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For projects under 50MW?

I would have to look back at that. In my time as energy minister—Dr Allan then became the energy minister when I became cabinet secretary—I cannot recall calling in a decision that had been made by a local authority.

You mentioned Spain. At that time, I discussed the issue with someone when I was in Brussels, and actually, it was the generation of wind capacity that brought things back online. However, I take the point more generally. [ has corrected this contribution. See end of report.] I agree that variety is very important and that, as long as we rely on gas to heat our homes, we need to keep supplying it.

I also think that the UK Government needs to look at the injection of hydrogen into the gas grid. We have the infrastructure, with all the gas pipelines—the gas actually goes in nearby, in my constituency—and they are ready to inject hydrogen into the pipeline as well, which would reduce the amount of associated emissions.

I have pressed the UK Government for more decision making around that. As long as we are using gas, we have to look not only at how we bring down the carbon emissions associated with that but at the various electricity-generating and storage opportunities. We have to look at everything, with one exception, as Fergus Ewing knows very well. I know that he does not agree with his former party’s policy on this, but the SNP’s party policy is that we are against new nuclear.

I also make the point that, regardless of where and how it is generated, electricity needs to fit on a grid, and the grid infrastructure is old and creaking. Until the infrastructure is upgraded throughout the UK, we will have a situation in which we are paying developers to switch off generators.

I have heard different views on that. I am not talking about people in my party, and I will not divulge who I heard those views from—it was at a public event, but I do not feel comfortable saying who they are. They had a completely different view and wanted the status quo to remain.

I thank Maurice Golden for setting out the landscape. It is important to be aware of the different roles and the many different players. There are reserved responsibilities associated with transmission in particular. The Electricity Act 1989 is the governing legislation around all the regulations associated with consenting. The Scottish Government’s energy consents unit must conform to everything in the 1989 act. NESO has responsibility for what the transmission network looks like, and must look like, in order to facilitate the getting of the electricity to all the places where it needs to go throughout the whole of the UK.

The previous UK Government worked with NESO, and it has issued its plans for upgrading the transmission infrastructure. Regarding the role of the Scottish Government, ministers have the final consents, once developments have been through the whole process, which is regulated at UK level—although we have planning powers. Any developments over 50MW currently go to the energy consents unit in the Scottish Government; anything under 50MW is decided at local authority level by councillors and the authority. We are currently consulting on changing that threshold—to see what people think about changing it to give more responsibility to councils up to a level beyond 50MW.

We have some of the most stringent environmental conditions in Scotland. A series of documents and assessments must be submitted in applications to the energy consents unit. We do not dictate and cannot dictate to an applicant what the engineering solutions are for their application. Indeed, nowhere in the UK dictates that.

The ECU assesses the application as submitted. Let us say that those in charge of project X want power transmission lines. They have set out the engineering solution that they have found, and they have determined how and where they want to site those lines. We will assess that application as written. We will not dictate in advance that things have to be done in a particular way. It is for them to make an assessment and submit all the documentation associated with environmental impact assessments. That will then go out to all the statutory consultees, which includes local councils. Even if the development is over 50MW and comes to the ECU, local authorities will still be a statutory consultee. If local authorities do not agree with the application as written, it will automatically go to a public inquiry.

If the application goes through the energy consents unit, it will assess all the documentation, assessments and plans that are supplied by the applicant, and then, in accordance with all the regulations and the Electricity Act 1989, it will advise the minister who is making the final determination, with an assessment of what all the statutory consultees have said. It is important to realise that the minister who is looking at that advice can go back to their officials and question certain things, such as, for example, “Why are you giving me this advice when this has happened?”

The minister has to be certain that, when they make a determination, they are not going against any legal advice because, if they do, it might give them an opportunity to turn something down, for example. If officials have given the minister advice to consent to something and all the reasons why, and the minister says, “Nah—I don’t like it,” they need to be certain that they are on solid ground legally, because the decision might be appealed and taken to court.

That is the process and it is very rigorous. Many developers say that we take too long to make determinations. We try our best and we have doubled the capacity of people working in the ECU to streamline the process. That is good for developers, but it is also good for communities, because they get a quicker decision, they know what they are dealing with and it does not drag on for years.

First of all, I want community benefit to be mandatory. The UK Government has consulted on the issue—the consultation is closed and it is assessing the responses—and I am hopeful that we will have a situation in which community benefit is mandatory. Once that is the case, all the issues of the sort that you have mentioned will have to be worked out. Consideration will have to be given to what “community benefit” means and how “community” is defined.

A community’s proximity to the geographical siting of a development, whatever that might be, is the reason why it should benefit. Because the community is hosting that development or infrastructure, there should be a benefit associated with that, as it is right on the community’s doorstep.

The point that you made about Castlemilk relates to line of sight. As I said, I hope that the UK Government agrees to make community benefit mandatory. Once that has happened, we will need to do a piece of work that involves going out to the public to assess what community benefit should look like, what conditions should be associated with it and who should get it.

There is a trade-off to be made, because if we spread the community benefit too thin, people will feel as though they are not getting much of anything, and communities that host the infrastructure will think, “It’s all very well for that neighbouring city over there to get community benefit, but we’re the ones who’ve got this on our doorstep.” There will be different views on that.

However, the first step is to make community benefit mandatory. At the moment, the picture is too piecemeal. I have been to certain communities where really good work has been done on community benefit and people are delighted with how things have gone. However, we all hear from communities that feel extremely aggrieved, because they have been promised something that has not been delivered, they have not been engaged with properly or they have felt that their views have been ignored. Such things need to be made mandatory—the conditions, the guidance and the protocols on such matters need to be set in stone, and the process needs to be based on good practice.

We published guidance on effective community engagement in local development planning in December 2024. Transmission operators are expected to follow that guidance, which was produced by the ECU, so that they deliver consistent and meaningful pre-application consultation and engagement. Because of the extent to which we were hearing from communities on that issue, we could not wait for the UK Government to set out a mandatory process. We wanted to put in place something that meant that I could hold developers to account by saying, “Here’s the good practice that we’ve asked you to follow.” Of course, we do not have the power to make following that guidance mandatory, but it is there.

In addition, we got Planning Aid Scotland to produce an information sheet for communities—that was published in September last year—and there are guidance notes that explain the role of community hearings.

However, to be honest, until community benefit is made mandatory, the rogues who might be out there, whom people feel aggrieved about, can ignore all that. It needs to be made mandatory.

I would just note that all the planning regulations that pertain to Scotland have been passed by this Parliament, and that the Parliament put through national planning framework 4. There are also the regulations associated with the Electricity Act 1989, which are in statute, too. Of course, there are also the statutory consultees and the views that they put in. All of that is taken into account by the reporter.

Robert Martin might be able to give you a little bit more legal background on how the reporter operates.

That is one of the areas in which things could move with regard to community benefit. If a developer comes into an area and has a wind farm development, it could work with the community to share the grid connection for a community energy scheme. That could be a welcome offer for communities.

Substantial developments have been waiting for a long time to get a grid connection. The developers might be told that the development will be connected by a certain time, and then a review is done—as it has been recently—and they will be told that it will actually be five or 10 years beyond what they were originally told. That means that community energy schemes, which generate small amounts of energy, are all the way at the back of the queue.

There will be ways and means in the exercise that I hope we will be able to undertake once—this is wishful thinking—community benefit is made mandatory. That could be one of the opportunities for communities to get a benefit that is not so much about having money on the table—it would certainly not be about having football strips for local primary schools, as important as those are—but involves facilitating communities to have their own community energy scheme that has access to the grid via a shared connection. I think that communities would be excited about those opportunities, for the reasons that you described.

I guess that proceeding an indictment is the available option if a higher fine is what would be sufficient for the crime that has been committed. That is why I have set out our position in the way that I have. I absolutely recognise and sympathise with the fact that, as you mentioned in relation to previous amendments, people have gone to court and had to pay a lesser fine. In this case, however, the option of an indictment, which can lead to an unlimited fine, is available as well. I understand why you lodged amendment 299, but I hope that I have been able to set out that the level is not limited to £40,000, because an unlimited fine is possible.

Amendment 300, which is also in the name of Ross Greer, would introduce a requirement on the Scottish ministers to amend section 40 of the Regulatory Reform (Scotland) Act 2014 to

“replicate the penalties in EU Directive 2024/1203”

and set

“maximum levels of fines as a percentage of the total worldwide turnover”.

There are a couple of issues with the amendment. First, I am concerned that it is not entirely clear what is meant by “replicate the penalties”. To see why that is the case, we need to consider the nature of the EU environmental crime directive, which places requirements on member states to introduce criminal sanctions for causing environmental harm of different scales for a wide range of activities.

In our transposition of the earlier environmental crime directive, which was conducted while we were still in the EU through sectoral environmental regulation of different activities, the section 40 offence was not included. The new directive introduced a requirement for higher levels of sanction for qualified offences for certain activities where environmental damage is particularly severe and long lasting. That is described in the preamble to the directive as “damage equivalent to ecocide”. There is no offence in the directive that is directly comparable to section 40 of the 2014 act.

Members will be aware that the Net Zero, Energy and Transport Committee is considering Monica Lennon’s Ecocide (Scotland) Bill at stage 1, and I have put on record my support for its general principles. That bill seeks to establish a new offence of ecocide with higher penalties—I believe that the proposition is to have unlimited penalties—that would apply to events that are more serious in nature than those covered by the section 40 offence. As such, amendment 300 would create uncertainty and confusion as the Ecocide (Scotland) Bill progresses.

I am on record as saying that, before I agreed to support the Ecocide (Scotland) Bill, I offered the option of an amendment to the Regulatory Reform (Scotland) Act 2014, but Monica Lennon has pressed forward and has given Parliament the opportunity to vote for the Ecocide (Scotland) Bill, albeit that there are issues with it and it needs to be tidied up at stage 2, should it get to that stage. That bill would bring us more into line with what is happening in the EU. The campaign for ecocide law across the whole world is gaining momentum, and Monica Lennon has given us an opportunity to consider that in a Scottish context.

I have not drafted that amendment yet. Obviously, I am waiting to see what happens with the progression of Ms Lennon’s bill, but our general thinking is that, because the bar for proving ecocide is rightly set very high, we will link the Regulatory Reform (Scotland) Act 2014 to the applicable section in the Ecocide (Scotland) Bill, so that there could be almost dual offences—I think that is the phrase for it. If a court felt that it could not prosecute under the ecocide law, because the bar was too high and the evidence did not support that, it could fall back on the Regulatory Reform (Scotland) Act 2014.

I have not drafted that amendment, so I have not got the wording, but that is the general intention. We would not want a situation in which somebody brings a claim of ecocide and the whole court process is gone through but the case does not quite meet the bar, even though the evidence suggests that significant harm was caused. That is the reasoning behind the approach. Obviously, notwithstanding some of the issues with Ms Lennon’s bill that might have to be straightened out at stage 2, the eventual passing of an Ecocide (Scotland) Bill would provide sufficient leeway in terms of the sentence and the fines that might be associated with it.