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Forestry and Land Management (Scotland) Act 2018 (Consequential Provisions and Modifications) Order 2019

Volume 796: debated on Thursday 28 March 2019

Motion to Approve

Moved by

My Lords, this order is necessary as a consequence of the Forestry and Land Management (Scotland) Act 2018, which received Royal Assent on 1 May 2018, having been passed by the Scottish Parliament on 20 March 2018. I will refer to this as the 2018 Act. Section 104 of the Scotland Act 1998 allows for “necessary or expedient” legislative provision in consequence of an Act of the Scottish Parliament. In this case, a Section 104 order is required in consequence of the 2018 Act. Both the UK and Scottish Governments have agreed to this order being taken forward, following an initial request from the Scottish Government.

The 2018 Act is the final stage in a programme of work to devolve responsibility for the management of forestry, which started with the Scotland Act 1998. The 2018 Act, which will commence on 1 April, provides for the powers and duties that are held by the forestry commissioners, in so far as they relate to Scotland, to be transferred to Scottish Ministers. Two orders must be laid by the Government following the 2018 Act to transfer the relevant powers. One order is subject to the negative procedure, and was made under Sections 90 and 93 of the Scotland Act 1998. The order we discuss today has been made under Section 104 of the Scotland Act 1998 and is subject to the affirmative procedure.

As the Minister knows, we have devolved other powers to the Scottish Government and Parliament, particularly over welfare. Having demanded these powers, and we having spent time considering and delegating them, they are not exercising them. They have said, “No, we cannot do it; we cannot carry out these powers because we just do not have the facilities or the ability to do it”. They have wasted our time, disillusioned the Scottish people and created tremendous problems. Can the Minister give us an assurance that the Scottish Parliament and Government are ready to deal with these forestry powers, because they certainly were not ready to deal with the welfare powers that we devolved to them?

The noble Lord makes a point of some interest regarding the Scottish Government. One might almost say they could not see the wood for the trees—sorry, it has been a long day. I will come back to some related points once I have completed my opening speech.

Some functions will continue to operate across Great Britain in relation to forestry science and research, tree health, and common codes and standards. When the 2018 Act comes into force, the forestry commissioners will no longer have a role in Scotland. Management of forestry will instead become the sole responsibility of the Scottish Government. This order enables the 2018 Act to be implemented in full. It provides new powers to Scottish Ministers and makes several consequential amendments to UK legislation, with a particular focus on the Forestry Act 1967.

Articles 3 and 4, along with similar provision in the Section 90 order, will enable cross-border arrangements to be entered into between the Scottish Ministers, the forestry commissioners and various other bodies. While forestry functions and management of the national forest estate will be fully devolved, the order will allow Scottish Ministers to enter into arrangements with the other bodies so that each may deliver certain functions on the other’s behalf.

Article 5 will confer powers upon Scottish Ministers to promote, develop, construct and operate installations for or in connection with the generation, transmission, distribution and supply of electricity produced from renewable sources and to use electricity produced by virtue of those powers. These powers are currently exercisable by the Forestry Commission in Scotland. When the Forestry Act 1967 is repealed as it relates to Scotland, it will be necessary to transfer these functions to the Scottish Ministers to ensure they have the same powers as the forestry commissioners have under the current arrangements.

Finally, the order makes a number of consequential amendments to the Forestry Act 1967, related statutory instruments and other primary legislation to reflect the removal of the forestry commissioners’ functions in or as regards Scotland.

We have worked closely with the Scottish Government at all levels to ensure that this order makes the necessary amendments to relevant UK legislation in consequence of the 2018 Act. It represents the final stage of devolving forestry to the Scottish Government. I commend the order to the House, and I beg to move.

My Lords, I will ask the Minister a few brief questions. First, what would be an example of practical co-operation on cross-border matters such as plant health or infection? What would be the practical steps? The Minister mentioned that steps would be taken for administrative connection—I think this was covered in the Commons. Could the Minister provide a little more clarity on the powers on electricity generation? There was also some discussion of this in the Commons, but exactly what sort of wood production or forestry by-products will be used in this generation? There was discussion about biomass; a little bit of clarification there would not hurt. Other than that, there is not much else to be said. The Commons took 21 minutes on this—let us see whether we can shave a moment off that.

My Lords, I thank the Minister for his clear explanation, and I declare my interests as set out on the register. In particular, I am chairman of the UK Squirrel Accord, a body of 35 entities—the four Governments, the four nature agencies and the principal voluntary and private sector bodies—that are trying to deal with the problem of grey squirrels killing broad-leaved trees. The problem is extremely serious and is preventing commercial forestry planting such trees at the moment in large tracts of our country.

I have two questions for the Minister, arising from the Explanatory Memorandum. First, to follow on from the noble Lord, Lord Addington, I note that paragraph 7.1 says:

“Selected functions continue to operate across Great Britain including functions relating to forestry science and research, tree health and common codes and standards”.

Where squirrels and tree diseases are concerned, a line in an atlas makes no difference at all to the problems; it is vital that things continue to be co-ordinated across the border. I think that sentence means, “Great Britain and Northern Ireland”, not just “Great Britain”. Could the Minister confirm that? Also, does it mean that various functions will remain at the UK level? That would be very helpful, given the necessity of moving forward on a co-ordinated basis, particularly in science.

My second question is on paragraph 7.3, which refers to Articles 3 and 4. It talks about maintaining,

“a coordinated approach to issues such as the management of plant-based pests and diseases”.

Does the Minister agree it is vital to make sure that takes place? No individual bit of Great Britain has all of the intellectual power or money—or even necessarily a research institute—to do these vital things. It is so important that things remain co-ordinated. There is pretty much chaos at the moment, and staff morale is not good in some of the new bodies which will replace the current arrangements. If I have a fear, it is this: if the ball is dropped, the net result will be a big problem in plant health and broad-leaved trees.

My Lords, the forestry sector is a significant contributor to the Scottish economy, to the extent of some £1 billion. It also imposes opportunity costs resulting from the tax treatment of forestry and from the externalisation of costs pursuant to the effects on the rural road network during harvesting. So an important responsibility is given to Scottish Ministers and, as my noble friend Lord Foulkes observed, it is important that this is exercised sensibly.

Article 3 deals with Scottish Ministers and cross-border arrangements. Given that there will be mixed responsibilities where, for example, a single forestry unit straddles the border, will the Minister identify the extent and distribution of responsibilities between Scottish Ministers and their English counterparts? As the noble Earl, Lord Kinnoull, identified, this may also affect other matters such as squirrels. I understand that a memorandum of understanding is envisaged, but what is to be the guiding principle for the division of responsibilities, and how would any differences between the authorities be resolved? One notes the reference to arrangements as between Scottish Ministers, Welsh Ministers and the Natural Resources Body for Wales. What is to be regarded as the content of any such arrangements, and how will arrangements with Northern Ireland be governed? There is already an allusion to that point.

In Article 4, on forestry commissioners and the cross-border arrangements, what is envisaged as being the new relationship between Scottish Ministers and the forestry commissioners? Specifically, what arrangements are envisaged? Given that the forestry commissioners’ functions will no longer be exercisable in Scotland, this may be a significant issue.

In Article 5, on renewable energy installations, the Scottish Ministers’ functions will extend to promoting electricity produced from renewable sources. There is concern in Scotland that biomass energy, which was originally hoped to be substantially dependent on forestry thinnings, has now become dependent on using mature trees as the raw material for pelletisation. Beyond the order, will there be any guidance or control that Scottish Ministers may deploy to discourage this practice? In the same context, will recently expressed concerns over the health effects of wood smoke be subject to Scottish Ministers’ guidance, so far as the Minister is aware?

My Lords, I am very grateful for the detailed questions that have been asked today, and I will do my best to do justice to them.

I will start with the noble Lord, Lord Addington. On the question of what practical co-operation and co-ordination will look like—this also touches on the comments made by the noble Earl, Lord Kinnoull—the purpose here is not to undo established relationships, particularly at the research level and where the co-operation is based on intellectual engagement with the various challenges facing either the health of the forest or indeed the welfare of the forest inhabitants. There are established relationships, and it is not anticipated that these will be interrupted or disturbed. They will reach not just between—to be frank—the current commissioners and Scotland but also where information can be shared between Wales, Scotland and England. The noble Earl, Lord Kinnoull, asked whether this applies to Northern Ireland, and I have been told that the answer is no, it does not. It focuses only on Great Britain in that context.

The issue around renewables is important. The current powers exercised by the commissioners will transfer as they are. The noble and learned Lord, Lord Davidson, asked about guidance, particularly with reference to mature trees. I believe that he and I share exactly the same view—that we should not in any way be looking at mature trees for renewable electricity generation. Again, I hope that the current guidance will be operated in exactly the same fashion: namely, that mature trees should not form the basis of wood chips or wood pellets to create renewable electricity. That would defeat the purpose of the overall ambition. The guidance exists, and I hope that it will continue to be applied in that wider context.

The noble Earl, Lord Kinnoull, asked an important question about squirrels. I know that he is a passionate advocate of the red squirrel—I am fully aware that I come from a part of the country, in Perthshire, around Alyth, which has a well-established red squirrel population. The noble and learned Lord, Lord Hope of Craighead, knows what I am talking about—he knows the squirrels of Perthshire. Again, it is important that we recognise that we have established information about the squirrel communities, and we cannot lose that simply because we create different separations of powers. There needs to be a sharing of our understanding around squirrel movements, and we need to do that at the level of the island of Great Britain as a whole: that will remain absolutely essential to moving forward here.

We must be cautious—this touches on the points raised by the noble Lord, Lord Foulkes—that, as we move toward a new arrangement, it cannot be a diminution of where we are now: it must be an improvement, or certainly no worse. We must be cognisant of and attentive to each aspect, particularly where sharing relates to plant or tree health and where we have pests and various types of wood-borne disease. We cannot take any chances: our forestry estate is too important. Noble Lords will be fully aware of the challenges experienced just now with regard to ash trees, and the wider issue of contamination—how quickly it can spread if we are not careful. We must continue to co-ordinate and collaborate at a UK-wide level, because our forestry estate is too important not to.

The noble and learned Lord, Lord Davidson, touched on the issue of the rural road network. That is integral and the Scottish Government have the responsibility to take this matter forward sensitively and carefully. I hope that they will continue to do that, because it is critical to the well-being of often remote areas.

There is one block of forestry which straddles the border. It is currently managed as a block by Forest Enterprise England on behalf of Forest Enterprise Scotland, and it has been agreed that this block will continue to be managed by Forest Enterprise England on behalf of Forestry and Land Scotland—so the current arrangements will roll forward.

Before the Minister concludes, I wonder whether he can help me. I should know the answer to this and apologise if it has been made public and I have missed it. What is happening to the staff in the Forestry Commission building in Corstophine and what is happening to the building itself? As I understand it, it has been the headquarters of the Forestry Commission for the whole of the United Kingdom, run from Corstophine in Edinburgh by some excellent staff. As I said, perhaps I should have known this or asked about it earlier, but I want to make sure that they are being looked after and that something sensible is being done with the building.

The noble Lord speaks of Silvan House. He is absolutely right about the value of the work undertaken by the staff of the Forestry Commission in Scotland, and I understand that this will have no material effect on their well-being or conditions. I do not know about the building itself, but if the noble Lord will permit, I shall write to him once I have an answer, because I am not familiar with the situation there.

Before the Minister sits down, I want to ask him a little more about treating Northern Ireland separately from the rest of the United Kingdom in these matters. It is surely one thing to treat the Irish Sea as an effective border for the movement of animals, but that has not proved true for the movement of plant pathogens. When one looks at the map of the distribution of both ash dieback and phytophthora ramorum across the island of Ireland, one sees that it would be a fiction to regard Northern Ireland as separate from the rest of the UK.

The noble Baroness makes an important point. It would be very difficult for us to look at the islands of the British Isles as a whole as anything other than one biogeographic unit. We cannot lose sight of that: the borders themselves are broadly meaningless, including the sea borders. I suspect, however, that that question requires a more detailed answer than I can give just now. If the noble Baroness will permit me, I will commit to writing with a very detailed answer to her question.

I am conscious that my opening remarks were slightly waylaid by the noble Lord, Lord Foulkes, asking a very sensible question: are the Scottish Government ready to exercise these powers? We have assurances that they are, but this House and the other place must be vigilant in our scrutiny of this: we cannot take our eye off it for a moment. We must make sure that there is no diminution whatever in the way that we treat our forestry estate and our forestry more widely. I am conscious that the noble Lord will remain vigilant, and we can rest assured that he will not let anything slip by. On that basis, I hope that noble Lords will allow this to move forward.

Motion agreed.