Electricity Act 1989

[F141AAScottish Ministers' promotion of reductions in carbon emissions: electricity suppliersE+W+S

(1)Where the Secretary of State under section 41A imposes on electricity suppliers obligations to achieve a target within a specified period, the power to make orders under that section is exercisable by the Scottish Ministers for the purposes of those obligations imposed in relation to Scotland and not, except as provided by subsections (9) and (10), by the Secretary of State.

(2)An obligation is imposed in relation to Scotland to the extent that measures to meet that obligation may be carried out in Scotland (disregarding any power to elect under section 103 of the Utilities Act 2000).

(3)For the purposes of the exercise by the Scottish Ministers of the power to make an order under section 41A, that section applies with the following modifications—

(a)for subsection (1) there is substituted a power by order to specify how electricity suppliers may meet their obligations to achieve the carbon emissions reduction target through measures carried out in Scotland;

(b)subsections (1A), (3), (5)(a), (7)(a) [F2, (7C), (7E)] and (10A) are omitted;

(c)in subsection (2A) at the beginning of paragraph (b) there is inserted “where the Secretary of State has apportioned the overall carbon emissions reduction target under section 103(2A) of the Utilities Act 2000, and”;

[F3(ca)in subsection (7F), for “order makes” is substituted “Secretary of State has made”;

(cb)in subsection (7G), for “(7C)” is substituted “(7F)”;

(cc)in subsection (7H), for “an order includes” is substituted “the Secretary of State has made”;]

(d)in subsection (11) “Citizens Advice” and “electricity distributors” are omitted;

(e)in subsection (12), for the words from “shall not be made” to the end is substituted “ is subject to the affirmative procedure ”;

(f)in subsection (12A) for the words from “shall be subject to” to the end is substituted “ is subject to the negative procedure ”;

(g)for “Secretary of State” in each place [F4other than in subsection (7D)(a)] is substituted “ Scottish Ministers ”.

(4)The power of the Scottish Ministers under section 41A does not include power to make provision in relation to the subject-matter of sections 88 to 90 of the Energy Act 2008 (smart meters).

(5)Where an overall carbon emissions reduction target has been apportioned under section 103(2A) of the Utilities Act 2000, the Scottish Ministers must—

(a)when making any order under section 41A, comply with the duty in subsection (6), and

(b)if the Secretary of State amends any order under that section, make any provision they think necessary, in consequence of the amendment, to comply with that duty.

(6)The duty of the Scottish Ministers where subsection (5)(a) or (b) applies is to exercise their powers under section 41A (subject to subsection (8)) in the way they think most likely to secure that the proportion of compliance costs that is represented by costs relating to Scotland is no greater than the proportion of the overall carbon emissions reduction target that is represented by the part of it apportioned to measures carried out in Scotland.

(7)In subsection (6)—

(a)“compliance costs” means the total costs to electricity suppliers of complying with carbon emissions reduction obligations that, in relation to any period, are imposed by order under section 41A, and

(b)“costs relating to Scotland” means the total costs to electricity suppliers of complying with obligations that, in relation to the same period, are imposed in relation to Scotland.

(8)The Scottish Ministers may not make an order under section 41A unless—

(a)they have consulted the Secretary of State about the proposed order, and

(b)the Secretary of State has agreed to the order being made.

(9)Subsection (1) does not prevent the Secretary of State from making provision under—

(a)section 41A(1A), (3), (5)(a) [F5, (7)(a), (7C) or (7E)], or

(b)section 41A(2A) where an overall carbon emissions reduction target has not been apportioned under section 103(2A) of the Utilities Act 2000.

(10)Subsection (1) does not prevent the Secretary of State from making any other provision under section 41A or from varying or revoking an order made by the Scottish Ministers under that section—

(a)with the agreement of the Scottish Ministers, or

(b)without their agreement, if subsection (11) applies.

(11)This subsection applies if it appears to the Secretary of State, in the case of obligations imposed in relation to Scotland (the “Scottish obligations”), taking into account any provision made by the Scottish Ministers, that the Scottish obligations are, alone or in conjunction with obligations imposed or to be imposed in relation to England and Wales, likely to—

(a)cause detriment to the United Kingdom,

(b)adversely affect the ability of the United Kingdom to comply with an international agreement or arrangement in relation to climate change or energy efficiency, or

(c)result in costs incurred by suppliers that are not broadly equivalent in relation to England and Wales and in relation to Scotland,

and the Scottish Ministers have failed to comply with a request made to them by the Secretary of State to make modifications specified by the Secretary of State.

(12)In determining for the purposes of subsection (11), whether detriment is likely to be caused to the United Kingdom, considerations that the Secretary of State may take into account include the costs imposed on suppliers by virtue of obligations imposed or to be imposed by the Secretary of State under section 41A or any provision made by the Scottish Ministers under that section.

(13)A request by the Secretary of State to the Scottish Ministers for the purposes of subsection (11)—

(a)must be in writing;

(b)must specify only modifications that appear to the Secretary of State to be necessary to prevent the effect mentioned in subsection (11)(a), (b) or (c);

(c)must specify the time within which the modifications are to be made, which must not be less than 2 months from the date of the request.]

Textual Amendments

F1S. 41AA inserted (1.12.2017 for specified purposes, 1.10.2018 in so far as not already in force) by Scotland Act 2016 (c. 11), ss. 59(5), 72(4)(d) (with s. 59(7)); S.I. 2017/1157, regs. 3(b), 5(a)

F5Words in s. 41AA(9)(a) substituted (26.12.2023) by Energy Act 2023 (c. 52), ss. 214(5)(b), 334(3)(g)