Chamber and committees

Essentially, it means that the Scottish ministers do not have a like-for-like replacement of the lost function of making EIA regulations. The order does not reinstate the Scottish ministers’ ability to amend the 2017 regulations but transfers EOR regulation-making functions to ministers, to replace the lost function of making EIA regulations in the same respect. Sorry—that paragraph from my notes was confusing.

The order does not completely reinstate what we had previously, because the UK Government does not have the power to do that—because we are out of the EU. Instead, it follows through on the consultation that Michael Gove initiated to look at how a new system of environmental assessment, which would not result in a lower level of environmental protection, might replace the EU-derived environmental assessment process. It is one of the many mop-up things that are required to deal with lost functions post-Brexit.

I was going to say, “It’s as simple as that,” but I have made it sound quite complicated. [Laughter.]

I emphasise that this is a Scotland Act 1998 order, so it is very much about where powers lie. It has nothing to do with the substance of those powers, which would be the point at which we would consult widely on what environmental assessment should look like.

Those issues dominate the Scottish ministers’ discussions, and I know that they feature high on the agendas of Gillian Martin and Alasdair Allan. The fact that we constantly consider those issues is partly why I made the point in my opening remarks that the regulations process is tried, tested and well understood. There is an argument that we should ensure that the substance of the regulations is in line with ministers’ objectives, rather than going back to the beginning and completely changing the process. What we are discussing today is whether ministers have the power to fundamentally change the regulations.

The argument that I made in my opening comments was that we will consult on what the substance should be, but we have no intention, in the short term, of making fundamental changes to the processes.

Yes. I go one step further and say that, although it is not for me to defend the UK Government, the 2023 act, which I referenced in my answer to somebody, stated that EOR regulations must not result in a lower level of environmental protection than existed under environmental law at the time of the 2023 act being passed. It is not the Scottish Government’s intention to lower protections. Either way, the 2023 act is quite clear.

Yes. [Laughter.]

Independently of the process around this instrument, the Scottish Government keeps a close eye on what changes are happening at an EU level.

Stewart Cunningham will keep me right on this, but the non-regression clause in the Levelling-up and Regeneration Act 2023—the act that gives rise to this transfer of powers—includes a safeguard that means that any environmental outcomes report regulations must not result in a lower level of environmental protection than existed under environmental law when the 2023 act was passed. The 2023 act also says:

“EOR regulations may not contain provision that is inconsistent with the implementation of the international obligations of the United Kingdom relating to the assessment of the environmental impact of relevant plans and relevant consents.”

So, although the proposal does not represent a like-for-like replacement, it captures a moment in time—the 2023 point—and it is for the Scottish ministers to ensure that, where we have the power to make changes, concurrently with the Secretary of State or otherwise, we can do so.

If this instrument does not pass—in other words, if the power is not transferred—we are, essentially, at the mercy of a situation in which we have to either accept or reject whatever EOR regulations the UK Government makes in future in relation to electricity works in the context of environmental assessments, and so on. There is more scope for divergence if this instrument passes than if it does not because, if it does not, we would have to accept whatever the UK Government does in terms of EOR regulations.

That is a complicated question with a complicated answer, and I will rely on support from my colleagues.

The environmental impact assessment system continues to operate in relation to relevant projects and plans in Scotland, and we have no current plans to adopt an EOR approach to environmental assessment. However, the UK Government is considering such reporting as a new approach for environmental assessment to replace the EU-derived system, using powers in the 2023 act. The UK Government consultation document, which was provided in March 2023, implies that the new EOR system will result in more efficient and effective processes for environmental assessment, but it does not set out details of how that would be achieved in practice.

The new UK Government has yet to confirm—or reconfirm, as it were—a commitment to making the change to EOR. We expect it to set out its proposed approach in 2025, and we will then consider that new approach.

Transitioning to a system of environmental outcome reports would be a long-term and complex change, and a decision to contemplate such change would, therefore, require careful consideration.

There is still some uncertainty as to what differences there might be between the system that we currently use and the potential implementation of an EOR system. We await further information from the UK Government. We are here today because Mr Michael Gove, through the then Department for Levelling Up, Housing and Communities, made a commitment back in 2023 that when the bill that became the Levelling-up and Regeneration Act 2023 was passed, it would include essentially the return to the Scottish ministers of a power that was equal to the original power that we had through the EU to make changes if we chose to do so.

I make it clear, for the benefit of the committee, that if we were to begin the journey to EORs, which I imagine would depend in part on what the UK Government might do, there would be a huge amount of engagement and consultation with stakeholders in the development of such an approach.

After all that complexity, I guess the simple answer is that, with regard to the difference in approach, there are elements on which I cannot give an answer right now. The question that the committee could put to me, therefore, is this: why are we pursuing order under the Scotland Act 1998 when EORs are not yet fully developed?

First, the process needs to follow that sequence so that the discretionary power is available for the Scottish ministers to use, should they wish, once EORs are fully understood. Secondly, that is the design by which the UK Government and the Scottish Government decided to devolve and transfer those powers, and the new UK Government has essentially agreed to pursue that approach. There would have been some doubt as to whether the new UK Government would have followed in Michael Gove’s footsteps.

I hope that that answer is not too long-winded, but I imagine that, to an extent, the committee might look at the order before it and ask what the implications are. The answer, I would say—unless my colleagues tell us otherwise—is that, at present, it essentially transfers the discretionary power, subject to extensive consultation if that power were ever to be used.

Thank you, convener. I will take advantage of the opportunity to set out what the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 2025 does and does not do, because I imagine that people will have quite a lot of strong views as soon as they see anything relating to electricity and energy. I am pleased to be here to present the draft order, which will transfer certain regulation-making functions to ministers under the Levelling-up and Regeneration Act 2023.

I think that it is quite important to provide the context before I get into the specifics of the draft order. Through the 2023 act, the United Kingdom Government created powers to introduce a new system of regulations on environmental outcomes reports to replace environmental impact assessments and strategic environmental assessments. Currently, environmental assessments for electricity works are undertaken under the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017, which are executively devolved to the Scottish ministers and are the basis on which they process, consult on, consider and determine applications for renewable energy projects, generating stations and onshore transmission infrastructure.

However, as a consequence of the UK’s exit from the European Union and the repeal of the European Communities Act 1972, the Scottish ministers no longer have the ability to amend or replace the 2017 regulations, nor can the Scottish Parliament pass primary legislation to reinstate, amend or change them. As such, the Government sought reinstatement of powers to amend the 2017 regulations under the 2023 act as part of our negotiations with the UK Government regarding environmental assessment provisions. However, the UK Government instead committed to this draft order and the transfer of powers to the Scottish ministers.

The UK Government has stated that environmental outcomes reports are intended to set the scope of assessments in a targeted way, with the focus predominantly on the outcomes that are relevant to a given project, plan or programme. That regime is likely to depart from the EU-derived procedural approach to some extent. To date, little information is available on how the new regime will operate, but we expect the UK Government to set out more detail on the proposed approach in 2025.

The Levelling-up and Regeneration Act 2023 gave the Scottish ministers powers to adopt environmental outcomes reports across a range of devolved areas in which environmental assessment is required. The draft order transfers the same powers to the Scottish ministers under the 2023 act in relation to electricity works. It transfers functions to the Scottish ministers to make environmental outcomes reports regulations relating to environmental assessment in connection with applications for consent or approval for offshore renewables projects in Scottish waters, onshore generating stations and associated overhead line infrastructure. Those functions may be exercised concurrently with the secretary of state.

Detailed policy consideration will be required for the environmental outcomes reports approach and how it may be used by the Scottish ministers in the future. Without clear information from the UK Government on how environmental outcomes reports will work in practice, we have stated our preference for retaining the existing well-understood environmental impact assessment regime in Scotland.

Although the existing regime could benefit from some improvements, the case for total replacement has not been made. Nevertheless, it is better that Scotland has the ability to choose a path for ourselves, which is what the powers help to provide for.

I thank the committee for its scrutiny of the draft instrument, and I am happy to answer any questions.

I am happy to repeat it once again. The order does not fundamentally change the underlying regulations, which, as I said in my opening remarks, are well understood. If we were to begin the journey to EORs, there would be significant engagement and consultation with stakeholders on the development of such an approach. That is not up for discussion in this meeting.

The Conservation (Natural Habitats, &c) Regulations 1994 and the legislation that forms the EIA regimes are key frameworks that underpin the important environmental protections and assessment processes in Scotland on land and sea. Having lost enabling powers that were available to the Scottish ministers before EU exit, it is vital that we have a future-proof mechanism to ensure that those frameworks remain fit for purpose and can adapt to future circumstances. It is the issue of enabling us to be flexible in the future that is currently up for discussion.

That is not up for debate in this conversation. Perhaps to prove the point, I do not have responsibility for electricity and energy. I am responsible for the economy and Gaelic, but I am here as Deputy First Minister because what we are discussing today is the Scotland Act 1998 and the transfer of powers to the Scottish ministers to right a wrong that took place on EU exit. If and when there is to be any change to the core consenting procedures, I would expect Gillian Martin to be here.