Delegated Powers and Law Reform Committee
At its meetings on 6 and 27 June 2023, the Delegated Powers and Law Reform Committee considered the delegated powers that are exercisable within devolved competence in the Data Protection and Digital Information (No. 2) Bill (“the Bill”). The Committee published its report on 29 June 2023.
This is the second iteration of the UK Government Bill, which was initially introduced in Westminster on 18 July 2022. The Bill was paused and then subsequently introduced again in the House of Commons on 8 March 2023. The Scottish Government lodged an LCM on 15 May 2023 with the Bill subsequently being amended, and a Supplementary LCM was lodged on 14 September 2023.
The lead committee is the Economy and Fair Work Committee.
This is a substantial Bill containing 121 clauses and 13 schedules. The stated purpose of the Bill is to update and simplify the UK’s data protection framework with a view to reducing burdens on organisations while maintaining high data protection standards. The UK Government states that the privacy frameworks within the Bill are necessary, pro-growth reforms to enable data driven innovation, reduce data protection-associated burdens on businesses, and empower people to take control of their data, within a trusted data regime. The Scottish Government states that the proposed changes to data protection law represent a dilution rather than a radical change.
Legislative consent
The provisions in the Bill relate principally to reserved matters, however, a few aspects of the Bill relate to matters that are devolved in Scotland. One such provision is the subject of the Supplementary LCM: clause 99, which is a power to make regulations in secondary legislation to implement future international agreements as they relate to the sharing of information for law enforcement purposes. Whilst entering into international agreements is a reserved matter, their implementation in devolved areas is not, with current Scottish legislation making provision in relation to policing and law enforcement in Scotland. Following amendments being made to clause 99 of the Bill, the Scottish Government now recommends that the Scottish Parliament gives legislative consent to the Bill.
The Committee was content with the Bill’s delegated powers that are exercisable within devolved competence when it initially considered the LCM on 6 June 2023, with the exception of clause 99. The Committee agreed to write to the Scottish Government on the delegated power in clause 99 allowing the Secretary of State to make regulations to implement future international agreements as they relate to the sharing of information for law enforcement purposes. The Committee received correspondence explaining that amendments had recently been made to the power so it was now able to be exercised by either the Secretary of State or the Scottish Ministers and consent was to be recommended on that basis.
On 27 June 2023, the Committee considered the correspondence and reported, as noted below, in relation to clause 99.
The Committee accepts the delegated power in principle and is content that its exercise would be subject to the negative procedure.
The Committee notes that amendments have been made to the Bill giving the Scottish Ministers a concurrent power under clause 99 which, it considers, enables appropriate scrutiny by the Scottish Parliament.
The Committee highlights that it remains the case that the Secretary of State may make regulations within devolved competence, acting alone. There is no requirement for the Secretary of State to obtain consent or to consult with the Scottish Ministers before exercising the power. The Committee’s position, as agreed by the Committee in November 2022, in relation to delegated powers in UK Bills exercised in devolved areas is, in general terms, that:
a) The Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all legislative powers within devolved competence.
b) Where such powers are exercised by UK Ministers in devolved areas, there is no formal means by which the Scottish Parliament can scrutinise such regulations or be notified that they had been laid before the UK Parliament.
c) If such powers contain a requirement for the Scottish Ministers’ consent when exercised within devolved competence, the Scottish Parliament can scrutinise the Scottish Ministers’ consent decision.
The Committee will scrutinise powers conferred on UK Ministers not subject to a requirement for Scottish Ministers’ consent, and may suggest matters for the lead committee to consider.
d) As a minimum, powers when exercised by UK Ministers in devolved areas should be subject to the process set out in the SI Protocol 2 where the power is within the scope of that protocol.
The Committee draws the lead Committee’s attention to the fact that SI Protocol 2 will not apply to the exercise of this power. In order to have oversight as to how the power is exercised by the UK Government within the Scottish Parliament’s legislative competence, or of the Scottish Ministers’ position if consulted, the Scottish Parliament will be reliant on information provided by the governments.
The Committeei has, therefore, already considered the delegated power in clause 99 of the Bill as it has been amended in advance of the Supplementary LCM being received, following correspondence from the Scottish Government. The content of the Supplementary LCM and the amendments which it addresses are those which were addressed and outlined in the correspondence to the Committee and reported on.
There have been no other significant amendments to the power in clause 99 of the Bill which would necessitate the Committee revisiting its previous recommendation on the power, which remains unchanged since the Committee's consideration of it on 27 June 2023.
The Committee therefore wishes to reiterate the position it agreed at its meeting on 27 June 2023, as outlined at paragraphs 8 to 11 above.