13th Report, 2014 (Session 4): Legislative Consent Memorandum on the Deep Sea Mining Bill

SP Paper 471 (Web Only)

DPLR/S4/14/R13

13th Report, 2014 (Session 4)

Legislative Consent Memorandum on the Deep Sea Mining Bill

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—
(a) any—
(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;
(ii) [deleted]
(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;
(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;
(c) general questions relating to powers to make subordinate legislation;
(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;
(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and
(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.
(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and
(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.

Membership:

Richard Baker
Nigel Don (Convener)
Mike MacKenzie
Margaret McCulloch
Stuart McMillan (Deputy Convener)
John Scott
Stewart Stevenson

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Legislative Consent Memorandum on the Deep Sea Mining Bill

The Committee reports to the Parliament as follows—

1. At its meeting on 4 February 2014, the Committee considered the provisions in the Deep Sea Mining Bill1 (“the Bill”) that confers powers to make subordinate legislation on the Scottish Ministers.

2. The Bill was introduced in the House of Commons on 19 June 2013. It is a Private Members Bill by Sheryll Murray MP.

3. The draft motion, which will be lodged by the Cabinet Secretary for Finance, Employment and Sustainable Growth, is:

“That the Parliament agrees that the relevant provisions of the Deep Sea Mining Private Members Bill introduced to the House of Commons on 19 June 2013, relating to the amendment of the Deep Sea Mining (Temporary Provisions) Act 1981, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the executive competence of Scottish Ministers, should be considered by the UK Parliament.”

4. This Legislative Consent Memorandum2 was considered by the Committee under Rule 9B3.6. The Committee is required to consider, and may report to the lead committee on, any provision in a Bill which is subject to a legislative consent memorandum which confers power on the Scottish Ministers to make subordinate legislation. As with bills passed by the Scottish Parliament, the Committee’s role is to consider whether it is appropriate in principle for the power to be delegated to the Scottish Ministers, whether the terms of the power are appropriately drawn and whether the level of scrutiny applied to the exercise of the power is appropriate.

Powers to make subordinate legislation

5. There are several paragraphs in the Schedule to the Bill which confer delegated powers upon the Scottish Ministers and they are discussed below.

Paragraph 3(3)(b) of the Schedule to the Bill – power to prescribe the level of fee payable upon application for a licence

Power conferred on: The Scottish Ministers
Exercised by: Regulations
Parliamentary Procedure: Negative

6. The Deep Sea Mining Bill amends the Deep Sea Mining (Temporary Provisions) Act 1981 (“the 1981 Act”) to bring UK law in line with provisions regulating mining on the deep sea bed under the United Nations Convention on the Law of the Sea (“the Convention”).

7. The Bill amends section 1 of the 1981 Act so that a person may not explore for or exploit mineral resources in the deep sea bed, unless they hold an exploration or exploitation licence. The licence must relate to mineral resources as described in the licence and to that area of the deep seabed. It is now possible for a licence to be given to explore for or exploit different mineral resources in the same area of the seabed.

8. The new definition of “mineral resource” includes liquid or gaseous minerals. The change is necessary because the 1981 Act covered only the mining of hard polymetallic minerals.

9. Section 2 of the 1981 Act, as amended by the Bill, sets out provisions relating to the granting of licences and the terms and conditions of any licence granted. The section confers power on the Scottish Ministers to prescribe, by regulations, the level of the fee payable upon application for a licence.

10. The power in the new section 2(2)(b) (inserted by paragraph 3(3)(b) of the Schedule to the Bill) enables the Scottish Ministers to make provision, by regulations, as to the level of fee to be charged upon an application for a licence.

Paragraph 3(4) of the Schedule – power to prescribe sums to be paid under a licence, and prescribe cases in which a transfer of a licence is permitted

Power conferred on: The Scottish Ministers
Exercised by: Regulations
Parliamentary Procedure: Negative

11. The Bill inserts a new subsection (3A) in section 2 of the 1981 Act. This provides that a licence may contain such terms and conditions as the Scottish Ministers think fit including, in particular, the terms and conditions set out in that subsection. This provision broadly replaces a similar provision in the 1981 Act, with the addition of several new terms and conditions which can be included in a licence. The terms and conditions which may be included in a licence are set out in new subsection 3A(a) to (m).

12. Under sub-paragraph (l) the Scottish Ministers can include a provision in a licence, requiring payment to the Scottish Ministers of such sums as may be prescribed, at such times as may be prescribed. Under, sub-paragraph (m), Ministers can include a provision in a licence permitting the transfer of the licence in prescribed cases.

13. The powers in new section 2(3A)(l) and (m) are inserted by paragraph 3(4) of the Schedule to the Bill. Section 2(3A)(l) allows the Scottish Ministers to prescribe the nature and amount of any payments due under a licence and when those payments fall due. Section 2(3A)(m) confers power on the Scottish Ministers to prescribe the cases in which a licence can be transferred.

Paragraph 11 of the Schedule to the Bill – power to prescribe functions of inspectors

Power conferred on: The Scottish Ministers
Exercised by: Regulations
Parliamentary Procedure: Negative

14. Section 11 of the 1981 Act (as amended by the Bill) confers powers on the Scottish Ministers to appoint inspectors and prescribe their functions, in order to ensure compliance with the Act and the licences granted under it.

15. The power in section 11(1) (as amended by paragraph 11 to the Schedule of the Bill) enables the Scottish Ministers to prescribe the functions to be discharged by inspectors.

Paragraph 12 of the Schedule to the Bill – power to make regulations generally for carrying the 1981 Act into effect

Power conferred on: The Scottish Ministers
Exercised by: Regulations
Parliamentary Procedure: Negative

16. Section 12(2) as amended by paragraph 12 of the Schedule confers power on the Scottish Ministers to make regulations generally for carrying the 1981 Act into effect. In particular, regulations may make provision with respect to any matters mentioned in the Schedule to the 1981 Act. The Schedule includes matters relating to the form and content of licence applications, health and safety, prohibited methods of working, inspectors and the creation of offences under regulations.

17. The Ministers also have power to prescribe anything required or authorised to be prescribed under the Bill, in relation to an exploration or exploitation licence granted or to be granted by the Ministers (new section 12(2)(a)).

18. Equivalent powers are conferred on the Secretary of State, in new section 12(1).

19. The Committee reports that it finds powers conferred on the Scottish Ministers in paragraph 3(3)(b) and (4), and paragraphs 11 and 12, of the schedule to the Bill to be acceptable, and to be content that they are subject to the negative procedure.


Footnotes:

1 Deep Sea Mining Bill available here: http://services.parliament.uk/bills/2013-14/deepseamining.html

2 Deep Sea Mining Legislative Consent Memorandum available here: http://www.scottish.parliament.uk/LegislativeConsentMemoranda/DeepSeaMining-lcm.pdf

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