The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2006

Explanatory Note

(This note is not part of the Order)

This Order, made under the Scotland Act 1998 (c. 46), provides for certain functions of a Minister of the Crown under the Electricity Act 1989 (c. 29) (“the Electricity Act”), so far as they are exercisable by that Minister in or as regards Scotland, to be exercisable by the Scottish Ministers instead of by the Minister concerned. This Order consolidates in one instrument the devolution of functions under section 36 of the Electricity Act (consents to construct, extend or operate electricity generating stations) by revoking the devolution of those functions effected in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (SI 1999/1750) and by then, on the following day, re-devolving those functions to the Scottish Ministers. The other functions transferred by this Order relate to the consideration of applications under section 36 of the Electricity Act where the proposed generating station is not within the area of a planning authority, and consultation with the Scottish Environment Protection Agency (“SEPA”) in relation to generating stations powered by water.

Article 2 sets out the extent to which the functions of the Secretary of State under section 36 of, and Schedule 8 to, the Electricity Act are to be regarded as exercisable in or as regards Scotland for the purposes of section 63 of the Scotland Act 1998, and thus transferable under that section. This paving measure makes it clear that that the functions exercisable in that part of the UK Renewable Energy Zone located beyond Scottish territorial waters which was designated in the Renewable Energy Zone (Designation of Area)(Scottish Ministers) Order 2005 (SI 2005/3153) are treated as being exercisable in or as regards Scotland.

Article 3 provides that the functions conferred on a Minister of the Crown by section 36 of, paragraph 5A of Schedule 5 to, and paragraph 7A of Schedule 8 to, the Electricity Act shall, so far as they are exercisable by that Minister in or as regards Scotland, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.

Article 4 modifies the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 by revoking the devolution of the functions of the Secretary of State under section 36 of the Electricity Act to the Scottish Ministers.

Article 5 provides for the general modification of enactments in connection with provision made by the Order.

Article 6 makes transitional and saving provision both as regards the previous exercise of functions by a Minister of the Crown prior to their devolution to the Scottish Ministers and as regards previous exercise of functions by the Scottish Ministers. In the latter case, saving is made to cover the process of return, by revocation of the previous devolution, of functions to a Minister of the Crown, prior to such functions being re-devolved to the Scottish Ministers one day later.

A Regulatory Impact Assessment (“RIA”) has been completed in relation to the transfer to the Scottish Ministers of functions under section 36 of the Electricity Act 1989 by this instrument. This RIA is published at http:/www.dti.gov.uk/energy/publications/policy/index/shtml. No RIA was considered necessary in respect of the obligations to consult SEPA.