1. At its meeting on 9 September 2025, the Committee considered the Supplementary Legislative Consent Memorandum (“supplementary LCM” / "SLCM") lodged by the Scottish Government in respect of the Planning and Infrastructure Bill (“the Bill”).

2. The Committee is considering the supplementary LCM by virtue of Rule 9B.3.6 of the Scottish Parliament’s Standing Orders. Paragraph 6 of Rule 9B.3 provides that where the Bill that is subject to an LCM contains provisions conferring on the Scottish Ministers powers to make subordinate legislation, the Delegated Powers and Law Reform Committee shall consider and may report to the lead committee on those provisions.

3. The Committee is also considering the supplementary LCM by virtue of Rule 6.11.1(b) of the Standing Orders. Rule 6.11.1(b) provides that the remit of the Delegated Powers and Law Reform Committee includes considering and reporting on proposed powers to make subordinate legislation in particular bills “or other proposed legislation”. 

4. The Committee previously considered a Legislative Consent Memorandum on the delegated powers in the Bill as introduced on 11 March 2025, at its meetings on 6 and 20 May 2025. These delegated powers were in respect of consents for electricity infrastructure, and the operation of harbours.

5. A Committee Report was subsequently produced on 22 May 2025 in which the Committee indicated it was content with the powers conferred on the UK Ministers and the Scottish Ministers in the Bill. The Committee also noted a number of matters in connection with the commencement of clause 46ⁱFormerly clause 42. by clause 110(1)ⁱⁱFormerly clause 96(1). which makes provision about fees for applications for harbour revision orders.

6. The Scottish Government has now lodged a Supplementary Legislative Consent Memorandum dated 13 August 2025. The sLCM recommends consent for amendments tabled by the UK Government on 15 July 2025 to clauses 46 and 110. At the time of writing, the amendments have not yet been debated by the relevant Committee of the House of Lords. The Scottish Government recommends that the Parliament gives consent to clause 46 and clause 110(1)(x) and (xa)(ii) as they are proposed to be amended.

7. The lead committee in respect of the sLCM is the Net Zero, Energy and Transport Committee. 

8. The Bill was introduced in the House of Commons by the UK Government on 11 March 2025. It is now at Committee stage in the House of Lords.

9. The Bill covers a number of different subject matters: planning; nationally significant infrastructure projects; the transmission, distribution and supply of electricity; forestry matters, transport and roads; the operation of harbours; the environment; and compulsory purchase.

10. The UK Government has requested legislative consent for a number of provisions in the Bill which extend to Scotland.

11. Legislative consent is sought for clauses 18 to 24, which will make various changes to electricity infrastructure applications and determinations in Scotland. The Scottish Ministers are responsible for determining applications for consent under section 36 and section 37 of the Electricity Act 1989, which is reserved legislation.

12. Legislative consent is also sought for clause 46 which provides enhanced powers to the Scottish Ministers to recover costs associated with the handling of applications in Scotland for port development and changes to port and harbour governance arrangements, and clause 110 which makes provision about the commencement of clause 46.

13. The UK Government has published a revised Delegated Powers Memorandum to accompany the Bill as brought from the Commons, dated 13 June 2025. It explains in each case the purpose of the power, why a delegated power is appropriate, and the parliamentary procedure that has been selected. 

14. As is normal for UK bills, the Scottish Government has not published a delegated powers memorandum. The Scottish Government’s view on the relevant clauses is set out in the sLCM. 

Clause 46(4), inserting paragraph 9A(1) in Schedule 3 to the Harbours Act 1964: power to provide for fees for harbour revision orders

Power conferred on: Scottish Ministers

Power exercisable by: Regulations     

Parliamentary procedure: Negative

Provision

15. Clause 46 makes various amendments to the Harbours Act 1964 (the “1964 Act”). Schedule 3 of that Act governs the process for making a harbour revision or empowerment order. Such orders are used to amend or create legislation improving, maintaining, or managing harbours around the UK. 

16. Harbours are a devolved matter and the function of making decisions on harbour revision or empowerment orders under section 17 and Schedule 3 of the 1964 Act in relation to Scotland lies with the Scottish Ministers. In England, these functions are exercisable by the Secretary of State, and in Wales, by the Welsh Ministers. 

17. The process for a harbour revision or empowerment order involves the applicant notifying the Scottish Ministers, a screening decision about whether it requires an environmental impact assessment, submission of an application containing the proposed order, public notice, consultation, objections and decision-making. Notably, paragraph 7(1)(c) of Schedule 3 allows the decision-maker to specify a fee that must accompany applications. 

18. Subsection (4) of clause 46 inserts a new paragraph 9A into Schedule 3 of the 1964 Act. It provides a power for the Scottish Ministers to make regulations for fees to be paid in respect of applications for a harbour revision order in Scotland. These regulations may include the amount of the fee, may allow for the application not to be progressed unless it is paid, and may also allow for deposits for fees that will, or may, become payable.  

19. Regulations made under this provision are subject to the negative procedure by virtue of subsection (5) of clause 46, amending section 54 of the 1964 Act. 

20. In the current version of the bill, subsections (6) and (7) make transitional provision in connection with the coming into force of these amendments to Schedule 3 of the 1964 Act, and the coming into force of any fees regulations made by the Scottish Ministers under new paragraph 9A of that Schedule. This transitional provision is no longer required because of amendments made to the commencement arrangements in clause 110, discussed below. Subsections (6) and (7) are accordingly proposed to be removed.

Committee consideration

21. Following its previous consideration of the Bill, the Committee reported on 22 May 2025 that it was content with the power inserting paragraph 9A(1) in Schedule 3 to the 1964 Act.

22. The amendments proposed to the power are minor and consequential on amendments to the arrangements for bringing the relevant provisions into force, discussed below. Given that they do not affect the substance of the power, the Committee is similarly content with the adjusted power.

Clause 110: power to make commencement and related ancillary provision

Power conferred on: Secretary of State

Power exercisable by: Regulations

Parliamentary procedure: None

Provision

24. Clause 110 makes ancillary provision and sets out the arrangements for commencement of the Bill. Subsections (1) to (5) provide for when each section or part of the Bill will come into force. Subsection (7) provides that the Secretary of State may make transitional, transitory, or saving provision in connection with commencement. 

25. Notably, clause 110(x)(ii) currently provides that section 46(2) will come into force on such day as the Secretary of State may by regulations appoint. The result is that the provisions of clause 46 which confer a new power on the Scottish Ministers to make regulations about fees for harbour revision orders will commence two months after the Bill is passed. However, the provision which repeals the existing power for the Scottish Ministers to determine fees in connection with harbour revision order applications is to be commenced at the Secretary of State’s discretion.

26. The UK Government now proposes to amend clause 110 so that the new powers to set fees and associated requirements in regulations will continue to come into force two months after the Bill is passed. However, the existing power to determine fees in connection with harbour order applications will be repealed only when regulations setting out those new arrangements come into force.

Committee consideration

27. The sLCM explains that the effect of this amendment is that the existing requirements in relation to payment of fees for harbour orders will be repealed only when regulations setting out new arrangements come into force, which would be wholly in the hands of Scottish Ministers. In the Scottish Government’s view:

    "This amendment would remove the risk with the current drafting that if the commencement powers and repeal of the existing Harbour Revision Order fee arrangements in Scotland were to reside with the UK Government, the Scottish Ministers could be left in a position of being unable to charge any harbour revision order fees, if new regulations and a new fee structure was not in place in Scotland."

28. When the Committee previously considered clause 110, it was content with the power to commence clause 46 being conferred on the Secretary of State in principle.

29. The Committee also noted that:

    • "clause 96(1)(z1)(ii) provides for clause 42(2) of the Bill (repeal of existing provision on fees for applications for harbour revision orders) to be commenced on a day to be appointed in regulations made by the Secretary of State;

    • it appears necessary that the commencement of clause 42(2) is aligned with regulations under new paragraph 9A of Schedule 3 of the 1964 Act (fees for harbour revision orders), the timing of which is a matter for the Scottish Ministers;

    • the Secretary of State commits to commencing clause 42(2) in collaboration with the Scottish Ministers, and at a time of the Scottish Ministers’ choosing."

30. The effect of the proposed amendment would be to remove the power to commence the provision on charging fees for harbour revision orders from the Secretary of State entirely. Instead, these provisions will partially come into force two months after Royal Assent. The remainer of the provisions will come into force on the day the first fees regulations made by the Scottish Minsters under paragraph 9A of Schedule 3 to the 1964 Act come into force. The repeal of the old arrangements for harbour revision order fees will accordingly be aligned with the commencement of the new provisions. This change addresses the points which the Committee noted in its previous report.

31. As such the Committee is content with the power as it is proposed to be amended by the UK Government.