Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2025
Debate between Baroness Anderson of Stoke-on-Trent and Lord Bruce of Bennachie
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.
Social Security (Scotland) Act 2018 (Disability Assistance) (Consequential Modifications) Order 2024
Debate between Baroness Anderson of Stoke-on-Trent and Lord Bruce of Bennachie
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, this order, which was laid before the House on 26 July, is the result of collaborative working between the two Governments of Scotland and supports the Scottish Government’s decision to introduce pension age disability payments in Scotland later this month.
As noble Lords will be aware, this is the first Scotland Act order that the House has brought in front of the Committee to approve since the election of our new Labour Government. My right honourable friend the Secretary of State for Scotland moved the order in the Delegated Legislation Committee in the other place last week; I am keen to reflect the points he made, especially as this order comes before us in the year of the 25th anniversary of the Scottish Parliament, which the last Labour Government delivered for the people of Scotland. Devolution happened because of the efforts of two of my political heroes, the late John Smith and Donald Dewar, who believed in a strong Scottish Parliament within the United Kingdom. They also believed in the values of co-operation over conflict and understood that we achieve more by working together than we ever do by standing apart. It is in that spirit that this Government have set out to reset relations with the Scottish Government to deliver for the Scottish people. That is what the majority of Scots want.
The Scotland Act 2016 devolved significant powers, including responsibility for certain social security benefits and employment support, to the Scottish Parliament. The Scottish Government’s introduction of pension age disability payments under Section 31 of the Social Security (Scotland) Act 2018 exercises this responsibility. The Scottish Government will administer this new benefit in Scotland through their executive agency, Social Security Scotland. As, at introduction, the pension age disability payment is broadly in line with the attendance allowance, it is the intention of the UK Government that those individuals in receipt of pension age disability payments should also receive the same treatment in the reserved social security and tax systems as those on attendance allowance. Scottish recipients will transfer from the Department for Work and Pensions to Social Security Scotland.
The order before us today is made under Section 104 of the Scotland Act 1998, which allows for necessary amendments to legislation in consequence of any provisions made by or under any Act of the Scottish Parliament. It is, therefore, the appropriate vehicle to make these technical but important changes to recognise pension age disability payments in reserved systems. Scotland Act orders are a demonstration of devolution in action; I am pleased to say that the Scotland Office has taken through more than 250 orders since devolution began.
Bear with me as I explain the effect this order will have and the provision it will make. This order makes amendments to ensure that the pension age disability payment is recognised as a qualifying benefit in the same way as attendance allowance in the reserved social security system with regards to entitlements to additional reserved UK Government benefits and premiums; this includes the Christmas bonus and carer’s allowance. This means that recipients of pension age disability payments will be entitled to receive the annual £10 Christmas bonus payment if that has not already been paid via another benefit. Should all other eligibility criteria be met, it will also ensure that the reserved carer’s allowance can be paid to someone caring for a person in receipt of pension age disability payments in Scotland.
It also amends the taxation of trusts with disabled beneficiaries to treat those with beneficiaries in receipt of pension age disability payments in the same way as those with beneficiaries who receive the attendance allowance. Once this order is in force, it will also prevent dual entitlement to benefits paid because of the same needs: individuals entitled to pension age disability payments cannot be entitled to receive the personal independence payment, attendance allowance or disability living allowance at the same time. This is in the same way that disability living allowance and personal independence payments are not payable to people in receipt of the attendance allowance.
The order will also prevent overlapping entitlement for pension age disability payments and Armed Forces independence payments. Equivalent provision is being made in Northern Ireland in respect of pension age disability payments and to prevent dual entitlement to child disability payment and adult disability payment with equivalent Northern Ireland Social Security benefits—someone wanted me to say “payments” a lot in this SI. Child disability payment and adult disability payment are forms of disability assistance paid in Scotland, introduced by Scottish Ministers under Section 31 of the 2018 Act.
In summary, the order makes amendments to UK legislation to support the introduction of pension age disability payments in Scotland. It ensures that the new Scottish benefit is able to operate effectively and that its recipients are treated equitably. Twenty-five years on from the establishment of the Scottish Parliament, this is devolution in action. The vast majority of Scots want to see their Governments work together to produce better results, and that is what we are getting on with doing. I beg to move.
Lord Bruce of Bennachie (LD)
I thank the Minister for her introduction and the spirit in which she delivered it. I agree that this is a classic example of co-operation between the UK Government and the Scottish Government. It is part of the continuing transition of social security delivery from the DWP to Social Security Scotland, which is all to be welcomed, given that it allows differences to be respected. However, it also means that there can be conflicts or contradictions, and the Minister has indicated—as is always the case with DWP benefits—the difficulties of not claiming one benefit because you are entitled to another, or vice versa. That is understood and explained.
It was good, although slightly pressured, for a Scottish Minister to say that the delivery of social security is a joint enterprise between the two Governments. It takes something to get that out of a Scottish Minister these days, partly because there are hiccups in the process that mean that blame needs to be apportioned occasionally. So I take that at face value, but I am glad it was said, because it is actually true.
I have one or two questions. First, on the basis of the transfer of benefits from, effectively, the DWP to Social Security Scotland, the allocation to the Scottish block grant is based on forecasts. Given that those are forecasts, what is the potential for either an underspend or an overspend? If that happens accidentally rather than deliberately, what is the scope for a review either way? In other words, if the Scottish Government find that they are overspent for legitimate reasons, will the UK Government compensate, but if they underspend for similar reasons, will the UK Government adjust it accordingly? As I understand it, the forecast, or the block grant adjustment, is based on the estimate of the saving that the UK Government have made in the process of transferring the benefit to the Scottish Government—it can only be an estimate, because the take-up will follow.
The other problem is really a political one. The Scottish Government did not have social security powers 25 years ago, although they campaigned strongly for them and the Smith review recommended them. However, there is a problem of politics, because what is actually happening is that most of these benefits were originally UK, they are transferred in similar format to the Scottish Government and funded accordingly into the block grant. The Scottish Government can then, if they wish, cut them or top them up from their own resource. For example, the Scottish child benefit is £26.70 per child, on top only of UK-funded tax credit—that is, it is only those in receipt of tax credit who qualify for it, which is fair enough. However, the impression given by politicians north of the border is that the combination of the tax credit and the £26.70 has all been delivered by the Scottish Government, so there is a lack of transparency about who is paying for what.
That is important because the people of Scotland need to know what the Scottish Government are genuinely doing on their own merit and what the UK Government are doing for the people of Scotland out of central UK resources. For those of us who, as in my case, are federalists, home rulers and believers in devolution, it is nevertheless important that we understand that Scotland has two Governments and both are contributing to the benefit of the people of Scotland. We need to know which Government provide what benefit, and the presentation in Scotland does not always reflect that.
This raises a final concern. I am not sure whether the Minister can say anything about it, but we will have an election in Scotland in the next 18 months and I worry that these powers could be misused. It might suit a Government—particularly one who feel that they are on the back foot—to introduce a whole load of social security sweeties, knowing that the bill will come after the election. There is nothing to stop that happening other than, possibly, the UK Government pointing it out, but it is entirely within the discretion of the Scottish Government.
I accept entirely the spirit in which the Minister presented the order and I support the principle of what is going on. Nevertheless, I ask her to acknowledge that there is a political tension here that could lead to abuse. That is not a reason for reversing it but may be a reason for doing what I have just done, which is to highlight the fact that the two Governments are doing complementary but different things.