Delivering net zero for Scotland's buildings - Heat in Buildings Bill: consultation analysis

9. Amendments to Existing Legislation

The final section of the consultation paper contained three questions which focused on how the Heat in Buildings Bill interacts with existing legislation. This chapter presents the analysis of responses to Q26, Q27 and Q28.

Chapter Summary

While many, particularly individuals, did not feel well enough informed to respond to these questions, others provided useful insight into changes that may be required to ensure the proposals work effectively. There was broad support among those who felt able to respond, with themes highlighting the potential for the proposals to lead to more effective monitoring metrics, ensuring alignment across different legislation and offering multiple suggestions for further amendments to the Heat Networks (Scotland) Act 2021.

Just under half (47%) of the respondents who answered Q26 agreed with proposals to include powers in the proposed Heat in Buildings Bill to change the current requirement in legislation for a narrowly-defined renewable heat target. Just under a third (30%) disagreed and nearly a quarter (23%) were unsure. Individuals were more likely to disagree than organisations (32% compared with 14%).

Around one in six respondents left a comment in Q26. In line with the 23% who answered don’t know at the closed question, the most common theme, raised by both individuals and organisations, was that the question was unclear and vague, and the information provided in the consultation paper was insufficient to be able to answer. Respondents noted they were unable to express a view until they had greater clarity over what the proposed powers would be. Some respondents, primarily organisations, left more detailed comments calling for greater clarity over what should be included in the targets. Specifically, there was a desire for a clearer definition of renewable heat. While a few called for a wider definition to include heat from heat pumps, heat networks, bioenergy, solar and hydrogen, a few others argued that wood burning and municipal incineration should not be included.

The next most common theme, mentioned by some, was agreement with the proposal if it were to lead to more effective monitoring metrics. Respondents stressed the importance of regular, rigorous, transparent monitoring to ensure accountability and suggested that getting more information about progress towards incremental targets would be beneficial.

“These targets are not going to be easy to meet. There needs to be regular review points to assess progress and where necessary make adjustments (up or down), along with learning and action points, towards the overall end game.” - Inverurie Community Energy Society Ltd (trading as Garioch District Heat)

A similar proportion of respondents agreed with the proposal, highlighting that there is likely to be a need for flexibility in the future. They argued for the ability to amend the target as plans progress and circumstances change between now and 2045 e.g. if alternative technology becomes available.

“Having a refined and updated renewable heat target makes sense and the landscape develops quickly, being as on point as is practical allows accuracy and alignment with current thinking.” – Scottish Borders Council

Some respondents, almost all of whom agreed with the proposal, argued that there should be the ability to change the target because they wanted to see a higher or more ambitious target. A few expressed their view that the existing 22% target is insufficient.

The next most prevalent theme, and the most common among those who disagreed with the proposal, was that changing the targets could be seen as ‘cheating’, ‘moving the goalposts’ or trying to hide the fact that progress had not been as fast as anticipated. Related to this, some raised a concern that changing targets could have a range of negative impacts. These included that it could confuse the public about what targets they are working towards, reduce buy-in and commitment, and slow or stall progress.

“Whilst appreciating the flexibility needed, this raises concerns that this flags to those not wishing to take action that things might change. This could add increasing uncertainty to an already fairly uncertain area. This could fail to give the market the certainty needed to help support and drive change.” – Built Environment Forum Scotland (BEFS)

Other themes, each mentioned by a small number, included the need for further consultation about, and effective parliamentary scrutiny of, decisions on new targets and general comments about the need for targets to be clear, understandable, realistic and achievable. A few made singular comments about considerations for the target, including that it: should be linked to emissions, including whole-of-life emissions rather than point of use; that energy consumption should be taken into account; or should be replaced with target numbers of homes using clean heating in milestone years.

Among those who responded to Q27, 46% agreed that the Heat Networks (Scotland) Act 2021 should be amended in light of the passage of the Energy Act 2023, while 18% disagreed. There were higher levels of support among organisations than individuals (67% vs 43%). Over a third (36%) said they were unsure.

One in ten respondents left a comment in Q27. However, over one in ten of those comments, mostly from individuals, noted that they did not know what the Heat Networks (Scotland) Act 2021 is, or did not have enough information to answer.

Most of the remaining comments were positive, outlining a range of reasons in support of amending the Heat Networks (Scotland) Act 2021. The most prevalent theme among both individuals and organisations was that the two Acts should be aligned to ensure consistency between Scottish and UK legislation. However, a few caveated this support by advocating that the Heat Networks (Scotland) Act 2021 should only be reviewed and amended to reflect the Energy Act 2023 and that wider changes should not be permitted.

Other themes in support of the proposal, each mentioned by some respondents, included:

• Specific calls to ensure there are consistent definitions across the two Acts.
• That alignment would ensure there is sufficient consumer protection in Scotland.
• Consistency to help strengthen the will to change. A few cautioned, however, that any changes to the Heat Networks (Scotland) Act 2021 should not dilute its impact.

“It is not yet clear how exactly Ofgem’s authorisation processes as the heat networks regulator are going to differ from the Heat Networks (Scotland) Act 2021 but there are already diverging viewpoints. For example, in the Ofgem/DESNZ consumer protection consultation, the terminology of “suppliers” and “operators” differs from Scottish legislation. Both terms appear to have different obligations compared to the Heat Networks (Scotland) Act 2021.” – Scottish Renewables

“The Energy Act 2023 brings additional protections for heat network consumers throughout the UK, by creating the legislative framework required for the regulation of heat networks. The introduction of regulation will help to support better consumer experiences of using heat networks as they continue to expand to meet Scotland’s heat demands. We welcome the Scottish Government’s consideration and wider thinking on possible legislative changes to enable alignment with the Energy Act 2023 to ensure the sector is safely and proportionately regulated in Scotland.” – Consumer Scotland

In addition, a few supported the proposal as it would ensure that the Heat Networks (Scotland) Act 2021 is up to date, based on all the information and learning so far, and creates a level playing field for companies operating across the UK.

A few themes in opposition to the proposal were each mentioned by a few respondents. These included: general comments opposed to amending existing legislation; opposition to the Heat Networks (Scotland) Act 2021 and the Energy Act 2023; and challenges around the relationship between the UK and Scottish Governments. On the latter point, for example, The Common Weal noted Ofgem’s expanded remit to regulate heat networks is in fact a responsibility devolved to the Scottish Government.

“We are concerned that recent development in the UK have already weakened legislation important to Scotland in relation to heat networks. The appointment of Ofgem as the regulator and the uncertainty over how it will discharge its responsibility provides for considerable uncertainty.” – Energy Action Scotland

Some respondents made more general comments about heat networks. These are covered in Chapter 6, but of note were a few calls to factor the Heat Network Technical Assurance Scheme (HNTAS) and Heat Network Zoning into any alignment and the need to ensure heat networks are not seen as only feasible in urban areas.

Q28. Are there any further amendments to the Heat Networks (Scotland) Act 2021 that the Scottish Government should consider?

Three in ten respondents left a comment in Q28. However, two fifths of those comments were mostly from individuals and some organisations and simply stated they were unsure or that there were no further changes to consider. A further one in ten comments called for the legislation to be stopped or scrapped; it was mostly unclear whether respondents were referring to the Heat in Buildings Bill or the Heat Networks (Scotland) Act 2021.

Many other respondents, mostly individuals, used Q28 to reiterate points related to other consultation questions; these have been included at the relevant points throughout this report. Criticism of the Scottish Government’s approach and the need for financial support and subsidies were the most prevalent of the overarching themes raised in Q28, each mentioned by some respondents.

Around one in ten comments were directly related to the Heat Networks (Scotland) Act 2021. However, there was little consistency in the suggestions for consideration. A few organisations each highlighted the need for flexibility as plans develop or called for: regulations to be included in law to ensure an economic analysis is carried out prior to heat network zones being designated or for the act to require new developments that are located within a Heat Network Zone to be “heat network ready”, pending the deployment of future heat networks.

“In the Heat Networks (Scotland) Act 2021 Scottish Ministers have the power to specify by regulation other non-domestic owners that should complete a Building Assessment Report (BAR). With statutory guidance issued on BARs in May 2023, we suggest that the Scottish Government could review the progress being made by Scottish Public Authorities to complete and submit BARs with a view to applying this duty to all non-domestic buildings.” – South of Scotland Enterprise

“The process of determining a Heat Network Zone (HNZ) is still in its infancy, and there is growing apprehension about the robustness of the data employed to determine an HNZ. Local authorities have exhibited varying levels of consistency in employing robust evidence to determine an HNZ, which could expose them to legal challenges or intense scrutiny. One potential solution could be to revise the Heat Networks Act to be more prescriptive on the evidence required to designate an area as a Heat Network Zone.” – Argyll and Bute Council

Several respondents left more general comments about heat networks. Again, there was little consistency across these points, with most already covered in Chapter 6. In summary, these included: calls to create more heat networks; the efficacy of heat networks; to consider the size and scope of heat networks in urban and rural areas; varied views on which buildings should be included and excluded; and consumer protection.