Delegated Powers and Law Reform Committee
This report reflects upon the work of the Delegated Powers and Law Reform (DPLR) Committee in 2022-23. This reporting period covers 13 May 2022 to 12 May 2023.
The DPLR Committee’s remit encompasses a number of different roles which are considered in this report, but its primary focus is upon the scrutiny of delegated powers in Scottish Parliament Bills and UK Government Bills as well as Scottish Statutory Instruments (SSIs).
In performing its roles the Committee has two primary objectives:
to ensure that Scots law is clear, accessible, and operable; and
to hold the responsible authority (primarily the Scottish Government) to account.
This report and the quarterly reports the Committee produces over the course of the reporting year are integral to meeting these objectives. Specifically, this report:
reviews the quality of the instruments laid by the Scottish Government and in doing so holds the Government to account whilst seeking to drive continuous improvement in the quality of SSIs laid; and
considers the Committee's scrutiny of delegated powers in primary legislation.
The report also reflects on issues that have arisen in relation to the scrutiny of delegated powers and the Committee's effectiveness in persuading the Scottish Government to respond to issues identified by the Committee.
This report is therefore part of a broader process of holding the Scottish Government to account.
It should be noted that the report also considers the quality of the instruments laid by the Lord President's Private Office (LPPO). More on the role of the LPPO can be found below.
The Committee met 34 times in the reporting period.
Membership Changes
Previous Members of the Committee during the reporting year:
Craig Hoy (from 17 June 2021 to 25 May 2022)
Graham Simpson (from 17 June 2021 to 22 September 2022)
Paul Sweeney (from 17 June 2021 to 19 January 2023)
Carol Mochan (from 19 January to 25 April 2023)
Before looking at the instruments which were laid in 2022-23, it is useful to explain what Scottish Statutory Instruments are.
SSIs are a form of law made by the Scottish Ministers (or other responsible authority such as the Lord President) exercising powers granted by the Scottish Parliament or the UK Parliament.
SSIs are usually in the form of regulations, orders, rules or schemes. They generally set out technical details or administrative matters necessary for primary legislation to operate, but can cover any subject matter ranging from criminal penalties, licensing schemes, prescribing application forms, to providing procedural rules.
The content of SSIs is, however, limited by the terms of the primary legislation which authorises their use – referred to as the "enabling power" or "parent Act". The Delegated Powers and Law Reform Committee considers these enabling powers in Bills as they pass through the Parliament to ensure:
the delegation of the power is appropriate or whether it is so significant that it should instead be on the face of the Bill;
if it is to be delegated, the level of parliamentary procedure (e.g. negative or affirmative) that it is proposed it should have in the future is appropriate; and
the power has been clearly drafted and goes no further than necessary.
Once a Bill is passed, the Committee will then consider the resultant SSIs made under these powers.
The role of the Committee is to consider these instruments from a technical perspective. It:
scrutinises SSIs on behalf of the Parliament to ensure that proposed laws are within the powers the Parliament has delegated to Ministers in the parent Act – a law which is not within the enabling powers is invalid and has no legal effect;
checks the quality of each SSI to ensure that it is accurate, achieves the intended policy and the drafting is clear to the end user; and
through exchange of correspondence and its reports, encourages and monitors corrective action by the Scottish Government and other rule making authorities.
The policy issues raised by SSIs are considered separately by the Scottish Parliament's various subject committees such as the Criminal Justice Committee, the Net Zero, Energy and Transport Committee and the Rural Affairs and Islands Committee. These are known as the "lead committees".
The Committee also considers proposed delegated powers which are in bills introduced in the UK Parliament, where they would be exercisable within the legislative competence of the Scottish Parliament. Where these powers are conferred on Scottish Ministers, once the bill is passed the Committee will consider the resultant SSIs made under the powers. Where the powers are conferred on UK Ministers, the resultant instruments will be UK Statutory Instruments (UK SIs), rather than SSIs. Most UK SIs are laid only in the UK Parliament and are therefore not scrutinised by the Committee.
SSI Procedures
There are a number of different procedures that can be used when scrutinising an SSI. The procedure used in relation to each instrument is determined by what is said in the instrument's "Parent Act" - this is the legislation that authorises the use of subordinate legislation on a given matter.
The three most common procedures are:
Affirmative – this procedure is attached to instruments relating to significant matters and provides for a greater level of scrutiny than the other two main procedures. Before an instrument which is subject to the affirmative procedure can be made and brought into force, it must be approved by the Parliament.
Negative – this is the most common procedure attached to instruments laid before the Parliament. It is generally attached to instruments relating to matters of less significance than those subject to affirmative procedure. While the Parliament does not need to approve negative instruments before they can come into force, the Parliament can annul a negative instrument.
Laid, no procedure – these are instruments subject to the lowest level of scrutiny in the Parliament. They are laid before the Parliament for technical scrutiny and neither require approval nor can they be annulled.
Before examining the quality of the instruments laid by the Scottish Government this year, it is useful to reflect on how the Committee reports instruments. In considering each instrument the Committee is guided by a set of reporting grounds.
Rule 10.3 of Standing Orders outlines these reporting grounds. In order to make these more understandable and reflective of the extent of the Committee's concerns, the Committee has developed a hierarchy of reporting grounds.
“Significant grounds” represent those areas which would cause the Committee most concern; “Other grounds” consist of areas where that concern would not be so significant, but nonetheless the matters can affect the understanding of an instrument if not its validity; “Advisory grounds” meanwhile relate to matters which the Committee wishes to draw to the attention of the Parliament or lead committee but do not affect the understanding of an instrument. The individual reporting grounds are broken down by their hierarchy below.
Significant grounds:
ground (e) – (doubt as to whether it is intra vires);
ground (f) – (raises a devolution issue); and
ground (i) – (drafting appears to be defective).
Other grounds:
ground (c) – (where the instrument has retrospective effect where the parent statute confers no express authority so to provide);
ground (d) – (unjustifiable delay in publication or laying);
ground (h) – (clarity of form or meaning); and
the general reporting ground (which includes minor drafting errors and failures to follow proper drafting practice).
Advisory grounds:
ground (a) – (charges on or payments to the Scottish Consolidated Fund);
ground (b) – (made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts);
ground (g) – (unusual or unexpected use of the powers conferred by the parent statute); and
Ground (j) - (non-compliance with laying requirement)
The intention of this approach is to enable the Scottish Government, lead committees, stakeholders and the public more generally to understand the extent of the Committee's concerns and respond accordingly.
After the Delegated Powers and Law Reform Committee has considered an instrument from a technical perspective, the subject committee within whose remit the instrument falls then has an opportunity to consider the instrument from a policy perspective.
The following infographic explains the process by which an instrument is taken through the Parliament.
The Committee considered 222 instruments during this reporting period. This compares with 334 considered in 2021-22.
Of the 222 instruments, 209 were laid by the Scottish Government and 13 by the Lord President's Private Office ("LPPO"). This is fewer Scottish Government instruments than in recent Parliamentary years (325 in 2021-22 and 380 in 2020-21) and is below the pre-pandemic level.
The 209 SSIs laid by the Scottish Government can be broken down by procedure as follows:
4 Made affirmative
55 Draft affirmatives
118 Negatives
30 Laid, no procedure
2 Documents/Instruments
The 13 SSIs laid by the LPPO were all laid, no procedure.
The number of “made affirmative” instruments during this reporting period has returned to the range that was typical before the Coronavirus pandemic. The made affirmative procedure means that an instrument may come into force as soon as it is made but it will not remain in force beyond a specified point in time unless the Parliament approves it. It is generally used for matters that are considered to require a high degree of Parliamentary scrutiny (thus requiring Parliament to approve the instrument) but where the circumstances are too urgent to allow the 40-day period of Parliamentary scrutiny before making the instrument that would apply to an instrument subject to the affirmative procedure. Accordingly, in normal times the made affirmative procedure is used relatively rarely. In the Parliamentary years 2021-22 and 2020-21 there were respectively 56 and 92 made affirmative instruments, the vast majority of which related to the Coronavirus pandemic.
Number of SSIs laid under each procedure
How many instruments were reported on this year?
A total of 26 instruments were drawn to the attention of Parliament this year. While this overall figure equates to 11% of instruments considered, 13 of the instruments were reported under reporting ground (j) for breaching the 28-day rule, of which the Committee was content with the Scottish Government's explanations for eight of the breaches. If these eight instruments are excluded from the total figure, the Committee reported 18 instruments, equating to 8% of the instruments considered.
In the previous year, where the Committee was content with the Scottish Government’s explanations for breaching the 28-day rule, 24 instruments were reported equating to 7% of the instruments considered. This level has remained relatively steady over the past years for which there are figures, having been at 8% for 2019-20.
Summary of use of reporting grounds
As discussed earlier in the report, instruments are reported by the Committee under one of eleven grounds as set out in rule 10.3 of Standing Orders.
The infographic below shows a breakdown of reported instruments by reporting ground. A list of the instruments reported under each ground can be found in Annex A.
The most common reporting ground over this reporting year was reporting ground (j) - failure to comply with laying requirements. The number of instruments reported under this ground has considerably decreased from 2021-22 (from 24 to 13). This appears to represent a return to pre-pandemic levels, as the equivalent figure for 2019-20 was 16. In all cases the instrument was reported for failing to respect the "28-day rule". This rule provides that at least 28 days should elapse between the laying of an instrument subject to the negative procedure before the Parliament and the coming into force of that instrument.
The principle behind the 28-day rule is that the law should not generally apply to citizens until the Parliament has had a chance to scrutinise the proposed changes. The rule can however be broken when the Scottish Government considers that a matter is of such urgency that an instrument must come into force before the 28 days have elapsed. In all such cases, the Scottish Government must write to the Presiding Officer explaining the reasons for the breach. In this reporting year, one of the 13 instruments reported under reporting ground (j) was made in response to the war in Ukraine, in relation to refugees’ entitlement to social security benefits.
This reporting year, no instruments have been reported under the most serious reporting grounds. In 2021-22 there were five reported.
While the Committee acknowledges that there were no instruments reported on serious grounds, it asks the Scottish Government to continue to improve the quality of instruments in 2023-24.
The Committee welcomed that no instruments were reported under the most serious reporting grounds.
The infographic below shows the instruments laid by the Scottish Government (and those reported in 2022-23), broken down by lead committeei.
The Local Government, Housing and Planning Committee received the most instruments this year, with a total of 36.
Overall, the number of instruments for the committees is relatively lower this reporting year, as are those that have been reported on.
There has been one instrument considered by the Parliament this year (four in 2021-22). Some instruments are referred directly to the Parliament, rather than a lead committee, to meet an expedited timetable.
Instruments can be laid by the Lord President's Private Office (LPPO) on behalf of the Court of Session and High Court of Justiciary. These instruments are used to update court rules in Scotland and can be split into two distinct types:
Acts of sederunt are used primarily to regulate civil procedure in the Court of Session and Sheriff Courts; while
Acts of adjournal are concerned with regulating criminal procedure in the High Court of Justiciary and Sheriff Courts.
Both acts of sederunt and acts of adjournal are subject to the same level of scrutiny by the Committee as any other SSI. They are laid by the LPPO as the Lord President is the head of the judiciary in Scotland.
These instruments are laid separately from those laid by the Scottish Government so a separate analysis of the quality of these instruments is provided below.
13 instruments were laid by the LPPO in this reporting year which compares with 9 in 2021-22 and 14 in 2020-21.
There have been two instruments reported (under the General reporting ground) during this year, which is the same number as in 2021-22.
The Committee encourages the LPPO to keep the number of reported instruments low.
Scottish Government Instruments
Over the course of the reporting year, a total of six amending instruments were laid which corrected errors in instruments that were drawn to the attention of the Parliament by the Committee.
There are also errors in instruments that remain outstanding but which the Scottish Government has given a commitment to correct. A list of all outstanding commitments can be found at Annex B.
LPPO instruments
During the reporting period, the Committee identified errors in 2 instruments laid by the LPPO, one of which was corrected within the reporting period.
The Committee continues to encourage the Scottish Government and the LPPO to meet outstanding commitments made to the Committee.
If concerns are raised by the Committee in relation to affirmative SSIs, the Scottish Government can withdraw the instruments during their passage through the Parliament. This is one indication of the quality of instruments laid before the Parliament.
During this reporting year the following four instruments were withdrawn and re-laid:
Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2022 (SSI 2022/Draft);
Dentists, Dental Care Professionals, Nurses, Nursing Associates and Midwives (International Registrations) Order 2022 (SI 2022/Draft);
Budget (Scotland) Act 2022 Amendment Regulations 2023 (SSI 2022/Draft); and
Cost of Living (Tenant Protection) (Scotland) Act 2022 (Incidental Provision) Regulations 2023 (SSI 2023/Draft).
This is a decrease from 10 withdrawn and re-laid instruments in 2021-22.
The Committee encourages the Scottish Government to lay instruments of such a standard that they do not require to be withdrawn.
Minor points are generally typographical or referencing errors in instruments. These are separate to, and less significant that, points that lead to an instrument being reported. While they do not affect the validity of the instrument, they are nevertheless drafting errors which can point to wider concerns with the quality of instruments.
During its scrutiny of instruments in 2022-23, the Committee identified a total of 31 instruments on which minor points were raised. This can be broken down into 30 instruments laid by the Scottish Government and one instrument laid by the LPPO.
This is a reduction from 2021-22 in which there were 46 instruments with minor points.
The Committee welcomes the improvements that have been made to reduce the number of minor points arising but continues to call on the Scottish Government and the LPPO to continue their efforts to reduce this further.
The SSI Protocol was designed to ensure that SSIs laid by the Scottish Government under the European Union (Withdrawal) Act 2018, to correct deficiencies stemming from the UK leaving the EU, received the right level of careful scrutiny.
The Committee recommended, along with the Constitution, Europe, External Affairs and Culture Committee and the Conveners Group, that the SSI Protocol be discontinued, as it considered that it no longer facilitated proportionate or effective scrutiny. The Minister for Parliamentary Business responded and agreed to this change. The Committee therefore stopped considering instruments under the SSI Protocol in May 2022.
A primary function of the Committee is to consider the delegated powers provisions in bills introduced in the Scottish Parliament. Over the reporting period, the Committee has considered and reported on the following nine bills at Stage 1:
Moveable Transactions (Scotland) Bill
Patient Safety Commissioner for Scotland Bill
Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill
Bail and Release from Custody (Scotland) Bill
Trusts and Succession (Scotland) Bill
Budget (Scotland) (No.2) Bill
National Care Service (Scotland) Bill
Charities (Regulation and Administration) (Scotland) Bill
Children (Care and Justice) (Scotland) Bill
The Committee also considered and reported on four Bills after Stage 2:
Good Food Nation (Scotland) Bill
Fireworks and Pyrotechnic Articles (Scotland) Bill
Coronavirus (Recovery and Reform) (Scotland) Bill
Moveable Transactions (Scotland) Bill
The Committee considered Legislative Consent Memorandums (LCMs) in relation to the following 15 UK Parliament Bills:
Online Safety Bill
Trade (Australia and New Zealand) Bill
Procurement Bill
UK Infrastructure Bank Bill
UK Northern Ireland Protocol Bill
Northern Ireland Troubles (Legacy and Reconciliation) Bill
Levelling Up and Regeneration Bill
Public Order Bill
UK Infrastructure Bank Bill (Supplementary)
Retained EU Law (Revocation and Reform) Bill
Shark Fins Bill
Energy Bill
Procurement Bill
Procurement Bill (Supplementary)
Powers of Attorney Bill
LCMs are lodged by the Scottish Government in relation to UK Parliament bills which seek to change the law in relation to devolved matters.
As with Bills before the Scottish Parliament, the Committee considers any powers to make subordinate legislation that are being delegated to Scottish Ministers, and to UK Ministers within devolved competence.
At its meeting on Tuesday 22 November 2022, the Committee's position in relation to powers in UK bills conferred on UK Ministers in devolved areas, in general terms, was updated to:
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 the Secretary of State 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 the Secretary of State 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 Delegated Powers and Law Reform Committee can be designated the lead committee in relation to Scottish Law Commission ("SLC") Bills. SLC Bills are bills that originate from SLC reports and meet the criteria determined by the Presiding Officer. The criteria for an SLC bill are that it is a bill within the legislative competence of the Scottish Parliament:
where there is a wide degree of consensus amongst key stakeholders about the need for reform and the approach recommended;
which does not relate directly to criminal law reform;
which does not have significant financial implications;
which does not have significant European Convention on Human Rights (ECHR) implications; and
where the Scottish Government is not planning wider work in that particular subject area.
In the reporting period the Committee has been designated as the lead Committee for the Moveable Transactions (Scotland) Bill and the Trusts and Succession (Scotland) Bill. During 2021-22 the Committee did not consider any SLC Bills.
Scottish Government instruments engaging each reporting ground
(a) charge on the Scottish Consolidated Fund
none
(b) made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts
none
(c) retrospective effect where the parent statute confers no express authority so to provide
none
(d) unjustifiable delay in the publication or the laying of it before the Parliament
none
(e) doubt as to whether it is intra vires
none
(f) raises a devolution issue
none
(g) unusual or unexpected use of the powers conferred by the parent statute
none
(h) meaning could be clearer
St Mary’s Music School (Aided Places) (Scotland) Amendment Regulations 2022 (SSI 2022/173) Education, Children and Young People Committee – this was reported on the basis that the meaning of the residential criteria applying to children of EEA nationals could be clearer
International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2023 (SSI 2023/Draft) Criminal Justice Committee
(i) drafting appears to be defective
none
(j) failure to comply with laying requirements
Coronavirus (Scotland) Acts (Saving Provision) Regulations 2022 (SSI 2022/261) COVID-19 Recovery Committee
Police Act 1997 (Criminal Records) (Homes for Ukraine Sponsorship Scheme) (Scotland) Amendment Regulations 2022 (SSI 2022/158) Education, Children and Young People Committee
Sheriff Court Fees Amendment Order 2022 (SSI 2022/214) Equalities, Human Rights and Civil Justice Committee (the Committee wrote to the Scottish Government on 1 July 2022 asking why errors within the SSI were not identified at an earlier stage. The Scottish Government responded on 17 August 2022).
Public Health etc. (Scotland) Act 2008 (Notifiable Diseases and Notifiable Organisms) Amendment Regulations 2022 (SSI 2022/212) Health, Social Care and Sport Committee
National Health Service (Charges to Overseas Visitors) (Scotland) Amendment (No. 2) Regulations 2022 (SSI 2022/213) Health, Social Care and Sport Committee
Food Information (Transitional Provisions) (Miscellaneous Amendments) (Scotland) Regulations 2022 (SSI 2022/265) Health, Social Care and Sport Committee
Non-Commercial Movement of Pet Animals (Scotland) Amendment (No. 2) Regulations 2022 (SSI 2022/262) Rural Affairs, Islands and Natural Environment Committee
Scottish Child Payment (Saving Provisions) Regulations 2022 (SSI 2022/302) Social Justice and Social Security Committee
Assured Tenancies and Private Residential Tenancies (Prescribed Notices and Forms) (Miscellaneous Temporary Modifications) (Scotland) Regulations 2022 (SSI 2022/307) Local Government, Housing and Planning Committee
Scottish Child Payment (Ancillary Provision) Regulations 2022 (SSI 2022/326) Social Justice and Social Security Committee
Building (Scotland) Amendment (Amendment) (No. 2) Regulations 20222022 (SSI 2022/340) Local Government, Housing and Planning Committee
Official Controls and Import Conditions (Transitional Periods) (Miscellaneous Amendment) (Scotland) Regulations 2022 (SSI 2022/371) Rural Affairs and Islands and Committee
General
Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Court Sittings) 2022 (SSI 2022/250) Criminal Justice Committee
Disability Assistance for Working Age People (Transitional Provisions and Miscellaneous Amendment) (Scotland) Regulations 2022 (SSI 2022/Draft) Social Justice and Social Security Committee
Official Controls (Import of High Risk Food and Feed of Non-Animal Origin) Amendment (Scotland) Regulations 2022 (SSI 2022/341) Health, Social Care and Sport Committee
First-tier Tribunal for Scotland (Transfer of Functions of the Council Tax Reduction Review Panel) Regulations 2023 (SSI 2023/Draft) Equalities, Human Rights and Civil Justice Committee
Social Security (Up-rating) (Miscellaneous Amendments) (Scotland) Regulations 2023 (SSI 2023/Draft) Social Justice and Social Security Committee
Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules 1999 Amendment) (Sexual Harm Prevention Orders and Sexual Risk Orders) (SSI 2023/62) Criminal Justice Committee
Tuberculosis (Scotland) Order 2023 (SSI 2023/93) Rural Affairs and Islands Committee
Town and Country Planning (Development Planning) (Scotland) Regulations 2023 (SSI 2023/101) Local Government, Housing and Planning Committee
(h) and (General)
First-tier Tribunal for Scotland Local Taxation Chamber (Rules of Procedure) Regulations 2022 (SSI 2022/364) Equalities, Human Rights and Civil Justice Committee
Upper Tribunal for Scotland (Local Taxation Rules of Procedure) Regulations 2022 (SSI 2022/365) Equalities, Human Rights and Civil Justice Committee
Road Works (Reinstatement Quality Plans, Qualifications of Supervisors and Operatives and Miscellaneous Amendments) (Scotland) Regulations 2023 (SSI 2023/33) Net Zero, Energy and Transport Committee
(h) (i) and (j)
none
(General) and (j)
First-tier Tribunal for Scotland Housing and Property Chamber (Amendment) Regulations 2023 (SSI 2023/6) Local Government, Housing and Planning Committee
LPPO instruments
2 LPPO instruments were drawn to the attention of the Parliament, under General reporting ground, during this reporting period:
Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Court Sittings) 2022 (SSI 2022/250) Criminal Justice Committee
Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules 1999 Amendment) (Sexual Harm Prevention Orders and Sexual Risk Orders) (SSI 2023/62) Criminal Justice Committee
Commitments outstanding from this reporting year
Scotland Act 1998 (Specification of Functions and Transfer of Property etc.) Order 2019 (SI 2019/183) [11th Report, 2019. Published 06/03/2019] commitment to bring forward an amendment at the earliest opportunity.i
Town and Country Planning (Development Planning) (Scotland) Regulations 2023 (SSI 2023/101) [27thReport, 2023. Published 25/04/2023] commitment to bring forward regulations to correct the reference at the next available opportunity and before the relevant provision is commenced.
First-tier Tribunal for Scotland Local Taxation Chamber (Rules of Procedure) Regulations 2022 (SSI 2022/364) [4th Report, 2023. Published 12 January 2023] Scottish Government proposes to rectify the error in the preamble by way of correction slip.
Road Works (Reinstatement Quality Plans, Qualifications of Supervisors and Operatives and Miscellaneous Amendments) (Scotland) Regulations 2023 (SSI 2023/33) [19th Report, 2022. Published 28 February 2023] Scottish Government intends to correct cross referencing error by correction slip