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Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015

Volume 758: debated on Tuesday 13 January 2015

Motion to Consider

Moved by

That the Grand Committee do consider the Reservoirs (Scotland) Act 2011 (Restrictions on Disclosure of Information in relation to National Security etc.) Order 2015.

Relevant document: 14th Report from the Joint Committee on Statutory Instruments

My Lords, the main purpose of this order, which was laid before the House on 18 November 2014, is to confer on the Secretary of State powers in relation to reservoirs in Scotland that are similar to powers that the Secretary of State already has in relation to reservoirs in England and Wales. They will ensure that a coherent national security regime is in place in relation to reservoirs across Great Britain. The order is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient legislative changes to be made in consequence of an Act of the Scottish Parliament. This particular order is made in consequence of Sections 9 and 55 of the Reservoirs (Scotland) Act 2011, which I will refer to as the 2011 Act.

The 2011 Act provides for a new regime for regulating the construction, alteration and management of controlled reservoirs in Scotland, particularly in relation to the risk of flooding from those reservoirs. When fully commenced, the 2011 Act will replace the current regime which operates under the Reservoirs Act 1975 in so far as it extends to Scotland.

Section 9 of the 2011 Act requires the Scottish Environment Protection Agency—SEPA—to establish and maintain a public register of controlled reservoirs in Scotland. The register must include, among other things, maps showing areas of land that would be likely to be flooded in the event of an uncontrolled release of water. Section 55 of the 2011 Act provides for the preparation and publication of flood plans for controlled reservoirs. The plan must set out the action to be taken by the manager of the reservoir to control or mitigate the effect of any flooding likely to result from an escape of water from the reservoir.

Noble Lords will readily appreciate that some of the information in the maps and plans that I have just mentioned, which will be gathered and stored by public bodies and others under the 2011 Act, could be used in a harmful way if in the wrong hands. As the Committee may well be aware, the Scottish Parliament does not have the legislative competence to make provision in relation to national security matters, as these matters are reserved to the United Kingdom Parliament under Schedule 5 to the Scotland Act 1998. Therefore, this order will empower the Secretary of State to serve a non-disclosure notice on the Scottish Ministers and SEPA if the Secretary of State is of the opinion that disclosure of any information about a controlled reservoir in Scotland would be contrary to the interests of national security. This will prohibit the disclosure of the information by Scottish Ministers and SEPA, and, in particular, will ensure that the information is excluded from the public register.

The order will also empower the Secretary of State to serve a non-publication notice on any relevant person if the Secretary of State is of the opinion that publication of a flood plan, or any information relating to the plan, would be contrary to the interests of national security. For the Committee’s information, a “relevant person” is defined by Article 2 of the order and includes those who are required to prepare or publish flood plans. As I indicated at the outset, the Secretary of State already has similar powers in relation to reservoirs in England and Wales, and this order puts in place appropriate provision for Scotland. The order will also make it an offence to fail to comply with a requirement of a non-publication notice.

Finally, the order will update the definition of the “Scottish regime” in Schedule 4 to the Flood and Water Management Act 2010 to clarify that the 2011 Act will now provide for the regulation of the construction, alteration and management of controlled reservoirs in Scotland, rather than the regime that currently operates under the Reservoirs Act 1975.

I consider this order to be a sensible use of the powers under the Scotland Act 1998 and I believe that it demonstrates once again this Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. The order was debated in Committee in the other place earlier this afternoon. I commend the order to the Committee. I beg to move.

My Lords, I do not have the loquacious back-up that my noble friend Lady Morgan of Ely had—I am afraid that it is just me. Once again, I thank the Minister’s staff for the very clear notes. I hope that the Minister will be delighted to hear that I entirely agree with every word he said. It is competent, it is realistic; the security will remain. Unfortunately, recent events have compounded such concerns. I know that is not related to why we are here, but it is certainly a very big factor. The only thing I worry about is alerting people to the possibility of doing damage to reservoirs. I know that we cannot hold meetings in camera, but sometimes I wonder whether we should.

Paragraph 10 of the notes sent out by Ms Lopinska says that the House of Lords Secondary Legislation Scrutiny Committee did not draw this piece of legislation,

“to the special attention of the House of Lords. Nonetheless, this issue may come up during debate”.

Well, it is coming up only because I do not understand it. If the Minister were able to help me with that, I would be delighted. Having said that, it is a sensible move, it is quite apt, and it has our full support.

My Lords, I am very grateful to the noble Lord, Lord McAvoy, for welcoming this order, and I underline again the fact that we are constantly aware of and sensitive to issues of national security.

The position with regard to the Secondary Legislation Scrutiny Committee is that it sought further information on this order from the Scotland Office. The committee noted that the order would empower the Secretary of State, if they were of the opinion that the publication of a flood plan or any information relating to a flood plan would be contrary to the interests of national security, to serve a non-publication notice on any relevant person, but that people living in proximity to a reservoir would need to know about a flood plan in the interests of their own safety; therefore, non-publication of a flood plan runs the risk of placing such people in jeopardy. The committee asked whether this was the case and, as there is a wider public interest in such non-publication procedures, why there was no public consultation on the provisions of this order—this is in appendix 2 to the 16th Report of the Secondary Legislation Scrutiny Committee.

The Scotland Office provided a response to that point, indicating that flood plans under the Reservoirs (Scotland) Act 2011 are on-site flood plans only. They cover only what the reservoir managers themselves would do in the event of either a potential or an actual controlled release of water from a reservoir. They are not intended to replace off-site emergency response plans. That would be the responsibility of the local strategic co-ordinating group under the civil contingencies legislation. It was noted that full public consultation on the Act was carried out prior to its introduction in the Scottish Parliament, and in addition that regulations will be made under Section 55 of the 2011 Act that will introduce a requirement to produce flood plans, and these will be fully consulted upon. It would appear that, after the information was given in response to the committee’s request, it did not think it necessary to report it to the House—and that, by implication, it was satisfied with the response. I hope that that answers the noble Lord’s question.

Motion agreed.