Explanatory note

This Order provides for certain functions of the Secretary of State conferred by the Levelling-up and Regeneration Act 2023 (c. 55) (“the 2023 Act”), so far as exercisable by the Secretary of State in or as regards Scotland, to be exercisable concurrently with the Scottish Ministers.

These are the Secretary of State’s functions of making regulations under Chapter 1 of Part 3 (planning data) or Part 6 (environmental outcomes reports) of the 2023 Act and the function conferred by section 84(3) (publication of approved data standards) of that Act, which are exercisable by Scottish Ministers only in relation to the assessment of the effects on the environment in connection with applications to the Scottish Ministers for consent under sections 36 or 37, or for variation of consent under section 36C, of the Electricity Act 1989 (c. 29) (“the 1989 Act”).

Article 2 specifies that certain functions of the Secretary of State are to be treated as exercisable in or as regards Scotland so that they are then capable of being transferred under section 63 of the Scotland Act 1998. These are the Secretary of State’s functions of making regulations under Part 6 of the 2023 Act (other than under section 159 (exemptions for national defence and civil emergency)) in respect of the assessment of the effects of certain public and private projects on the environment, as regards the construction, extension or operation of generating stations for which consent or variation of consent is applied for under section 36 and 36C of the 1989 Act in respect of the Scottish Renewable Energy Zone (“REZ”) area. Applications for consent include applications for any approval, consent or agreement required by virtue of a condition included in the grant of consent under section 36 of the 1989 Act. The “Scottish REZ area” was designated by the Renewable Energy Zone (Designation of Area) (Scottish Ministers) Order 2005 (S.I. 2005/3153).

Article 3 provides that certain functions under Chapter 1 of Part 3 and Part 6 (other than under section 159 (exemptions for national defence and civil emergency)) of the 2023 Act are to be exercisable by the Scottish Ministers concurrently with the Secretary of State. These functions are: the assessment of the effects of certain projects on the environment as regards applications for consent under section 36 of the 1989 Act for construction, extension or operation of generating stations whether in Scotland or the Scottish REZ area; the variation of such a consent under section 36C of that Act; and applications for consent under section 37 of that Act for installing, or keeping installed, overhead lines in Scotland. For the purposes of article 3(3), applications for consent include applications for any approval, consent or agreement required by virtue of a condition included in the grant of consent under sections 36 or 37 of the 1989 Act.

Article 3(2) provides that Scottish Ministers may exercise a function by virtue of that article only after consulting the Secretary of State. Article 3(5) provides that restrictions in paragraph 1 of Schedule 13 to the 2023 Act, in respect of regulations made under Chapter 1 of Part 3 and Part 6 of that Act on Scottish Ministers acting alone, do not prevent the Scottish Ministers exercising functions by virtue of that article.

Article 4 modifies the 2023 Act in consequence of this Order so that relevant provisions of the 2023 Act, which would otherwise apply to Scottish Ministers when acting as a devolved authority under that Act, similarly apply to the exercise of functions by the Scottish Ministers by virtue of article 3.

An impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.