such matters in providing him with the answer he seeks.
Mr. Weir: I am sorry to be pedantic, and I promise that I shall not intervene again, but subsection (6) says that
''the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.''
I do not understand. If Scottish Ministers are making an Order in Council to apply in Scotland, and the UK Government in Westminster are making one to apply in the rest of the UK, how can either of those Orders in Council create an offence that can be
''treated as having been committed, in any place in the United Kingdom''?
Is not the Minister suggesting that the Scottish Parliament could make an Order in Council that might create an offence that could be tried in the English courts?
Mr. Timms: I am afraid that I have not fully grasped the difficulty that the hon. Gentleman raises. If he gives me more insight to it, I will be happy to provide him with as full an answer as I can.
Mr. Weir: Rather than pursue the matter, I shall write to the Minister, as we could debate the point all afternoon.
Question put and agreed to.
Clause 86 ordered to stand part of the Bill.
<<295>>Clause 87
Prosecutions
Question proposed, That the clause stand part of the Bill.
Miss McIntosh: This is not a dissimilar point, which may be of some assistance to the Minister and to the hon. Member for Angus. I cannot understand why, having ordered that clause 86 stand part of the Bill, Scotland will have jurisdiction over those devolved powers. Why is there no reference in clause 87 to prosecutions in the Scottish courts? There are no references to the roles of the procurator fiscal, the Advocate-General or the Lord Advocate.
Does the Minister accept that, despite what he said about earlier clauses in part 3, chapter 1 of the Bill, no infringements that apply under Scottish jurisdiction will be prosecuted? Presumably, the Bill should outline the correct procedures of Scots law. The hon. Member for Angus said that this matter has more to do with processes under Scottish criminal law as opposed to English, but from my hazy recollection of Scots law—I practised only briefly, as I moved to practise European Community law, as it was then was, in Brussels—the offences, as well as the processes, are different.
3.30 pm
That is a staggering omission. Either the Minister will say that the Scotland Act applies by default or he will have to explain why his Department does not envisage a problem. Obviously, those living in Scotland are very law-abiding, although I represent a seat, Vale of York, that is equidistant from Edinburgh and London. Either the Minister accepts that the Scots are so law-abiding that there will be no prosecutions or he has failed to set out any reference to the relevant procedures and personalities for dealing with such prosecutions under Scots law. Either way, the Committee needs to know this afternoon.
Mr. Weir: I shall be very brief. The hon. Lady's argument is valid up to a point. She is quite right that there are different offences in Scots law, but as the majority of offences under the clause might be committed offshore it is difficult to see a huge difference. However, this issue illustrates the need to be clear as to which jurisdiction applies in each case.
The answer to the question may be rather more simple. Subsection (3) refers to obtaining the consent of the Director of Public Prosecutions in England and Wales and the Director of Public Prosecutions for Northern Ireland. My recollection is that that particular wording is an attempt to avoid private prosecution, which is much more difficult in Scotland. The Lord Advocate or the procurator fiscal would normally institute proceedings for any breach. However, the question illustrates the lack of clarity in jurisdiction. I urge the Minister to consider that and to come back on Report with a much clearer definition of the jurisdiction question, and therefore the prosecution question, under these various clauses.
Column Number: 296
Mr. Timms: There is a need for clarity and there will be clarity. I do not think that that will be a problem at all. I had hoped that the hon. Gentleman would answer the question asked by the hon. Member for Vale of York. He almost did, but, if I understand the position correctly, not quite.
The general rule is that the consent of the Director of Public Prosecutions is required before proceedings can be instituted in England and Wales. Similarly, the consent of the Director of Public Prosecutions for Northern Ireland is needed before any proceedings can begin there. However, there is no provision for proceedings in Scotland because the consent of the Lord Advocate is needed in all cases without enactment here being necessary. The point is already covered as a matter of Scottish common law.
Question put and agreed to.
Clause 87 ordered to stand part of the Bill.
Clause 88
Application of civil law to renewable energy installations etc.
| 
