Delegated Powers and Law Reform Committee
At its meeting on 3 September, the Committee considered the following negative instruments and agreed to draw them to the attention of the lead committees:
Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2019 (SSI 2019/232)
Plant Health (Miscellaneous Amendments) (Scotland) Order 2019 (SSI 2019/242)
The Committee's recommendations and conclusions in relation to these instruments are set out later in the report.
The Committee determined that it did not need to draw the Parliament's attention to the instruments set out by the relevant lead Committee at the end of this report.
Purpose
The instrument amends the Welfare Foods (Best Start Foods) (Scotland) Regulations 2019 (SSI 2019/193) in light of the Committee's report on that instrument dated 18 June 2019 (33rd Report, 2019 (Session 5)). The amendment is technical in nature and does not change the policy intention. It seeks to clarify particular provisions in relation to offences which were highlighted in the Committee's consideration of SSI 2019/193.
Committee consideration
The instrument was laid before the Parliament on 27 June 2019 and came into force on 11 August 2019. This does not meet the requirement that at least 28 days should elapse between the laying of an instrument which is subject to the negative procedure and the coming into force of that instrument.
The reasons for not complying with the 28-day rule are outlined in a letter from the Scottish Government to the Presiding Officer dated 27 June 2019. This correspondence is reproduced in Annex A.
In its letter, the Scottish Government said that it wished to amend SSI 2019/193 to "give full consideration to DPLR Committee comments" and "to cooperate fully with the Scottish Parliament in order to make clear, effective and accessible law." The Scottish Government added that it wanted to make these changes ahead of SSI 2019/193 coming into force on 12 August 2019.
Recommendations
Standing Orders require the Committee to draw the Parliament's attention to any failure to respect the 28-day laying requirement. The Committee therefore draws the instrument to the attention of the Parliament on reporting ground (j) as it fails to comply with the requirements of section 28(2) and (8) of the Interpretation and Legislative Reform (Scotland) Act 2010.
The Committee is nevertheless content that the failure to comply with the 28-day laying requirement was acceptable in the circumstances as the instrument rectifies the errors identified by the Committee in SSI 2019/193 before that instrument comes into force.
Purpose
This Order is an emergency measure which amends the Plant Health Forestry Order 2005 and the Plant Health (Scotland) Order 2005 to enhance import controls against the introduction of Oak Processionary Moth (OPM). It is made under the Plant Health Act 1967.
Committee consideration
The instrument was laid before the Parliament on 12 July 2019 and came into force on 16 July. This does not respect the requirement that at least 28 days should elapse between the laying of an instrument which is subject to the negative procedure and the coming into force of that instrument.
The reasons for not complying are outlined in a letter from the Scottish Government to the Presiding Officer dated 12 July 2019. This correspondence is reproduced in Annex B.
The Scottish Government's letter identifies that OPM has been found at several new sites in England and Wales. Trees from the same consignments have been imported into Scotland and are being investigated for signs of OPM infestation. Following a review of the relevant import controls, DEFRA and the devolved administrations in Scotland, Wales and Northern Ireland agreed to legislation being made as quickly as possible in July 2019 to tighten the rules on the import of oak trees in Scotland.
Recommendations
Standing Orders require the Committee to draw the Parliament's attention to any failure to respect the 28-day laying requirement. The Committee therefore draws the instrument to the attention of the Parliament on reporting ground (j) as it fails to comply with the requirements of section 28(2) and (8) of the Interpretation and Legislative Reform (Scotland) Act 2010.
The Committee is nonetheless content that the failure to comply with the 28-day laying requirement was acceptable in the circumstances given the SSI seeks to minimize the threat that OPM poses to oak tree, public and animal health.
Education and Skills
Provision of Early Learning and Childcare (Specified Children) (Scotland) Amendment Order 2019 (SSI 2019/draft)
Environment, Climate Change and Land Reform
Conservation (Natural Habitats, &c.) (Miscellaneous Amendments) (Scotland) Regulations 2019 (SSI 2019/draft)
Equalities and Human Rights
Historical Sexual Offences (Disregarded Convictions and Official Records) (Scotland) Regulations 2019 (SSI 2019/draft)
Justice
Scottish Tribunals (Listed Tribunals) Regulations 2019 (SSI 2019/draft)
Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges etc.) (Scotland) Regulations 2019 (SSI 2019/230)
Police (Retention and Disposal of Motor Vehicles) (Scotland) Amendment Regulations 2019 (SSI 2019/231)
Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Court Sittings) 2019 (SSI 2019/227)
Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Company Insolvency Rules Amendment) (Insolvency) 2019 (SSI 2019/247)
Local Government and Communities
Tenancy Deposit Schemes (Scotland) Amendment Regulations 2019 (SSI 2019/draft)
Rural Economy and Connectivity
Additional Powers Request (Scotland) Regulations 2019 (SSI 2019/draft)
Social Security
Carer’s Assistance (Young Carer Grants) (Scotland) Regulations 2019 (SSI 2019/draft)
Social Security (Scotland) Act 2018 (Commencement No. 5, Revocation and Saving Provision) Regulations 2019 (SSI 2019/269)
Extract from a letter from the Scottish Government to the Presiding Officer
27 June 2019
Dear Presiding Officer
The Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2019
The Welfare Foods (Best Start Foods) (Scotland) Amendment Regulations 2019 SSI 2019/193 was made by the Scottish Ministers under section 13 of the Social Security Act 1988. It is being laid before the Scottish Parliament today, 27 June 2019 and comes into force on 11 August 2019.
Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 sets out that a negative SSI must be laid before the Scottish Parliament at least 28 days before the instrument comes into force. On this occasion, this has not been complied with and to meet the requirements of section 31(3) of that Act, this letter explains why.
The Regulations are required to amend the Welfare Foods (Best Start Foods) (Scotland) Regulations 2019 (“the principal instrument”) in order to offer greater clarity in respect of regulation 18 of the principal instrument. The Regulations are being brought forward following queries from the Delegated Powers and Law Reform Committee (“DPLRC”).
The Committee drew the principal instrument to the attention of SGLD on account of a disconnect between regulation 17 and regulation 18, in reference to offences, and their enabling powers. In order to provide clarity to the application of section 113 of the 1992 Act to regulation 18 by section 13(9) of the 1988 Act it is necessary to lay an amending SSI. The Scottish Government have given full consideration to DPLRC comments and wish to cooperate fully with the Scottish Parliament in order to make clear, effective and accessible law. The amendment is technical in nature and does not change the policy intention. It merely seeks to clarify a particular provision in relation to offences.
We apologise for breaching Standing Orders on this occasion, however it is considered that it is necessary in order to ensure this clarification is in place for the coming into force of the principal instrument on 12 August 2019. For these reasons we are unable to meet the 28 day requirement.
Extract from a letter from the Scottish Government to the Presiding Officer
12 July 2019
Dear Presiding Officer
The Plant Health (Miscellaneous Amendments) (Scotland) Order 2019
The Plant Health (Miscellaneous Amendments) (Scotland) Order 2019, SSI 2019/242 (“the SSI”) was made by the Scottish Ministers under sections 2 and 3(1) of the Plant Health Act 1967. It is being laid before the Scottish Parliament today, 12 July 2019 and comes into force on 16 July 2019.
Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 sets out that a negative SSI must be laid before the Scottish Parliament at least 28 days before the instrument comes into force. On this occasion this provision has not been complied with and, to meet the requirements of section 31(3) of that Act, this letter explains why.
Oak Processionary Moth (“OPM”) is a pest which poses a threat to oak tree, public and animal health is regulated in the EU Plant Health Directive as a “protected zone pest”. Most of the UK (other than an infested area around Greater London) enjoys this protected status. That means that oak trees being moved into the UK protected zone from other parts of the EU and from the infested area around Greater London must be accompanied by a plant passport.
OPM has been found at several new sites in England and Wales. Trees from the same consignments have been imported into Scotland and are being investigated for signs of OPM infestation. A cross-border incident management team has been established and rapid action is being taken to identify and treat all infested trees. Following a review of the relevant import controls, Defra and the Devolved Administrations (“DAs”) in Scotland, Wales and Northern Ireland agreed to legislation being made as quickly as possible in July 2019.
The SSI will minimize the threat that OPM poses to oak tree, public and animal health by tightening the rules on the import of oak trees into the UK protected zone (including Scotland). Defra and the other DAs are introducing similar legislation which will achieve the same result for England, Wales and Northern Ireland.