Economy, Energy and Tourism Committee

Meeting date: Wednesday, November 20, 2013

Official Report 500KB pdf

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Subordinate Legislation

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Electricity Generating Stations (Applications for Variation of Consent) (Scotland) Regulations 2013 (SSI 2013/304)

Item 4 is consideration of a negative instrument. The regulations have been to the Delegated Powers and Law Reform Committee, which made no points on them. Do members wish to raise any issues?

The general intention of allowing applications for variation of a consent makes complete sense. I suspect that there will be pretty unanimous agreement on that. However, some of the issues that have been raised about the detail give me cause for concern—particularly the fact that, as far as I am aware, we are being asked to approve the instrument before we have seen the guidance that the Scottish Government intends to produce. It would be far better if we could at least see whether and to what extent draft guidance addresses the concerns that have been raised, particularly about the scope of what would be considered a variation as opposed to a new application for consent.

If we could at least see the draft guidance, we would know whether those concerns have been addressed properly and understood by ministers. I would prefer us to express the view that we should see the guidance, at least in draft form, before the committee or the Parliament agrees to the regulations.

We have to consider the regulations by 2 December, so there is a small amount of time in hand if we want to follow something up. I am interested to hear whether other members share Patrick Harvie’s concern.

I agree with the sentiment, but I am not sure that the concerns are so significant as to warrant any great delay. The more urgent concern is that we know from the Office of Gas and Electricity Markets that UK generating capacity is down to a reserve of about 2 per cent, which is close to the point at which the lights go out.

The Scottish Government has already given the assurance that this is not about substantive redrafts of applications and so on but about relatively minor, non-material things, with the safeguard that local planning authorities will still have an input into the process and so on. I hear the in-principle objection, but I am not convinced that it is tangible enough to suggest that we should send the regulations back to the Government to think again or await the full development of the guidance. We have heard only from RSPB Scotland, so we can safely assume that concern about the issue is not huge and widespread.

It is not unreasonable to consider the draft guidance, particularly since we have the time to do so. I do not really see what the issue is. I am quite happy for the instrument to come back to us after we have considered the draft guidance.

I should clarify that there is no draft guidance to look at before we approve or otherwise deal with the instrument. The options open to us today are to say that we have no concerns or—if it is of interest to members—to write to ask the Scottish Government for more information on the draft guidance and to bring the instrument back on next week’s agenda. That is a decision that we will have to make. However, no draft guidance is available.

The briefing paper says that some stakeholders in the consultation “sought clarification”. Do we know what points they looked for clarification on?

Stephen Imrie (Clerk): I am not aware of the detail of the points that stakeholders raised with the Scottish Government. If the committee is minded to ask, I will try to find out.

I am comfortable with that.

I agree with Mike MacKenzie. I do not see the purpose of bringing the instrument back next week. I will not rehearse all the arguments, but I do not know what value that would add or whether we would arrive at a totally different situation.

I am not sure why we would want to bring the instrument back, because I am not sure that the information that we would get would give us more clarity than we have. However, in the future, it would be worth asking the Government to provide as much information as possible on any statutory instruments. If there is no guidance, there is no guidance, but if there is a lack of information on certain instruments, it is probably incumbent on the Government to produce information before we make a decision. In this case, however, I am not sure that there is any point in delaying the instrument.

This is an important issue and we have the time to consider it and get more clarity. Delaying consideration would give us an opportunity. There might not be any change at the end—that would be fine, too—but we should avail ourselves of the opportunity. It would be the height of irresponsibility not to do so.

There is a spread of opinions. We are not under time pressure to agree to the instrument. If members have concerns about it, it makes sense to ask questions and bring it back next week.

On that basis, I ask the members who have concerns to express them more specifically. I invite Hanzala Malik to say what his specific concerns are about what might happen in the real world if we pass the instrument now. What are your real concerns? If we ask specific questions of the Government, we are more likely to get useful answers.

To be fair, Mr MacKenzie, a number of representations have been made and we do not have details of them before us. It might help the committee to clarify the issues that have been raised, which we can put in a letter to the relevant minister that asks for a detailed response.

All members should have received RSPB Scotland’s briefing, which sets out in detail its concerns on issues such as the definition of variation, what would require an application for variation and what would need to be dealt with as a completely new application for consent, as well as issues with the role of public inquiries and local planning authorities. There are differences between what is being done here and what is being done south of the border with ministers’ responsibility to take into account the views of those whom they have already consulted.

It is perfectly reasonable to ask the Government to respond to those concerns. It would be helpful if it published draft guidance but, even if it cannot, I find it hard to believe that the lights will go out if we leave the issue for a week or two in order to seek the Government’s response.

We have only a week—we have to report next week. There are differing views on the matter. I propose that we write to ask the Government for a response for next week and that we consider the instrument at next week’s meeting. Is that agreed? Can members live with that?

Members indicated agreement.

12:11 Meeting continued in private until 12:25.