8.Prior to being amended by sections 1 and 2 of the Act, Part 1 of the Climate Change (Scotland) Act 2009 (as modified by the Climate Change (Emissions Reduction Targets) (Scotland) Act 2019) set out statutory targets for reducing the greenhouse gas emissions attributable to Scotland. It provided for 3 types of target:
The ultimate target was the net-zero emissions target (set by section A1 of the 2009 Act), which was that the net Scottish emissions account for the net-zero emissions target year will be 100% lower than the baseline level (see paragraph 10 below for the meaning of “net Scottish emissions account” and “baseline”). At the time these Notes were prepared, the net-zero emissions target year was 2045 (the Scottish Ministers have a power to change the target year by regulations).
Interim targets were set for 2020, 2030 and 2040 by section 2 of the 2009 Act. The interim targets were that the net Scottish emissions account for each of those years be a certain percentage lower than the baseline level.
Annual targets were set by section 3 of the 2009 Act. These were targets for each year leading up to the net-zero emissions target year (excluding years for which an interim target was set). The target for each year was that the net Scottish emissions account for the year be a percentage lower than the baseline level, with that percentage calculated by evenly distributing across the years between the last interim target and the next higher-level target (i.e. the next interim target, or the net-zero emissions year target) the percentage point change in emission levels needed to meet that next higher-level target.
9.Sections 1 and 2 of the Act replace that system of 3 types of target with a new targets system. The net-zero emissions target is unchanged as the ultimate target. But the interim targets and the annual targets are replaced with the concept of the Scottish carbon budget target. Whereas interim and annual targets were concerned with emissions levels for a particular year, a Scottish carbon budget target is concerned with emissions levels over the period for which the budget is set (which will typically be 5 years).
10.Key to understanding the system of emissions reduction targets (both the old one and the new one created by the Act) are the following concepts:
The net Scottish emissions account (defined by section 13 of the 2009 Act) describes the volume of greenhouse gas emissions (modified by permitted credits and debits of carbon units) by reference to which the assessment is made of whether the targets are being met.
The baseline (defined by section 11 of the 2009 Act) is the level of greenhouse gas emissions relative to which the assessment is made of the percentage by which the net Scottish emissions account has changed over a period.
11.The principal ways in which emissions reduction targets are legally significant are as follows:
The Scottish Ministers have a duty to ensure the targets are met. These duties arise from the section of the 2009 Act that creates the target in question.
The Scottish Ministers have duties to keep the Scottish Parliament informed about whether the targets are being met. Those duties arise, principally, from the following provisions of the 2009 Act: section 9, section 33, section 34A (which is inserted by section 2 of the Act, see paragraph 36 below) and section 35B (which is relevantly modified by section 9 of the Act, see paragraph 64 below).
The Scottish Ministers have a duty to publish plans for meeting the targets. The duty arises from section 35 of the 2009 Act, which requires that the climate change plan that it obliges the Scottish Ministers to produce periodically set out their proposals and policies for meeting the targets that fall within the period covered by the plan.
All Scottish public authorities (as defined by section 3(1)(a) of the Freedom of Information (Scotland) Act 2002) have a duty to exercise their functions in a way best calculated to contribute to the delivery of the targets. This is one of the climate change duties of those authorities under section 44 of the 2009 Act, in relation to which further provision is made by the rest of Part 4 of the 2009 Act.
12.Section 1 of the Act inserts into the Climate Change (Scotland) Act 2009 new sections A2 to A5, which establish within that Act the concept of a Scottish carbon budget and the associated concept of the Scottish carbon budget target.
13.Inserted section A2 sets up the conceptual framework around Scottish carbon budgets so that those concepts can be used elsewhere in the Climate Change (Scotland) Act 2009. In particular:
a Scottish carbon budget is defined to be an amount of tonnes of carbon dioxide equivalent allocated to a given period,
a Scottish carbon budget is said to be exceeded where the net Scottish emissions account for a period exceeds the Scottish carbon budget for the period,
a Scottish carbon budget target is defined to mean not exceeding the Scottish carbon budget for a period.
14.Scottish carbon budgets will be set by regulations made by the Scottish Ministers under inserted section A4.
15.Inserted section A2(4) glosses references elsewhere in the 2009 Act that are predicated on emissions reduction targets being in respect of a year to allow for Scottish carbon budget targets being in respect of a period. For example, section 9(2) of the 2009 Act requires the Scottish Ministers to request a report within two years of the end of each target year about (amongst other things) whether the emissions reduction target for the year was met. A Scottish carbon budget target is a target for aggregate emissions reduction over a number of years, not a target for a single year. Inserted section A2(4) clarifies that when section 9(2), and other provisions that are similarly expressed, refer to the target for a year being met, they are referring, in the context of a Scottish carbon budget target, to the budget not being exceeded over the whole of the period covered by the budget rather than the target being met in any single year of the period.
16.Inserted section A3 places a duty on the Scottish Ministers to ensure that Scottish carbon budget targets are met. The definition of Scottish carbon budget target is given by inserted section A2.
17.Inserted section A4 deals with the setting of Scottish carbon budgets by regulations. (Section 13 of the Act makes further provision about the first exercise of this regulation-making power.)
18.As inserted section A2 states, a Scottish carbon budget is to be an amount of tonnes of carbon dioxide equivalent. Subsection (2) of inserted section A4 makes clear that the regulations setting a budget may, but need not, do so by expressing it as a number of tonnes. The Scottish Ministers may instead set a budget for a given period using a formula for calculating the number of tonnes that constitutes the budget for the period. Rather than say that the budget for the period 2026 to 2030 is x mega tonnes, the regulations might (for example) say that the budget is x% of what emissions would have been had the baseline level of emissions continued throughout each year of that period. Specifying a formula in the legislation, rather than directly specifying a number, means that the budget amount at the end of a budget period may be different from what it would have been had the budget been specified as a number calculated at the start of the period using the formula. This is because changes in knowledge and methodology in the climate-science sphere mean that the formula’s input values (such as the baseline), although historical, may nevertheless change over time, so that the formula’s output may be different in 2030 from what it was in 2026.
19.Subsection (3) of inserted section A4 requires the Scottish Ministers to set budgets so that each budget covers a 5 year period, with the exception of the final budget which may cover a shorter period. The final budget period may be shorter than 5 years because the budgets are to operate up until the net-zero emissions target year, which may fall fewer than 5 years after the end of the preceding budget period. Inserted section A5 (discussed further below) allows the budget periods mandated by inserted section A4(3) to be adjusted by regulations.
20.Subsection (4) of inserted section A4 requires the Scottish Ministers, when making budget-setting regulations, to have regard to the target-setting criteria and take into account the advice they have received from the relevant body. Subsection (5) requires the Scottish Ministers to lay before the Parliament a statement about their compliance with subsection (4), and subsections (6) and (7) specify other matters that must be addressed in those statements. The “target-setting criteria” are set out in section 2B of the Climate Change (Scotland) 2009 Act. The “relevant body”, at the time these Notes were prepared, was the UK Committee on Climate Change. Section 20A of the 2009 Act allows for a different body to become the “relevant body” by virtue of an order made by the Scottish Ministers under section 24 of the 2009 Act.
21.Regulations under inserted section A4 will be subject to parliamentary scrutiny under the affirmative procedure. This is because section 96(4) of the Climate Change (Scotland) Act 2009 applies the affirmative procedure by default to any regulations made under a section of that Act. Section 96(4) is relevantly modified by paragraph 5 of schedule 3 of the Interpretation and Legislative Reform (Scotland) Act 2010, which requires section 96(4) of the 2009 Act to be read as referring to the affirmative procedure as defined by section 29 of the 2010 Act.
22.As explained above, inserted section A4(3) requires Scottish carbon budgets (other than the final budget) to be set for a 5 year period. Inserted section A5 allows the Scottish Ministers, by regulations, to change that provision so that budgets can be set for a different period. The power can only be used for the purpose of achieving alignment between the budget periods and similar periods under international agreements to which the United Kingdom is a party.
23.Regulations under inserted section A5 will be subject to parliamentary scrutiny under the affirmative procedure. This is because section 96(4) of the Climate Change (Scotland) Act 2009 applies the affirmative procedure by default to any regulations made under a section of that Act. Section 96(4) is relevantly modified by paragraph 5 of schedule 3 of the Interpretation and Legislative Reform (Scotland) Act 2010, which requires section 96(4) of the 2009 Act to be read as referring to the affirmative procedure as defined by section 29 of the 2010 Act.
24.The overall effect of section 2 of the Act is to modify the Climate Change (Scotland) Act 2009 so as to remove from it the concept of interim and annual targets and replace its references to those targets with references to Scottish carbon budget targets, which (as explained above) is a concept amended into the 2009 Act by section 1 of the Act.
25.Section 2(2) of the Act repeals section 2 of the 2009 Act, which defines interim targets. Section 2A of the 2009 Act conferred a regulation-making power to modify the interim targets in section 2 of that Act. It is repealed by section 2(3) of the Act.
26.Section 2(4) of the Act modifies section 2C of the 2009 Act. Section 2C places a duty on the Scottish Ministers to request advice from the relevant body in relation to various matters (for the meaning of “relevant body” see paragraph 20 above). Section 2(4) of the Act modifies section 2C of the 2009 Act so as to replace the requirement for Ministers to seek the relevant body’s advice in relation to interim targets with a requirement to instead seek its advice in relation to Scottish carbon budgets. Section 13(4) of the Act contains further non-textual modifications to section 2C of the 2009 Act that are to operate only in the period prior to the first Scottish carbon budgets being set. These transitional modifications are explained in paragraph 77 below.
27.Section 2(5) of the Act modifies section 2E of the 2009 Act. Section 2E makes further provision about the advice from the relevant body that the Scottish Ministers must request under section 2C of the 2009 Act and may request under section 2D of that Act. Subsections (4) and (5) of section 2E, in their original form, required Ministers to take action if the relevant body gave advice to the effect that an interim target should be changed. In particular, they required Ministers to publish a statement setting out what they intended to do in light of the advice within 3 months of receiving it and if, within 12 months of receiving it, they had not laid before the Scottish Parliament draft regulations to change the interim target in question to bring it into line with the relevant body’s advice, the subsections required Ministers to make a statement to the Parliament explaining why not. Section 2(5) of the Act replaces subsections (4) and (5) of section 2E of the 2009 Act with new subsections (3A) and (3B), which make equivalent provision about the action to be taken if the relevant body advises that a different Scottish carbon budget for a period would be appropriate.
28.Subsections (6) to (8) of section 2 of the Act repeal sections 3 to 3B of the 2009 Act. Those sections were about annual targets.
29.Section 2(9) of the Act modifies section 3C of the 2009 Act. Subsection (1) of section 3C requires the Scottish Ministers to keep up to date a list of the various targets that apply under the 2009 Act. Section 2(9) of the Act adjusts section 3C of the 2009 Act in the following ways:
The description in subsection (1) of the targets to be included in the Scottish Ministers’ list is changed so that the list covers Scottish carbon budget targets rather than interim and annual targets.
Subsection (3) is replaced with a modified version which omits any reference to percentage figures. The original form of subsection (3) required the Scottish Ministers to lay an updated list of targets before the Scottish Parliament whenever “a percentage figure mentioned in subsection (1) has been modified.” Unlike interim and annual targets, Scottish carbon budgets will not necessarily be percentage figures (see paragraph 18 above). To accommodate that, the replacement subsection (3) is more generally expressed; it requires the Scottish Ministers to lay a new version of the list before the Parliament whenever it is changed in any way. The Scottish Ministers’ duty to change the list to reflect any change in a target, or a Scottish carbon budget, flows from section 3C(1) requiring them to maintain the list.
30.Section 2(10) of the Act modifies section 9(2)(d) of the 2009 Act to accommodate Scottish carbon budgets being concerned with emissions over a period, unlike interim and annual targets which were concerned only with emissions in a particular year. Section 9(2) requires the Scottish Ministers to request a report from the relevant body within two years of the end of each target year on various matters (for the meaning of “relevant body” see paragraph 20 above). One of those matters, specified in section 9(2)(d), is relevant body’s views on the action taken by the Scottish Ministers to reduce net Scottish emissions of greenhouse gases during the target year. Section 2(24) of the Act amends the 2009 Act so that “
31.Section 2(11) of the Act modifies section 13A of the 2009 Act. Section 13A confers a power on the Scottish Ministers to make regulations limiting the amount of purchased carbon units that can be credited to the net Scottish emissions account for a period. The net Scottish emissions account is defined by section 13(1) of the 2009 Act. It is the measure of emissions used to assess whether the 2009 Act’s emissions reduction targets have been met. Carbon units purchased through carbon-trading schemes can be credited to the net Scottish emissions account for a period so as to reduce the account for that period, but this can only be done if regulations have been made under section 13A setting a limit on the amount of purchased carbon units that can be credited to the account (see section 13(5A) of the 2009 Act). In its original form, section 13A(2) provided that regulations cannot set the limit for a year at a level higher than 20% of the planned reduction in the net Scottish emissions account for the year. In other words, no more than 20% of the reduction in the net Scottish emissions account that would be needed for that year’s emissions-reduction target to be met (assuming the previous year’s target was met) could be due to the crediting of purchased carbon units. Section 2(11) of the Act modifies section 13A of the 2009 Act with the following results:
For years falling within a period covered by a Scottish carbon budget, the ceiling on the use of purchased carbon units is set for the whole period rather than for the individual years comprising it.
No more than 20% of the reduction in the net Scottish emissions account needed to stay within a Scottish carbon budget for a period, assuming emissions in the preceding period to have been at the level set as the budget for that period, can be due to the crediting of carbon units.
As it is not possible to calculate 20% of the targeted reduction in the net Scottish emissions account between the first period covered by a Scottish carbon budget and the period which preceded it (because by definition there will be no budget for the period preceding the first period covered by a budget), a transitional rule applies to allow the calculation to be performed for that first Scottish carbon budget period. The transitional rule entails calculating 20% of the difference between the first budget to be set and a notional budget for the preceding period specified by the Scottish Ministers in regulations. In making regulations setting the notional budget, the Scottish Ministers will be bound by the same obligations as they will when making regulations under inserted section A4 setting real budgets and the regulations will similarly be subject to parliamentary scrutiny under the affirmative procedure (see paragraphs 20 and 21 above).
The ceiling on the use of purchased carbon units in respect of years not covered by Scottish carbon budgets is unchanged.
32.Subsections (12) and (13) of section 2 of the Act modify sections 17(3) and 18(2) (respectively) of the 2009 Act. In each case, the modification is to have the modified provision apply in relation to reports under inserted section 34A (see paragraph 35 below) as it does in relation to reports under the existing section 33 of the 2009 Act.
33.Section 2(14) of the Act modifies section 24 of the 2009 Act. Prior to the modification taking effect, subsection (3) of section 24 defined the functions of the advisory body to include advising on the Scottish Ministers’ duty under section 2(1) of the 2009 Act, meaning their duty to ensure the interim targets were met. That duty is abolished by the Act, and accordingly section 2(14) of the Act replaces the reference to it with a reference to the Scottish Ministers’ new duty under inserted section A3 (see paragraph 16 above) to ensure that Scottish carbon budget targets are met.
34.Section 2(15) of the Act modifies section 33 of the 2009 Act. That section requires the Scottish Ministers to lay a report before the Scottish Parliament following each “target year”. Before the abolition of annual targets, this meant a report under section 33 was required in every year up until the net-zero emissions target year (see section A1 of the 2009 Act). Now that annual targets have been replaced with Scottish carbon budget targets, emissions reduction targets will be concerned with emissions levels over a number of years rather than in respect of a single year (except in the case of the net-zero emissions target, which remains focussed solely on emissions levels in the net-zero emissions target year). Section 2(15) of the Act replaces subsections (1) and (2) of section 33 of the 2009 Act to reflect the fact that the new Scottish carbon budget targets are focussed on emissions over multiple years. Specifically:
the replacement subsection (1) links the duty to report on the attainment of targets to the end of each period for which a Scottish carbon budget is set. A new requirement for the Scottish Ministers to report on progress towards emissions reduction annually is created by section 2(17) of the Act, which inserts a new section 34A into the 2009 Act.
The replacement subsection (2) reproduces the effect of the previous subsection (2), which was to set out the required contents of a report under the section, with changes to reflect the move to multi-year targets.
The new subsection (2A) makes special provision about the final section 33 report, that is the one produced following the net-zero emissions target year. As that report will address a target specific to a single year, subsection (2A) requires that report to cover, in addition to the matters set out in the new version of subsection (2) for the final Scottish carbon budget period, the matters that the previous version of subsection (2) required all reports to cover when all section 33 reports were specific to a single year.
35.Section 2(16) of the Act modifies section 34 of the 2009 Act. Section 34 of the 2009 Act elaborates on the contents of a report under section 33. The modifications made by section 2(16) of the Act are made to reflect the fact that reports under the modified section 33 of the 2009 Act are concerned with emissions levels over a number of years rather than in respect of only one target year.
36.Section 2(17) of the Act inserts a new section 34A into the 2009 Act. As explained in paragraph 34 above, section 33 of the 2009 Act (in the form inserted by the Climate Change (Emissions Reduction Targets) (Scotland) Act 2019) required the Scottish Ministers to report on delivery against emissions-reduction targets annually because there was a system of annual targets. The Act has modified the 2009 Act to replace annual targets with multi-year Scottish carbon budget targets and therefore reports under section 33 on delivery against targets will cease to be annual because there will not be annual targets against which to report. The inserted section 34A will create a new annual reporting duty for the Scottish Ministers. Like a report under section 33, a report under section 34A will need to include the information set out in section 34 of the 2009 Act. It will differ from a report under section 33 principally in not having to address performance against a Scottish carbon budget target; the point of having a report under section 34A rather than under section 33 is that, in a system of multi-year targets, performance against the target cannot be addressed until the end of the period for which the target is set. No report under the new section 34A is required for:
the final year of a period for which a Scottish carbon budget is set, because following those years a report under section 33 will be produced and it will contain all of the information that a section 34A report for the year would cover,
years that predate the new section 34A being inserted into the 2009 Act, except for those few years that would otherwise fall into a transitional gap because they had not been reported on under section 33 before it ceased to require reporting against annual targets and will not be reported on under section 33 in future because they were already in the past when the first Scottish carbon budget period begins,
future years beyond the net-zero emissions target year (as defined by section A1 of the 2009 Act).
37.Section 2(18) of the Act modifies section 35(4)(b) of the 2009 Act to remove a reference to interim targets that no longer makes sense following their abolition.
38.Section 2(19) of the Act changes the heading to section 36 of the 2009 Act to remove a reference to annual targets that would no longer have made sense following their abolition.
39.Section 2(20) of the Act modifies section 42 of the 2009 Act. Amongst other things, section 42 sets out duties that the Scottish Ministers owe to the Scottish Parliament when they lay before it a report under section 33 of the 2009 Act. Section 2(20) of the Act adjusts section 42 so that those duties arise in connection with a report laid before the Parliament under inserted section 34A too (see paragraph 36 above).
40.Section 2(21) of the Act modifies section 57(3)(a) of the 2009 Act. Section 57, in its current form, requires the Scottish Ministers to produce a land use strategy setting out objectives, proposals and policies which contribute to the achievement of their duties under sections 1, 2(1) or 3(1)(b) of the 2009 Act. Section 2(21) of the Act updates those cross-references as follows:
Section 1 of the 2009 Act set the original ultimate target for Part 1 of the Act, known as the 2050 target. The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 replaced the 2050 target with the Scottish net-zero emissions target (see section A1 of the 2009 Act) and repealed section 1. The reference to section 1 is therefore replaced with a reference to section A1.
Sections 2 and 3 of the 2009 Act respectively set interim targets and annual targets. The Act has abolished those and replaced them with Scottish carbon budgets under inserted section A2 and a duty, under inserted section A3, to ensure the targets arising from those budgets are met. The references to sections 2 and 3 are therefore replaced with a reference to section A3.
41.Subsections (22) and (23) of section 2 of the Act modify, respectively, sections 96 and 97 of the 2009 Act. Those sections are concerned with the scrutiny of regulations made under provisions of the 2009 Act, including section 13A. As explained in paragraph 31 above, section 13A (as first enacted) provided for regulations to set a limit on the use of purchased carbon units by reference to planned annual reductions in emissions levels whereas, as now modified by the Act, it sets the limit by reference to planned multi-year reductions. The modification to both section 96 and 97 of the 2009 Act is consequential on the changes made to section 13A; in each section, reference to section 13A setting a limit for a year is replaced with reference to its doing so for a period. These modifications are made for consistency with the modifications to section 13A and do not change the effect of section 96 or 97.
42.Section 2(24) of the Act modifies section 98 of the 2009 Act. Section 98 is an interpretative provision which defines terms used in the preceding sections of the 2009 Act.
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