Official Report 789KB pdf
Our second item of business is an evidence session on the legislative consent memorandum that the Scottish Government has lodged on the Planning and Infrastructure Bill, which is a United Kingdom Government bill that is being considered at Westminster. The committee must report on the LCM.
The LCM, which the Scottish Government lodged on 27 March, mentions the need for the Scottish Parliament to consent on two matters: consent for electricity infrastructure, which is covered in clauses 14 to 20, and fees for application for harbour orders, which is covered in clause 42. The LCM also mentions clause 96, which makes commencement and transitional provisions, in so far as those relate to clauses 14 to 20 and 42.
The committee agreed to write to a targeted group of stakeholders to gather evidence on the areas of the bill that are covered by the LCM, and we are thankful to those who responded to our call for evidence. This morning, we will discuss the LCM with the Scottish Government, including any developments since the LCM was lodged and some of the main issues that stakeholders have raised.
I welcome Gillian Martin, Acting Cabinet Secretary for Net Zero and Energy, and her supporting officials. Alan Brogan is head of operational delivery at the energy consents unit, Robert Martin is policy and administration team leader at the energy consents unit, and Anne Cairns is a solicitor. I believe that the acting cabinet secretary would like to make a short opening statement before we move to questions.
Thank you, deputy convener. Good morning, everyone. Thank you for the invitation to provide evidence on the LCM on the Planning and Infrastructure Bill. Before I answer the committee’s questions, I would like to speak for a few minutes to explain the purpose behind the bill, how we have got to this point and why an LCM is required in this instance.
By way of background, I note that, although land use and planning in Scotland is devolved, the powers to legislate for generation, transmission, distribution and supply of electricity are reserved to the UK Government. However, Scottish ministers determine applications to construct or install electricity infrastructure under the Electricity Act 1989. In England and Wales, the relevant legislation was updated in 2008 to make the consenting process more efficient. However, the process in Scotland has remained unchanged as we do not have the power to amend the legislation. The situation has resulted in it taking up to four years to process an application determination. The Scottish Government has long called for the process to be reformed, for the relevant powers to be given to Scottish ministers and for the system to be modernised, as it has been across the rest of the UK.
Having finally recognised that Scottish consenting needed reform, the previous UK Government, under the Conservatives, committed to reviewing it in November 2023. Thankfully, the new Labour Government continued those plans, and UK and Scottish Government officials worked together on the proposed reforms that the UK Government published in October 2024, alongside a consultation. In March this year, the UK Government published its response to the consultation, which showed broad support for the reforms from consultees, and the measures were included in the Planning and Infrastructure Bill, which was introduced to the House of Commons on 11 March.
The bill cuts across a number of different subjects including planning; nationally significant infrastructure projects; the transmission, distribution and supply of electricity; transport, roads and the operation of harbours; and the environment. Many of the bill’s clauses apply only to England and Wales or have no practical application in Scotland. However, clauses 14 to 20, which relate to electricity infrastructure consenting in Scotland, and clause 42, which refers to harbour processing fees, alter the competence of Scottish ministers, so the UK Government is seeking legislative consent.
As I set out earlier, the changes that are proposed in clauses 14 to 20 are intended to reform outdated and inefficient elements of the consenting process for electricity infrastructure. The changes include, but are by no means limited to, strengthening pre-application requirements and procedures, making them statutory for the first time and allowing communities to share their views earlier in the process; creating a new reporter-led procedure in response to an objection from a local planning authority, reducing the administrative burden of an automatic public inquiry while always retaining a public inquiry as an option; and moving from a lengthy judicial review process to one of statutory appeals, aligning with existing processes under the Town and Country Planning (Scotland) Act 1997.
The bill will provide Scottish ministers with regulation-making powers to implement more technical statutory elements of reform. Those will be concurrent powers that are exercisable by either Scottish ministers or the secretary of state. The bill does not specify which authority will exercise which powers and how, but the general expectation, which is shared by both Governments, is that the Scottish Government will introduce the regulations and they will be laid in the Scottish Parliament. That reflects the position that planning is a devolved matter and it recognises the executively devolved role of Scottish ministers in administering applications for consent under the Electricity Act 1998. With regard to clauses 14 to 20, we therefore recommend that consent is granted. The Scottish Government intends to consult on proposals for secondary legislation as soon as possible after the bill is passed.
I am not the Cabinet Secretary for Transport and I am not best placed to speak on clause 42, so I welcome the presence of officials from Transport Scotland who will be able to reply if you require further information on that front. I also note that Ms Hyslop provided an update on clause 42 in her letter this morning.
I am happy to answer any questions, convener.
09:30
Thank you. Nick Gosling, head of maritime policy at Transport Scotland, is with us and he can respond as appropriate on any of the harbour order fee issues.
We move to questions, and I start with a question about the concurrent nature of the powers that are provided for in the bill. Why is the Scottish Government content that powers over areas that are wholly within Scotland may also be exercised by ministers at a UK level?
Throughout the process, we have been clear that planning is devolved in Scotland, but we have an understanding with the secretary of state. The regulation-making powers and the bill itself are righting a wrong. Wales had the powers long before Scotland will have them, and this is an area where we have wanted reform. I believe that, in your time as energy secretary, you looked for these reforms as well.
The bill uses the wording
“The Secretary of State or the Scottish Ministers”,
but there is an understanding that it will be the Scottish ministers, who will be able to bring in secondary legislation on consents. Up to now, we have been quite hamstrung. In the past couple of years, in working with my officials, it has been quite frustrating that we have not been able to change any of the regulations on consents, particularly in relation to mandating a requirement for community engagement ahead of applications going in. That has been a source of great frustration to communities, but also to the Government. We have been asking for the change for quite some time. If the legislative consent motion is agreed to and the bill passes, we will be able to mandate that community engagement.
We have got ahead in that we have been doing our own work and we have just published our good practice principles on engaging with communities, but they are voluntary. There is no compulsion on developers to engage with communities. We do not think that that is right. However, we have done the work ahead of the LCM because we wanted the good practice principles to be updated. If the LCM is agreed to and the bill passes, we will be able to work on secondary legislation, which we will bring to this committee, on what we require of developers ahead of them putting in their applications.
That is helpful. On the concurrent nature of the powers, what is the intended mechanism to be used if there is a conflict of position between the Scottish and UK Governments in exercising what is an executive function under reserved legislation?
The bill does not say that any minister has primacy in this area. There is an understanding that the reason for the powers being developed is that there was a need for Scottish ministers to have the same powers as Welsh ministers. The real basis for why this is being done in the first place is to give powers to Scottish ministers.
I appreciate that and I recognise the importance of it. I am just trying to understand what will happen if there is a conflict of thinking on exercising of the powers. If I recall correctly, the executive power sits with the secretary of state at the UK Government level. What is the intended mechanism if there is a conflict of views on decision making relating to the powers?
Although there is, as I said, no formal decision-making mechanism in the bill, decisions about which Government will exercise the powers will be guided by the reality that Scottish ministers currently administer and determine applications under the Electricity Act 1989. It is expected that the Scottish Government will typically lead on this, as I said. It is understood by both Governments and reflected in the legislation that it will be for the Scottish Government to lay the accompanying secondary legislation.
Both Governments will have concurrent powers, as you said, to make regulations, reflecting those shared responsibilities. We hope that the respectful approach to devolution that has guided the development of the provisions will continue to inform their implementation. That is the understanding. I understand that you are looking for a mechanism. The mechanism is cross-Government working on this and our understanding during the drafting that the powers will be exercised by Scottish Government ministers.
Okay. That is helpful. Thank you.
Cabinet secretary, could you give a bit of clarity about the fees that will be introduced for electricity consent applications? Will those fees be ring fenced to support the work of the energy consents unit? I draw your attention to the views that we got from Scottish Environment LINK that, if we were to do that, it would be likely to lead to
“better resourcing of the determination process and therefore more timeous processing of applications, without being overly onerous for applicants.”
We want full-cost recovery for public services in general. In my remit, one of the things that we have done is expand the capacity of the energy consents unit. In the past year, we have more than doubled the number of personnel who are dealing with energy consents. We expect that the fees will be set to recover the cost of processing applications and providing pre-application services to streamline the process, so that there is communication between the ECU and applicants, in line with policy.
The fees will, of course, help to resource the Scottish Government’s administration of the consenting process. That will mean that we can enable more timely consents. That work has already been done. As I say, we have more than doubled the capacity of the energy consents unit, because of the volume of consents that we anticipate. We are not waiting for the volume of applications to go through the roof before we put in place the necessary capacity. We have front-loaded the capacity in the ECU in anticipation of the many applications that will come through, particularly with regard to the transmission infrastructure and the ScotWind round.
It is useful to get that on the record. For clarity, you said that you expect the fees to go to the energy consents unit, but can you confirm that that is definitely what will happen?
Yes.
It is good to get that on the record, too.
How will the powers in the bill in relation to the environmental impact assessment interact with the proposals from the UK Government to move to a system of environmental outcomes reports, under powers that were introduced in the Levelling Up and Regeneration Act 2023, and the proposals for new powers in relation to EIAs that are in the Natural Environment (Scotland) Bill?
As you rightly say, the UK Government intends to replace the European Union-derived environmental impact assessment system with new environmental outcomes reports, the framework for which was established in the 2023 act. The systems are not yet operational and require further development. The functions will allow for Scottish ministers to make the environmental outcomes report regulations for electricity applications, and those powers have been transferred by a separate order. Clause 20 provides a pragmatic interim solution that will allow for procedural updates to the existing EIA system, while policy on the potential transition to EORs further develops. There will be no gap, so the transition from the old system to the new system will be covered by clause 20.
I think that issue about there not being a gap is important for environmental standards—we do not want to see a reduction in standards here.
I would like to get a bit of clarity on where you see the environmental outcomes reports and the existing EIA system applying? If, for example, there were consents for onshore transmission infrastructure under sections 36 or 37 of the Electricity Act 1989, would they now go through the Westminster system of EORs, or would it be expected that EIAs will still apply?
If the LCM is agreed and the bill goes through, there will be the pragmatic interim solution that I set out. That would mean that we would have the necessary procedural updates to the existing EIA system while we are waiting for that policy transition to happen and to be bottomed out between all Governments on the transition to the EOR system. There will effectively be a transitional period in which we have the existing EIA system, but it will provide us with updates that start to bring us in line with what is anticipated in the EOR system.
Right. I am just trying to understand how that works. If you are a developer and you are bringing forward a wind farm project that is under the section 36 threshold, you would expect to do an environmental impact assessment, as the regulations require you to send that to the local authority. However, if you are over that threshold, you will have to engage eventually with the new system of environmental outcomes reports. Is that right? Will we have two systems, effectively?
Environmental impact assessments will still apply. That is effectively what I am saying. There is no dilution of that in any way.
So, there will be two systems?
The adjustment in clause 20 is about restoring that limited ability that we had under the European Communities Act 1972 to make procedural changes to the EIA process to mean that it is aligned with reformed electricity consenting, but there will not be any gap in the process—there will not be any point at which there will be a dilution of the requirement to follow an EIA. I hope that that gives you clarity.
I am struggling a bit with that. It might be better for you to write to the committee with some examples of where that applies and where it does not apply. What I am trying to understand is whether the Government is moving away from the EIA system to a new system of environmental outcomes reports. Is that what you are doing? I see that you are shaking your head.
EIAs will always be in place. We want to be agile in making sure that there is no misalignment between the two processes—the EIA process and the EOR process—but EIAs will still apply. There will be no point at which they are diluted or do not apply. They apply in all cases.
So, the environmental outcomes reports are more about those areas that are in the offshore environment, where Westminster is requiring that regime to be applied. You do not see EORs applying in relation to onshore development or anything that is within the consenting powers of the Scottish ministers.
I will defer to my officials, but my understanding is that EORs can apply in any case while environmental impact assessments will apply in all cases. Alan Brogan can perhaps add some clarity.
There is a bit of a complex picture. The framework for environmental outcomes reports was introduced in the Levelling Up and Regeneration Act 2023. The UK Government needs to develop the framework further to set out what it really means. In Scotland, we are not clear exactly what the system will look like. Further, in Scotland, in general, the policy is to continue with the EU-derived EIA system. The clause does not restore the position that we had before—that is, it does not allow Scottish ministers to make the EIA regulations in full. Rather, it restores the EIA power in a limited way, allowing us to make procedural updates. It does not allow any change or regression in environmental standards. It only allows procedural changes, such as those that are proposed in relation to the updating of the Electricity Act 1989, and those that would enable us to make efficiencies by, for example, making more information available to people online rather than in public places where it is not practical or useful to do so.
09:45The proposal is to stay with EIA; there is no proposal to move away from that. The UK Government transferred EOR powers in relation to the Electricity Act 1989, but that does not necessarily mean that we need to bring them in. They are effectively optional and there are no immediate intentions to bring them in. The intention is to remain with EIA, and the clause restores a limited ability to make procedural changes, because that does not exist at the moment. When the European Communities Act 1972 was repealed, that power was lost.
Okay.
Some stakeholders have raised concerns about the proposed reduction in time available to lodge a legal challenge to a ministerial decision about an onshore wind farm from three months to six weeks. How would you justify that change?
It is important to set out that the process that we are looking at in respect of any challenge is probably more efficient for both sides—objectors and developers—in that it will enable a resolution to be found more quickly than has been the case when there has been an automatic triggering of a public inquiry. The reform that we are proposing maintains that robust scrutiny but allows for appropriate and efficient procedures. The mandatory public inquiry requirement has been a source of significant delay, but it is important for me to stress that it is still an option.
We will put a reporter in place, and there will be a number of tools at their disposal. Reporters will be able to make an examination into the application and will have the power to determine what form that examination takes. Reporters will be able to specify site inspection and hold evidence-taking sessions. They will have everything at their disposal, as they do in relation to other planning matters. Local planning authorities will remain statutory consultees. Their objections will continue to trigger a formal examination process, but the key difference is that the objections will be considered through a process involving an independent reporter rather than automatically going to a public inquiry. However, the reporter has the right to call a public inquiry.
In recent cases, public inquiries that have been triggered by a planning authority have added 12 to 24 months to the process. I do not think that it is good for an objector to have to wait 12 to 24 months to have a determination on their objection to something. The exact time savings will depend on the complexity of cases. There will be time for people to put in their objections, but the time that is taken for the assessment of all the evidence by the reporter should shorten the determination, and the objectors and developers will get a resolution a lot more quickly.
I am not talking about the time that is taken for an objection to go in and for it to be resolved; I am talking about the time that people have in which to lodge a legal challenge being reduced from three months to six weeks. You say that that benefits everyone, but the Environmental Rights Centre for Scotland does not agree. It has raised concerns about the proposal and has even stated that clause 16 of the bill
“will have a substantial detrimental impact on access to justice”,
and that
“Civil society organisations and members of the public will struggle to meet a six-week time limit for initiating legal challenges against onshore electricity consents.”
Why is the time period being reduced from three months to six weeks?
The six-week timeframe has been effective in practice for offshore generating station decisions for more than 10 years—since 2013—and for planning decisions more broadly. We think that it provides sufficient time for potential challengers to assess decisions and prepare cases, but it reduces the extended period of uncertainty for them in getting a resolution. The clause complies with the Aarhus convention’s requirements for access to environmental justice, and the six-week challenge period has been accepted by the Aarhus compliance committee.
Crucially, the rights and regulations that will now be devolved to Scottish ministers to mandate community engagement ahead of a planning application going in will mean that, by law, there is much earlier engagement by developers with communities. I think that it is important to look at what is being proposed in the round. It is no longer going to be voluntary to engage with communities ahead of putting in an application; it is going to be mandatory. However, at the other end of it, once an application is in, there will be the ability, within a six-week period, to challenge that determination. Then it will be referred to a reporter, who will undertake all the evidence gathering around it. People will not be left in limbo for two years, wondering what the result will be.
I am sorry, cabinet secretary, but we are not talking about the two-year application time; we are talking about the time for communities to lodge an objection to onshore developments. You propose to cut that from three months to six weeks. Do you really think that communities deserve to be given that limited time to make that objection?
Yes, I do. Six weeks—
Do you think that that is long enough?
Yes, I do. It is in line with other planning regulations. I would expect that, when you have mandated community engagement, which is what we have been calling for for many years, there will be early community engagement, which, it is my hope, would prevent objections.
So, the Environmental Rights Centre for Scotland is wrong, in your belief.
The clause complies with the Aarhus convention requirement for environmental justice. The Aarhus compliance committee has said that it provides sufficient time for preparing cases, provided that the decisions are properly publicised. The regulations that will be in place will mean that there is a legal requirement on applicants to properly publicise proposals and to engage with communities. That is in line with the Aarhus compliance committee’s view. That is why we are taking it forward in the way that we have. Obviously, the proposal has been negotiated not just with the current UK Government but with the previous UK Government.
Okay. We will stay with local communities. When the committee was looking to take evidence on the bill, we wrote to some community groups. Several of the responses to our call for views argued that recent consultations on electricity-related developments were simply box-ticking exercises and that the views of many respondents are routinely ignored.
The submission by Scotland Against Spin said:
“No opposition to the proposed changes will be forthcoming from Holyrood, whatever the responses to this latest consultation. In those circumstances, we are not going to waste our time making the same arguments that have already been ignored once and which will no doubt be ignored again.”
What is your response to that? Is it not a sign that we are not taking people with us?
It is a sign that years of lobbying by the Scottish Government and a succession of ministers seeking to mandate community engagement before an application goes in has worked. It is actually the opposite of what Douglas Lumsden is asserting. We have heard very loud and clear that communities do not feel that they are listened to by developers and that there is no compulsion on developers to engage with communities. There are developers who voluntarily engage with communities and who have signed up voluntarily to the good practice principles that we have put in place in Scotland, but there are others who, by law, are allowed not to bother to engage with communities. The change means that there is a material difference. Following the lobbying that we have done with the UK Government, Scottish ministers will be given legal powers to demand that developers engage with communities before an application goes in.
At present, there is no statutory requirement for notification, publicity, consultation or proposals before an application is made. There are no detailed requirements that applicants must adhere to in the making of applications to the determining authority, and no validation procedure. These regulation-making powers will allow for requirements regarding the pre-application steps of mandatory notification to prescribed persons, publicity requirements and consultation obligations. They create an acceptance stage during which Scottish ministers must assess an applicant’s compliance with the regulatory requirements before deciding to proceed with the application. They also enable fee charges for applications.
That empowers communities: by law, they must be engaged with by the applicant. It is a wholesale strengthening of communities’ views in the determination of an application—
Cabinet secretary, if it is such a great thing for communities, how come all the community groups that we wrote to about it are saying, “We will not take part because we are not being listened to”? It is not developers that are not listening to them; it is the Scottish Government. That is why they have real concerns. You may want to go down a path of earlier engagement and everything else, but this is what the community groups are telling us. Why are you not addressing that point? Why do they feel ignored at every opportunity by the Scottish Government?
This is an indication that the voices of communities have been heard loud and clear. The Scottish Government would not have lobbied for years and years for these regulation-making powers to make community engagement mandatory ahead of an application if it was not for community groups saying that they were dissatisfied—
This is the voice of community groups—this is what they are coming back with.
The powers will enable regulations requiring developers—
Douglas, we need to allow people to respond to questions. I remind you of the time constraints. Other members want to come in with their questions.
This is a direct response to developers’ lack of accountability to communities. By law, developers will have to engage with communities and we will set out in secondary legislation the parameters of what we demand that engagement to look like. It is a direct response to the lack of accountability that, rightly, these community groups have been putting to us for many years.
Well, I find it strange that community groups are so against what you are doing. It sounds like you are not listening to them. I will finish there, convener.
Mark Ruskell has a brief supplementary.
Yes. I read Scotland Against Spin’s response to the committee. I think that it was possibly the only group that actually submitted evidence. I recognise that there is a concern.
I wanted to ask for your view, cabinet secretary, on whether the good practice principles on community engagement are already being adhered to or whether you can point to examples of where developers are not engaging early on with communities, not doing a pre-application consultation, not holding exhibitions, and not gathering feedback on a development application and then offering feedback to those who have put in their views as to whether, as a result of those views, changes are being made or rejected. I am interested in the development process, how communities get involved very early on and how their views are respected.
Is the current voluntary system working, or are you coming across developers who are ignoring or bypassing it and saying, “It’s fine, we will just get through with very limited consultation”? Is good practice happening widely across the industry, or is that not happening, which is why you are bringing a mandatory requirement?
Good practice is patchy. That is why we need the powers in the first place to mandate community engagement and the good practice principles that we developed ahead of making anything mandatory. There are responsible applicants who adhere to the good practice principles—there are some who will make a virtue of it. However, there is no compulsion on them to do that.
10:00The picture varies throughout the country. I do not think that that is right. I agree with community groups that are saying that there has to be enhanced and meaningful community engagement ahead of an application. I think that that is the least we should expect from developers.
There are community groups that are angry at not being consulted. The clauses that make the requirements mandatory and the good practice principles no longer voluntary will be the springboard for what we take forward in secondary legislation. A great deal of work will be done to tighten the good practice principles, and they will be the guidance that we will want developers to follow.
We will take the views of communities that are unhappy with the current system, which is patchy. There will be some areas where communities are perfectly happy with the engagement that they have had from a developer. However, the very fact that, as Douglas Lumsden has read out, Scotland Against Spin does not feel happy with the current situation means that we need to do something, and this is the something that we have to do. Not engaging with the community in a meaningful way will have to be reflected in the evidence that we gather in assessing applications. The mechanism should vastly improve community engagement.
Do you think that there are isolated examples of bad practice that have tarred the industry with the same brush?
That could be the case. I look to my own area—a developer came in many years ago, promised a lot of things to the community for a development and never delivered. That sort of approach will sour a community’s view of all developments, regardless of who the developer is. There are lots of cases like that across Scotland. People are right to be angry when developers do that, but now we will have a law that they will have to follow. Whatever we bring forward in secondary legislation will be mandatory, and if developers do not comply, they will be jeopardising the success of their application.
I want to ask about clause 42 of the bill. I am conscious that Nick Gosling might be the one who answers these questions.
First, can I get the factual situation with regard to clause 42 on the record? I notice that it provides enhanced powers for the Scottish ministers in respect of fees for harbour revision orders to allow recovery of costs associated with the handling of applications for port development. We are told that the Scottish Government is content with that provision. Would it allow the Scottish Government to have a new system for the recovery of fees, rather than the existing provision in the Harbours Act 1964, which I think that the cabinet secretary referred to? Is that the situation?
Yes, that is correct.
Okay—that is fine.
I turn to clause 96, which I believe deals with commencement powers. We know that there is a dispute between the Scottish and UK Governments about whether those commencement powers should sit with the UK secretary of state or with the Scottish Government. Will the provisions in clause 42 commence at the same time that the provisions in the 1964 act are repealed? Will those things happen at the same time under clause 96? My notes do not demonstrate to me that that will be the case.
No. We queried with the UK Government why, in the way that the bill is currently drafted, it is not considered appropriate to confer the powers to commence clause 96 in relation to clause 42 on the Scottish ministers, given that not only the decision to repeal the relevant provisions of the Harbours Act 1964 but the timing of that repeal are matters of devolved policy. The UK Government is saying that it will repeal the old legislation at a time of the Scottish ministers’ choosing, but that is not a legally binding position. That is why we are asking for that power to be devolved to the Scottish ministers.
So, technically, if the bill goes through, the UK Government could repeal the provisions of the 1964 act, and there is a separate commencement power that would be exercised by the UK secretary of state to bring in the new fees regime that the Scottish Government would develop. The bill deals with those as two separate issues.
The bill is currently drafted in such a way that the Scottish ministers will have full powers to bring in a new fee system at a time of their choosing. The UK Government is arguing that the new system will automatically take precedence over the old system and that although the repealing of the old system will sit with the secretary of state, it will be done at a time of the Scottish ministers’ choosing. At the moment, we are arguing that that is not a legally binding position.
That is helpful. In other words, there is no decoupling. There is no world in which the provisions of the 1964 act would be repealed and any new fee regime that the Scottish Government wished to bring in would be brought in separately. Both would happen at the same time. We are simply debating whether the commencement power sits with the UK secretary of state or with the Scottish Government. That is what I am trying to establish.
The bill is currently drafted in such a way that they are two separate powers: the Scottish Government can bring in a new fee system at a time of its choosing, but the secretary of state can repeal the old system at a time of their choosing. That is where we have a slight concern. If we did not have a new fee structure in place and the old system was repealed, there could be a gap, whereby we would not be in a position to charge fees.
Okay. I think that we are saying the same thing. The Scottish Government will have the power to bring in a new fee system, but the commencement of that will be in the hands of the UK secretary of state. Is that correct?
The commencement of the repealing of the old fees—
To allow the new fees to come into place.
Yes.
Okay.
The Delegated Powers and Law Reform Committee has said that, if the power in clause 96 was conferred on the Scottish ministers, that would allow the Scottish Government to control the sequencing of the repeal so that it aligned with when the Scottish regulations under new paragraph 9A of schedule 3 to the Harbours Act 1964 were ready to come into force. The DPLR Committee has asked the UK Government why it will not simply confer the powers on the Scottish Government.
What is your understanding of why the UK Government will not simply do that to make sure that there is absolute alignment?
The UK Government has argued that, although it acknowledges that there are sometimes exceptions, the conventional approach to commencement orders is for them to be made by the same body that introduced the parent legislation. The UK Government has highlighted that because any new fee system would take precedence over the current system upon commencement of the clause, there would be no delay if the Scottish ministers chose to introduce a new fee system.
If the secretary of state decides; I apologise—that is not how I wanted to express the question. Is it the case that the UK secretary of state requires to repeal the 1964 act before the new powers can come into place?
No. I will pass over to my colleague Anne Cairns on that.
I will explain the way that the legislation is currently drafted. The existing power in the Harbours Act 1964 is for a fee for an application for a harbour revision order to be set by determination by the Scottish ministers. The bill proposes to repeal that and to replace it with a regulation-making power that would enable the Scottish ministers to set fees in regulations.
The difficulty is that clause 96 is currently drafted in such a way that the power to make such regulations will come into force automatically two months after royal assent. However, the ability to repeal the existing fee determination power is currently in the hands of the secretary of state. That is the point that we have raised with the UK Government. Theoretically, we could get into a situation in which the power to make the new regulations for fees will come into force two months after royal assent, by which time the Scottish ministers will not have laid the regulations in the Scottish Parliament and they will not have come into force. In the meantime, the secretary of state could, through commencement regulations, repeal the existing fee mechanism.
So we could be left with nothing—there could be a gap.
Possibly, yes. That is what we are querying with the UK Government. The UK Government has said that it will not introduce commencement regulations to repeal the existing power without the consent of the Scottish ministers, but that is a matter that we are currently negotiating. We expect to hear back from the UK Government on that.
So the safest option would be simply to put the commencement powers fully into the hands of the Scottish Government. Is that the Scottish Government’s position, cabinet secretary?
That is my understanding.
Okay.
I have one final question. Let us say that the process goes swimmingly well, the new fee regime is developed and the UK secretary of state says what they will do. If, at some point in the future, the Scottish ministers wish to lay further regulations to change how fees for ports are developed or to change what the fee regime looks like, will there be any recourse to the UK secretary of state or will the matter be fully in the hands of the Scottish ministers?
It will be fully in the hands of the Scottish ministers. If all goes well, what should happen is that the new power to make regulations will come into force automatically two months after royal assent and, at some point after that, the Scottish ministers will make regulations, the existing fee mechanism will be repealed and the new regulations for Scotland will be in place. If, at some point after that, the Scottish Government wanted to amend those regulations, amending regulations could be brought forward in the Scottish Parliament.
Okay. I will not ask any more questions. I am minded to think that it would be easier if all the commencement powers were in the hands of the Scottish Government, but it would be helpful if the Cabinet Secretary for Transport could inform the committee whether any work has already been done in relation to what the new fees regime might look like and what the timescale might be, to see whether the possibility exists of there being a mismatch between a repeal of the existing regime and the new system coming into place.
Nick, do you have anything to add?
Yes. At the moment, we have no plans to review the fee structure in Scotland. Although a review could be built into work plans, any changes to the existing regime would require policy consideration, stakeholder consultation and the drafting and approval of appropriate legislation. There are no immediate plans to amend the fee structure.
I know that I said that I had no further questions, but let us fast forward two years and assume that the Scottish Government wants to make a change. How long would it take a UK secretary of state to do their bit and get on with repealing the previous provisions? What is the timescale for that?
If the secretary of state retained the commencement powers, that would not stop the Scottish Government coming up with a new fee structure, because that automatically takes precedence. If the Scottish Government were to hold a stakeholder consultation and a proper review and to come up with a new fee structure, that would automatically take precedence over the old system. All that the secretary of state holds is the power to repeal the old legislation.
So the only issue that we are talking about is whether there could be a gap.
Yes.
Thank you.
I want to return briefly to the issue of capacity in the Scottish Government’s energy consents unit. Is the Government aware of the concern that exists among some developers, especially those in the pumped hydro storage sector? While the energy consents unit might have additional capacity, they are concerned about whether the Scottish Environment Protection Agency has the capacity to conduct its controlled activities regulations assessments and to report to local authority planning committees when they are considering developments in their area in order to make sure that they can submit those in a timely fashion to the ECU.
The reason why I said that that was a particular issue for the pumped hydro storage sector is that the Office of Gas and Electricity Markets has set a date of 30 September, I think, for the cap and floor and for any developers or projects to have made their bids or applications by then. However, they can do so only if they have a section 36 order in place, and that could be put in jeopardy if SEPA and the local authority do not have the capacity to get their work done to allow that to inform any decision that the ECU may make.
Are you aware of that concern? Are you alive to it, and are you seeking to address it urgently for those developers that might have highlighted that that is an issue of concern for them?
I am aware of general concerns about the time that it takes for applications to go through. You have highlighted, and I have previously mentioned, the work that the Scottish Government has done in doubling the capacity of the ECU. I have also had discussions with SEPA, which is currently working on its business plan to deal with the volume of applications that it is getting, not only from the pumped hydro storage sector but from all areas in which it has a responsibility to report.
You will be aware of the work that the Minister for Public Finance, Ivan McKee, and I have been doing to provide local authorities with access to the expertise that they might not have in-house but which they need in order to be able to make determinations on complex applications. Mr McKee is rolling out the planning hub model, not only for energy consents and applications but for planning applications more widely. The more complex applications get, the more individual local authorities might not have the necessary expertise in-house, but they will be able to procure it centrally to allow them to assess the applications that come before them.
10:15A number of things are being done, but I take your point about SEPA in particular. You have provided me with some detail on the issue. Anyone from the pumped hydro storage sector who has concerns about it can raise them with me directly and I can speak to SEPA directly about it.
I have spoken to SEPA about its capacity in general in dealing with energy consents. SEPA is aware of the concerns about its capacity in that regard and is looking to manage its resource to cope with the demand and the complexity so that we can still get consents out to people in a timely fashion.
I appreciate the issue of the volume that SEPA is dealing with in this area. The challenge here is the fact that the deadline that has been set for the cap and floor is the end of September, which places a huge amount of pressure on developers to get their applications in or they will miss the deadline.
While SEPA might be dealing with large volumes of applications, some are highly time sensitive. The issue is about SEPA’s ability to make sure that it is able to identify those applications that are highly time sensitive and, where necessary, to expedite the consideration process so that the cap and floor deadline of the end of September can be met.
I presume that the ECU is alive to the issue and is looking for the applications in question to be dealt with in a timely fashion. We are talking about billion-pound projects that could have thousands of jobs associated with them, and if we do not meet the timelines, we might lose the huge opportunity that goes with them.
Absolutely. The ECU is alive to the various milestones that developers want to meet—allocation round 7 for contracts for difference, for example, and the cap and floor that you have just mentioned—and it works closely with developers to ensure that it gets the right information to enable it to make determinations that allow them to meet those milestones.
I will certainly take away your wider point about the other bodies that need to have capacity and will add that to the agenda for my next meeting with SEPA.
Thank you very much. I thank those officials who attended the meeting for this item. The cabinet secretary will remain with us for the next agenda item. I suspend the meeting until 10.23.
10:18 Meeting suspended.