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

Baroness Anderson of Stoke-on-Trent Excerpts

Tuesday 10th December 2024 Lords Chamber

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.

--- Later in debate ---

[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.