<p>The provision for energy<xref ref-type="fn" rid="fn1"><sup>1</sup></xref> in the <a href="https://vlex.co.uk/vid/scotland-act-2016-808434845">Scotland Act 2016</a> (“SA 2016”) is piecemeal and lacks substance. Perhaps, given the contested political context from which the Act emerged, it would be surprising were it otherwise.</p>
<p>Scotland's energy resources, in particular North Sea oil and its renewable energy potential, were significant elements in the case for Scottish independence during the 2014 independence referendum.<xref ref-type="fn" rid="fn2"><sup>2</sup></xref> In the post-devolution period, and particularly since the election of the first Scottish National Party Scottish Government in 2007, there has been an uneasy relationship between Holyrood and Westminster over energy. It is reserved (with limited exceptions for the promotion of renewable energy and energy efficiency) to the UK Parliament under the <a href="https://vlex.co.uk/vid/scotland-act-1998-808137621">Scotland Act 1998</a> (“SA 1998”),<xref ref-type="fn" rid="fn3"><sup>3</sup></xref> but the UK Government is reliant on the exercise by Scottish Ministers of devolved powers in planning and environmental protection to implement onshore energy infrastructure development north of the border. In addition, specific competence over the Renewables Obligation – until recently the main revenue support mechanism for renewable electricity – was executively devolved ten years ago.<xref ref-type="fn" rid="fn4"><sup>4</sup></xref> Scottish Ministers have, therefore, blocked new nuclear power stations in Scotland<xref ref-type="fn" rid="fn5"><sup>5</sup></xref> and forged ahead with an ambitious renewable energy programme. Since the referendum, there has been a spate of UK Government decisions on energy, such as the withdrawal of funding for carbon capture and storage development, the closure of the Longannet coal-fired power station, and the withdrawal of subsidies for renewable energy. All of them have, whether by accident or design, undermined Scotland's “energy independence” in advance of any second independence referendum. <a href="https://vlex.co.uk/vid/scotland-act-2016-808434845">The 2016 Act</a> reflects the ebb and flow of this cross-border constitutional dynamic and suggests that the wings of the Scottish Government's energy policy are being clipped by Westminster: the Empire is striking back.</p>
<p>In this context, before examining the key provisions of SA 2016, it is instructive to identify first what is not included. Specifically, there is no devolution of control over North Sea oil and gas, or the regulation of the energy industry, energy taxation and energy subsidies: these remain with Westminster. The only measure relating to offshore energy enables Scottish Ministers to act in relation to declaring safety zones around, and the decommissioning of, offshore renewable energy developments in Scottish waters.<xref ref-type="fn" rid="fn6"><sup>6</sup></xref> The most noteworthy energy provision in SA 2016, in line with the post-referendum Smith Commission report,<xref ref-type="fn" rid="fn7"><sup>7</sup></xref> is the devolution of control over licensing and mineral rights access for fracking.<xref ref-type="fn" rid="fn8"><sup>8</sup></xref> The Scottish Government, of course, already had an effective veto over this under the devolved planning and environmental protection regimes, and had put in place a moratorium on the granting of planning consents for all onshore unconventional oil and gas developments, including fracking, pending the outcome of a public consultation. Politically, however, the devolution of...</p>
