Bishop Hill The captive state
Nov 8, 2013 Energy: wind 
A few of days ago I mentioned the extraordinary decision of the Scottish Government to proceed with windfarm developments by unlicensed operators, something Lady Clark in the Court of Session has ruled is illegal. I also mentioned that an amendment to the Energy Bill had been tabled with a view to waiving the licensing requirement.
The amendment by Lord Teverson (who is, incidentally a trustee of RegenSW, "a leading centre of sustainable energy expertise and pioneering project delivery") was discussed in the Lords a couple of days ago and there were some powerful interventions from former Secretary of State for Scotland Michael Forsyth and another from the legal giant Lord MacKay of Clashfern (Hansard link here). Forsyth was keen to draw attention to the implications for the rule of law, noting that Salmond et al seemed to think 'their renewable energy ambitions trounce the law of the land'. MacKay meanwhile seemed to offer unqualified support to the decision of the Court of Session:
The judgment of the noble and learned Baroness, Lady Clark, which is well reasoned and a little longer than my speech so far, is just to that effect. Schedule 9 starts with the condition that you are either a licence holder or exempt and then you have to ensure that your proposals, in effect, do not damage the amenity, or the environment. That is the crux of this and I find her reasoning rather convincing. In fact, it is what I always understood.
I was sent a quote from a senior Scottish legal figure, suggesting that MacKay's intervention will carry considerable weight:
It's horrendous. Lord Mackay of Clashfern, who more or less has divine status, said it all without really saying it - the [Scottish Government] is breaking the law.
The amendment has, mercifully, been withdrawn but it remains to be seen whether the courts take a stand for the rule of law or not. And as Linda Holt of Scotland against Spin put it, the behaviour of the Scottish Government is starting to look, well, odd:
[T]he Scottish Government only seems to have ears for the self-interested whinging of wind developers. When a government is prepared to ignore, if not break, the law of the land because it could hinder the easy profits of a foreign industry, it begins to look like a captive state.
Reader Comments (29)
Look for the evidence of corruption.
I thought a lll wind farms were in breach of the law namely the Aarhus Convention
or have I got this wrong?
I understand that the Scottish Government remains determined to ignore Lady Clark's ruling and if they lose the appeal in February then they intend to change the law. One of the witnesses at the inquiry where this issue was raised refused to attend as he said it would be unlawful of him, and would damage his professional reputation, to attend an illegal inquiry.
Re my above post, the details can be found at http://www.dpea.scotland.gov.uk/CaseDetails.aspx?id=qA351520
When the facts are on your side, bang on the facts. When the law is on your side, bang on the law. When neither the law nor the facts are on your side, bang on the table and shout a lot.
There is a creeping failure of ethics in all levels of politics and government, of disregard to conflicts of interest and openly taking advantage of positions, of not following process, disregarding laws and hoping no-one notices, now disregarding laws and being unconcerned if anyone notices.
If it is now OK to flout one law, it becomes OK to flout other laws, eventually civilization is lost.
Lady Clark's judgement can be found here:
http://www.scotcourts.gov.uk/opinions/2013CSOH158.html
It has been my observation for awhile that the rise of AGW has been a product of a larger ethical failure in society.
In other words, AGW as the social madness it is would not be thriving if the rule of law and high ethical standards were healthy.
I sincerely hope that Scotland is able to rise to the occasion and put the rule of law ahead of obvious self interest and lawlessness.
This is crony capitalism in action I'm afraid -
"whether referred to as cronyism, corporatism, mercantilism, liberal fascism, or venture socialism, crony capitalism is simply the cooperation of government and business. While this cooperation benefits the involved business and politician(s), it generally hurts the politically and corporately unconnected. Furthermore, the power and benefits of crony capitalism can often lead to corruption...The mechanisms of crony capitalism are numerous: Bailouts, stimulus, special loans, too-big-to-fail, favors, mandates, barriers to entry, political appointments, tax breaks, campaign contributions, 'sole-source' procurement, connections, grants, government-union cooperation, exemptions, government sponsored enterprises, political insider trading, and legal bribery.
Unlike in a free market capitalist system, under crony capitalism it is often more profitable for businesses to spend resources lobbying legislators for handouts in the form of grants, loans, or tax advantages, and protections against competition in order to increase their profits. In turn, the government's willingness to hand out special privileges promotes the politically well-connected rather than those who seek to earn the preference of investors and consumers based on merit. The gains of such activities usually accrue to the businesses and politicians involved at the expense of consumers and taxpayers."
http://www.intellectualtakeout.org/library/business-and-economics/free-market-capitalism-vs-crony-capitalism
And that's exactly what we have with bureaucrats and politicians responsible for negotiationg the most appalling (for the taxpayer) contracts/treaties seemingly exempt from any penalties for so doing. But the revolving door goes on and they leave office to take up the lucrative roles that await them.
http://www.transparency.org.uk/our-work/publications/10-publications/132-cabs-for-hire-fixing-the-revolving-door-between-government-and-business7
But it gets worse, much worse - we now have this sort of corruption on an international scale with investor state dispute settlements where whole countries can be held to ransome by big Corporates thanks to the nefarious treaties that have been 'negotiated'
http://www.eureferendum.com/blogview.aspx?blogno=84474
Crony capitalism is empowered by Big Government, what we need is smaller government, much smaller!!, and free market capitalism
"Free market capitalism can be defined as "a system wherein individuals are free to pursue their own interests, make voluntary exchanges, and hold private property rights in goods and services." Allowing consumers and producers to trade at mutually agreed upon prices, free market capitalism is a system characterized by voluntary rather than coercive exchange. In such a system, the role of government is limited: protecting individuals' basic rights to life, liberty, property, and association; providing a legal system for the enforcement of contracts; and defending individuals against internal and external threats of physical force."
England should break away from the United Kingdom and become an independent nation.
dolphinlegs - Yeah, that was my understanding too - THROUGHOUT the EU.
So - in theory - there's an awful lot of ironmongery to be dismantled...!
Or - is it a case of 'the national interest' overriding EU law..? Just comply with rules that happen to be convenient, and ignore those that support the rights of 'the little people'..?
"England should break away from the United Kingdom and become an independent nation."
Scotland is but a minor irritant, part of a supplicant throng on mainland Europe.
Vote UKIP for true independence which will never be on offer from the EU.
Aarhus Convention; read
http://www.independent.co.uk/news/uk/politics/exclusive-un-ruling-puts-future-of-uk-wind-farms-in-jeopardy-8786831.html
Just another example of Soapy Salmond's hubris. Soon we'll see little Nicola Surgeon riding in to clear up Salmond's mess.
I used to be proud of my Scots heritage. Now I have severely mixed feelings based on what Scotland has become.
Off topic I know but did anyone hear Radio 4's piece on the Indonesian tornado about 8.15 this morning. The interviewer was interviewing the head of the severe weather warning unit and was becoming ever more alarmed when the gentleman continually failed to hype up the storm to the "catastrophic" level described by the BBC earlier. When that failed he moved on to a lady from emergency response and when she also declined to go with the BBC meme of "catastrophic" the displeasure of the BBC lackey was palpable.
It is just extraordinary. I have never seen or heard of this kind of flagrant violation of the law by a government in a democracy before. The Scottish government is essentially saying - if we don't like a decision by a court, we will just ignore it. It means that the rule of law is finished in Scotland, if they go ahead. They have declared themselves to be dictators, like in some banana republic.
Unbelievable. And for what? Windmills!! They are prepared to trash democracy and the rule of law for bloody windmills!
Sorry if this post is a bit heated, but as someone who has always respected Scottish culture (including their legal system, which is admirable IMO) - this is absolutely shocking.
johanna Nov 8, 4.32 PM
"And for what? Windmills!!" Wonderful, johanna. Shades of Sir Thomas More in A Man for all Seasons: "Why Richard, it profits a man nothing to give his soul for the whole world... but for Wales?"
Well said johanna. As an aside, here's a coincidence or two from me. On Tuesday I attended the GWPF's annual lecture by John Howard. I sat four rows back and watched as more important folk came in and took their places. One face was immediately familiar but I couldn't remember from where. Ah yes, Michael Forsyth. I only knew what he looked like because of his heartfelt and amusing words of tribute to Margaret Thatcher in the Lords on 10th April. So I went off to find that video. There were sound problems with parliament's own Silverlight effort (nice message back, hopefully now fixed) so last night I had another look on YouTube and listened both to Michael and to Lord Mackay, thinking again how perceptive their testimony was about respect for parliament, the constitution and the rule of law. So it's striking to see them on BH the next day, fighting for the rule of law again this week. We need all the help we can get.
and fun and games in Peterborough
http://www.peterboroughtoday.co.uk/news/local/peterborough-council-chiefs-and-mp-in-gale-force-row-over-100m-energy-park-plans-1-5650922#
In relation to references above to Aarhus and illegalities, the initial ruling obtained in my Communication ACCC/C/2010/54 did apply against the EU and was therefore applicable to all Member States. In relation to the second ruling which was obtained in draft form in August on the Scottish Communication ACCC/C/2012/68 against the UK and again the EU, the Compliance Committee has confirmed their draft ruling that the UK's National Renewable Energy Action Plan (NREAP) was in non-compliance with Article 7 of the Convention. It is expected that the formal documentation on this should be posted on the UNECE website soon, most likely next week.
Every three years there is a Treaty Convention, the Meeting of the Parties, for which the 45 Parties (countries which have ratified) attend. This is scheduled for June 2014 and in preparation of this the Compliance Committee wrote to the EU in August, as to what they had done to comply with their recommendations in ACCC/C/2010/54, i.e. that the NREAPs be subject to the proper public participation procedures under Article 7. The EU essentially told them to hump it, see documentation at end of web page.
http://www.unece.org/env/pp/compliance/Compliancecommittee/54TableEU.html
http://tinyurl.com/9kbgtyv
While it is a somewhat complex area of International Law, a Violation of a Treaty ratified by the EU is automatically a breach of Community law. So if and when the findings on ACCC/C/2010/54 are endorsed by the Meeting of the Parties in June 2014, it is effectively the same as a ruling of the European Court. It's a bit complex, but there is logic to it, see below:
http://www.turn180.ie/?p=802
There is also the issue that while Article 7 of the Convention requires the 'necessary information' to be provided to the public, necessary being within the context of 'effective participation', EU law since Directive 2001/42/EC requires a detailed Strategic Environmental Assessment to be completed of plans and programmes on energy 'which lead to future development consent' of projects falling under the Directive on Environmental Impact Assessment, such as high voltage lines and wind farms. Indeed if one looks at the UK's Aarhus report to UNECE in 2008, see page 14 below, it list for Article 7 the UK Strategic Environmental Assessment Legislation:
http://www.unece.org/fileadmin/DAM/env/documents/2008/pp/mop3/ece_mp_pp_ir_2008_GBR_e.pdf
http://tinyurl.com/l7dagje
So there were two failures on the NREAP, the UK didn't comply with Article 7 of the Convention and it never did a Strategic Environmental Assessment before it adopted it - both inter-related legal failures. Back on the 3rd December I actually met with the EU Commission over the failure to comply with the Strategic Environmental Assessment on the NREAPs (plus other matters). Their position then and on-going is that:
"So far as Directive 2001/42 was concerned, the Commission considered that any NREAP that did not create a framework for specific projects for purposes of Directive 85/337/EEC did not need to undergo an SEA but that subsequent more detailed plans might need to do so".
Does the NREAP lead to future development consent? Clear it does; for instance, requirements for the electricity infrastructure development are in Section 4.2.6 and the support schemes in Section 4.3, sectoral targets are set in Section 3, the measures for achieving those targets are set in Section 4, in particular while in Section 5, the contribution of each renewable technology is defined, as the template states: “For the electricity sector, both the expected (accumulated) installed capacity (in MW) and yearly production (GWh) should be indicated by technology"
There is an interesting legal case currently in the UK Supreme Court over the propesed High Speed Rail project. The Court is being required to define: The proper interpretation of ‘set the framework for development consent’ in art. 3(2)(a) of the Strategic Environmental Assessment Directive (SEAD).
http://tinyurl.com/pnu6l8j
There is already some judgements on this from the European Court. See points 37 and 186 on the below:
http://tinyurl.com/o96mk7c
The Advocate General of the European Court has already concluded: "To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources."
The European Court in its Judgement has already ruled that where a "plan or programme" should, prior to its adoption, have been the subject of an SEA, the CJEU has made it clear that the national court must suspend or annul the plan or programme adopted in breach of the SEAD: see Inter-Environnement Wallonie ASBL, Terre wallone ASBL v Region Wallone [2012] 2 CMLR 21 at paragraph 47.
"The fundamental objective of Directive 2001/42 would be disregarded if national courts did not adopt in such actions brought before them, and subject to the limits of procedural autonomy, the measures, provided for by their national law, that are appropriate for preventing such a plan or programme, including projects to be realised under that programme, from being implemented in the absence of an environmental assessment."
No Member State completed a Strategic Environmental Assessment for its NREAP, they were all rushed through to meet the deadline of barely a year set by Directive 2009/28/EC (the 20% renewable energy Directive). All of these programmes are completely illegal.
It is worth quoting a short passage from the play a "Man for All Seasons" by Robert Bolt.
Thanks, Pat. And a thousand thanks for the work you have put in on this front.
So, they are not only flouting their own laws, they are giving the finger to the EU as well.
A lot of people would not mind about the EU part, I suspect - except that they simultaneously use it as a rationale for their "renewable" policies while failing to adhere to the rules that they cite.
This is just another example of Salmond being an old-fashioned Nazi. He preaches racist nationalism, allied to socialism combined with the abolition of the rule of law and property rights, which is a textbook definition of Nazism; here he's talking about having totalitarian powers to break the law 'where it is in the public interest' - defined by him, of course. It seems a shame to me that Scottish nationalism has been hijacked by Nazis, and that at the moment the Scots are sleepwalking into the total destruction of their nation, but it's hard to see how one can consider it to be anything else.
Dave - Salmond is an idiot, and sometimes quite arrogant with it, but he is not a Nazi. Nor has Scottish Nationalism been hijacked by Nazis. Idiots possibly, but not Nazis. The leaders of the SNP have just been totally misled by the wind scamming subsidy junkies and have received very poor advice from senior civil servants and their scientific advisors. Making electricity from wind and waves is a nice idea (and quite feasible if you only want to make 5 or 10% of grid demand) but the practicalities and real cost of trying to generate 100% of the Scotland's electricity from renewables is an engineering and economic (and landscape) nightmare, which has yet to dawn on Salmond and Swinney. I agree that the Scottish Government's decision to ignore the Court of Session ruling is appalling. To bring sanity back to our energy policy and reduce the likelihood of blackouts and bankruptcy we need a dialogue and rational discussion, and labeling Salmond and the SNP as Nazis is not going to help.
@ lapogus:
"The leaders of the SNP have just been totally misled by the wind scamming subsidy junkies and have received very poor advice from senior civil servants and their scientific advisors."
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lapogus, you are very forgiving of Salmond and his crew. Are they, their advisers, family and friends incapable of looking up the facts like the humble commenters on this blog? Of course they're not.
While I agree that calling them Nazis is off the mark, they have set themselves up as tin-pot dictators who ignore the law of the land when it suits them. Someone should send Alex one of those military jackets loaded with braid and medals (like the King of Ruritania) and a pair of dark sunglasses to make the point.
In response to johanna's remark about a banana republic, while I certainly don't disagree, I rather suspect that Salmond's exemplar is actually President Obama, who has repeatedly shown contempt for judicial rulings and the US Constitution. (Even now, he is currently trying to place his own environmental ambitions beyond the reach of Congressional or judicial oversight.)
Slightly off-topic, but still on the subject of Scottish law, I recently blogged about a possible remedy in law for the curse of the renewables obligation in Scotland. So far no-one has suggested that I may be wrong.
I would appreciate some opinion as to the merits of my argument (please excuse the rather "tabloid" headline).
http://tpdrsl.org/index.php/component/jaggyblog/is-the-climate-secretary-a-mass-murderer
Re: Nov 9, 2013 at 7:12 PM | dak
Thanks for this, dak, some very informative posts, not sure about the 'tabloid' headline though, may dissuade some from reading which would be a great shame (but then I see it was the fourth post rather than the first so that's good).
Re the law, would dearly love to see this renewables nonsense challenged in a court of law where they were forced to consider the supposed reasons behind these policies rather than simply state them as 'settled science'. Model projections are simply not good enough!! Thanks for pursuing this.