2nd Report, 2013 (Session 4): Legislative Consent Memorandum on Energy Bill

SP Paper 245 (Web Only)


2nd Report, 2013 (Session 4)

Legislative Consent Memorandum on Energy Bill

Remit and membership


The remit of the Subordinate Legislation Committee is to consider and report on—


(i) subordinate legislation laid before the Parliament;

(ii) any Scottish Statutory Instrument not laid before the Parliament but classed as general according to its subject matter;

and, in particular, to determine whether the attention of Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(Standing Orders of the Scottish Parliament, Rule 6.11)


Nigel Don (Convener)
Jim Eadie
Mike MacKenzie
Hanzala Malik
John Pentland
John Scott
Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Legislative Consent Memorandum on Energy Bill

The Committee reports to the Parliament as follows—

1. At its meeting on 8 January 2013, the Committee considered the provisions in the UK Energy Bill1 (“the Bill”) that confer powers to make subordinate legislation on the Scottish Ministers.

2. The Bill was introduced in the House of Commons on 29 November 2012.

3. A Legislative Consent Memorandum2 (“LCM”) has been lodged in relation to the Bill. The draft of the motion which will be lodged by the Cabinet Secretary for Finance, Employment and Sustainable Growth is:

“That the Parliament agrees that the relevant provisions of the UK Energy Bill introduced in the House of Commons on 29 November 2012 relating to a duty on fossil fuel plant not to exceed annual CO2 emissions limits and the regulation making powers for monitoring compliance with, and enforcement of, the emissions limit duty, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the executive competence of Scottish Ministers, should be considered by the UK Parliament."

4. This Legislative Consent Memorandum was considered by the Committee under Rule 9B3.6. The Committee is required to consider, and may report to the lead committee on, any provision in a Bill which is subject to a legislative consent memorandum which confers power on the Scottish Ministers to make subordinate legislation. As with bills passed by the Scottish Parliament, the Committee’s role is to consider whether it is appropriate in principle for the power to be delegated to the Scottish Ministers, whether the terms of the power are appropriately drawn and whether the level of scrutiny applied to the exercise of the power is appropriate.

Powers to make subordinate legislation

5. The Committee identified the following provision in the Bill which includes delegated powers conferred on the Scottish Ministers to make subordinate legislation.

Clause 40 – Monitoring and Enforcement
Power conferred on: the Scottish Ministers
Exercised by: regulations made by SSI
Procedure: Affirmative, where regulations seek to make consequential amendments to primary legislation. Otherwise, negative.

6. Clause 40 of the Bill places a duty on the Scottish Ministers, as the appropriate national authority for Scotland (defined by clause 40(4)(b)), to make arrangements for monitoring compliance with and enforcement of the emissions limit duty. Clause 40(2) allows Ministers to make regulations which contain any of the provisions listed in Schedule 5. Clause 42(12) requires that Ministers consult with such persons as they think appropriate before making such regulations. Principally, this power will permit Ministers to determine which organisation (the “enforcement authority”) will be responsible for monitoring and enforcement of the emissions limit duty. The Explanatory Notes to the Bill suggest that in Scotland the enforcement authority is expected to be Scottish Environment Protection Agency (SEPA). Regulations may authorise the enforcing authority to make schemes for the charging of fees in respect of, or in connection with, functions carried out by the enforcing authority. Ministers will also be able to make provisions allowing the enforcing authority to appoint a suitable person to exercise certain monitoring and enforcement functions including taking samples, making copies of information and arranging for preventative or remedial action to be taken at the expense of an operator. Provision may also be made conferring upon persons so appointed by the enforcing authority other powers, including a power of entry.

7. Schedule 5 enables Ministers to create an enforcement scheme, which may include the imposition of civil penalties and the taking of preventative and remedial action through the civil courts in Scotland. The Schedule envisages a system of enforcement notices whereby the enforcing authority may serve an enforcing notice on an operator who has breached the emissions limit. Such a notice may require the operator to provide undertakings in respect of the breach (which may include remedial action) or require an operator to comply with a modified emissions limit duty which takes into account any excess emissions in earlier years.

8. In addition to, or instead of, such requirements, a financial penalty may be imposed by an enforcing authority where an operator has breached the emissions limit. The level of the penalty itself, or a means for calculating it, will be decided by Ministers. In imposing such a penalty, the enforcing authority should have regard to any guidance published by Ministers.

9. Clause 39 provides that where the Secretary of State considers that there is an electricity shortfall, or a significant risk of shortfall, he may make directions that the emissions duty be suspended or modified for a specified period. Clause 40(3) requires that any regulations made under clause 40 by the Scottish Ministers must include arrangements for giving effect to such directions made by the Secretary of State under clause 39.

10. Where primary legislation is not being amended by regulations made under this Bill, the negative procedure is to apply (clause 42(6)). The various powers that can be exercised by Ministers which do not entail the amendment of primary legislation are tailored to the specific purpose of fulfilling the Bill’s policy objectives. In its Delegated Powers Memorandum to this Bill the UK Government notes that because the emissions limit duty applies to large organisations that are used to dealing with regulatory obligations, such organisations should not feel uncomfortable with how the emissions limit duty will be enforced. The Committee agrees with the Government’s view that the exercise of the powers is not expected to be controversial and that there is nothing to merit additional scrutiny. The Committee is content that the negative procedure will provide an appropriate degree of scrutiny where regulations do not make amendments to primary legislation.

11. Paragraph 4 of Schedule 5 includes a power to make consequential amendments to primary legislation. Such amendment may only affect legislation within the competence of the Scottish Parliament. The Committee agrees that the affirmative procedure should apply where there is a power to amend primary legislation.

12. The Committee reports that it is content with the powers conferred by clause 40 and the parliamentary procedure which applies.

13. The Committee therefore reports that it is content with the delegated powers in this Bill.


1 UK Energy Bill available at: http://services.parliament.uk/bills/2012-13/energy.html

2 Energy Bill Legislative Consent Memorandum available at: http://www.scottish.parliament.uk/LegislativeConsentMemoranda/EnergyBill2012.pdf

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