Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2019

Lord Hope of Craighead Excerpts

Wednesday 10th April 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, it is necessary to bring forward this order to confirm the regulation-making powers of the Scottish Ministers under Section 2(2) of the European Communities Act 1972. This order is made under Sections 30 and 63 of the Scotland Act 1998 and seeks to confirm the powers of the Scottish Ministers regarding environmental impact assessments on certain public and private projects—I shall call these EIAs. These assessments are carried out in relation to renewable electricity generating stations located in the Scottish part of the renewable energy zone under regulations that implement an EIA directive.

The UK Government and the Scottish Government have agreed to take this order forward following an initial request from the Scottish Government. The order specifies functions which are to be treated as exercisable in or as regards Scotland and transfers these functions to the Scottish Ministers. While the generation, transmission, distribution and supply of electricity are reserved matters, since 1999 functions relating to electricity have been transferred to the Scottish Ministers. This order provides confirmation that the Scottish Ministers have EIA regulatory functions in respect of the Scottish part of the renewable energy zone, thus confirming that the UK meets its obligations to transpose the 2014 EIA directive.

The Government have worked closely with the Scottish Government at ministerial and official level to ensure that the order confirms the current legal position of the Scottish Ministers. On that basis, I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I do not think that anyone could possibly object to this order or indeed the order which the Minister will bring before us as the final business today. However, I should like to pay tribute to the procedures which have brought it before the House.

Some 21 years ago, I was dealing with the Committee and Report stages of the 1998 Scotland Bill in this Chamber. It was a very carefully drafted statute, and it is of great interest to me to see the way in which the various provisions in the latter part of that Act and in the schedules are brought together, both in this order and in the one that follows it, to allow necessary little corrective steps to be taken without any delay or disruption to the devolution system which was laid down.

We are told in the head note to this order that it is to be approved by the Scottish Parliament as well as by each House of the United Kingdom Parliament, and that is as it should be. However, it is worth paying tribute to the draftsmen of the 1998 Act that the procedures are available both for a draft statutory instrument as well as for an order to be laid under the other provisions which are referred to in the regulatory reform order that we will consider later. These are working out to the good of the system.

Beyond that, I welcome the order and I am glad that the Minister has been able to introduce it so briefly.

[Lord Bruce of Bennachie (LD)]

I echo what the noble and learned Lord, Lord Hope, has said. This is the way we hope things will work with a devolved Parliament and Administration but where there is shared decision-making. I have only one question, because the powers are concurrent. When the Minister responds, will he explain what happens in the unlikely event that there is a matter of dispute? It is territorial and this order effectively devolves the power to Scottish Ministers, but if “concurrent” means what it implies, in theory the Secretary of State in the UK Government could say, “I do not agree”. That is unlikely in the circumstances, but I wonder if the Minister can clarify what would happen.