 Good morning everyone and welcome to the third meeting of the next zero energy and transport committee 2023, I'm sorry for the slight delay that were problems with transport this morning. Gender item 1 is a decision on taking business in private. We have the consideration of whether to take items 3 and 4 in private. Item 3 is the consideration of the evidence we will hear today on the legislative consent memorandum on the Bill 7 yn y ystyried cymorth ym Mhwn i gynllun oedd yn gweithio i gyda gyda ei pethau ym Mhwn i'r private. So, mae'r pethau yn aml dryf yn 4 o'r prif, ond mae ein gymryd. Ond y byddwyrwyll ym Mhwn i gynllun oedd ei blywau gwir ynghylch ziwyr ym Mhwn i'r £1. Mynd i'r duodau ym Mhwn i'r pethau i gyrdau am arall y byddwyr. Felly, lle rydym addysgau gyda'u feddliadau ym Mhwn i 6 jyllog, gondol, yn gwneud mewn y cyfrifasol o'r sylwgau ymddianiaeth i'r wych, o'r Llywodraeth Cymru ac yn fwy o'r Llywodraeth Cymru ar 18 September, o fyddwch i'n gwybod i'r parlymouth, oherwydd o'r cyfrifasol yn cael y llaw dyfodol ar gyfer, a byddwch i'r cysylltu cyfrifasol o'r awthig. Ydych chi'n gweld i'r Llywodraeth Cymru i'r cyfrifasol i'r cyfrifasol i'r cyfrifasol i'r bwysigio'r cyfrifasol i'r bynnag. I would like to welcome you, cabinet secretary, two weeks running to the committee, so welcome this morning. I would like to welcome Raggy Lowe, who is the deputy director of onshore electricity policy and strategic coordination for the Scottish Government, and Dawn Sungu, who is the strategic coordination team leader for the Scottish Government. We have about 10 minutes for this item, but there is some flexibility there. Cabinet secretary, I think you want to make a brief opening statement, so I'm happy for you to go ahead. Good morning. Yes, convener, if you can bear with me, it's a little longer than normal to go through the key areas that I want to set out to the committee for our position this matter. The energy bill, as you rightly say, was introduced to the House of Lords on 6 July 2022. It was set out at that time by Greg Hans. Scottish ministers at that time were asked to give confirmation of their consent in principle to begin the legislative consent process in the Scottish Parliament through the LCM, which was introduced to the Scottish Parliament on 28 September. Having carefully reviewed the bill, the Scottish Government recommends that Parliament give consent to some but not all of the clauses contained within the bill. A number of the clauses impact in devolved areas, and further clarification or amendments are needed from the UK Government to ensure that the bill respects the long-established powers of Scottish ministers and the Scottish Parliament to act in relation to matters that fall within devolved competence. I'm recommending that the Scottish Parliament provide consent to certain clauses relating to amendments to the Nuclear Insulations Act 1956, market reform and consumer protection, the regulation of heat networks and the civil nuclear sector. We have provided details on each of those clauses in the LCM. I'm recommending that the Scottish Parliament withhold consent to a number of clauses. Those are set out within the LCM, and the Scottish Government is in discussions with the UK Government about further amendments or clarification. Those clauses are part 1, the licensing of carbon dioxide transport and storage, where an amendment is being requested, required off-gym, and the Secretary of State to consider Scottish statutory emissions targets in the exercise of functions related to part 1. Part 2, carbon dioxide capture, storage etc., and hydrogen production, where an amendment is being requested to require the Secretary of State to obtain consent from Scottish ministers if regulations contain provisions that would be within devolved competence. Part 3, low-carbon heat systems, clauses 98-107, where the Scottish Government has requested changes to include provision for Scottish ministers to give consent to secondary regulations where devolved competence is touched upon. Some clauses within part 7 of the heat networks are chapter 1, as the clauses propose that the Secretary of State needs only to consult Scottish ministers on devolved matters rather than to seek their consent. Schedule 15, part 5, paragraph 33, where an amendment has been requested to remove any reference to Scotland as irrelevant powers do not apply here. Part 11, oil and gas environmental protection clauses at 225, due to the fact that in the territorial seas adjacent to Scotland, there is a mixed picture on legislative competence depending on the activity in question. Clause 226, sub-clause 234 and clause 227, as they appear to modify and alter devolved competence and would appear to erode extant powers held by the Scottish Parliament and ministers. Part 13, general clause 238, as it would affect the devolved and exclusively devolved functions of the Scottish Parliament and ministers. The detailed reasons for the recommendations being recommended with holding consent, the clauses are set out in the LCM and at the request of the committee I also provided further information in my letter of 16 January 2023. UK Government introduced amendments to the House of Lords on Monday 9 January, relating to processes for habitats regulations assessments for offshore wind projects. Those clauses are part of the UK Government's offshore wind environmental improvement package and have been the subject of significant engagement between the UK and Scottish ministers and officials. We have real and significant concerns that those clauses, as currently drafted, could pose a risk to realising Scotland's offshore wind ambitions and will continue to engage closely with the UK Government to ensure that those concerns are addressed. It is the Scottish Government's intention to submit a supplementary LCM relating to both the offshore wind environmental improvement package and, if necessary, for any clauses where relevant amendments have been made to the energy bill during its parliamentary passage. In addition, I would also like to thank the Delegated Powers and Law Reform Committee for their further scrutiny of clauses 1.7.2. As a result, the Scottish Government now recommends withholding consent to clause 1.7.2. As I advised the committee by letter, that recommendation will be included in a future supplementary LCM. Of course, I am happy to respond to any questions that the committee may have. Thank you, cabinet secretary. Before we go into questions from members, I would like to have a quick question on the on-going discussions that you have said that, I believe that the Scottish Government is expecting some response by the end of the month. Are you expecting that there will be a satisfactory outcome and there may be a subsequent LCM or what are your views on that? Just a general indication of how it is going, I guess, cabinet secretary? We had an indication that we would get a response to our initial concerns that I highlighted in August last year. I am still waiting for a response from a letter from August last year on this matter. Since then, officials have continued to be engaged with officials within the UK Government. We had an indication last week that we would receive a response ahead of the committee appearance that has not materialised. We have now been advised that we are likely to get a response next week from the UK Government on the clauses that we have highlighted back in August. We continue to have engagement with them, but we are still waiting for formal feedback directly from them on the issues of concern that we raised back in August. Thank you. There are still on-going discussions. The first question comes from Mark Ruskell. Mark Ruskell. Thank you, convener. Good morning to you. Can I start with a broader question? Then perhaps we can get into the specifics around certain amendments that you are looking to change. Does the energy strategy just transition plan align with the energy bill? Will the energy bill help to deliver the Government's plan or other particular areas of divergence? Potentially. The areas that I mentioned are still on discussions with regard to the offshore wind improvement arrangements. If we are not able to get the amendments that we require to be made to the legislation, it could have a negative impact on the roll-out of some offshore wind installations for a variety of reasons, so it could create confusion around the regulatory process and it could also create some duplication in the system. There is a risk that it could actually have an adverse impact on offshore wind developments and the consenting process associated with that. However, if we can get the necessary amendments that we have been highlighting for some months now, then it has the potential to help to improve the process and to potentially speed up the process. The approach that I have been trying to take with the UK Government on this matter is that I think that we have a shared endeavour in looking to take forward our offshore wind development programme in an efficient, effective way in order to meet our climate change targets. The amendments that we have proposed could help to do that and achieve that more quickly, and that is why we have been pursuing this issue with the UK Government. At this stage, it has the potential to improve it, but if it does not, if we do not get the amendments that we are looking for, it could have a negative impact on offshore wind projects in Scotland. I know that colleagues are going to come back on that specific point later on, but I will turn to an amendment that you have requested around the need for off-gem and secretary of state to consider Scottish emissions targets. What is the underlying concern here? Which particular clause are you referring to? Do you recommend with holding consent from part 1 until it is amended so that both off-gem and secretary of state can consider Scottish emissions reductions targets? The purpose behind that is that, in creating a regular authority through off-gem, it is important that the regulatory process that it puts in place in supporting the roll-out of heat networks is reflective of the fact that we have different statutory targets from the UK in meeting our net zero targets by 2013-2045. It was to ensure that, as the regulatory authority, that off-gem has an obligation to ensure that it aligns its regulations to reflect the statutory targets that we have here in Scotland. That is the primary reason behind that. The danger is that, as a regulator, it aligns purely to the UK approach, which would again put us at a difficulty in meeting our statutory targets for 2013-2045. Any other areas in relation to part 1 that relate to that requirement to have cognisance of Scottish targets? You mentioned CCS in your opening. The other part in relation to part 1 that is a licence of carbon dioxide transport and storage. The issue is that the regulatory powers that have been taken by the secretary of state provisions in this section are very broad and could impact on areas that are of devolved competence when they have been exercised. It is difficult to tell that at the present moment because of the broad nature of the powers that have been taken in this area. That is why we are looking for an amendment that would require Scottish ministers to give consent to any areas that would have an impact on devolved competence if there was a desire to make amendments in those areas. That is why we have flagged up a very broad power and it has the potential to impact on devolved powers. The simple amendment that we are looking for is to recognise that, if there is going to impact on devolved powers, there should be a request for consent of Scottish ministers. First of all, throughout the bill, particularly in part 7, involving the heat networks, the Scottish Government is looking to change the provisions from to consult Scottish ministers to must obtain the consent of Scottish ministers. Can you help the committee to understand what are the practical implications of sticking with consultation over seeking consent? Are you aware? Is there a standard approach to this? Is it usual to consult or is it usual to seek consent or is there no standard? That is in relation to areas that are within devolved competence. Again, those are very broad powers that have been taken. The provision that is also made for in part 7 relates to the national licensing authority that will be off the gem and the powers that they will be provided with. The reason that we are seeking for the request for consent from Scottish ministers is because it is in devolved areas. Because it is a broad area of bird powers that have been taken and the responsibilities and the measures that have also been given to the national networks licensing authority, there is a requirement to make sure that, if they are in devolved areas, there is a consent of Scottish ministers on that matter. That would be the normal process that I would expect to happen and I see no harm in being able to put that in the face of the bill. Thank you for that. I understand the point that has been made. If, however, we start from saying that there is a significant degree of seriousness around what is being proposed, in fact, rather than limiting it to Scottish ministers, might there be an argument for saying that the Scottish Parliament should have a role in considering any such proposals? Normally, in any regulations, it depends if it is a negative or affirmative process, it is that we have to come before the Scottish Parliament and by having the way in which the legislation operates, it is that you have to have the consent of Scottish ministers. Scottish ministers then are accountable to the Scottish Parliament. In the same way that the Secretary of State has the powers but he is accountable to the UK Parliament does not require the consent necessarily of the Parliament to exercise those powers but they are accountable to the Parliament. It is the exact same process at Westminster that would be here in Scotland. The issue here is not so much about a stand-off on a devolved area and you cannot touch it. There are a couple of areas within the bill that go into devolved areas that we are content with what has been proposed in the bill for devolved areas. In that sense, what we are doing is making sure that if there is an exercising of powers in this area through those regulations, which then impinge upon devolved areas, there is a requirement for consent from Scottish ministers. That is not unusual, but my view is pretty standard. As I said, it is not just a case of because it is devolved, we want you to consult or to take our consent in areas that we agree within the bill that touch on devolved areas, we have recommended consenting to that. That is taking powers that can be used at a later date at this stage, we do not know what the impact will actually be or whether they will align with what we want to do here in Scotland. We should require our consent before they are implemented. That argument, having been made going right back to the convener's first question, you have been talking to the UK Government about this for six months now. Do you get any sense that the argument is being heard and that there is a sympathy towards that argument? Or do you have any sense of how that is going to go at this stage? If we break that into two parts, there are the easier issues and there are more complex issues. The more complex issues relate to the habitat regulations aspect that we touched upon earlier on, where there were amendments introduced to the House of Commons on the 9th of January. There are lots to the 9th of January, which we have significant concerns about and the potential impact they could have on offshore wind developments. That is a much more complex discussion and a much more challenging discussion that we are having. Many of the issues that I have set out in the initial LCM in my view are broadly quite straightforward issues. It is about moving from consulting to consent and it is about making sure that our statutory targets are taken into account when off-jame is a regulator and taking forward any regulatory functions that it has. It is largely, in my view, pretty straightforward. The much more complex areas around the habitat regulations issues and that is still quite a detailed discussion. If you are asking me to characterize the process as being quite straightforward, to be frank, I know that it has not been. It has been really quite challenging. It has been quite challenging even in what I think are the straightforward areas. There are reasons for that and you will be aware of the reasons during the autumn because of the changes that we had at ministerial level. The fact that we still have an outstanding letter from August has not been responded to. I think that there is a reflection of the issues at the UK Government site, but I hope that now that we have ministers in place, we should be able to get those issues progressed. However, I still think that there is a long way to go on the habitat regulations issues that need to be addressed. Scottish Government has recommended that consent be withheld from schedule 15 as well as that does not extend to Scotland. There is a definition of road contained in part 5, paragraph 33, which would apply to Scotland. What your views are on the practical concerns about the schedule as it is currently drafted? The issue in this area is that we already have provision in our part of legislation to deal with issues around roadworks, etc, of this nature. We also have a statutory process for carrying out that process. The provision that has been created in this particular part of the energy bill is not required here in Scotland. It runs the danger of creating uncertainty for applicants as to how they would obtain certain provisions because they would be competing bits of legislation. In our view, that would go against the better regulation agenda, which we are all meant to be operating to as well, which is why I have requested that Scotland be removed from that particular provision. It is just going to cause confusion? It is just going to cause confusion for competing bits of legislation. We have already got legislative provision. It is worth keeping in mind that our heat networks bill came along after the UK legislation. One of the things that we were able to do during the course of developing that legislation was to learn from some of the challenges that they have had in England with that legislation. I did not take that legislation fall, but that was one of the key issues that we considered at the time. That is why there are provisions that are within our own legislation that we do not require because we have already made provisions for them. I may be wrong, but I suspect that they are trying to correct some of the issues that they have had with their own heat networks legislation. I wanted to ask about the offshore wind environmental improvement package that has been mentioned a couple of times already. Is the Scottish Government content with the actions being planned by the UK Government to reduce the consent periods for offshore wind projects that are being adopted as part of the offshore wind environmental improvement package? We continue to have major concerns about the amendments that have been laid so far. Those amendments were only laid on 9 January. We are still going through their potential implications. There are some areas that could have a positive impact, but as they are in a limited way, however, as it stands at the present moment, there is still the significant risk that they could have a negative impact in slowing down the process. With differing competing consenting processes, there is a Scottish Government level and a UK Government level. For example, the clause makes provision for the Secretary of State to the discretion to operate a marine recovery fund that would operate in waters out to 200 nautical miles. However, it is unclear how that would operate. For example, if it operates on a UK-wide basis, it means that projects that were being taken forward within waters out with Scotland could potentially use a Scottish marine recovery fund in Scottish waters to offset mitigations in waters out with Scotland, which could end up creating a whole range of competing demands and challenges that would become extremely complex and will probably cause a considerable level of anxiety, which will cause a significant level of anxiety in the industry. There is quite a significant range of concerns that we have around. For example, the clauses do not maintain the current responsibility that the Scottish ministers have for habitat regulations assessments of offshore wind projects in the Scottish offshore wind region, which is between 12 nautical miles and 200 nautical miles. Right now, that is the responsibility of the Scottish ministers. Within the legislation, that appears no longer to be the case. Therefore, it is unclear exactly how that will be taken forward because it would appear to be that it may be seeking to dilute the current licensing and consenting responsibilities that we have within Scottish waters. The small positive aspect of it is that it has recognised that within Scottish inshore waters, which is between the coastline and 12 nautical miles, there is a responsibility of the Scottish ministers. It is the responsibility of the Scottish ministers between 12 miles and 200 nautical miles. How they have arrived at the idea of the distinction is beyond us. There is also a provision within it that says that the Scottish mill's powers to adopt any new regulations for HRA in the Scottish inshore region as well would be subject to qualifying secretary of state functions. We have absolutely no idea what that qualifying secretary of state function is. What does that mean? What are the implications of that? Is that a view that you should be able to override decisions that Scottish ministers make in areas that are devolved competence? Consider one certainty and some confusion around that. It does run the risk of causing delay and complications in the consenting system in a way that it is trying to speed up and improve the system. We all want to seek clarity. I was reading a note of a meeting that took place on 5 December. It was the inter-ministerial group for environment, food and rural affairs, and Cabinet Secretary Mary Gougeon and Lorna Slater in her ministerial role were representing the Scottish Government. The notice on the UK Government website is written from that perspective. It sounds quite positive in the sense that it is constructive. It said that devolved ministers set out the importance of delivering the provision in a way that supports our shared offshore wind ambition while respecting devolution. The DEFRA minister agreed that there is a need to work with devolved Governments to achieve mutual objections. Some of the concerns that you have raised, Cabinet Secretary, are you aware if they were discussed in that meeting on 5 December? I was, yes. They have been discussed at many meetings. What we have not had is progress in addressing the issues. Are those meetings just nice chats or are you getting into the detail on those meetings? The UK Government has absolutely no doubt about the detail. What we have done in relation to issues around the habitat regulations and offshore consent arrangements is that there are broadly two routes that can be taken here. One route is that some of the legislation under which consenting is taken forward is reserved, but it is exactly devolved to Scottish ministers and the Scottish Parliament to consider. The primary power of that is given to the Scottish Parliament to legislate in those areas. If the UK Government is not minded to do that, what it can do is to get regulatory making powers that allow the Scottish Minister and the Scottish Parliament to consider regulations in those areas that would allow us to effect a change to reflect the type of adaption that we want to make in our offshore wind consenting arrangements and in our habitat regulation assessments as well. We have set that out in detail to them as well. What we have not had is the progress in addressing those issues. People in Scotland will be wondering what that could mean for Scotland and a potential Scotland to. Is the Government's view on that and has there been discussion with stakeholders in Scotland around the Scotland agenda? It could create confusion. I also think that it will create some instability in the system as well, because there will still be areas that are devolved that the improvement package does not touch upon, which will create competing demand. There will be areas that are currently consented on by the Scottish Government and are managed by the Scottish Government through agencies such as Marine Scotland. The UK Government could say that we are taking control of those matters instead. It is a delusion of the powers that the Scottish Parliament ministers have in these areas of consenting. It could result in, as I say, a competing challenge between the UK Government's approach to aspects of consenting and how that then impacts on other areas of devolved policy, which might be around some marine environmental issues as well. From the discussions that we have had with the sector, there is anxiety that that is going to create confusion and competing interests that we are trying to avoid. There is a clear way in which to address that. That is to continue with the powers that we have at the present moment and to have the scope to be able to make the regulatory changes to adapt them to reflect the changing demand that we are facing. On the other part, and you mentioned Scotland, compared to what is happening in other parts of the UK, the scale of Scotland in terms of offshore wind development compared to the UK's completely different levels. Scotland is over nearly 28 gigawatts. It is way beyond anything that has been proposed in any other part of the UK. The need for us to have a consenting regime that is fit for purpose, that is reflective of the different needs that we have and the different competing interests that we have to manage from the fisher communities to our island communities, is really important. The danger is that we end up with a consenting system that does not reflect that. We find ourselves with left powers on behalf of the present moment in consenting on those issues. I will wrap up by referring to Scottish renewables. We have heard from them that they take the position that they support the Scottish Government's LCM recommending that consent is withheld for the first related sections of the bill on the basis that they support growing Scotland's renewable energy sector and sustaining its position at the forefront of the global clean energy industry. Given what you have said, and what the Scottish renewables are saying, is that the Scottish Government's position that the bill does not achieve that? No, it does not. In the present form, it does not. There is a need for us to be able to adapt to our consenting regime to deal with the scale of Scotland, and there are some other offshore wind developments as well, because of the various competing needs that we now have to address within our marine environment, which is why we have to change it and we have to adapt it. However, some of the aspects that we need to change in order to do that are the regulations that are based on legislation that is reserved to the UK Government, and that we use executive powers to exercise them. To change them fundamentally in a way that will help to improve that process, we need to have the regulation-making powers to actually do that, if not the powers over primary legislation. That is why I have set out that there are two routes that we can go down here. You can either devolve the power or you can give us a regulation-making powers, which this Parliament will then be responsible for scrutinising and how we manage that process. To date, we have not been able to actually make the progress on the issues that we would hope we would be able to. I can assure you that there is significant engagement not just in the industry but across different ministerial portfolios to try and find a way in which that can be properly addressed. It goes back to your opening point about the minute that you mentioned that there is a shared agenda here. The danger here is that the legislations that draft at the present moment could have the opposite effect in Scotland from what was originally intended to be its purpose, and that is why we have set out how we can make sure that we deliver on the shared agenda and also a fit for purpose consenting process for managing projects like Scotland and some of the big offshore renewable projects that are coming along in the next couple of years. That is helpful. Thank you, cabinet secretary. There are some other questions on that. I will come in to the deputy convener, Fiona. You confirm that the issue for both Governments is how we effectively reduce the consenting period, but you also want to improve the process, but we also need to have certainty for the industry to make sure that the developments take place as planned. Is that the area that you think that, if you had to come back to the committee in a supplementary LCM, that is likely to be the area of concern? Absolutely. It is key to it. One of the things that we need to be able to achieve here is that, with the scale of some of those developments, some of the mitigation measures that have to be implemented through the consenting process very often mitigations are very much based upon whether that development is taking place or close by. It may not be possible to achieve that just given the scale of some of those developments that may have to take place in another part of a marine environment or in our coastline, which is why we have set out a range of ways in which we can achieve that, which allows us to take forward developments in a timely, efficient, effective way. If we are not able to do that, the reality is that some of the larger developments will be significantly constrained and we will end up having to try and mitigate it in a way that will not be pragmatic. There is a pathway through that. What we have not been able to do is to get agreement with the UK Government on making sure that that pathway is very clear. The danger now is that, as we are picking up from industry, we are concerned about confusion and delay in the consenting process and not being able to manage it in a way that reflects some of the specific challenges that we have with the scale of projects in Scotland. We need to be in a position where we can adapt to that, because that is not reflected in what is happening in the other parts of the UK, because the scale of what we are doing is of a different magnitude. Now, if you can help the committee to understand any potential relationship between the UK Government's levelling up and regeneration bill and what might come through in relation to the energy bill in relation to mitigation and environmental aspects. Clearly, we perfectly understand onshore, we want to see biodiversity mitigation, we want to see peatland restoration with onshore developments. For offshore, clearly there will be a biodiversity impact of such major developments and we want to make sure that there are mitigations. Clearly environmental law and environmental mitigations are devolved competencies of this Parliament, but one of our concerns when we did our report into the UK levelling up and regeneration bill that was published at the end of December was that the new system would mean that where there was cross-border areas and seas quite clearly that that can take place, the Secretary of State for the Environment of the UK Government would not have to consult with the Scottish Parliament, the Scottish Government, in terms of that mitigation. The mitigation, therefore, for environmental issues, would be under the auspices of the Secretary of State for the Environment and could have a major impact. For example, if part of our mitigations we might want to develop seaweed farms or we might want to do something particularly with our bird population, there would be no responsibility, accountability and indeed planning and funding control from the Scottish Government that could actually transfer to the Secretary of State for the Environment now. If I've got this wrong, please let us know, but I was concerned about the interaction between these two bills. No, you're correct, because there is quite a significant interaction, particularly around a habitat regulation assessment aspect of it as well. A practical example could be, say for example, a marine recovery fund if it operates at a UK level is that you could have an offshore wind farm being developed in, say, the Celtic Seas, which is a project that's been taken off in Wales, but the actual mitigations could be applied in a fishery in Scotland. So, because of the negative impact that they would have on, say, for example, a certain type of bird life, naturally, say, we'll actually be closing a certain fishery in Scottish waters, that could actually be classed as a mitigation to help to support that. The challenge that you've got with that is that projects in Scotland, they actually may need mitigations that involve closure of certain fisheries to help to support it. We wouldn't have access to that, but the other part to it is that the closure of that fishery would have a significant potential. I'm just using this as an example, because of a significant economic impact on a community, which the Scottish Government would be largely responsible for addressing, but we weren't responsible for making the decision on closing a particular fishery. So, as a mitigation for an offshore wind farm, taking place somewhere else in UK waters? I'll just clarify. It could work the other way round, though, couldn't it? So, something could be developed up here, which may have an environmental impact, which is then translated into another part of the United Kingdom. So, it can work both ways, surely? Potentially, but the difference is that, in Scotland, the scale of what's been taken forward is of a different magnitude from what's happening in the rest of the UK waters, and it's worth keeping in mind what 62 per cent of all the UK's waters are actually in Scottish waters. So, it might be more important to have the ability to offset that across the whole of the United Kingdom, rather than just in Scotland waters? No, quite the opposite, because the reason being is that the vast majority of the mitigations are probably going to fall within Scottish waters, or within the Scottish coastline, because of the scale of what we're looking to do with offshore wind. So, if you look at the scale of what's projected in waters around England, it's of a much smaller scale than what's proposed in Scottish waters, and the danger is that smaller projects in other parts of the UK start taking up mitigation measures for large-scale projects in Scottish waters, and it then constrains them and limits them. However, even if I had the power—so, one of the things that we're saying is that any marine mitigation fund in Scotland should not matter, which is the responsibility of Scottish ministers to the Scottish Parliament—is that, if I was to be given the powers to take mitigations in other parts of the UK, I'd get no doubt very quick with people saying, actually, that's not the right thing to do, because I'm not responsible for the wider impact that that actually has on fishing communities, et cetera. That's a matter that would have to be decided upon by UK ministers. But you could consult with them to see if it would work. Well, to be honest with you, I wouldn't want to consult with them. If I'm placing a responsibility on them, I think it's my responsibility to get their consent and their agreement to it. The problem with this is that that's not what's proposed. It proposes that it'll actually be quite a centralised system based in Whitehall that will decide these things, which doesn't necessarily reflect the scale of what we're looking to take forward here in Scotland, and the impact that some of those mitigations might have on communities or certain industries, the responsibility of the impact that that would have would then fall to Scottish ministers. If I can continue my questioning in this area, what you're suggesting is that there should be consent both ways in terms of the environmental impact and mitigations as a result of the energy bill, but clearly implications for Scotland are far bigger because of the scale of the operations in Scotland too, potentially. Is that what you'll be seeking in terms of changes to the energy bill and does that require any interaction with the other bill that I was referring to that the UK Government is pursuing as well, that consent would work both ways? Currently, that's the only consultation with the Scottish ministers? I don't know, do you want to say a bit more about the interaction with the other piece of legislation because it's part of this wider engagement that we're having with the UK Government around this as well? In terms of how any marine mitigation fund or recovery fund would operate, we're moving into new territory here. There are a lot of competing demands that we have to try to address. A combination of trying to achieve the outcome that we're trying to get in terms of offshore renewable potential, the impact that that has on our marine environment and those who are dependent upon our marine environment are fisher communities, seabird life etc, which Scotland has a major role in helping to support at a European level as well. The idea with the meaning recovery fund is to try to help to take a balanced approach where we can try to mitigate against some of the impacts that large-scale offshore wind developments will have on our marine environment. The view is that for that system to operate effectively in Scotland, our view is that that's a matter that should be, as it would be at the moment, for any mitigations on consenting for offshore wind. It's a matter for Scottish ministers to make decisions upon as well. If there was a view that it was to operate at a UK-based level—a UK-wide level—there would be a need to have a process in place where Scottish ministers were asked for consent to agree to changes that may come about in a marine recovery fund being applied in Scotland to offset the impact of a development taking place outwith Scotland. What that would have to be weighed against, and what impact does that have on projects that are taking place in offshore Scottish borders? How do you manage all of those competing demands? If it is applied, what impact does that have on a community or an industry or bud life in Scotland? What impact will it have? How do we balance that out against all the other projects that will probably end up having to have mitigation measures put in place? That's a challenge, and we're able to try to achieve that. It would have to be a process that would require Scottish ministers' consent, but it would also need to be a balanced system so that we can properly assess the process. At this stage, there's a lack of detail or understanding exactly how that would operate, and that's one of the major issues. I don't have a regular, but I'll say a little bit about the interaction. We've got quite a few more questions that I'd like to bring in Mark, because he's got a supplementary on that, which may prompt the answer to the next one. Mark. Yeah, it might even feed into what Raggy would probably want to talk about anyway, but it's just to probe a little bit further about the changing nature of environmental assessments. So, on the levelling up bill, a proposal to move to environmental objectives rather than the European standard and processes of environmental assessment and habitats regulations. I'm just wondering if that forms part of the concern here. Is there a, with a shift in environmental assessment, could the answer to mitigation end up being different according to whether Secretary of State defines particular environmental objectives? The fundamental difference is that the UK Government viewed that. The habitat regulation aspect of it, for energy purposes, is being reserved. That's a change, because it's for energy production purposes, which is a reserved matter. Our view is that, no, that's not the habitat regulation aspects that are devolved are therefore to deal with environmental aspects, whether it's for energy production or anything else. These are devolved matters that we've competence over. So, that's part of the discussion that we've been having with the UK Government to try and get recognition. It's not about what the purpose of which some of these habitat regulations are for. It's the fundamental purpose of them that's important, and that is about managing our marine environment and effective marine stewardship as well. I don't know if you want to say a bit more raggy about the process that we've got around the levelling up. In terms of the relationship between the two bills, as you say, some of the principal issues are the same, and the issues that we have around touching on devolved competence are similar. It's the energy bill that the UK Government is using as the vehicle through which to implement or to introduce changes to the habitat regulation assessment process for offshore wind projects, and that's where our focus is in terms of this work on the energy bill. We can perhaps come back to you, if there's anything, if there are particular details around the relationship between the two bills that you'd like to explore further. Mark, you've got the next question as well, I think. No, I think I've done. You're finished. I'll come back to you Fianna then. I'm looking forward. How do you establish bills and legislation that can be future proof for changes that will happen in the future? You've already indicated the issues potentially around heat networks. Does the UK energy bill, as it stands, provide a wider risk to devolved powers, or is it likely to limit future actions of Scottish ministers of the Scottish Parliament in the future, particularly in the energy area? Effective our position is to maintain what we have at the present moment in terms of powers, and to look at trying to create mechanisms that can help us to address some of the challenges that we know we're going to face when it comes to things like large-scale offshore wind developments. We're looking to protect and maintain the existing devolved powers and competence that the Scottish Parliament and the Scottish ministers have on the consenting regime, but also recognise that, going forward, there are going to need to be changes in order to accommodate and manage some of the challenges around large-scale offshore wind developments, which is why we have been flagging up to the UK Government. You can hear devolve the primary legislation in which some of that has dealt with. If not, then create the regulation-making functions that allow Scottish ministers and the Scottish Parliament to adapt and change to some of the challenges that we're going to face in the years ahead. My view in terms of your challenge around future proofing is that having a regulatory process in there allows us to give that flexibility to adapt and change to some of the challenges that we go forward. The danger is that, if we don't have that, we find ourselves in a situation in which it creates confusion and difficulty and some instability in the process, and it creates a longer and more challenging process than would be necessary. What we think could be changed in the system to make it a much more efficient system. Do you see the immediate issues around offshore? Is there anything potentially an on-shorter in terms of environmental aspects in relation to the wider aspects of the bill, whether it's hydrogen, carbon capture, et cetera? Anything that you think is looking at environmental impacts on-shorter of any developments that might take place and the mitigations for that? For example, the ACOM project, Grangewires, et cetera? Yeah, so some of the powers that are created within here, for example, around hydrogen and carbon storage, as I was mentioning to Liam Kerr's question, is that some of them are very broad powers that are being taken by UK ministers, which in our view are likely to impinge on devolved areas at some point with the regulation-making functions that they are creating for themselves. Therefore, that's why we're saying that if it is going to impact on devolved areas, then we need to make sure that there's a consenting process for agreeing to that. So we're trying to again make sure that there's a move from consult to consent, because these are areas that we already have powers in that we would expect to require the consent of Scottish ministers in the Scottish Parliament, and that should be reflected in the broad powers that are being created in some of these areas. On the on-shore side, there's not so much in terms of on-shore within this legislation as well. There are some issues around consenting in on-shore, most of that is done through planning legislation in Scotland, as you're aware. There are some aspects around this that could be improved, which are within the Electricity Act around consenting, which we're engaging with the UK Government on, for that's mainly to do with large interconnectors. I'd be hopeful that we'll be able to get some sort of resolution to these matters, but I don't think that's to address within this piece of legislation. It's not within this bill itself. Okay, thank you. Thank you. Liam, I think that you've got a quick question. Yes, convener, it follows on from the deputy convener's question and actually taking you back, cabinet secretary, to what I asked at the start. We were talking about looking to change from merely to consult to consent and I think what I was hearing was that that would be the more usual and perhaps more appropriate way to go. And if that's right, do you have any view on how, given the number of times this comes up in this particular process, how we could identify, or how you could identify, at an earlier stage of the drafting issues such as this, in order that we don't get to this stage, let's say six months on from when it was initially raised, such that by this stage we're arguing on the more substantive matters that you've detailed? I think that's a good point. The most effective way to address that would be an earlier sharing of the draft of the bill in itself. We only received a draft copy of the bill the day before it was published. It was only the day, less than 24 hours before it was introduced to Parliament, we were given a copy of it. What we have flagged up to the UK Government consistently is an earlier sharing of the draft allows us to feed into that process at an earlier stage. That, in my view, would be the most effective way to try to help to avoid getting into these types of situations. The only thing that I would say, in addition to that, is that we're wearing discussions with the UK Government prior to the publication of the bill as well, but at that stage there were discussions that were based on no details of what exactly was going to be in the bill itself. Sharing an earlier draft of it with us would be the most effective way to deal with that, Mr Kerr. Thank you, cabinet secretary. I'm just looking around at the committee to see if anyone else has any other questions. For me, that last point was quite interesting, cabinet secretary, just the fact that you've got the bill the day before. It would help me just to understand that and may help the committee if you could share with us the letter of the 9th of August that you sent to the UK Government. I don't see it online somewhere. Maybe I've missed it, but maybe you could just send it to us afterwards so we've got an idea of the substantive questions that you raised at that stage and haven't been answered. Cabinet secretary, I'd like to thank you for your time and your officials' time this morning coming to the committee. That really concludes our part of the public meeting, so we're going to go into private session.