Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2019

Motion to Approve

Moved by

That the draft Order laid before the House on 25 February be approved.

My Lords, it is necessary to bring forward this order to confirm the regulation-making powers of the Scottish Ministers under Section 2(2) of the European Communities Act 1972. This order is made under Sections 30 and 63 of the Scotland Act 1998 and seeks to confirm the powers of the Scottish Ministers regarding environmental impact assessments on certain public and private projects—I shall call these EIAs. These assessments are carried out in relation to renewable electricity generating stations located in the Scottish part of the renewable energy zone under regulations that implement an EIA directive.

The UK Government and the Scottish Government have agreed to take this order forward following an initial request from the Scottish Government. The order specifies functions which are to be treated as exercisable in or as regards Scotland and transfers these functions to the Scottish Ministers. While the generation, transmission, distribution and supply of electricity are reserved matters, since 1999 functions relating to electricity have been transferred to the Scottish Ministers. This order provides confirmation that the Scottish Ministers have EIA regulatory functions in respect of the Scottish part of the renewable energy zone, thus confirming that the UK meets its obligations to transpose the 2014 EIA directive.

The Government have worked closely with the Scottish Government at ministerial and official level to ensure that the order confirms the current legal position of the Scottish Ministers. On that basis, I beg to move.

My Lords, I do not think that anyone could possibly object to this order or indeed the order which the Minister will bring before us as the final business today. However, I should like to pay tribute to the procedures which have brought it before the House.

Some 21 years ago, I was dealing with the Committee and Report stages of the 1998 Scotland Bill in this Chamber. It was a very carefully drafted statute, and it is of great interest to me to see the way in which the various provisions in the latter part of that Act and in the schedules are brought together, both in this order and in the one that follows it, to allow necessary little corrective steps to be taken without any delay or disruption to the devolution system which was laid down.

We are told in the head note to this order that it is to be approved by the Scottish Parliament as well as by each House of the United Kingdom Parliament, and that is as it should be. However, it is worth paying tribute to the draftsmen of the 1998 Act that the procedures are available both for a draft statutory instrument as well as for an order to be laid under the other provisions which are referred to in the regulatory reform order that we will consider later. These are working out to the good of the system.

Beyond that, I welcome the order and I am glad that the Minister has been able to introduce it so briefly.

I echo what the noble and learned Lord, Lord Hope, has said. This is the way we hope things will work with a devolved Parliament and Administration but where there is shared decision-making. I have only one question, because the powers are concurrent. When the Minister responds, will he explain what happens in the unlikely event that there is a matter of dispute? It is territorial and this order effectively devolves the power to Scottish Ministers, but if “concurrent” means what it implies, in theory the Secretary of State in the UK Government could say, “I do not agree”. That is unlikely in the circumstances, but I wonder if the Minister can clarify what would happen.

My Lords, I thank the Minister for his exposition of the order. As the noble and learned Lord, Lord Hope, has said, no one could disagree with it.

We are coming up to the 20th anniversary of the creation of the Scottish Parliament and of Scottish Ministers. At some point, it might be interesting to hear the view of Her Majesty’s Government of the performance of the devolved Executive over the past two decades, with some focus on its delivery in devolved areas such as education and health. That might be both interesting and instructive.

As for the order, the noble Lord, Lord Bruce, has raised a good and sensible point. Concurrency of Scottish Ministers and the Secretary of State in relation to the functions raises the possibility, although it may be remote, of differences of view and possibly a dispute. Do Her Majesty’s Government envisage that any disputes might arise and how, if they arose, they might be resolved?

I have asked a question about resolution of disputes. As the Minister may recollect, I asked a similar question when the forestry order came up, but I do not recall getting an answer—perhaps matters will alter. It may simply be—this is to a degree foreshadowed by the observations of the noble Lord, Lord Bruce—that this is an area where Her Majesty’s Government do not detect the possibility of differences arising between Scottish Ministers and the Secretary of State.

My Lords, it is right that we as a Government reflect on the success of devolution. Devolution working is inherently a good thing, and in this order—and, I hope, the one to follow—we see how the nuances of that can work. Whisper it not, but the Scottish and UK Governments really do get on remarkably well at official level and at ministerial level—only occasionally are buns thrown. That is necessary within the devolution settlement. The noble and learned Lord, Lord Davidson, is right to say that we as a Government should perhaps do more to reflect on the successes and, indeed, some of the shortcomings of devolution to date. I know that, in the various discussions we have had in this House, challenges have been expressed by the Scottish Government about certain elements of future policy. We will need to cast our eye to the horizon and give consideration to how devolution—which is, of course, a process—can continue.

On this order, I am happy to echo the words of the noble and learned Lord, Lord Hope, when he talks of the skill and quality of the draughtsmanship and the drafters themselves of the original Scotland Act 1998. It is a good Act that has stood the test of time; the fact that we are here is testament to that. I am very happy to make that statement.

The noble Lord, Lord Bruce, asked a question about concurrent powers. I asked that question too. I will give noble Lords an answer—they may or may not decide that this is a good answer, but it is the answer I have. There are no known intentions for UK Ministers to exercise any functions relating to this order on behalf of Scottish Ministers. This is almost like the unknown unknowns and the known unknowns of the former US Secretary of Defense. As things presently stand, it is not anticipated that that will be an issue, but the noble and learned Lord is quite correct that that does not mean it will never be an issue. I say only that, should that arise, I do not doubt that it would need to be taken forward through the proper channels between the two Governments to ensure that it does not become a constitutional problem or a constitutional crisis. The Government today do not anticipate that, and nor do I.

Motion agreed.