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The amendment has, mercifully, been withdrawn but it remains to be seen whether the courts take a stand for the rule of law or not.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.