RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE AGENDA. 4th Meeting, 2012 (Session 4) Wednesday 8 February 2012

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RURAL AFFAIRS, CLIMATE CHANGE AND ENVIRONMENT COMMITTEE AGENDA

4th Meeting, 2012 (Session 4) Wednesday 8 February 2012 The Committee will meet at 10.00 am in Committee Room 1.

1. Decision on taking business in private: The Committee will decide whether to take items 6 and 7 and future consideration of evidence heard on the Long Leases (Scotland) Bill in private.

2. Subordinate legislation: The Committee will take evidence on the Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 [draft] from—

Stewart Stevenson, Minister for Environment and Climate Change, and Dr Heike Gading, Solicitor, Directorate for Legal Services, Scottish Government;

David Henderson-Howat, Deputy Director, Forestry Commission Scotland. 3. Subordinate legislation: Stewart Stevenson to move S4M-01903—

That the Rural Affairs, Climate Change and Environment Committee recommends that the Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 [draft] be approved.

4. Long Leases (Scotland) Bill: The Committee will take evidence on the Bill at Stage 1 from—

Simon Stockwell, Bill Team Leader, Sandra Jack, Policy Officer, Family and Property Law, Law Reform Division, and Graham Fisher, Head of Branch, Constitutional and Civil Law Division, Scottish Government.

5. Subordinate legislation: The Committee will consider the following negative instruments—

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Market) (Scotland) Amendment Regulations 2012 SSI2012/3;

the Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2012 SSI 2012/4;

the Fodder Plant Seed (Scotland) Amendment Regulations 2012 SSI 2012/5;

the Conservation of Salmon (River Annan Salmon Fishery District) (Scotland) Regulations 2012 (SSI 2012/6).

6. European Commission Work Programme: The Committee will consider the European Commission Work Programme and European Union priorities for engagement and scrutiny.

7. Long Leases (Scotland) Bill: The Committee will consider the evidence heard earlier in the meeting.

Lynn Tullis Clerk to the Rural Affairs, Climate Change and Environment Committee Room T3.40 The Scottish Parliament Edinburgh Tel: 0131 348 5240 Email: racce.committee@scottish.parliament.uk

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The papers for this meeting are as follows— Agenda item 2

Cover note RACCE/S4/12/4/1

Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012

Agenda item 4

Cover note RACCE/S4/12/4/2

SPICe Briefing on Long Leases (Scotland) Bill Agenda item 5

Cover note RACCE/S4/12/4/3

the Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 SSI 2012/3

the Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2012 SSI 2012/4

the Fodder Plant Seed (Scotland) (Amendment) Regulations 2012 SSI 2012/5

the Conservation of Salmon (River Annan Salmon Fishery District) (Scotland) Regulations 2012 SSI 2012/6

Agenda item 6

PRIVATE PAPER RACCE/S4/12/4/4

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Rural Affairs, Climate Change and Environment Committee 4th Meeting, 2012 (Session 4), Wednesday 8 February 2012

Subordinate legislation cover note

Title of Instrument The Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 (SSI 2011/draft)

Type of Instrument Affirmative

Laid date 22 December 2011 Circulated to members 27 January 2012 Meeting date 8 February 2012 Minister to attend the

meeting

Yes

SSI drawn to the Parliament’s attention by Subordinate Legislation Committee

No

Reporting deadline 24 February 2012

Purpose

1. Section 59 of the Climate Change (Scotland) Act 2009 allows for the modification of the functions of the Forestry Commissioners in or as regards Scotland in relation to climate change. Article 2 modifies the functions of the Forestry Commissioners to enable them to use land in Scotland placed at their disposal in the way best calculated to contribute to the delivery of the climate change targets which are set in or under the 2009 Act.

2. A copy of the Explanatory Note and the Executive Note are included with the papers.

Procedure

3. The draft Order was laid on 22 December 2011 and referred to the Rural Affairs, Climate Change and Environment Committee. The Order is subject to affirmative procedure (Rule 10.6). It is for the Rural Affairs, Climate Change and Environment Committee to recommend to the Parliament whether the Order should be approved. The Minister for Environment and Climate Change, has, by motion S4M-01903 (set out in the agenda), proposed that the Committee recommends the approval of the Order.

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Subordinate Legislation Committee

4. At its meeting on 24 January 2011, the Committee considered this instrument and determined that it did not need to draw the attention of the Parliament to the instrument on any grounds within its remit.

Recommendation

5. The Committee must decide whether or not to agree to the motion, and then report to the Parliament accordingly, by 24 February 2012.

EXPLANATORY NOTE

Section 59 of the Climate Change (Scotland) Act 2009 (“the 2009 Act”) allows for the modification of the functions of the Forestry Commissioners in or as regards Scotland in relation to climate change.

Article 2 modifies the functions of the Forestry Commissioners to enable them to use land in Scotland placed at their disposal in the way best calculated to contribute (in line with other public bodies in Scotland acting in accordance with section 44(1)(a) of the 2009 Act) to the delivery of the climate change targets which are set in or under the 2009 Act.

EXECUTIVE NOTE

THE FORESTRY COMMISSIONERS (CLIMATE CHANGE FUNCTIONS) (SCOTLAND) ORDER 2012 S.S.I 2012/DRAFT

Introduction

The Forestry Commissioners (Climate Change Functions) (Scotland) Order 2012 is laid in exercise of the powers conferred by section 59(1) of the Climate Change (Scotland) Act 2009 (“2009 Act”). The instrument is subject to affirmative procedure. Purpose of the Instrument

The purpose of this instrument is to amend the Forestry Act 1967 in order to modify the functions of the Forestry Commissioners in Scotland by inserting a new sub-section (2A) into sub-section 1 of the Forestry Act 1967. The new sub-sub-section provides that the Commissioners also have the general duty of using land in Scotland placed at their disposal by the Scottish Ministers in the way best calculated to contribute to the delivery of the targets set under Part 1 of the 2009 Act.

Policy Background

Most public bodies in Scotland are under a duty, when exercising their functions, to act in the way best calculated to contribute to the delivery of the climate change targets set in or under Part 1 of the 2009 Act. The Forestry Commissioners do not fall under the definition of “public body” in the 2009 Act and therefore they are not currently subject to this duty.

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However, the Forestry Commissioners voluntarily undertake forest management operations in a way best calculated to contribute to the delivery of the climate change targets and would be expected to have regard to the most up to date guidance on how best to achieve this; currently this is available in the Forestry and Climate Change Guidelines, published in 2011 as part of the UK Forestry Standard1. The Forestry Commissioners manage a large estate (of over 650,000 hectares) on behalf of Scottish Ministers and the Scottish Ministers consider it expedient to subject the Forestry Commissioners to the same duty of contributing to climate change targets not only in relation to forest management, but the Scottish Ministers also wish the Forestry Commissioners to make full use of the national forest estate in Scotland for generating renewable energy. It is anticipated that some 2 gigawatts of capacity could be installed by the year 2020 through the development of wind farms and hydro-electric schemes. While leasing is the traditional approach, joint venture arrangements with commercial developers have considerable potential to increase returns to the taxpayer and to serve as a vehicle for stronger community engagement; in addition, there could be potential for self-development by the Commission of small scale schemes.

Legislative Context

Section 59 of the Climate Change (Scotland) Act 2009 gives Scottish Ministers powers, by order, to modify the functions of the Forestry Commissioners where necessary or expedient in relation to climate change. While section 44 (1)(a) of the 2009 Act places a duty on public bodies to act, in exercising their functions, in the way best calculated to contribute to the delivery of the climate change targets set in or under Part 1 of the 2009 Act, section 44 (2) defines “public bodies” in a way that does not include the Forestry Commissioners. This instrument will place upon Commissioners the general duty of using land in Scotland placed at their disposal by the Scottish Ministers in the way best calculated to contribute to the delivery of climate change targets. In addition, while the Forestry Commissioners have powers to enter into joint ventures in Scotland for the purpose of exercising their powers under the Forestry Act 1967, these functions do not expressly include the development of the renewable potential of the land put at their disposal by Scottish Ministers. In order to avoid anything in an order under section 59 of the 2009 Act which might be construed that it relates to reserved matters concerning the generation, transmission, distribution and supply of electricity, the intention is that an order under section 104 of the Scotland Act 1998 will be laid at Westminster, in consequence of this instrument, with the purpose of giving the Forestry Commissioners powers to use land at their disposal in Scotland to generate, transmit, distribute and supply electricity from renewable sources where that would help the Scottish Ministers in achieving their climate change targets.

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Territorial Extent and Application This instrument extends to Scotland. Consultation

There was a 12 week public consultation on the provisions in the Climate Change (Scotland) Bill relating to powers for Scottish Ministers, by order, to modify the functions of the Forestry Commissioners where necessary or expedient for climate change. The consultation was launched on 4 November 2008 and closed on 27 January 2009. An analysis of the responses is available at

http://www.forestry.gov.uk/pdf/ccbillconsultationanalysis.pdf/$FILE/ccbillconsultation analysis.pdf.

There were 368 responses to the question “what are your views on allowing the Forestry Commissioners to enter into joint ventures, with the intention of participating in renewable energy programmes on the national forest estate?” 70% of respondents expressed positive views on this option, although a number added caveats; 15% expressed negative views; the remainder appeared to be neutral or undecided. A number of the concerns that were expressed have since been addressed by establishing a specialist forest renewables business unit within Forestry Commission Scotland, with dedicated expertise to take forward developments and offering a clear separation of functions from those parts of Forestry Commission Scotland responsible for regulatory activities in respect of renewables developments.

Scottish Government officials have worked closely with officials working for the UKGovernment with a view to ensuring that this instrument and the proposed order under section 104 of the Scotland Act 1998 form a coherent legislative package. Regulatory Impact Assessment

A Regulatory Impact Assessment has not been prepared for this instrument as it does not impose or reduce costs on business, charities or voluntary bodies. The impact on the public sector is insignificant, other than providing the Forestry Commissioners with greater flexibility to take forward renewable energy developments.

Financial effects

There will be no financial effects arising from this Order, other than those arising from the Forestry Commissioners having greater flexibility to take forward renewable energy developments.

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Rural Affairs, Climate Change and Environment Committee 4th Meeting, 2012 (Session 4), Wednesday, 8 February 2012

Long Leases (Scotland) Bill Introduction

1. The Long Leases (Scotland) Bill1 was introduced in the Parliament on 12 January 2012. The Bill was referred by the Parliament on the 18 January to the Rural Affairs, Climate Change and Environment Committee for Stage 1 scrutiny.

The Bill

2. The Policy Memorandum2 which accompanies the Bill outlines the policy objectives of the Bill. It states that—

―The Bill converts ultra-long leases into ownership. An ultra-long lease qualifies if it has been granted for more than 175 years and has more than 100 years left to run immediately before the appointed day laid down in the Bill. On the appointed day, all qualifying ultra-long leases will convert automatically into ownership, unless the tenant choses to opt out. In some cases, compensatory and additional payments will be payable to the landlord by the tenant and some leasehold conditions will be preserved as real burdens in the title deeds.‖

3. The Bill is in six parts and is similar to the Long Leases (Scotland) Bill (SP Bill 61)3 introduced on 10 November 2010 in Session 3, which fell prior to dissolution. The current Bill has been amended to take account of some of the recommendations made by the then Justice Committee in its Stage 1 report. 4 RACCE Committee’s approach to Stage 1 scrutiny

4. At its meeting on 18 January 2012, the Committee agreed that the focus of its scrutiny of the Bill should take account of the evidence taken by the former Justice Committee and its Stage 1 report and that its scrutiny should focus on any new aspects of the Bill which have been introduced as a result of previous scrutiny.

1

Long Leases (Scotland) Bill. All documents available

at:http://www.scottish.parliament.uk/parliamentarybusiness/Bills/45695.aspx 2 http://www.scottish.parliament.uk/S4_Bills/Long%20Leases%20(Scotland)%20Bill/Policy_Me mo.pdf 3 http://www.scottish.parliament.uk/parliamentarybusiness/Bills/22395.aspx 4 http://archive.scottish.parliament.uk/s3/committees/justice/reports-11/jur11-06.htm

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5. A call for views on the changes made in relation to this Bill and how it relates to the previous Bill and the recommendations of the previous Justice Committee’s Stage 1 report was issued with the closing date set as Friday 3 February 2012.

6. A briefing on the Bill has been prepared by SPICe and is published at the following link:

http://www.scottish.parliament.uk/parliamentarybusiness/46603.aspx Evidence received

7. The Committee has received five submissions in response to the call for views to date from Brodies LLP, the Cockburn Association, the Council of Mortgage Lenders, Scottish Land and Estates and Scottish Law Agents Society. These have been posted on the Committee’s webpages and reproduced as Annexe A to this note.

8. The Scottish Government Bill team has provided written evidence on the changes made to this Bill from the previous Bill introduced last session, in advance of giving oral evidence to the Committee. This has been reproduced as Annexe B to this note.

Next steps

9. The Committee will take oral evidence at its meeting on 8 February from the Scottish Government Bill team. This will be followed by evidence sessions with stakeholders on 22 and 29 February, and a final evidence session with the Minister for Environment and Climate Change on 7 March 2012.

Clerks Rural Affairs, Climate Change and Environment Committee

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Annexe A Submission from Brodies LLP

Written evidence to the Rural Affairs, Climate Change and Environment Committee of the Scottish Parliament from Brodies LLP on the terms of the Long Leases (Scotland) Bill 2012 (”the 2012 Bill”).

Introduction

Brodies LLP is a large commercial legal practice which acts for various types of clients who buy, sell, lease and grant and take security over property throughout Scotland. In particular, we act for a number of property investor clients and are familiar with property investment structuring techniques.

We have restricted our comments on the Bill to those provisions which deal with the issue of variable rents highlighted in our previous written and oral evidence on the Bill as introduced to the Parliament in 2010 (“the 2010 Bill”) and have also made supplementary comments on Section 3 of the 2012 Bill which is unchanged from the 2010 Bill.

Section 2 – Further provision about annual rent

When giving evidence on the 2010 Bill we submitted evidence regarding how long leases of a valuable commercial nature could be affected by the Bill as then drafted due to the terms of section 2(5) of the 2010 Bill. That section provided that when determining the annual rent for the purposes of establishing whether a lease qualified for conversion, "Any rent payable under a lease which is variable from year to year is, to the extent that it is so variable, to be left out of account." We explained that such a provision could bring valuable commercial leases within the ambit of the Bill where the annual rent was a nominal amount less than £100 and the variable element was, for example, a share of occupational rents or turnover, the latter being a significant amount.

The 2012 Bill retains this provision but also contains further provisions to give landlords the opportunity to enter an agreement with tenants to confirm the true amount of the annual rent (Section 64 of the 2012 Bill) or, if an agreement cannot be reached, to seek an order from the Lands Tribunal to confirm the rent payable (Section 69) and have the lease exempted from the effects of the 2012 Bill.

The Explanatory Notes to the 2012 Bill explain that Sections 64 and 69 have been included to provide for the situation where significant variable rent is paid in terms of the qualifying lease. We are pleased to see that these

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sections have been added but would suggest that further slight amendments should be made to the Bill for clarification purposes.

Suggested amendments

Unlike the other provisions in the 2012 Bill dealing with the determination of annual rent (Sections 2 and 48), Sections 64 and 69 do not provide what is and what is not to be included in the calculation of the amount of annual rent. The Explanatory Notes clearly envisage that variable rent will be included in the annual rent but neither Section 64 nor 69 makes that clear.

We consider the use of the expression "annual rent" to be potentially misleading in the context of Sections 64 and 69 of the 2012 Bill. The expression annual rent may infer that the payment is made annually, whereas we believe that the intention of the amended legislation is to take into account the aggregate amount of rent, including where applicable a variable rent, payable in the year of calculation at any point during the relevant 5 year period specified. This exact amount of rent may not be payable in any other year, and indeed in the context of a variable rent based on turnover, would never be the same from one year to another. As such it may not be regarded as annual rent, but rather rent payable in respect of a qualifying 12 month period. The matter might be clarified by inclusion of an appropriate definition in Section 80.

We would also suggest that Section 2 of the 2012 Bill, in particular Section 2(5), should be expressly disapplied from Sections 64 and 69.

In the absence of the prescribed form of agreement to be entered into by the landlords and the tenants, it is difficult to interpret what can be included in the determination of the annual rent. It may be that Sections 64 and 69 have deliberately been left to allow the landlords and tenants to reach agreement on the true amount of rent payable and to permit them to include variable rent but this is not clear. We would however request that the prescribed form of agreement does not leave scope for extended negotiation between the parties and that it clearly sets out what may be included in the calculation.

Section 3 -Only one qualifying lease

Whilst the headings in the Bill are for guidance only, we believe that the heading to this section is misleading. We understand from the Explanatory Notes that if there is more than one potential qualifying lease – for example, a head lease of the whole and a sub lease of part, both the head lease (to the extent that the subjects of the lease have not been let) and the sub-lease will convert to ownership on the Appointed Day. There could

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therefore be more than one qualifying lease and so the heading should be amended to note that there is only one qualifying lease in respect of any particular land.

Conclusion

We welcome the changes included in the 2012 Bill and are happy to assist further with any of the points raised above.

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Submission from the Cockburn Association

The Cockburn Association is Edinburgh’s Civic Trust, established in 1875. We are a registered Scottish charity, No:SCO11544. The Association’s remit is to protect and enhance the City of Edinburgh and its setting. We have a longstanding interest in all issues relating to transport, the planning process and the safeguarding of Edinburgh’s civic amenity.

The Association’s attention was drawn to the issues surrounding Common Good assets by our member Miss Mary Mackenzie and we have followed the research of Andy Wightman on the matter. If Scotland does hold an estimated £1.8 billion in Common Good assets it is vital that these remain for public benefit and are not transferred in to private ownership as an unintended consequence of the Bill. It remains the case that not all local authorities have published full and transparent registers of their Common Good accounts and therefore the impact of the Bill cannot be appreciated. In light of this we would support an amendment as drafted by Andy Wightman for the 2011 Bill and supported by the City of Edinburgh Council amongst others to exempt Common Good assets from the Bill. The alteration should be inserted as Section 1(4)(e) “it is of land forming part of the common good of a burgh”.

It is notable that the Justice Committee has accepted the amendment proposed by the Peterhead Port Authority to the 2011 Bill and exempted harbours where related to a harbour authority but not exempted Common Good despite a number of submissions. The Association calls upon the Rural Affairs, Climate Change and Environment Committee to revisit the matter and give it the necessary weight to protect a public benefit.

Andy Wightman has raised the issue that the land Princes Mall stands upon remains Common Good and a consequence of the Long lease (Scotland) Bill will be to effectively facilitate the sale to the current lessee for 40p. The City of Edinburgh Council refutes that it remains Common Good but Mr Wightman remains unsatisfied and refers to the fact that no legal provision has been made to remove said land from the Common Good5. It would be remiss of the Scottish Government to facilitate the loss of such a financial asset to the people of the City of Edinburgh and it is hard to imagine a private property owner allowing it to occur.

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See para 19 of 07.01.11 written submission from Andy Wightman

http://archive.scottish.parliament.uk/s3/committees/justice/inquiries/LongLeases/Submissions/LL1A ndyWightman.pdf

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Submission from the Council of Mortgage Lenders Introduction

The Council of Mortgage Lenders (CML) is the representative trade association for mortgage lenders. Our 111 members and 88 associates comprise banks, building societies, insurance companies and other specialist mortgage lenders who, together, lend around 94% of the residential mortgages in the UK. In addition, the CML members have lent over £60 billion UK-wide for new-build, repair and improvement to social housing.

CML Scotland welcomes the opportunity to submit written evidence on the Long Leases (Scotland) Bill to the Scottish Parliament, Rural Affairs, Climate Change and Environment Committee.

General

We are supportive of the introduction of the Bill which would convert long leases lasting more than 175 years and with more than 100 years left to run into outright ownership. The report which the Scottish Law Commission produced into this matter did in our view set out valid reasons for conversion. Long leases of residential property are rare and historical and clearly the value of the tenant’s interest will reduce as the termination date approaches and this could clearly impact on the value of any Standard Security held by a lender over the tenant’s interest in the lease.

Our support outlined in 3 above is given on the basis that where a Standard Security is held over the tenant’s interest in the long lease prior to conversion it would remain in force following conversion. In section 6(2) of the Bill it effectively says that on conversion any real right which the qualifying lease was subject to the converted land is now subject to. This would therefore appear to allow a Standard Security over the lease to remain in force.

Our interest in this matter is restricted to residential mortgages but we note in terms of Section 6(4) any Standard Security granted by the landlord over the land subject to the long lease will be extinguished when the Bill becomes law although the landlord would remain personally liable to the creditor under the Standard Security. This in many ways makes logical sense given the nature of the Bill which effectively ends the rights of the Landlord. If it did not the Heritable Creditor could step into the shoes of the Landlord if they chose to call up their security. What we are not sure of is whether there could be any situations where lenders had lent on a commercial basis to a landlord and held a Standard Security from the landlord over the land subject to the lease. It may be worth obtaining the views of the British Bankers Association on this aspect of the Bill if you have not already done so.

This response has been prepared by the CML in conjunction with its members.

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Submission from Scottish Land and Estates

Scottish Land & Estates is a member organisation that uniquely represents the interests of landowners and land managers across Scotland. Scottish Land & Estates has over 2,500 members with interests in a great variety of land uses and we thank you for inviting the views of Scottish Land & Estates on the changes introduced in the Bill as compared with the Long Leases (Scotland) Bill which fell in March 2011 due to insufficient parliamentary time. Scottish Land & Estates is pleased to note the inclusion of Section 1 (4) (c) in connection with leases for the installation and maintenance of pipes and cables.

Scottish Land & Estates notes that no exemption is made for non-exclusive ―leases‖ over private access roads but accepts the point made in paragraph 48 of the accompanying Policy Memorandum and has no further comments to make on this issue.

Scottish Land & Estates is pleased to note that no change has been made either to section 1 (4) (a) in connection with the exemption of leases where the rent is over £100 per annum or to section 8 in connection with the right of a landlord to preserve rights to game or fishing.

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Submission from Scottish Law Agents Society

We support the principles of the Bill which are well set out in the Scottish Law Commission Report. Such titles represent an anomaly and ought to be converted. As the Parliament has already abolished the feudal system this remains a piece of unfinished business in simplifying and modernising the system of land ownership in Scotland.

This Bill will necessarily involve the variation of property rights of landlords which has the potential to engage A1P1 ECHR. However in our view the changes fall within the margin of appreciation of state - they serve a legitimate purpose and is proportionate in its effect. The ECtHR held in James v UK

[1986] in relation to the analogous provisions of the Leasehold Reform Act of 1967 in England that this was not an interference of a landlord's rights under A1P1. We do think it advisable for the Committee to expressly consider this argument in their deliberations and the Stage 1 Report.

We note that the Government has made some minor changes to the Bill as introduced in the last session in response to evidence heard by the Justice Committee in the last session. The changes and the underlying reasoning supporting them are set out in the Policy Memorandum. We consider these are clear and we support the Bill as now introduced.

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Annexe B Written evidence from the Scottish Government Bill team

STAGE 1 CONSIDERATION OF THE LONG LEASES (SCOTLAND) BILL I attach a submission. This covers the following points:

 Changes to the Bill following the report by the Justice Committee on the previous Bill.

 Other changes from the previous Bill.

 Areas where a decision was taken not to amend the Bill.

Changes to the Bill following the report by the Justice Committee Leases where the landlord retains a significant interest

1. The previous Bill excluded leases where the annual rental exceeded £100. Paragraph 91 of the Justice Committee’s report said: ―The Committee draws the Minister’s attention to the issue of variable rent and the arguments made in favour of this being taken account of when setting the criteria for the exemption‖. Variable rental might apply if, for example, rental is based on the turnover of the business leasing the property.

2. The current Bill still has an exemption for leases where the annual rental exceeds £100 (see section 1(4)(a) as read with section 2). Variable rental is not taken into account when considering if this exemption applies (see section 2(5)). However, the Bill now contains a provision (section 64) which allows the landlord to register an exemption if the annual rental in the 5 years before the Bill receives Royal Assent exceeds £100. This is designed to take account of variable rental.

Pipes and cables

3. Paragraph 104 of the Justice Committee’s report said on pipes and cables: ―Given that this is a legally complex area, the Committee again welcomes the Minister’s commitment to further consider the evidence received and to seek to reach agreement on the way ahead‖. The exemption (at section 1(4)(c)) has been retained and clarified. The Government considers it best to include the exemption to put the matter beyond doubt. Harbours

4. The Justice Committee received written evidence on behalf of Peterhead Port Authority and the Government subsequently discussed the

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issues with those representing Peterhead Port Authority and other bodies representing ports. The particular point at Peterhead is that the south breakwater has been leased for 999 years and converting it to ownership could impact adversely on the operation of the harbour.

5. Section 1(4)(b) now has an exemption where ―the subjects of the lease include a harbour (either wholly or partly) in relation to which there is a harbour authority‖. (―Harbour‖ and ―harbour authority‖ are then defined in section 80).

Point raised by the Subordinate Legislation Committee: section 22 of the current Bill

6. Paragraphs 129 and 130 of the Justice Committee report noted a point raised by the Subordinate Legislation Committee on section 21 of the previous Bill, which related to applications to the Lands Tribunal. This is section 22 of the current Bill. Section 22 does not now contain provision allowing Ministers to prescribe a time period for opposing an application to the Lands Tribunal. Other changes from the previous Bill (not as a direct consequence of comments by the Justice Committee).

Cumulo rental

7. Cumulo rent is a single rent payable in relation to two or more leases.

Cumulo rent is not covered by the exemption at section 1(4)(a) for leases where the rental is over £100 (see section 2(3)). However, section 39 of the Bill now makes provision for cumulo rent to be allocated before the appointed day. When such allocation takes place and the annual rental for an individual lease is over £100, the landlord can then register an exemption under section 64

Section 70: the appointed day

8. The definition now just refers to Martinmas only, rather than Whitsunday as well.

Section 73: Extinction of right of irritancy in certain leases. 9. This no longer commences on Royal Assent.

Section 76: Keeper’s duty as regards documents

10. Minor amendments have been made to section 76 to reflect that some of the provisions of the Bill relate to notices and some to agreements. Consequential changes have also been made (see section 76(5)) to reflect new sections 64 and 69.

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Section 78: Certain documents registrable despite initial rejection 11. Provision has been added to reflect the new section 64. Schedule: minor and consequential amendments

12. Amendments to the Land Registration (Scotland) Act 1979 have been removed. The Land Registration (Scotland) Bill is currently going through Parliament and the Government expects to have to make consequential amendments to the Long Leases (Scotland) Bill at Stage 2.

Updating of the Land Register

13. This is not an amendment to the text of the Bill. However, Registers of Scotland has decided not to carry out a specific exercise to update the Land Register to reflect the conversion of ultra-long leases to ownership under the Bill.

Areas where the Bill has not been amended. Common good

14. Paragraphs 60 and 61 of the Justice Committee’s Stage 1 report said: ― In the case of disposal of a common good asset, it is the strong view of the Committee that the compensation received should be paid back in to the local authority’s common good land. The desirability for certainty from this legislation and the provisions for compensation provided in the Bill have led the Committee to conclude that it is not persuaded, at this time, that there is a compelling case for exempting leases of common good property from this Bill‖.

15. No amendments have been made to the Bill. However, we have written to local authorities indicating that if the Bill should be passed by Parliament, we would intend to write again to authorities. This further letter would suggest that any compensatory or additional payments paid to local authorities as a result of ultra-long leases of common good funds converting to ownership should be allocated to common good funds or accounts.

Non-exclusive leases over private access roads

16. Paragraph 107 of the Justice Committee’s report said: ―The Committee notes again that the Minister has undertaken to explore this issue further with the SRPBA and looks forward to hearing back from the Scottish Government in due course‖. The Bill has not been amended. The Government considers that arrangements of this nature are not covered by the Bill as generally there has to be exclusive possession for a lease to exist.

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Section 78: certain documents registrable despite initial rejection

17. This was section 75. Paragraphs 135 and 136 of the Justice Committee’s report said: ―section 75(5) provides that the Scottish Ministers can by order specify a cut-off date after which notices and agreements cannot be registered. The Committee notes the recommendation of the Subordinate Legislation Committee that the Scottish Government should give further consideration to amending the Bill to prescribe the date or period on the face of the Bill The Committee draws this to the attention of the Minister.‖

18. The Bill has not been amended. The Government considers it preferable to lay down these dates or periods by SSI rather than on the face of the Bill as laying them down by SSI would enable the Government to consult on what provision should be made.

Justice Directorate Scottish Government February 2012

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Rural Affairs, Climate Change and Environment Committee 4th Meeting, 2012 (Session 4), Wednesday 8 February 2012

Subordinate legislation cover note Procedure

1. Negative instruments are instruments that are ―subject to annulment‖ by resolution of the Parliament for a period of 40 days after they are laid. All negative instruments are considered by the Subordinate Legislation Committee (on various technical grounds) and by the relevant lead committee (on policy grounds). Under Rule 10.4, any member (whether or not a member of the lead committee) may, within the 40-day period, lodge a motion for consideration by the lead committee recommending annulment of the instrument. If the motion is agreed to, the Parliamentary Bureau must then lodge a motion to annul the instrument for consideration by the Parliament.

2. If that is also agreed to, Scottish Ministers must revoke the instrument. Each negative instrument appears on a committee agenda at the first opportunity after the Subordinate Legislation Committee has reported on it. This means that, if questions are asked or concerns raised, consideration of the instrument can usually be continued to a later meeting to allow correspondence to be entered into or a Minister or officials invited to give evidence. In other cases, the Committee may be content simply to note the instrument and agree to make no recommendation on it.

SSI 2012/3

Title of Instrument The Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (SSI 2012/3)

Type of Instrument Negative

Laid Date 12 January 2012 Circulated to

Members

13 January 2012 Meeting Date 8 February 2012 Minister to attend the

meeting

No SSI drawn to the Parliament’s attention by Subordinate Legislation

Committee

Yes

Reporting Deadline 27 February 2012 Purpose

3. These Regulations, which came into force on 12th January 2012, amend the Specified Products from China (Restriction on First Placing on the Market) (Scotland) Regulations 2008 (―the 2008 Regulations‖) in order to implement Commission Implementing Decision 2011/884/EU on emergency measures regarding

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unauthorised genetically modified rice in rice products originating from China and repealing Decision 2008/289/EC (OJ L 343, 23.12.2011, p.140) (―the Commission Decision‖).

4. A copy of the Explanatory Note and the Executive Note are included with the papers.

Subordinate Legislation Committee

5. At its meeting on 24 January 2012, the Committee agreed to draw the attention of the Parliament to this instrument. The Committee‘s recommendation in relation to this instrument is set out below.

Recommendation

6. The Committee is invited to consider any issues which it wishes to raise on this instrument.

EXPLANATORY NOTE

These Regulations, which come into force on 12th January 2012, amend the Specified Products from China (Restriction on First Placing on the Market) (Scotland) Regulations 2008 (―the 2008 Regulations‖) in order to implement Commission Implementing Decision 2011/884/EU on emergency measures regarding unauthorised genetically modified rice in rice products originating from China and repealing Decision 2008/289/EC (OJ L 343, 23.12.2011, p.140) (―the Commission Decision‖).

The Commission Decision provides for import restrictions that previously applied to Bt 63 genetically modified rice to apply, with modifications, to all unauthorised genetically modified rice.

In particular, these Regulations amend the 2008 Regulations by—

(a)in regulation 2, substituting a new definition of the Commission Decision and making provision in respect of certain other definitions (regulation 2(2));

(b)amending regulation 3(1), which concerns the conditions under which rice products originating from China may be placed on the market (regulation 2(3)); (c)omitting regulation 4, which required operators to notify the Food Standards Agency of certain test results (regulation 2(4));

(d)inserting a new paragraph into regulation 5, which identifies provisions of the Commission Decision that a local authority must ensure are observed (regulation 2(5));

(e)amending regulation 6 to give effect to the requirement in Article 8 of the Commission Decision that all costs resulting from the official controls and from any non-compliance must be borne by the food or feed business operator concerned (regulation 2(6)); and

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(f)as regulation 8, adding a provision implementing the transitional arrangements contained in Article 9 of the Commission Decision (regulation 2(8)).

A business and regulatory impact assessment is being prepared for this instrument and will be published once complete. Due to the emergency nature of this instrument, the Food Standards Agency was unable to complete the impact assessment before the coming into force of the instrument.

EXECUTIVE NOTE

THE SPECIFIED PRODUCTS FROM CHINA (RESTRICTION ON FIRST

PLACING ON THE MARKET) (SCOTLAND) AMENDMENT REGULATIONS 2012 SSI 2012/3

The above instrument was made by the Scottish Ministers in exercise of the powers conferred by Section 2(2) of the European Communities Act 1972 and all other powers enabling them to do so.

Policy Objectives

The purpose of the instrument is to implement, in Scotland, emergency Commission Implementing Decision 2011/884/EU1 (‗the 2011 Decision‘) on emergency measures regarding unauthorised genetically modified (GM) rice in rice products originating from China, and repealing Decision 2008/289/EC (‗the 2008 Decision‘).

The 2008 Decision set out restrictions and conditions in relation to the importation of rice and rice products from China due to contamination with a type of unauthorised genetically modified organism (GMO). These measures have now been strengthened by the 2011 Decision.

The 2008 Decision was originally implemented in Scotland by the Specified Products from China (Restriction on First Placing on the Market) (Scotland) Regulations 2008 (SSI 2008/148). The 2011 Decision will be implemented by means of an amendment to the 2008 Regulations.

Policy Background

In 2006, EU Member States began detecting the presence of the unauthorised GM rice variety ‗Bt63‘ in consignments of rice and rice products imported from China. The Commission took matters up with the Chinese authorities and, after initial improvement, the situation worsened again in 2007. The Commission therefore brought forward emergency Commission Decision 2008/289/EC requiring additional import controls for consignments of rice and rice products imported from China (―the Bt63 Decision‖).

In 2010, Germany identified, and notified via the EU Rapid Alert System for Food and Feed (RASFF), the presence of two new GM rice varieties in imported food (referred to as Kefeng 6 and KMD1) which are not authorised in the EU or China and the Commission wrote to the Chinese authorities raising its concerns. Inspection missions to China by the Commission‘s Food and Veterinary Office (FVO) in Autumn 2008 and Spring 2011 indicated uncertainty as to the level, number and type of GM rice varieties which may be circulating in China and 1 OJ No. L343, 23.12.2012, p.

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140 consequently that there was a high risk of unauthorised GMOs being present in rice and rice products imported from China.

In the light of the outcomes of the FVO missions, the European Commission brought forward a proposal for emergency import restrictions to replace those set out in the Bt63 Decision. The proposal was agreed by Member States by unanimity at a meeting of the EU Standing Committee on the Food Chain and Animal Health (SCOFCAH) on 14 November 2011 and was published formally in the Official Journal of 23 December 2011 as Commission Implementing Decision 2011/884/EU. It comes into force on 12 January 2012.

The requirements of the emergency Decision are summarised below:

i. Food and feed business operators must give adequate prior notice of the arrival of consignments falling within the Combined Nomenclature (CN) customs codes listed at Annex I (―relevant consignments‖).

ii. Relevant consignments must be accompanied by either:

• An analytical report confirming the absence of GM rice material, based on the analytical methods stipulated in Annex II and a health certificate signed and verified by an authorised representative of the Chinese import/export authority; or

• A statement indicating that the products in the consignment do not contain or consist of rice and have not been produced from rice.

iii. Consignments that are not accompanied by the required documentation must be redispatched to the country of origin or destroyed.

iv. All consignments accompanied by analytical reports and health certificates must be sampled and analysed in accordance with the methods stipulated in Annex II to ensure the absence of unauthorised GM rice material.

v. Quarterly reports of the results of analytical tests carried out and the number of consignments rejected due to the absence of the necessary documentation must be submitted to the European Commission to allow it to monitor the effectiveness of the emergency Decision.

vi. All costs arising from the controls undertaken must be borne by food and feed business operators.

Legislative Context

Regulation (EC) No. 1829/20032 stipulates that food and feed containing GM material cannot be placed on the market in the EU unless the associated genetically modified organism has been authorised under the Regulation, following a rigorous safety assessment.

The emergency Decision is made under Article 53 of Regulation (EC) No. 178/2002 (emergency measures for food and feed). It lays down additional controls for the import of such products containing unauthorised GM rice.

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Consultation

The emergency Commission Decision was published in the Official Journal 23 December 2011 and enters into force across all EU Member States 20 days later on 12 January 2012. The amending Scottish Statutory Instrument (SSI), which comes into force on 12 January 2012 and which implements the emergency Decision, was presented for the Cabinet Secretary‘s signature (10 January 2012) and laid before Parliament (12 January 2012) as soon as was practicable. Due to the tight timescales it is necessary that the SSI (negative procedure) comes into force without complying with the 28-day scrutiny period. This avoids a gap in import controls between the repeal of the current Decision and the implementation of the new Decision, and any associated risk of food and animal feed containing unauthorised GMOs entering the UK and being released into free circulation within the EU. The existence of a gap in import controls would not be viewed favourably by the Commission or other Member States and we consider the risk of challenge or infraction proceedings by the Commission to be high if this were to happen.

Due to the tight timescales, the Food Standards Agency (FSA) – which has policy responsibility for GM food and animal feed - was unable to finalise a Business and Regulatory Impact Assessment (BRIA) or conduct a formal 12-week public consultation before the SSI was made by the Cabinet Secretary. However, the FSA consulted stakeholders informally during mid-December on the draft Commission Decision and in early January on both published Commission Decision and the near final draft SSI. In addition the FSA held a meeting with industry, enforcement and consumer partners on 15 December 2011 to discuss the new legislation, its implementation and its impact. The FSA will complete the necessary consultation and BRIA work as soon as possible.

Financial Implications

As with the previous import controls on rice and rice products from China, all costs arising from the official controls required by the 2011 Decision must be borne by food and feed business operators. Additional impact falling on operators will chiefly arise from the 2 Regulation (EC) No.1829/2003 on Genetically Modified Food and Feed costs of sampling and analysis of an increased number of consignments and their storage pending receipt of analytical results. An additional impact will also fall on Enforcement Authorities and the FSA due to the increased number of analytical results that will need to be reported to the Commission.

Impact

Food and feed business operators that import rice or rice products originating in, or consigned from, China will be affected by the emergency Decision and this instrument, as will wholesalers and retailers (including SMEs).

Operators will need to be aware of the differences between the requirements of the Bt63 Decision and those of the emergency Decision. As such, there will be one-off costs associated with operators reading and familiarising themselves with the emergency Decision and the amendments this instrument makes to the 2008 Regulations.

The actual costs incurred by Enforcement Authorities in undertaking the official controls required by the emergency Decision must be borne by food and feed

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business operators. As such, operators will bear the additional impact arising from the import restrictions set down by the emergency Decision.

There is no particular impact on charities or voluntary bodies or rural areas. The commodities which are subject to the emergency Decision may be used by particular ethnic or racial groups. As such, consequential impact on these groups may arise as regards the availability of products.

Impact on the public sector will fall chiefly on Enforcement Authorities with regard to the submission of the results of the analytical tests they carry out on relevant consignments to the FSA for onward transmission to the Commission on a quarterly basis. A small additional impact on the FSA will also arise in this regard.

A more accurate picture of cost implications will emerge during the consultation process and the preparation of the BRIA.

Monitoring

The emergency Decision requires Member States to submit to the Commission a quarterly report of all results of analytical tests carried out during the period, both positive and negative, to enable them to monitor its effectiveness.

The Agency will work with Enforcement Authorities where problems or suspected infringements of the legislation arise. The effectiveness of the instrument will be also be monitored via general feedback from industry and Enforcement Authorities on the number of consignments that fail to comply with the Decision.

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Extract from the Subordinate Legislation Committee Report

Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (SSI 2012/3)

This instrument implements an urgent EU Decision regulating the import and marketing of rice products from China (Commission Implementing Decision 2011/884/EU).

The Decision amends an earlier measure from 2008. The purpose of the Decision is to require compulsory checks on imports of rice products from China to ensure that they do not contain unauthorised forms of genetically modified rice. This applies whether the products are to be used as food or animal feed. All imports must be accompanied by documentation confirming certain standards are met as set out in the Decision.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 provides that a Scottish statutory instrument which is subject to negative procedure must be laid before the Parliament as soon as practicable after it is made, and in any event at least 28 days before the instrument comes into force. A failure to comply with section 28(2) does not render the instrument invalid, but the Scottish Government must explain to the Presiding Officer why the laying requirements have not been complied with.

The Committee notes that the instrument came into force at the beginning of the day on 12 January (immediately after midnight) and it was not laid until 10.40 am. There was therefore a short period of time when it was in force but had not been laid or published. The instrument therefore does not comply with section 28(2) (―the 28-day rule‖).

The Committee considered the letter from the Food Standards Agency (which provides advice to the Scottish Ministers on implementing food and feed law) to the Presiding Officer explaining the reasons for non-compliance with the 28-day rule. In its letter to the Presiding Officer, the Food Standards Agency explained that it was not possible to comply with the 28-day rule as the terms of the EU Decision were only agreed on 14 November and officially published on 23 December 2011. The Agency considered it was imperative to implement the Decision on time to avoid infraction proceedings. The Committee accepts that implementation within the timetable agreed at EU level did not allow sufficient time for the regulations to comply with the 28 day rule.

The Committee also considered whether the Food Standards Agency could have ensured that the instrument was laid and published before it came into force. In doing so, the Committee notes that the instrument implements a feed and food safety measure. It imposes new compulsory enforcement controls to ensure that rice products imported from China do not contain unauthorised genetically modified organisms. In relation to import controls of this kind, the Committee also notes the importance in practical terms of ensuring that the controls were imposed contemporaneously across the United Kingdom.

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One of the purposes of requiring instruments to be laid before they come into force is to allow for public notice to be given that the law has changed. However, in this case, the importance of ensuring that the Decision was implemented on time is evident to the Committee. The Committee also notes that the time period during which the instrument was in force but was neither published nor laid is very short. Accordingly, in these circumstances the Committee accepts the reasons for the instrument being brought into force before it was laid or published.

The Committee therefore draws the instrument to the Parliament‘s attention under reporting ground (j) as there has been a failure to lay the instrument at least 28 days before it comes into force as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

However, in doing so, it finds the explanation provided by the Food Standards Agency for this failure to be acceptable as urgent action was required to implement an emergency EU food and feed safety measure published on 23 December 2011 by 12 January 2012.

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SSI 2012/4

Title of Instrument The Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2012 (SSI 2012/4)

Type of Instrument Negative

Laid Date 12 January 2012 Circulated to

Members

13 January 2012 Meeting Date 8 February 2012 Minister to attend the

meeting

No SSI drawn to the Parliament’s attention by Subordinate Legislation

Committee

No

Reporting Deadline 27 February 2012 Purpose

7. This Order prohibits, subject to certain exceptions, all methods of fishing within specified areas of the Firth of Clyde from 14th February until 30th April, during both 2012 and 2013 (articles 1(3) and 3(1)). It is made pursuant to Article 46 of Council Regulation (EC) No 850/98 and remains in force until the end of 30th April 2013 (article 1(2)).

8. A copy of the Explanatory Note and the Executive Note are included with the papers.

Subordinate Legislation Committee

9. At its meeting on 24 January 2011, the Committee considered this instrument and determined that it did not need to draw the attention of the Parliament to the instrument on any grounds within its remit.

Recommendation

10. The Committee is invited to consider any issues which it wishes to raise on this instrument.

EXPLANATORY NOTE

This Order prohibits, subject to certain exceptions, all methods of fishing within specified areas of the Firth of Clyde from 14th February until 30th April, during both 2012 and 2013 (articles 1(3) and 3(1)). It is made pursuant to Article 46 of Council Regulation (EC) No 850/98 and remains in force until the end of 30th April 2013 (article 1(2)).

The areas closed to fishing under this Order are shown on the illustrative map which accompanies this Note.

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Area 1 on the illustrative map is defined in article 3(1)(a). Area 2 on the illustrative map is defined in article 3(1)(b).

The Order applies only to Scottish fishing boats and relevant British fishing boats (article 3(1)). The prohibition does not apply to fishing boats that fish within the closed areas exclusively with scallop dredges, creels and (in relation to area 1 on the illustrative map) trawls used for fishing for Norway lobsters (article 3(2) and (3)). The Order gives British sea-fishery officers powers to enforce the Order, including power to detain a vessel in port (article 4).

It is an offence under section 5(1) of the Sea Fish (Conservation) Act 1967 to use a fishing boat in contravention of a prohibition imposed by this Order. The penalties are fixed by section 11 of that Act. On summary conviction, the penalty is a fine not exceeding £50,000. On conviction on indictment, the penalty is an unlimited fine. In either case, the court may also order forfeiture of any fish in respect of which the offence was committed and of any net or other fishing gear used in committing the offence. On summary conviction, if the court does not order the forfeiture of fish, it may impose an additional fine not exceeding the value of the fish.

The Order revokes the Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2010 (article 5).

No Business and Regulatory Impact Assessment has been prepared for this Order, as it has no impact on the cost of business.

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EXECUTIVE NOTE

THE SEA FISH (PROHIBITED METHODS OF FISHING) (FIRTH OF CLYDE) ORDER 2012 SSI 2012/4

This Order was made in exercise of the powers conferred by sections 5(1)(a)(iii) and 15(3) of the Sea Fish (Conservation) Act 1967. It is subject to the negative procedure.

Policy Objective

The purpose of the Order is to protect cod stocks in the Firth of Clyde at a crucial time in their life cycle by prohibiting fishing effort during the spawning season. As it is a technical conservation measure, the Order is made pursuant to Article 46 of Council Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms1.

The Order prohibits fishing within a specified area of the Firth of Clyde from 14 February until 30 April, in both 2012 and 2013. However, certain methods of fishing are excepted from the prohibition. The closed area is split into two zones. In the larger and more easterly zone (specified in article 3(1)(a) of the Order and labelled ―Area 1‖ on the illustrative map), scallop dredging, creel fishing and trawls for nephrops are permitted throughout the closure period. In the smaller zone, which is a strip of water at the mouth of the Clyde (specified in article 3(1)(b) of the Order and labelled ―Area 2‖ on the illustrative map), there is no exception for nephrops trawls, but scallop dredging and creeling is permitted.

The Order will apply to all Scottish or other British fishing boats that fish in the area. Consultation

The Scottish Government consulted with key stakeholders regarding this proposal in December 2011. Responses were received from a variety of organisations, including nature conservation groups and the Clyde Fishermen‘s Association. All of the responses supported the Scottish Government‘s proposal for a Clyde cod closure in 2012 and 2013.

Provisions for such a closure have been set in place annually since 2002 and key stakeholders have been consulted each year.

Financial Effects

The Order has no bearing on quota, which remains unchanged, and the closure should not prevent skippers from catching their full quota over the duration of the year. At most, the proposed closure may lead to a reduction in fish landings for its duration, and therefore incomes on a temporary basis. The fishermen should not be financially disadvantaged overall. In addition, this closure should lead to a bigger stock in future years to the 1 OJ L 125, 27.4.98, p.1; Article 46 was amended by Council Regulation (EC) No 1298/2000 (OJ L 148, 22.6.00, p.1). benefit of all fishermen. Due to the complex and varied nature of the mixed fishery it has

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The Order will not give rise to further costs to the Scottish Government. Enforcement of this Order will be achieved within the existing provision for Marine Scotland Compliance.

A seasonal closure of the specified area in the Firth of Clyde has applied since 2002. Accordingly, no Business and Regulatory Impact Assessment has been prepared on the basis that there are no new financial effects (including enforcement costs) associated with this Order.

SSI 2012/5

Title of Instrument The Fodder Plant Seed (Scotland) Amendment Regulations 2012 (SSI 2012/5)

Type of Instrument Negative

Laid Date 12 January 2012 Circulated to

Members

13 January 2012 Meeting Date 8 February 2012 Minister to attend the

meeting

No SSI drawn to the Parliament’s attention by Subordinate Legislation

Committee

No

Reporting Deadline 27 February 2012 Purpose

11. These Regulations implement Commission Directive 2010/60/EU (OJ L 228, 31.08.10, p.10). They amend the Fodder Plant Seed (Scotland) Regulations 2005 (―the principal Regulations‖) in order to permit the marketing of preservation mixtures.

12. A copy of the Explanatory Note and the Executive Note are included with the papers.

Subordinate Legislation Committee

13. At its meeting on 24 January 2011, the Committee considered this instrument and determined that it did not need to draw the attention of the Parliament to the instrument on any grounds within its remit.

Recommendation

14. The Committee is invited to consider any issues which it wishes to raise on this instrument.

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EXPLANATORY NOTE

These Regulations implement Commission Directive 2010/60/EU (OJ L 228, 31.08.10, p.10). They amend the Fodder Plant Seed (Scotland) Regulations 2005 (―the principal Regulations‖) in order to permit the marketing of preservation mixtures.

Regulation 4 inserts a new regulation 8A in the principal Regulations to provide a procedure whereby a producer established in Scotland may apply to the Scottish Ministers for an authorisation to market either a directly harvested or a crop-grown preservation mixture. In terms of the new regulation 8A, the Scottish Ministers may grant an authorisation, for a maximum period of one year, if certain conditions in relation to the seed are fulfilled. A preservation mixture may only be marketed in its region of origin.

Schedule 3 to the principal Regulations is amended to provide for the particulars which are to be specified in an authorisation to market a preservation mixture (regulation 9).

Regulations 15 and 16 of the principal Regulations are amended to include certain requirements for sampling of directly harvested preservation mixtures and sealing a package of seeds of a preservation mixture (regulations 5 and 6).

Regulation 17 of, and Part II of Schedule 6 to, the principal Regulations are amended to include certain requirements for labelling a package of seeds of a preservation mixture (regulations 7 and 11).

Regulation 3 amends regulation 2 of the principal Regulations to insert definitions of preservation mixture, collection site, crop-grown and directly harvested preservation mixture and source area.

No Business Regulatory Impact Assessment has been prepared for this instrument as it has no impact on the cost of business.

EXECUTIVE NOTE

THE FODDER PLANT SEEDS (SCOTLAND) AMENDMENT REGULATIONS 2012 SSI. 2012/5

The above instrument was made in exercise of the powers conferred by sections 16(1), (1A), (2), (3), (4), and (5)(a), and 36 of the Plant Varieties and Seeds Act 1964 (―the Act‖.) The instrument is subject to negative resolution procedure.

Consultation

Section 16(1) of the Act requires the Scottish Ministers to consult with representatives of such interests as appear to them to be appropriate.

Although, Scottish Government is only aware of one company in Scotland producing and processing preservation mixtures, a full consultation exercise was carried out in line with SG guidelines. As well as consulting with key stakeholders (Including, NFU Scotland, AIC Scotland, and Scottish Seed Trade Association), a copy of the consultation was placed on the Scottish Government website.

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Of the 150+ letters sent out, two responses were received – Plant Life, who

―welcomed the legislation for preservation mixtures‖ and Scottish Natural Heritage (SNH) who have provided guidance and assistance on the understanding of natural habitats and Sites of Special Scientific Interest.

Policy Objectives

The purpose of this instrument is to amend the Fodder Plant Seed (Scotland)

Regulations 2005 (―the 2005 Regulations‖) in order to transpose Commission Directive 2010/60/EU providing for certain derogations for the marketing of fodder plant seed mixtures intended for use in the preservation of the natural environment. Background

Scottish Government currently has 5 statutory instruments which regulate the

marketing of agricultural and vegetable seed to ensure that only good quality seed is marketed. Each regulation covers the marketing of seeds of a different group of crops (―Cereals‖, ―Fodder‖, ―Oil & Fibre‖ ―Vegetables‖ and ―Beet‖).

The 2005 Regulations cover the marketing of fodder seeds for agricultural and conservation use, including their use in mixtures. Directive 2010/60/EU requires that regulatory control is extended to cover the marketing of fodder seeds in what is described as ―preservation mixtures‖.

Prior to this Directive, preservation mixtures required seeds of all fodder plants

species to meet the standards as provided for in the 2005 Regulations. Once implemented, this legislation which has minimal quality requirements, will allow grasses and vetches to be harvested from the wild and marketed as mixtures to allow for the re-creation of natural and semi-natural habitats. Other species from the habitat can be included in these mixtures.

The new requirements will apply only to mixtures which contain seed harvested from a natural habitat and are of fodder plant species which are specified in the 2005 Regulations. The new requirements do not cover the marketing of mixtures of seed of plant species that are not on the list of fodder species in the 2005 Regulations. Such mixtures may still be marketed freely.

There is currently, only one company in Scotland that we are aware of which

produces preservation mixtures. However, the provisions of this Directive are not expected to impact on the seed industry. Therefore, no Regulatory Impact Assessment has been prepared.

Financial Effects

There will be no additional costs to citizens, the environment or Government.

A Business Regulatory Impact Assessment has not been prepared as there are no large scale retail sales of preservation mixtures here in Scotland.

Consolidation

These Regulations make a further amendment to the 2005 Regulations. The Scottish Government is aware that these Regulations have been amended more than five

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