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EE/S3/08/R3

Report on the Legislative consent memorandum on the Energy Bill (UK Parliament legislation)

Remit and membership

Remit:

To consider and report on the Scottish economy, enterprise, energy, tourism and all other matters falling within the responsibility of the Cabinet Secretary for Finance and Sustainable Growth apart from those covered by the remits of the Transport, Infrastructure and Climate Change and the Local Government and Communities Committees.

Membership:

Brian Adam (Deputy Convener)
Gavin Brown
Christopher Harvie
Marilyn Livingstone
Lewis Macdonald
Tavish Scott (Convener)
Dave Thompson
David Whitton

Committee Clerking Team:

Clerk to the Committee
Stephen Imrie

Senior Assistant Clerk
Katy Orr

Assistant Clerk
Gail Grant

Report on the Legislative consent memorandum on the Energy Bill (UK Parliament legislation)

The Committee reports to the Parliament as follows—

Introduction

1. The Energy Bill (the Bill)1 , introduced to the House of Commons on 10 January 2008, is currently under consideration in the UK Parliament. As the Bill makes provisions applying to Scotland for purposes that lie within the competence of the Scottish Parliament and which alter the executive competence of the Scottish Ministers, a legislative consent memorandum (LCM (S3) 3.12.1)2 has been lodged by the Scottish Government.

Provisions in the Bill within the legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers

2. As the memorandum explains, consent is sought in relation to the following provisions on the storage of carbon dioxide under the seabed:

  • Under the Scotland Act 1998, legislative competence for the storage of carbon dioxide within territorial waters adjacent to Scotland (0-12 nautical miles) is devolved to the Scottish Parliament. The provisions in Part 1 of the Energy Bill relate to the storage of carbon dioxide under the seabed from 0-200 nautical miles and therefore require the legislative consent of the Scottish Parliament. The Scottish Ministers will exercise the licensing authority functions provided for in the Energy Bill in this area.

  • The Scottish Ministers currently have executive competence for the control of depositions of carbon dioxide under the seas or under the seabed in UK-controlled waters adjacent to Scotland but beyond territorial waters under Part 2 of the Food and Environment Protection Act 1985 (FEPA). The Energy Bill will alter this executive competence in the waters from 12-200 nautical miles adjacent to Scotland by disapplying FEPA in relation to matters covered in Part 1, Chapter 3 of the Energy Bill. The Energy Bill will create consistent UK-wide licensing arrangements for carbon storage in waters 0-200 nautical miles adjacent to Scotland and UK Government has undertaken to consult closely with the Scottish government in relation to licensing powers in these waters.

3. In addition, Part 2 of the Energy Bill amends the existing Renewables Obligation under the Electricity Act 1989 to introduce new banding arrangements for different renewable technologies. This will alter the executive competence of Scottish Ministers by changing the provisions in the original Act, but the UK Government has made clear that ministerial powers and functions will be executively devolved by means of a new Order in Council under section 63 of the Scotland Act 1998. This Order will require the approval of the Scottish Parliament and the relevant provisions in the Energy Bill cannot be commenced until after this Order has been made.

The Committee’s consideration of the Bill

4. At its meeting on 28 May 2008, the Committee considered the legislative consent memorandum and took evidence from Jim Mather MSP, Minister for Enterprise, Energy and Tourism.

5. In evidence to the Committee, the Minister confirmed that—

“The Scottish Government believes that a single UK framework for carbon storage is not only in the best interests of the energy industry but is consistent with our belief in deregulation and simplified administration. Given the potential for geological stores to straddle the 12-mile boundary, it does not make sense to have two separate frameworks in Scottish waters.”3

6. The Minister also stated that the provisions in the Energy Bill to amend the Renewables Obligations to allow the introduction of banded support for different technologies would be executively devolved by a new section 63 order under the Scotland Act 1998.

7. The Economy, Energy and Tourism Committee noted the points brought to its attention by the Subordinate Legislation Committee.4

8. During the meeting the Economy, Energy and Tourism Committee explored whether it wished to recommend that consent be granted to the UK Parliament to consider the Bill as set out in the draft Legislative Consent Motion. After discussion the Committee reached agreement.

Recommendation to the Parliament

9. The Economy, Energy and Tourism Committee recommends that consent for the Energy Bill be granted by the Scottish Parliament.


Footnotes:

3 Scottish Parliament Economy, Energy and Tourism Committee Official Report 28 May 2008, Col 889.

4 Subordinate Legislation Committee. 21st Report 2008 (Session 3). Report on the Legislative consent memorandum on the Energy Bill (SPP 98).