Scotland Bill (HL Bill 73)

Scotland BillPage 60

(b) “costs relating to Scotland” means the total costs to gas
suppliers of complying with obligations that, in relation to the
same period, are imposed in relation to Scotland.

(8) The Scottish Ministers may not make an order under section 33BD
5unless—

(a) they have consulted the Secretary of State about the proposed
order, and

(b) the Secretary of State has agreed to the order being made.

(9) Subsection (1) does not prevent the Secretary of State from making
10provision under—

(a) section 33BD(3),

(b) section 33BC(3), (5)(a) or (7)(a) as applied by section 33BD(4), or

(c) section 33BD(2)(a) where an overall home-heating cost
reduction target has not been apportioned under section
15103A(3A) of the Utilities Act 2000.

(10) Subsection (1) does not prevent the Secretary of State from making any
other provision under section 33BD or from varying or revoking an
order made by the Scottish Ministers under that section—

(a) with the agreement of the Scottish Ministers, or

(b) 20without their agreement, if subsection (11) applies.

(11) This subsection applies if it appears to the Secretary of State, in the case
of obligations imposed in relation to Scotland (the “Scottish
obligations”), taking into account any provision made by the Scottish
Ministers, that the Scottish obligations are, alone or in conjunction with
25obligations imposed or to be imposed in relation to England and Wales,
likely to—

(a) cause detriment to the United Kingdom,

(b) adversely affect the ability of the United Kingdom to comply
with an international agreement or arrangement in relation to
30climate change or energy efficiency, or

(c) result in costs incurred by suppliers that are not broadly
equivalent in relation to England and Wales and in relation to
Scotland,

and the Scottish Ministers have failed to comply with a request made to
35them by the Secretary of State to make modifications specified by the
Secretary of State.

(12) In determining for the purposes of subsection (11), whether detriment
is likely to be caused to the United Kingdom, considerations that the
Secretary of State may take into account include the costs imposed on
40suppliers by virtue of obligations imposed or to be imposed by the
Secretary of State under section 33BD or any provision made by the
Scottish Ministers under that section.

(13) A request by the Secretary of State to the Scottish Ministers for the
purposes of subsection (11)—

(a) 45must be in writing;

(b) must specify only modifications that appear to the Secretary of
State to be necessary to prevent the effect mentioned in
subsection (11)(a), (b) or (c);

Scotland BillPage 61

(c) must specify the time within which the modifications are to be
made, which must not be less than 2 months from the date of the
request.”

(4) The Electricity Act 1989 is amended as follows.

(5) 5After section 41A (promotion of reduction in carbon emissions) insert—

41AA Scottish Ministers’ promotion of reductions in carbon emissions:
electricity suppliers

(1) Where the Secretary of State under section 41A imposes on electricity
suppliers obligations to achieve a target within a specified period, the
10power to make orders under that section is exercisable by the Scottish
Ministers for the purposes of those obligations imposed in relation to
Scotland and not, except as provided by subsections (9) and (10), by the
Secretary of State.

(2) An obligation is imposed in relation to Scotland to the extent that
15measures to meet that obligation may be carried out in Scotland
(disregarding any power to elect under section 103 of the Utilities Act
2000).

(3) For the purposes of the exercise by the Scottish Ministers of the power
to make an order under section 41A, that section applies with the
20following modifications—

(a) for subsection (1) there is substituted a power by order to
specify how electricity suppliers may meet their obligations to
achieve the carbon emissions reduction target through
measures carried out in Scotland;

(b) 25subsections (1A), (3), (5)(a), (7)(a) and (10A) are omitted;

(c) in subsection (2A) at the beginning of paragraph (b) there is
inserted “where the Secretary of State has apportioned the
overall carbon emissions reduction target under section 103(2A)
of the Utilities Act 2000, and”

(d) 30in subsection (11) “Citizens Advice” and “electricity
distributors” is omitted;

(e) in subsection (12), for the words from “shall not be made” to the
end is substituted “is subject to the affirmative procedure”;

(f) in subsection (12A) for the words from “shall be subject to” to
35the end is substituted “is subject to the negative procedure”.

(g) for “Secretary of State” in each place is substituted with
“Scottish Ministers”.

(4) The power of the Scottish Ministers under section 41A does not include
power to make provision in relation to the subject-matter of sections 88
40to 90 of the Energy Act 2008 (smart meters).

(5) Where an overall carbon emissions reduction target has been
apportioned under section 103(2A) of the Utilities Act 2000, the Scottish
Ministers must—

(a) when making any order under section 41A, comply with the
45duty in subsection (6), and

(b) if the Secretary of State amends any order under that section,
make any provision they think necessary, in consequence of the
amendment, to comply with that duty.

Scotland BillPage 62

(6) The duty of the Scottish Ministers where subsection (5)(a) or (b) applies
is to exercise their powers under section 41A (subject to subsection (8))
in the way they think most likely to secure that the proportion of
compliance costs that is represented by costs relating to Scotland is no
5greater than the proportion of the overall carbon emissions reduction
target that is represented by the part of it apportioned to measures
carried out in Scotland.

(7) In subsection (6)

(a) “compliance costs” means the total costs to electricity suppliers
10of complying with carbon emissions reduction obligations that,
in relation to any period, are imposed by order under section
41A, and

(b) “costs relating to Scotland” means the total costs to electricity
suppliers of complying with obligations that, in relation to the
15same period, are imposed in relation to Scotland.

(8) The Scottish Ministers may not make an order under section 41A
unless—

(a) they have consulted the Secretary of State about the proposed
order, and

(b) 20the Secretary of State has agreed to the order being made.

(9) Subsection (1) does not prevent the Secretary of State from making
provision under—

(a) section 41A(1A), (3), (5)(a) or (7)(a), or

(b) section 41A(2A) where an overall carbon emissions reduction
25target has not been apportioned under section 103(2A) of the
Utilities Act 2000.

(10) Subsection (1) does not prevent the Secretary of State from making any
other provision under section 41A or from varying or revoking an
order made by the Scottish Ministers under that section—

(a) 30with the agreement of the Scottish Ministers, or

(b) without their agreement, if subsection (11) applies.

(11) This subsection applies if it appears to the Secretary of State, in the case
of obligations imposed in relation to Scotland (the “Scottish
obligations”), taking into account any provision made by the Scottish
35Ministers, that the Scottish obligations are, alone or in conjunction with
obligations imposed or to be imposed in relation to England and Wales,
likely to—

(a) cause detriment to the United Kingdom,

(b) adversely affect the ability of the United Kingdom to comply
40with an international agreement or arrangement in relation to
climate change or energy efficiency, or

(c) result in costs incurred by suppliers that are not broadly
equivalent in relation to England and Wales and in relation to
Scotland,

45and the Scottish Ministers have failed to comply with a request made to
them by the Secretary of State to make modifications specified by the
Secretary of State.

(12) In determining for the purposes of subsection (11), whether detriment
is likely to be caused to the United Kingdom, considerations that the

Scotland BillPage 63

Secretary of State may take into account include the costs imposed on
suppliers by virtue of obligations imposed or to be imposed by the
Secretary of State under section 41A or any provision made by the
Scottish Ministers under that section.

(13) 5A request by the Secretary of State to the Scottish Ministers for the
purposes of subsection (11)—

(a) must be in writing;

(b) must specify only modifications that appear to the Secretary of
State to be necessary to prevent the effect mentioned in
10subsection (11)(a), (b) or (c);

(c) must specify the time within which the modifications are to be
made, which must not be less than 2 months from the date of the
request.”

(6) After section 41B (promotion of reduction in home-heating costs) insert—

41BA 15 Scottish Ministers’ promotion of reductions in home-heating costs:
electricity suppliers

(1) Where the Secretary of State under section 41B imposes on electricity
suppliers obligations to achieve a target within a specified period, the
power to make orders under that section is exercisable by the Scottish
20Ministers for the purposes of those obligations imposed in relation to
Scotland and not, except as provided by subsections (9) and (10), by the
Secretary of State.

(2) An obligation is imposed in relation to Scotland to the extent that
measures to meet that obligation may be carried out in Scotland
25(disregarding any power to elect under section 103A of the Utilities Act
2000).

(3) For the purposes of the exercise by the Scottish Ministers of the power
to make an order under section 41B, that section applies with the
following modifications—

(a) 30for subsection (1) there is substituted a power by order to
specify how electricity suppliers may meet their obligations to
achieve the home-heating cost reduction target through
measures carried out in Scotland;

(b) subsection (3) is omitted;

(c) 35subsections (3), (5)(a), (7)(a) and (10A) of section 41A as applied
by subsection (4) are omitted;

(d) in subsection (2)(a) at the beginning of sub-paragraph (ii) there
is inserted “where the Secretary of State has apportioned the
overall home-heating costs reduction target under section
40103A(3A) of the Utilities Act 2000, and”;

(e) in section 41A(11) as applied by subsection (4) “Citizens
Advice” and “electricity distributors” is omitted;

(f) in section 41A(12) as applied by subsection (4) for the words
from “shall not be made” to the end is substituted “is subject to
45the affirmative procedure”;

(g) in section 41A(12A) as applied by subsection (4) for the words
from “shall be subject to” to the end is substituted “is subject to
the negative procedure”;

Scotland BillPage 64

(h) for “Secretary of State” in each place (including any references
in section 41A that apply by virtue of subsection (4)), is
substituted “Scottish Ministers”.

(4) The power of the Scottish Ministers under section 41B does not include
5power to make provision in relation to the subject-matter of sections 88
to 90 of the Energy Act 2008 (smart meters).

(5) Where an overall home-heating cost reduction target has been
apportioned under section 103A(3A) of the Utilities Act 2000, the
Scottish Ministers must—

(a) 10when making any order under section 41B, comply with the
duty in subsection (6), and

(b) if the Secretary of State amends any order under that section,
make any provision they think necessary, in consequence of the
amendment, to comply with that duty.

(6) 15The duty of the Scottish Ministers where subsection (5)(a) or (b) applies
is to exercise their powers under section 41B (subject to subsection (8))
in the way they think most likely to secure that the proportion of
compliance costs that is represented by costs relating to Scotland is no
greater than the proportion of the overall home-heating cost reduction
20target that is represented by the part of it apportioned to measures
carried out in Scotland.

(7) In subsection (6)

(a) “compliance costs” means the total costs to electricity suppliers
of complying with home-heating cost reduction obligations
25that, in relation to any period, are imposed by order under
section 41B, and

(b) “costs relating to Scotland” means the total costs to electricity
suppliers of complying with obligations that, in relation to the
same period, are imposed in relation to Scotland.

(8) 30The Scottish Ministers may not make an order under section 41B
unless—

(a) they have consulted the Secretary of State about the proposed
order, and

(b) the Secretary of State has agreed to the order being made.

(9) 35Subsection (1) does not prevent the Secretary of State from making
provision under—

(a) section 41B(3),

(b) section 41A(3), (5)(a) or (7)(a) as applied by section 41B(4), or

(c) section 41B(2)(a) where an overall home-heating cost reduction
40target has not been apportioned under section 103A(3A) of the
Utilities Act 2000.

(10) Subsection (1) does not prevent the Secretary of State from making any
other provision under section 41B or from varying or revoking an order
made by the Scottish Ministers under that section—

(a) 45with the agreement of the Scottish Ministers, or

(b) without their agreement, if subsection (11) applies.

(11) This subsection applies if it appears to the Secretary of State, in the case
of obligations imposed in relation to Scotland (the “Scottish

Scotland BillPage 65

obligations”), taking into account any provision made by the Scottish
Ministers, that the Scottish obligations are, alone or in conjunction with
obligations imposed or to be imposed in relation to England and Wales,
likely to—

(a) 5cause detriment to the United Kingdom,

(b) adversely affect the ability of the United Kingdom to comply
with an international agreement or arrangement in relation to
climate change or energy efficiency, or

(c) result in costs incurred by suppliers that are not broadly
10equivalent in relation to England and Wales and in relation to
Scotland,

and the Scottish Ministers have failed to comply with a request made to
them by the Secretary of State to make modifications specified by the
Secretary of State.

(12) 15In determining for the purposes of subsection (11), whether detriment
is likely to be caused to the United Kingdom, considerations that the
Secretary of State may take into account include the costs imposed on
suppliers by virtue of obligations imposed or to be imposed by the
Secretary of State under section 41B or any provision made by the
20Scottish Ministers under that section.

(13) A request by the Secretary of State to the Scottish Ministers for the
purposes of subsection (11)—

(a) must be in writing;

(b) must specify only modifications that appear to the Secretary of
25State to be necessary to prevent the effect mentioned in
subsection (11)(a), (b) or (c);

(c) must specify the time within which the modifications are to be
made, which must not be less than 2 months from the date of the
request.”

(7) 30Where an amendment made by this section imposes a requirement to consult
or to obtain consent, the requirement may be satisfied by consultation
undertaken or consent obtained before this section comes into force.

57 Apportionment of targets

(1) The Utilities Act 2000 is amended as follows.

(2) 35Section 103 (overall carbon emissions reduction targets) is amended as follows.

(3) After subsection (2) insert—

(2A) Where an overall target applies in relation to a section mentioned in
subsection (1) the order specifying the target may make provision for
the target to be apportioned between—

(a) 40measures carried out in England and Wales, and

(b) measures carried out in Scotland,

by reference to such criteria as may be specified in the order.”

(4) After subsection (3) insert—

(3A) Where a target is apportioned under subsection (2A) for the purposes
45of a section, an order under that section may include provision for a
supplier to elect, subject to any conditions specified in the order,—

Scotland BillPage 66

(a) that, for the purposes of meeting the carbon emissions
reduction target under an obligation imposed by the order in
relation to England and Wales, a measure carried out in
Scotland is to be treated instead as carried out in England and
5Wales;

(b) that, for the purposes of meeting the carbon emissions
reduction target under an obligation imposed by the order in
relation to Scotland, a measure carried out in England and
Wales is to be treated instead as carried out in Scotland.

(3B) 10An order under subsection (2A) may not make provision under
subsection (3A)(b) unless the Scottish Ministers have agreed to such
provision being made.”

(5) Section 103A (overall home-heating cost reduction targets) is amended as
follows.

(6) 15After subsection (3) insert—

(3A) Where an overall target applies in relation to a section mentioned in
subsection (1) the order specifying the target may make provision for
the target to be apportioned between—

(a) measures carried out in England and Wales, and

(b) 20measures carried out in Scotland,

by reference to such criteria as may be specified in the order.”

(7) After subsection (4) insert—

(4A) Where a target is apportioned under subsection (3A) for the purposes
of a section, an order under that section may include provision for a
25supplier to elect, subject to any conditions specified in the order,—

(a) that, for the purposes of meeting the home-heating cost
reduction target under an obligation imposed by the order in
relation to England and Wales, a measure carried out in
Scotland is to be treated instead as carried out in England and
30Wales;

(b) that, for the purposes of meeting the home-heating cost
reduction target under an obligation imposed by the order in
relation to Scotland, a measure carried out in England and
Wales is to be treated instead as carried out in Scotland.

(4B) 35An order under subsection (3A) may not make provision under
subsection (4A)(b) unless the Scottish Ministers have agreed to such
provision being made.”

(8) Section 103B (power to require information) is amended as follows.

(9) In the heading after “Secretary of State” insert “and the Scottish Ministers”.

(10) 40In subsection (1) at the beginning insert “Subject to subsection (1A),” and after
that subsection insert—

(1A) The Scottish Ministers may exercise the power in subsection (1)(b) and
(c) in order to require information to review the operation of any carbon
emissions reduction order or home-heating cost reduction order made
45by the Scottish Ministers and to establish and maintain a measures
record in relation to such orders.”

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(11) In subsection (2)—

(a) after the first “Secretary of State” insert “or the Scottish Ministers”, and

(b) after the second “Secretary of State” insert “and the Scottish Ministers”.

(12) After subsection (6) insert—

(6A) 5Information obtained by virtue of subsection (1A) may be disclosed by
the Scottish Ministers—

(a) to the Secretary of State;

(b) to the Welsh Ministers for the purpose of enabling them to
review the operation and effect in Wales of a carbon emissions
10reduction order or home-heating cost reduction order.”

(13) In section 105 (general restrictions on disclosure of information), subsection (3)
is amended as follows.

(14) After paragraph (a) insert—

(za) it is made for the purpose of facilitating the performance by a
15body specified as the Administrator under an order under
section 33BC or 33BD of the Gas Act 1986 or under section 41A
or 41B of the Electricity Act 1989 of its functions under that
section and the order;”.

58 Renewable electricity incentive schemes: consultation

20In the Scotland Act 1998 after section 90B (inserted by section 34) insert—

“Renewable electricity incentive schemes

90C Renewable electricity incentive schemes: consultation

(1) The Secretary of State must consult the Scottish Ministers before—

(a) establishing a renewable electricity incentive scheme that
25applies in Scotland, or

(b) amending such a scheme as it relates to Scotland.

(2) Subsection (1) does not apply to amendments that appear to the
Secretary of State to be minor or made only for technical or
administrative reasons; and the Secretary of State is not to be taken to
30establish or amend a scheme by exercising a power under a scheme,
other than a power that is exercisable subject to any parliamentary
procedure.

(3) Subsection (1) does not require the Secretary of State to consult the
Scottish Ministers about any levy in connection with a renewable
35electricity incentive scheme.

(4) In this section a “renewable electricity incentive scheme” means any
scheme, whether statutory or otherwise, that provides an incentive to
generate, or facilitate the generation of, electricity from sources of
energy other than fossil fuel or nuclear fuel.

40This includes provision made by or under the following so far as they
relate to the generation of electricity from sources of energy other than
fossil fuel or nuclear fuel—

(a) sections 6 to 26 of the Energy Act 2013 (contracts for difference);

Scotland BillPage 68

(b) sections 41 to 43 of the Energy Act 2008 (feed-in tariffs for small-
scale generation of electricity);

(c) sections 32 to 32Z2 of the Electricity Act 1989 (renewables
obligations or certificate purchase obligations).

(5) 5Where, before the commencement of this section, the Secretary of State
has consulted, or is consulting, the Scottish Ministers regarding a
renewable electricity incentive scheme, that consultation is to be treated
as fulfilling the obligation in subsection (1).”

59 Offshore renewable energy installations

(1) 10The Energy Act 2004 is amended as follows.

(2) Section 95 (safety zones around renewable energy installations) is amended as
follows.

(3) For subsection (1A) substitute—

(1A) In this section and section 96 the “appropriate Minister” means the
15Scottish Ministers, in relation to a renewable energy installation—

(a) which is to be or is wholly in an area of Scottish waters or an
area of waters in a Scottish part of a Renewable Energy Zone,
and is not being or proposed to be extended outside those areas,

(b) to which paragraph (a) has ceased to apply because of an
20extension or proposed extension, if subsection (1B) applies, or

(c) to the extent that it is to be or is in an area of Scottish waters or
an area of waters in a Scottish part of a Renewable Energy Zone,
if paragraph (a) has ceased to apply because of an extension or
proposed extension, and subsection (1B) does not apply,

25and otherwise means the Secretary of State (subject to section 13 of the
Marine and Coastal Access Act 2009, which transfers certain functions
of the Secretary of State to the Marine Management Organisation).

(1B) This subsection applies if there is an agreement in force between the
Secretary of State and the Scottish Ministers providing for the Scottish
30Ministers to be the appropriate Minister in relation to the whole of the
installation.

(1C) Where subsection (1B) applies, the Scottish Ministers must consult the
Secretary of State about the exercise of their functions as the
appropriate Minister.”

(4) 35In subsections (2), (3) and (7) for “Secretary of State” in each place, substitute
“appropriate Minister”.

(5) After subsection (4) insert—

(4A) Before issuing a notice under this section which relates, wholly or
partly, to an area outside the areas mentioned in subsection (4), the
40Scottish Ministers must consult the Secretary of State.”

(6) Section 96 (prohibited activities in safety zones) is amended as follows.

(7) In subsection (1)(b) and (3)(b) for “Secretary of State” substitute “appropriate
Minister”.

(8) In subsection (8)—

Scotland BillPage 69

(a) after “section” insert

(a) if made by the Secretary of State,”

(b) at the end insert ;

(b) if made by the Scottish Ministers, are subject to the
5negative procedure (see section 28 of the Interpretation
and Legislative Reform (Scotland) Act 2010).”

(9) In section 105 (requirement to prepare decommissioning programmes) after
subsection (1) insert—

(1A) In this Chapter “appropriate Minister”—

(a) 10in relation to a renewable energy installation, means the
Scottish Ministers—

(i) if the installation is to be or is wholly in an area of
Scottish waters or an area of waters in a Scottish part of
a Renewable Energy Zone, and is not being or proposed
15to be extended outside those areas,

(ii) if sub-paragraph (i) has ceased to apply to the
installation because of an extension or proposed
extension, and subsection (1B) applies, or

(iii) to the extent that the installation is to be or is in an area
20of Scottish waters or an area of waters in a Scottish part
of a Renewable Energy Zone, if sub-paragraph (i) has
ceased to apply because of an extension or proposed
extension, and subsection (1B) does not apply;

and otherwise means the Secretary of State;

(b) 25in relation to an electric line which is or has been a related line,
means—

(i) the Scottish Ministers, to the extent that the line is to be
or is in an area of Scottish waters or an area of waters in
a Scottish part of a Renewable Energy Zone;

(ii) 30otherwise, the Secretary of State.

(1B) This subsection applies to an installation if there is an agreement in
force between the Secretary of State and the Scottish Ministers
providing for the Scottish Ministers to be the appropriate Minister in
relation to the whole of the installation.

(1C) 35Where subsection (1B) applies, the Scottish Ministers must consult the
Secretary of State about the exercise of their functions as the
appropriate Minister.”

(10) In Chapter 3 (decommissioning of offshore installations), except in the
provisions listed in subsection (11)), for “Secretary of State” in each place
40substitute “appropriate Minister”.

(11) The provisions not amended by subsection (10) are—

(a) sections 105(5), 106(2), 107(2), 108(7) and 111(6) (consultation of the
Scottish Ministers);

(b) section 113(2) (proceedings in England and Wales or Northern Ireland).

(12) 45In the provisions listed in subsection (11)(a) omit “wholly or”.

(13) In section 111(7) (regulations about decommissioning)—