Overview of the Act and General Notes Interpretation Part 1: Emissions Reduction Targets Section 13: Further provision about setting first Scottish carbon budgets
73.As explained in paragraphs 17 to 20 above, the Act inserts a new section A4 into the Climate Change (Scotland) Act 2009 under which the Scottish Ministers will set carbon budgets by regulations. Section 13 of the Act makes further provision in connection with the first exercise of that budget-setting power.
74.Section 13(1) deals with where in the statute book Scottish carbon budgets are to be expressed. It provides that they are to be set out by being amended onto the face of the 2009 Act. This is to ensure that readers of the Act can find the budgets without having to look beyond an updated version of the Act (such as the one that will be freely available on legislation.gov.uk). The alternative would be for the budgets to be set out in the body of the regulations themselves, which would require users of the statute book to locate the relevant Scottish statutory instrument to learn what the budgets are. The usual presumption that a regulation-making power cannot be exercised to amend primary legislation (such as the 2009 Act) is overcome in the case of the power conferred by inserted section A4 by section 96(3) of the 2009 Act.
75.Section 13(2) requires the Scottish Ministers to obtain the relevant body’s advice on setting budgets before producing the first regulations doing so. That advice will be the latest advice for the purposes of inserted section A4(4) and (5) (the implications of which, and the meaning of “relevant body”, are explained in paragraph 20 above).
76.Section 13(3) sets a deadline for the Scottish Ministers to lay before the Scottish Parliament the first draft regulations setting Scottish carbon budgets. That deadline falls 3 months after they have received the advice from the relevant body that subsection (2) requires them to receive before deciding what budgets to set. As regulations setting Scottish carbon budgets are subject to the affirmative procedure (see paragraph 21 above), the regulations can only be made if the Parliament approves a draft of them.
77.Section 13(4) is a transitional provision that modifies how section 2C of the 2009 Act will operate if the Scottish Ministers use it as the statutory basis for making the request for the relevant body’s advice that section 13(2) requires them to make, or otherwise invoke it before the first-budget setting regulations have been made and come into force. There are two statutory bases in the 2009 Act for the Scottish Ministers to request the relevant body’s advice. Section 2D is a general power to make ad hoc requests about any matter the Scottish Ministers consider relevant. Section 2C is more specific; it requires the Scottish Ministers to periodically request the relevant body’s advice on a number of matters that it lists. As explained in paragraph 26 above, section 2(4) of the Act will amend section 2C of the 2009 Act to change its references to interim and annual targets into references to Scottish carbon budget targets. Those references to Scottish carbon budget targets will only make sense if there are Scottish carbon budget targets, which is to say if budgets have already been set when the request for advice under section 2C is made. In order to allow section 2C to be invoked to seek the relevant body’s advice ahead of setting budgets, during the transitional period before the first budgets are set only, section 13(4) allows the references in section 2C of the 2009 Act to be read as references to the budgets that the relevant body has, or intends, to advise the Scottish Ministers to set.