Delegated Powers and Law Reform Committee
At its meeting on 16 Aprili, the Committee considered the following instrument under its remit and agreed to draw it to the attention of the Parliament:
Scottish Local Government Elections Amendment (Denmark) Regulations 2024 (SSI 2024/101)
The Committee's recommendations in relation to this instrument are set out in the next section of this report.
The Committee also determined that, in terms of its remit, it did not need to draw the Parliament's attention to the instruments at the end of the report.
Scottish Local Government Elections Amendment (Denmark) Regulations 2024 (SSI 2024/101)
The instrument is made under a power in the Local Government (Scotland) Act 1973 (“the 1973 Act”).
It adds Denmark to the list of countries whose citizens are eligible to stand for election as members of a local authority in Scotland if they have leave to enter or remain in the UK. This implements an international agreement between the UK and Denmark on reciprocal rights to stand in elections.
The 1973 Act requires the Scottish Government to make regulations to add a country to this list when:
the UK becomes party to a relevant treaty; and
the requirements for approval of the Treaty by the UK Parliament have been met.
Under section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, instruments subject to the negative procedure must be laid at least 28 days before they come into force, not counting recess periods of more than 4 days. The instrument breaches this requirement as it was laid on 26 March 2024 and came into force on 7 May 2024.
The Scottish Government wrote to the Presiding Officer stating that the breach had occurred as it could not lawfully make regulations to implement the Treaty until after the UK Parliament competed its scrutiny process, which ended on 25 March. A copy of the correspondence can be found in the Annex.
The Treaty is expected to come into force on 7 May, at which point the provision in the instrument must be in place to comply with the UK’s international obligations.
The lead committee for this instrument is the Standards, Procedures and Public Appointments Committee.
The Committee draws the instrument to the attention of the Parliament under reporting ground (j) for failure to comply with the laying requirements in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.
The Committee is content with the explanation provided by the Scottish Government for the failure to comply with the laying requirements.
Equalities, Human Rights and Civil Justice Committee
Act of Sederunt (Rules of the Court of Session 1994 Amendment) (National Security Prevention and Investigation) 2024 (SSI 2024/84)
Net Zero, Energy and Transport Committee
Transport Partnerships (Transfer of Functions) (Scotland) Order 2024 (SSI 2024/Draft)
Rural Affairs and Islands Committee
Sea Fisheries (Remote Electronic Monitoring and Regulation of Scallop Fishing) (Scotland) Regulations 2024 (SSI 2024/Draft)
Avian Influenza (Preventive Measures) (Scotland) Amendment Order 2024 (SSI 2024/87)
Scottish Local Government Elections Amendment (Denmark) Regulations 2024 (SSI 2024/101)
On 26 March 2024, the Scottish Government wrote to the Presiding Officer:
The Scottish Local Government Elections Amendment (Denmark) Regulations 2024, SSI 2024/101 was made by the Scottish Ministers under powers conferred by paragraph 2 of schedule 6A of the Local Government (Scotland) Act 1973 on 26 March 2024. It is being laid before the Scottish Parliament today, 26 March and comes into force on 7 May 2024.
Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) has not been complied with. To meet the requirements of section 31(3) that Act, this letter explains why.
Reason for non-compliance
Schedule 6A of the Local Government (Scotland) Act 1973 requires Scottish Ministers to bring regulations adding a country to the list in Schedule 6A where:
(a) the United Kingdom and the country intend to become parties to a relevant treaty, and
(b) section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification) applies in relation to the relevant treaty and the requirements of that section have been met such that the relevant treaty may be ratified.
The Scottish Local Government Elections Amendment (Denmark) Regulations 2024 amend the Local Government (Scotland) Act 1973 to add Denmark to the list of countries in schedule 6A of that Act for the purposes of candidacy rights in Scottish local government elections.
The Regulations seek to give full effect in Scotland to the bilateral treaty signed by the UK Government with the Denmark seeking to ensure that Danish nationals living in the UK and UK nationals living in Denmark can exercise voting and candidacy rights in local elections. The Agreement, done at Copenhagen on 8 February, between the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Denmark on the Participation in Certain Elections of Nationals of Each Country Resident in the Territory of the Other, was laid before the UK Parliament on 20 February 2024 under section 20 of the Constitutional Reform and Governance Act 2010 (treaties to be laid before Parliament before ratification).
The treaty completed its 21-day scrutiny process on 25 March and is expected to come into force on 7 May.
Paragraph 2(b) of schedule 6A of the Local Government (Scotland) Act 1973 means that the power in paragraph 1 of schedule 6A cannot be excised until after the UK Parliament competed its scrutiny process on 25 March 2024. As a result, and in order for these Regulations to implement the treaty in respect of Scottish local government elections by 7 May 2024, the 28-day period has not been met in this instance.