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That is correct. Obviously, any decision to deploy that discretionary power would be subject to extensive consultation and engagement. For now, yesterday and tomorrow, irrespective of what the committee does, the 2017 regulations are in force.

To an extent. We would be in control, because that is the purpose of this instrument, but we are also watching carefully to see what the UK Government might do in terms of transitioning to EORs. If it were to transition, that would be a long-term and complex process. As far as I know, we do not have final confirmation from the UK Government on what it intends to do along the lines of EORs.

The Scottish ministers have a settled position on seeking to align with the EU as far as possible. That is why I am stressing in this conversation that seeking the passage of the instrument is not a request for fundamental changes. For example, we have already set out that the 2017 regulations remain in place.

However, completely independently of this conversation, we have been consulting on how to ensure that, for example, the 1994 habitats regulations are fit for purpose in terms of ensuring that there is proper scrutiny of and accountability for those areas. As is set out in this year’s programme for government, the powers will be included in a natural environment bill, which will be introduced in this parliamentary year.

It is not that there is a settled position and we are not constantly thinking about how to improve in order to ensure that our regulations remain fit for purpose, but it is the Scottish Government’s default position to seek to align as closely as possible with the European Union.

Prior to—

We get into tricky territory when using specific examples, because of a number of points. I cannot argue whether the draft order would make it easier or harder, because it really depends, first, on what the UK Government might do in introducing EORs. What we know about EORs so far is based on what the previous UK Government initiated on consultation. It published a consultation seeking views on a new system of environmental assessment to replace what had previously been an EU-derived environmental assessment processes. We have no information beyond that as to when or how the UK Government might move to an EOR system, or what that would look like. As my colleague said, it might be EIA by another name. It is impossible to say at this point whether the order will make a certain outcome easier or more difficult, as you have outlined, because we do not know what changes will be made at a UK Government level.

Turning to a second element, I have stated openly in this meeting that we have no intention in the short term of making any changes to the well-understood environmental impact assessment system. If the instrument passes, there is an opportunity to consider how we future-proof and improve the consenting processes. Of course, environmental impact assessment is only one element of the much broader consenting regime.

In your question, you talked about the sea and whether that would make some things easier or harder.

Onshore—sorry. If we are talking about onshore, that is easier to answer, because it does not have the issue of the 12 nautical mile cut-off.

If we ever wanted to change to EORs once we have seen what the UK Government might do and what information is forthcoming, because of the concurrent point, which is very relevant, we would engage and consult. At that point, however, it is a question of what is coming back to us by way of suggestions for improvements that need to be made. Your question whether the instrument would make things easier or not is almost redundant, because we are talking about changes to who controls the process, not what is included in the process.

That is a complicated question with a complicated answer, and I will rely on support from my colleagues.

The environmental impact assessment system continues to operate in relation to relevant projects and plans in Scotland, and we have no current plans to adopt an EOR approach to environmental assessment. However, the UK Government is considering such reporting as a new approach for environmental assessment to replace the EU-derived system, using powers in the 2023 act. The UK Government consultation document, which was provided in March 2023, implies that the new EOR system will result in more efficient and effective processes for environmental assessment, but it does not set out details of how that would be achieved in practice.

The new UK Government has yet to confirm—or reconfirm, as it were—a commitment to making the change to EOR. We expect it to set out its proposed approach in 2025, and we will then consider that new approach.

Transitioning to a system of environmental outcome reports would be a long-term and complex change, and a decision to contemplate such change would, therefore, require careful consideration.

There is still some uncertainty as to what differences there might be between the system that we currently use and the potential implementation of an EOR system. We await further information from the UK Government. We are here today because Mr Michael Gove, through the then Department for Levelling Up, Housing and Communities, made a commitment back in 2023 that when the bill that became the Levelling-up and Regeneration Act 2023 was passed, it would include essentially the return to the Scottish ministers of a power that was equal to the original power that we had through the EU to make changes if we chose to do so.

I make it clear, for the benefit of the committee, that if we were to begin the journey to EORs, which I imagine would depend in part on what the UK Government might do, there would be a huge amount of engagement and consultation with stakeholders in the development of such an approach.

After all that complexity, I guess the simple answer is that, with regard to the difference in approach, there are elements on which I cannot give an answer right now. The question that the committee could put to me, therefore, is this: why are we pursuing order under the Scotland Act 1998 when EORs are not yet fully developed?

First, the process needs to follow that sequence so that the discretionary power is available for the Scottish ministers to use, should they wish, once EORs are fully understood. Secondly, that is the design by which the UK Government and the Scottish Government decided to devolve and transfer those powers, and the new UK Government has essentially agreed to pursue that approach. There would have been some doubt as to whether the new UK Government would have followed in Michael Gove’s footsteps.

I hope that that answer is not too long-winded, but I imagine that, to an extent, the committee might look at the order before it and ask what the implications are. The answer, I would say—unless my colleagues tell us otherwise—is that, at present, it essentially transfers the discretionary power, subject to extensive consultation if that power were ever to be used.

Thank you, convener. I will take advantage of the opportunity to set out what the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 2025 does and does not do, because I imagine that people will have quite a lot of strong views as soon as they see anything relating to electricity and energy. I am pleased to be here to present the draft order, which will transfer certain regulation-making functions to ministers under the Levelling-up and Regeneration Act 2023.

I think that it is quite important to provide the context before I get into the specifics of the draft order. Through the 2023 act, the United Kingdom Government created powers to introduce a new system of regulations on environmental outcomes reports to replace environmental impact assessments and strategic environmental assessments. Currently, environmental assessments for electricity works are undertaken under the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017, which are executively devolved to the Scottish ministers and are the basis on which they process, consult on, consider and determine applications for renewable energy projects, generating stations and onshore transmission infrastructure.

However, as a consequence of the UK’s exit from the European Union and the repeal of the European Communities Act 1972, the Scottish ministers no longer have the ability to amend or replace the 2017 regulations, nor can the Scottish Parliament pass primary legislation to reinstate, amend or change them. As such, the Government sought reinstatement of powers to amend the 2017 regulations under the 2023 act as part of our negotiations with the UK Government regarding environmental assessment provisions. However, the UK Government instead committed to this draft order and the transfer of powers to the Scottish ministers.

The UK Government has stated that environmental outcomes reports are intended to set the scope of assessments in a targeted way, with the focus predominantly on the outcomes that are relevant to a given project, plan or programme. That regime is likely to depart from the EU-derived procedural approach to some extent. To date, little information is available on how the new regime will operate, but we expect the UK Government to set out more detail on the proposed approach in 2025.

The Levelling-up and Regeneration Act 2023 gave the Scottish ministers powers to adopt environmental outcomes reports across a range of devolved areas in which environmental assessment is required. The draft order transfers the same powers to the Scottish ministers under the 2023 act in relation to electricity works. It transfers functions to the Scottish ministers to make environmental outcomes reports regulations relating to environmental assessment in connection with applications for consent or approval for offshore renewables projects in Scottish waters, onshore generating stations and associated overhead line infrastructure. Those functions may be exercised concurrently with the secretary of state.

Detailed policy consideration will be required for the environmental outcomes reports approach and how it may be used by the Scottish ministers in the future. Without clear information from the UK Government on how environmental outcomes reports will work in practice, we have stated our preference for retaining the existing well-understood environmental impact assessment regime in Scotland.

Although the existing regime could benefit from some improvements, the case for total replacement has not been made. Nevertheless, it is better that Scotland has the ability to choose a path for ourselves, which is what the powers help to provide for.

I thank the committee for its scrutiny of the draft instrument, and I am happy to answer any questions.

I am happy to repeat it once again. The order does not fundamentally change the underlying regulations, which, as I said in my opening remarks, are well understood. If we were to begin the journey to EORs, there would be significant engagement and consultation with stakeholders on the development of such an approach. That is not up for discussion in this meeting.

The Conservation (Natural Habitats, &c) Regulations 1994 and the legislation that forms the EIA regimes are key frameworks that underpin the important environmental protections and assessment processes in Scotland on land and sea. Having lost enabling powers that were available to the Scottish ministers before EU exit, it is vital that we have a future-proof mechanism to ensure that those frameworks remain fit for purpose and can adapt to future circumstances. It is the issue of enabling us to be flexible in the future that is currently up for discussion.

That is not up for debate in this conversation. Perhaps to prove the point, I do not have responsibility for electricity and energy. I am responsible for the economy and Gaelic, but I am here as Deputy First Minister because what we are discussing today is the Scotland Act 1998 and the transfer of powers to the Scottish ministers to right a wrong that took place on EU exit. If and when there is to be any change to the core consenting procedures, I would expect Gillian Martin to be here.