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Session 2005 - 06
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Standing Committee Debates

Draft Scotland Act 1998 (Transfer of
Functions to the Scottish Ministers etc.)
(No. 2) Order 2006

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Tenth Standing Committee
on Delegated Legislation

The Committee consisted of the following Members:


Ann Winterton

†Austin, John (Erith and Thamesmead) (Lab)
†Blunt, Mr. Crispin (Reigate) (Con)
†Cohen, Harry (Leyton and Wanstead) (Lab)
†Davey, Mr. Edward (Kingston and Surbiton) (LD)
†Dhanda, Mr. Parmjit (Gloucester) (Lab)
Hamilton, Mr. Fabian (Leeds, North-East) (Lab)
Hendry, Charles (Wealden) (Con)
Howarth, David (Cambridge) (LD)
†Lazarowicz, Mark (Edinburgh, North and Leith) (Lab/Co-op)
Lilley, Mr. Peter (Hitchin and Harpenden) (Con)
†McKechin, Ann (Glasgow, North) (Lab)
†Main, Anne (St. Albans) (Con)
Malins, Mr. Humfrey (Woking) (Con)
†Moffat, Anne (East Lothian) (Lab)
†Palmer, Dr. Nick (Broxtowe) (Lab)
†Whitehead, Dr. Alan (Southampton, Test) (Lab)
†Wicks, Malcolm (Minister for Energy)
Alan Sandall, Committee Clerk
† attended the Committee

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Thursday 23 March 2006

[Ann Winterton in the Chair]

Draft Scotland Act 1998 (Transfer of
Functions to the Scottish Ministers etc.)
(No. 2) Order 2006

2.30 pm

The Minister for Energy (Malcolm Wicks): I beg to move,

    That the Committee has considered the Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2006.

The main purpose of the order is to extend the functions that Scottish Ministers have been exercising since 1999 in respect of section 36 of the Electricity Act 1989 to a defined area of the renewable energy zone beyond Scotland’s territorial waters. We are also devolving recent amendments to the Electricity Act. It is therefore a consolidating measure. It first revokes the current devolution of section 36 consents, then re-devolves them to Scottish Ministers in an amended and extended form.

Developers who wish to build or operate an electricity generating station such as a hydroelectric power station or wind farm must first obtain consent under section 36 of the Electricity Act from the Secretary of State for Trade and Industry. Functions under section 36 as regards Scotland were executively devolved to Scottish Ministers back in 1999. Since then, they have handled a large number of applications for section 36 consent, mainly for hydroelectric schemes and wind farms on the Scottish mainland, but also for one project in Scottish territorial waters.

The Energy Act 2004 created the renewable energy zone around the UK beyond territorial waters. This zone therefore extends considerably the waters where developers can install wind farms or wave and tidal devices to take advantage of our considerable renewable energy resource. The effect of extending the functions of Scottish Ministers to part of the renewable energy zone will be to consolidate within the Scottish Executive responsibility for section 36 consents for generating stations on the Scottish mainland and offshore.

The energy sector and stakeholders who have an interest in applications for generating stations will be able to look to the Scottish Executive as a single point of contact on all consent cases for generating stations where there is a link with Scotland. Additionally, they will be able to refer to one statutory instrument recalling the devolution of section 36 to the Scottish Ministers.

The Energy Act also amended section 36 and its companion schedule 8 in a couple of other ways. First, it confirmed that a section 36 consent is required for generating stations in the territorial waters around
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Great Britain. Secondly, it confirmed that local planning authorities are not able to force a public inquiry to be held where they object to a section 36 application for a generating station that is not within their jurisdiction, such as an offshore wind farm. It is necessary for the order to reflect those changes so that the legislation that applies in Scotland is the same as that in England and Wales.

The final matter that the order deals with is the transfer of functions in relation to water rights for generating stations in Scotland. Schedule 5 of the Electricity Act confers the function on the Secretary of State of authorising by order the abstraction and diversion of water from a water course or lock for use in a hydroelectric generating station. These functions were transferred to Scottish Ministers in 1999 at the same time as section 36 consent functions were executively devolved.

Since then the water framework directive, which established a framework for European Community action in water policy, has been implemented in Scotland by the Water Environment and Water Services (Scotland) Act 2003. The directive requires member states to put in place steps for protecting and improving the status of all their natural water resources. Regulations made under that Act mean that from 1 April the Scottish Environment Protection Agency will be responsible for authorising the abstraction of water by a range of industries, including operators of hydroelectric generating stations in line with a policy framework established by the Scottish Ministers.

In the interests of avoiding duplication and potentially conflicting regulatory controls, it is necessary to amend section 36 and schedule 5 of the Electricity Act 1989 as they apply in Scotland to fit in with the new arrangements. As only this House and the other place have the power to amend the 1989 Act, the amendments are being made by an order under section 104 of the Scotland Act 1998. The Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006 is being debated up the corridor in parallel with this order, and it simply devolves the amended functions to Scottish Ministers.

2.36 pm

Mr. Crispin Blunt (Reigate) (Con): May I say what a pleasure it is to serve under your chairmanship, Lady Winterton? I apologise on behalf of my hon. Friend the Member for Wealden (Charles Hendry), who would in normal circumstances reply for the official Opposition. He is slightly indisposed today, so I hope that the Committee will forgive his absence.

The request that the Government are making through this statutory instrument is not particularly controversial. It makes perfect sense to enable industry and the applicants who will build stations to have one point of contact, and it is entirely consistent with the devolution settlement that it should be the Scottish Executive Ministers.

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The Minister nearly sounded as though he understood the more abstruse elements of the overlap of the Electricity Act 1989 with the Energy Act 2004 and the Scotland Act 1998. I shall not delay matters by seeking to produce a long series of questions to see whether he does, in fact, understand the full details of the measure that he proposes. I shall work on the assumption that advisers in his Department have fully considered all the potential consequences and covered all the bases, as they attempted to do in the explanatory memorandum, which itself is not the easiest document to follow. That is because of the complicated nature of the order and this peculiar bureaucratic exercise of withdrawing powers, then re-imposing them 24 hours later.

I am grateful for the Minister’s explanation. This seems a perfectly sensible measure, and it has the support of the official Opposition.

2.38 pm

Mr. Edward Davey (Kingston and Surbiton) (LD): I welcome you to the Chair, Lady Winterton. I have no problem with the order. It makes perfect sense, and we understand from the Minister’s explanation why it was not tabled earlier. It appears to be a formality. It gives all powers over energy to the Scottish Executive, whether the decisions are about nuclear, oil, gas or hydro-electric power, and that makes real sense. Will
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the Minister explain briefly, however, what powers over energy policy exist at the UK level? What powers remain at Westminster?

2.39 pm

Malcolm Wicks: In response to the last question, the United Kingdom has responsibility for energy policy. It is not devolved, so, for example, the energy review being done at present is a UK-wide review. Of course, in terms of planning functions, the Scottish Executive have considerable powers over the larger power plants that are required, wind farm developments and so on. In essence, those powers are devolved.

Both hon. Gentlemen have been very kind. The final sentence of my opening statement used the word “simply”, and I was disappointed not to be tested on whether I was overstating or understating the issue. I have great mastery of how such things interact. As I said, that will never be tested under scrutiny. Despite that disappointment, I commend the order to the Committee.

Question put and agreed to.


    That the Committee has considered the Draft Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2006.

Committee rose at twenty minutes to Three o’clock.


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