Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2025

Tuesday 10th December 2024 Lords Chamber

Motion to Approve

16:10

Moved by

[Baroness Anderson of Stoke-on-Trent]

That the draft Order laid before the House on 28 October be approved.

[Baroness Anderson of Stoke-on-Trent (Lab)]

My Lords, I am grateful for the opportunity to debate this order, which is a result of collaborative working between the UK and Scottish Governments. This order comes following agreement by the previous Government to transfer to Scottish Ministers the function of making environmental outcomes report regulations, replacing environmental impact assessments in respect of electricity works consenting in Scotland and the Scottish part of the renewable energy zone, so that the power will be held concurrently with the Secretary of State for Energy Security and Net Zero. This transfer of functions reinstates powers lost by Scottish Ministers upon repeal of the European Communities Act 1972. The order before us today will be made under Section 63 of the Scotland Act 1998, which provides

“for any functions, so far as they are exercisable by a Minister of the Crown in or as regards Scotland, to be exercisable … by the Scottish Ministers concurrently with the Minister of the Crown”.

This Scotland Act order is a demonstration of devolution in action.

The UK operated a system of environmental impact assessments in reliance on powers conferred by the European Communities Act 1972. The function of making environmental impact assessment regulations in respect of electricity works consenting in Scotland had been transferred to the Scottish Ministers concurrently with the Secretary of State in 1999. Following the designation of the Scottish part of the renewable energy zone, the extent of the Scottish Ministers’ electricity consent functions was extended to the Scottish part of the renewable energy zone. Subsequently, the Scottish Ministers’ associated EIA regulation-making powers were also extended to the Scottish part of the REZ.

The power to make environmental impact assessment regulations was lost upon repeal of the European Communities Act 1972. In 2023 the then UK Government took powers in the Levelling-up and Regeneration Act to make environmental outcomes report regulations intended to replace environmental impact assessment regulations. This instrument transfers functions to Scottish Ministers to make regulations under Chapter 1 of Part 3, “Planning data”, and Part 6, “Environmental outcomes reports”, of the Levelling-up and Regeneration Act 2023 and related ancillary functions.

In relation to the assessment of the effects on the environment in connection with applications for consent, approval or variation of consent for electricity generating stations under Sections 36 and 36C of the Electricity Act 1989, and associated overhead line infrastructure under Section 37 of that Act, these functions will be exercisable concurrently with the Secretary of State. Before the Scottish Ministers seek to exercise functions by virtue of this order, they will be required to consult with the Secretary of State.

This order reflects a commitment made to the Scottish Government during the passage of the Levelling-up and Regeneration Act 2023. I am pleased that the UK Government are working to address this matter, and I hope noble Lords across the House will support this SI.

[Lord Bruce of Bennachie (LD)]

My Lords, I thank the Minister for her explanation of the SI. Obviously, timing is significant as the Government are committed to ramping up the drive to net zero. We have to acknowledge that these powers are also necessary. Plans for large onshore facilities to receive electricity from offshore wind farms are already proving controversial on the ground in Scotland. Similarly, requirements for major new pylon routes to deliver the electricity south are also attracting objections. These are issues that people are engaged with, and they need to how they can be resolved and where the responsibility lies.

16:15

There are challenges here because the Government are committed to delivering zero-carbon electricity by 2030—five years from now—and a huge infrastructure investment is required. The problem here is a conflict between delivering essential national targets and meeting environmental standards, and community consent.

The order devolves powers to Scottish Ministers but states that they will be, as the Minister said, “exercisable concurrently” with the Secretary of State, and that Scottish Ministers will be required to consult the Secretary of State. I looked at the debate in the Scottish Parliament on this proposal and the following exchange was recorded. The convener asked the Scottish Minister:

“What scope is there for the Scottish ministers to take their own approach to environmental outcomes reports? Is there scope for ministers to vary the powers that apply under the regulations at present?”

The Minister, Kate Forbes, replied:

“That is a complicated question with a complicated answer”.

The convener then asked:

“In exercising the function, if you were to take an approach that was in conflict with the UK Government’s approach, where would the power reside to make the final decision on that?”

Stewart Cunningham, the relevant civil servant, said:

“If the Scottish ministers want to exercise the power, they must consult the secretary of state, but they do not require the consent of the secretary of state. We could still exercise the power, even if that was in conflict with the UK Government, but it”—

that is, the UK Government—

“could potentially use the power to cut across what the Scottish Government was doing. I imagine that there would have to be some degree of dialogue and negotiation”.

The convener’s comment was:

“In short, it is like saying, ‘Proceed until apprehended’”.

The essence of devolution is that some powers are reserved, some are devolved and some are shared. Under the SNP, the Scottish Government, for most of their time in power, have behaved as though they believed that they had the independence that was denied by the referendum, and, whenever they found a power that was shared or reserved, they tended to cry foul. So it is welcome that the mood music is a little more constructive, both ways round, and that there seems to be a recognition now that the reality of devolution is that Scotland has two Governments who have different responsibilities and sometimes they have shared responsibilities.

It is conceivable that the Scottish Government may wish to amend applications for substations—the onshore receiving stations—or for pylons requiring some power lines to be undergrounded. That would not necessarily be unreasonable but could substantially increase costs and add delays, and therefore cut across the UK Government’s target of achieving net zero by 2030. Could the Scottish Government reasonably impose requirements to achieve community benefits—or, to put it this way, can the Minister indicate, if there was a difference of view, how this might be resolved?

In an ideal world it is to be hoped that the Scottish Government would be interested in the viability of investments bringing offshore wind through Scotland—they would want them to work—and, at the same time, the UK would be sensitive to reasonable variations in the environmental impact of achieving that. But it seems to be clear at the moment that the Scottish Government and Scottish Ministers are unsure of how the UK Government will approach these concurrent powers. Can the Minister enlighten the House? I am not sure that she can, because we are not sure about the circumstances where the issue might arise.

It is welcome that this sensible SI is being introduced. I suppose I am expressing my concerns about the experience of the way the two Governments have operated over the past 15 years or so, where the willingness on both sides to get a reasonable compromise was not always in place. In one sense, the Minister cannot anticipate whether either side would be reasonable or unreasonable, so by all means we should pass the SI, but we need to know the process by which any possible disagreement between the Governments could be resolved. Indeed, if there was to be no resolution, is there a dispute mechanism? I was on the committee that debated how these things could happen, which came up with extremely sensible proposals for how disputes could be resolved, so there are mechanisms in place that have never been applied. Are those the kinds of mechanisms that could be used?

This is a sensible proposal but it raises some questions. At the moment, from what I can see, Ministers in Scotland do not know what the answers are.

[Lord Cameron of Lochiel (Con)]

My Lords, I too thank the noble Baroness for setting out the background to this statutory instrument. We will not be opposing it. As she set out, its purpose is to enable the exercise of concurrent powers in relation to assessing the environmental impact of, and granting planning consent for, generating stations and overhead lines in Scotland; in essence, devolving powers to make certain regulations in these areas to the Scottish Government.

In the light of the fact that Scottish Ministers are not currently able to amend or replace the procedures in the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017, which are devolved to the Scottish Government, it makes eminent sense to transfer the relevant functions in this order. That work began under the previous UK Government, as the noble Baroness will be aware.

However, there are several concerns about the UK Government’s broader policy direction in this area. First, across many parts of Scotland there is concern that the onward march of overland grid infrastructure, including the imposition of pylons, risks spoiling the countryside and may also restrict agricultural land use. As we set out in our manifesto, our clear preference is for undergrounding where it is cost competitive. What is the UK Government’s position on under- grounding cables?

Related to that, the noble Baroness may be aware that several noble Lords tabled amendments to the Government’s Great British Energy Bill that aim to protect both the beauty of our countryside and our agricultural output as we progress to a clean energy future. Can she confirm that the UK Government are committed to protecting the beauty of our countryside and improving the UK’s agricultural output?

Further—and this point was made by the noble Lord, Lord Bruce—the draft order provides that Scottish Ministers would have to consult the Secretary of State before exercising their powers. However, what happens in cases where the Scottish and UK Governments disagree and views diverge?

Finally, and related to the above, does the noble Baroness share our concerns that, whatever the substantive merits of the order, there is a risk that the procedures involved will add further complexity to an area of planning that is already highly complicated and diverges hugely across the nations of the United Kingdom?

[Baroness Anderson of Stoke-on-Trent (Lab)]

I thank the noble Lords for their contributions and for the short, sharp nature of our debate in your Lordships’ House. I have been asked a series of questions. I hope to answer all of them. If I do not, I am sure my civil servants will make sure that I respond appropriately and will write to noble Lords.

On the specifics raised, I thank the noble Lord, Lord Bruce, for his recognition that we are attempting to reset the relationship between the Westminster Government and Holyrood. We will do everything we can to make sure that this works and is effective.

There were several questions pertaining to how this would work in reality and the impact on divergence, so I hope noble Lords will bear with me. Both noble Lords raised the question of what would happen if we were to diverge significantly. The requirement to consult is to provide an opportunity for the UK Government to give views on the exercise of these powers, noting the UK Government’s wider responsibility for international matters that may influence the use of these powers. The nature of the powers allows for divergence between nations—in fact, that is devolution in action. However, there are specific provisions in the Levelling-up and Regeneration Act—which we all lived through, during many days of debate in this House—that would allow Governments to ensure interoperability between regimes, even if there were to be divergence.

On how consultation between Scottish Ministers and the Secretary of State will work in practice, this will mirror the standard approach to consultation with Scottish Ministers, providing information about the use of these powers in advance of the powers being used. This would allow UK Ministers to provide any feedback on the proposed use of the powers, which is especially important given the UK Government’s role in international matters that may influence the use of these powers.

Both noble Lords touched on reforming the consenting process for electricity infrastructure in Scotland, which is a key part of current discussions and of public interest. The UK and Scottish Governments agree that modernising and removing inefficiencies in the Electricity Act 1989 is the best route to speeding up low-carbon energy infrastructure deployment in Scotland, which will be vital to achieving cheaper, clean power by 2030 and onwards. The UK and Scottish Governments have been working together closely to develop a set of reform proposals. A public consultation seeking views on the reform proposals closed on 29 November.

With regard to divergence, before Scottish Ministers seek to exercise functions by virtue of this order they will be required to consult with the Secretary of State. The issue of divergence on this matter is built into the regulatory framework. As I said earlier, this is devolution in action and it will be a pragmatic tool for managing divergence in the making of regulations on this matter.

On the substantive subject matters raised by the noble Lord, Lord Cameron, for England and Wales, the policy on undergrounding is set out in the energy national policy statements. Overhead lines are usually the starting presumption for large electricity network projects, as they were under the last Government, except in nationally designated landscapes, where the usual starting presumption is that large electricity network projects should be undergrounded. The design and development of energy transmission infrastructure, including which technology will be used, is a matter for the developer, with the design considered through the planning process and approval needed by Ofgem. While the underpinning legislation of electricity networks is reserved to the UK Government, planning and consenting decisions about electricity infrastructure in Scotland are devolved to Scottish Government Ministers, which is why this SI is so important.

Before I move on, I want to thank the noble Lord, Lord Cameron, for starting the work on this SI when he was in government. We are now delivering on commitments made by the previous Government. Committee stage of the Great British Energy Bill continues next week, and I am sure that will be a fundamental part of the conversation. I want to assure the noble Lord that this Government consider protecting the beauty of our countryside, and protecting our country, as foremost responsibilities.

In closing, this instrument demonstrates the continued commitment of the UK Government to work with the Scottish Government to deliver for Scotland and the people of Scotland. On that basis, I commend the SI to the House.

Motion agreed.