1. This report reflects upon the work of the Delegated Powers and Law Reform (DPLR) Committee in 2023-24. The reporting period covers 13 May 2023 to 12 May 2024. This report is separate from the annual report required under Standing Orders, and instead focuses on pulling together the Committee’s quarterly reports and looking at trends in its scrutiny over the year.

2. The DPLR Committee’s remit encompasses a number of different roles which are considered in this report. However, its primary focus is on the scrutiny of delegated powers in Scottish Parliament bills, UK Parliament bills (which delegate powers to make subordinate legislation within devolved competence) and Scottish Statutory Instruments (SSIs).

3. 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.

4. 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.

5. 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.

6. This report is therefore part of a broader process of holding the Scottish Government to account.

7. 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.

Membership Changes

8. Previous Members of the Committee during the reporting year:

   • Mercedes Villalba MSP left the Committee on 16 November 2023 and was replaced by Colin Smyth MSP.

   • Colin Smyth MSP left the Committee on 31 January 2024 and was replaced by Foysol Choudhury MSP.

   • Jeremy Balfour MSP left the Committee on 21 March 2024 and was replaced by Tim Eagle MSP.

   • As a substitute, Maurice Golden MSP left the Committee on 29 June 2023 and was replaced by Alexander Stewart MSP.

9. Before looking at the instruments which were laid in 2023-24, it is useful to explain what Scottish Statutory Instruments (SSIs) are.

10. 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.

11. 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.

12. 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.

13. Once a Bill is passed, the Committee will then consider the resultant SSIs made under these powers.

14. 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.

15. 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".

16. 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

17. 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.

18. 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.

19. 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.

20. 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.

21. “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.

22. 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).

23. 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).

24. 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)

25. 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.

26. 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.

27. The following infographic explains the process by which an instrument is taken through the Parliament.

28. The Committee considered 203 instruments during this reporting period and 4 Documents subject to parliamentary control. This compares with 222 considered in 2022-23.

29. Of the 203 instruments considered, 193 were laid by the Scottish Government and 10 by the LPPO. This is fewer Scottish Government instruments than in recent Parliamentary years (209 in 2022-23).

30. The 193 SSIs laid by the Scottish Government can be broken down by procedure as follows:

    • 1 Made affirmative.

    • 64 Draft affirmatives

    • 98 Negatives

    • 30 Laid, no procedure

Number of SSIs laid under each procedure

How many instruments were reported on this year?

31. A total of 21 instruments were drawn to the attention of Parliament this year. While this overall figure equates to 11% of instruments considered, 10 of the instruments were reported under reporting ground (j) for breaching the 28-day rule, of which the Committee was content with 9 of the Scottish Government's explanations for the breaches. If these 9 instruments are excluded from the total figure, the Committee reported 12 instruments, equating to 6% of the instruments considered.

32. In the previous reporting year, excluding where the Committee was content with the Scottish Government’s explanations for breaching the 28-day rule, 18 instruments were reported equating to 8% of the instruments considered.

Summary of use of reporting grounds

33. 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.

34. The infographic below shows a breakdown of reported instruments by reporting groundⁱThe Committee may determine that the attention of the Parliament should be drawn to an instrument. It may do so on a number of reporting grounds (and one instrument may engage one or more of those grounds).. A list of the instruments reported under each ground can be found in Annex A.

35. The most common reporting ground over this reporting year was the general reporting ground. The number of instruments reported under this ground has slightly increased from 2022-23 (from 12 to 15).

36. This reporting year, 5 instruments have been reported under the most serious reporting grounds. In the previous year there was none.

38. The infographic below shows the total number of instruments and Documents subject to Parliamentary control laid by the Scottish Government and the LPPO (and those reported in 2022-23), broken down by lead committeeⁱThe Citizen Participation and Public Petitions Committee and the Public Audit Committee received no instruments in 2023-24..

39. The Rural Affairs and Islands Committee received the most instruments this year, with a total of 36.

40. There have been 3 instruments considered by the Parliament this year (1 in 2022-23). Some instruments are referred directly to the Parliament, rather than a lead committee, for example, to meet an expedited timetable.

41. 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.

42. 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.

43. 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.

44. 10 instruments were laid by the LPPO in this reporting year which compares with 13 in 2022-23.

45. There were no instruments reported during the reporting year. Previously, two instruments were reported under the General reporting ground.

47. If concerns are raised by the Committee (or by others) in relation to draft affirmative SSIs, the Scottish Government can withdraw instruments during their passage through the Parliament. It may then choose to re-lay the instrument correcting any errors pointed out to it. While instruments can be withdrawn and re-laid for any reason, this is one indication of the quality of instruments laid before the Parliament..

48. During this reporting year the following 5 instruments were withdrawn and re-laid:

    • Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 (SSI 2023/Draft); and

    • Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 4) Regulations (SSI 2023/Draft)

    • Social Security (Residence and Presence Requirements) (Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights and Lebanon) (Scotland) Regulations 2023 (SSI 2023/Draft)

    • Consumer Scotland Act 2020 (Relevant Public Authorities) Regulations 2024 (SSI 2024/Draft)

    • Sea Fisheries (Remote Electronic Monitoring and Regulation of Scallop Fishing) (Scotland) Regulations 2024 (SSI 2024/Draft)

49. This is similar to the previous reporting year, where 4 instruments were withdrawn and re-laid.

51. 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.

52. During its scrutiny of instruments in 2023-24, the Committee identified a total of 50 instruments in which minor points were raised, 49 laid by the Scottish Government and one by the LPPO.

53. This is in comparison to 2022-23 in which minor points were raised in 31 instruments. This can be broken down into 30 instruments laid by the Scottish Government and one instrument laid by the LPPO.

54. 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 18 bills at Stage 1:

    • Bankruptcy and Diligence (Scotland) Bill

    • Wildlife Management and Muirburn (Scotland) Bill

    • Regulation of Legal Services (Scotland) Bill

    • Visitor Levy (Scotland) Bill

    • Welfare of Dogs (Scotland) Bill

    • Circular Economy (Scotland) Bill

    • Victims, Witnesses, and Justice Reform (Scotland) Bill

    • Scottish Employment Injuries Advisory Council Bill

    • Abortion Services (Safe Access Zones) (Scotland) Bill

    • Police (Ethics, Conduct and Scrutiny) (Scotland) Bill

    • Agriculture and Rural Communities (Scotland) Bill

    • Judicial Factors (Scotland) Bill

    • Housing (Cladding Remediation) (Scotland) Bill

    • Budget (Scotland) (No. 3) Bill

    • Social Security (Amendment) (Scotland) Bill

    • Scottish Languages Bill

    • Aggregates Tax and Devolved Taxes Administration (Scotland) Bill

    • Scottish Elections (Representation and Reform) Bill

55. The Committee also considered and reported on seven Bills after Stage 2:

    • Bail and Release from Custody (Scotland) Bill

    • Charities (Regulation and Administration) (Scotland) Bill

    • Trusts and Succession (Scotland) Bill

    • Wildlife Management and Muirburn (Scotland) Bill

    • Children (Care and Justice) (Scotland) Bill

    • Visitor Levy (Scotland) Bill

    • Bankruptcy and Diligence (Scotland) Bill

56. The Committee considered nine Bills at Stage 1 and four Bills after Stage 2 in the previous year.

57. Legislative Consent Memorandums (LCMs) are lodged by the Scottish Government in relation to UK Parliament bills which seek to change the law or alter Scottish Ministers’ or the Scottish Parliament’s powers in relation to devolved matters.

58. The Committee considered the following 16 LCMs, including supplementary LCMs:

    • Economic Crime and Corporate Transparency Bill

    • Data Protection and Digital Information Bill

    • Economic Activity of Public Bodies (Overseas Matters) Bill

    • Animal Welfare (Livestock Exports) Bill

    • Investigatory Powers (Amendment) Bill

    • Automated Vehicles Bill

    • Victims and Prisoners Bill

    • Electronic Trade Documents Bill

59. Supplementary LCMs

    • Economic Crime and Corporate Transparency Bill

    • Data Protection and Digital Information Bill

    • Levelling-up and Regeneration Bill

    • Criminal Justice Bill

    • Automated Vehicles Bill

    • Electronic Trade Documents Bill

    • Retained EU Law (Revocation and Reform) Bill

    • Energy Bill

60. The Committee considered 15 LCMs in the previous year.

61. 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.

62. In this reporting year, the Committee has acted as lead committee for the Trusts and Succession (Scotland) Bill and the Judicial Factors (Scotland) Bill.

Scottish Government instruments engaging each reporting groundⁱThe Committee may determine that the attention of the Parliament should be drawn to an instrument on a number of reporting grounds. These are reflected towards the end of annex A.

(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

• Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendments) (Scotland) Regulations 2023 (SSI 2023/Draft) Constitution, Europe, External Affairs and Culture Committee

(f) raises a devolution issue

• None

(g) unusual or unexpected use of the powers conferred by the parent statute

• None

(j) failure to comply with laying requirements

• Valuation (Proposals Procedure) (Scotland) Amendment Regulations 2023 (SSI 2023/207) Local Government, Housing and Planning Committee

• Council Tax Reduction (Scotland) Amendment (No. 2) Regulations 2023 (SSI 2023/197) Social Justice and Social Security Committee

• Public Procurement (Agreement on Government Procurement) (Miscellaneous Amendments) (Scotland) Regulations 2023 (SSI 2023/287) Economy and Fair Work Committee

• Dangerous Dogs (Designated Types) (Scotland) Order 2024 (SSI 2024/31) Criminal Justice Committee

• Scottish Local Government Elections Amendment (Denmark) Regulations 2024 (SSI 2024/101) Standards, Procedures and Public Appointments Committee

General

• Food (Scotland) Act 2015 (Compliance Notices) Regulations 2023 (SSI 2023/161) Health, Social Care and Sport Committee

• Mental Health (National Secure Adolescent Inpatient Service: Miscellaneous Amendments) (Scotland) Regulations 2023 (SSI 2023/Draft) Health, Social Care and Sport Committee

• Budget (Scotland) Act 2023 Amendment Regulations 2023 (SSI 2023/Draft) Finance and Public Administration Committee

• Council Tax Reduction (Scotland) Amendment (No. 3) Regulations 2023 (SSI 2023/268) Local Government, Housing and Planning Committee

• Council Tax (Dwellings and Part Residential Subjects) (Scotland) Amendment Regulations 2024 (SSI 2024/10) Local Government, Housing and Planning Committee

• Packaging Waste (Data Reporting) (Scotland) Amendment Regulations 2024 (SSI 2024/42) Net Zero, Energy and Transport Committee

(h) and (General)

• Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 3) Regulations 2023 (SSI 2023/178) Equalities, Human Rights and Civil Justice Committee

(h) (j) and (General)

• Police Pensions (Remediable Service) (Scotland) Regulations 2023 (SSI 2023/239) Criminal Justice Committee

• Teachers’ Pensions (Remediable Service) (Scotland) Regulations 2023 (SSI 2023/241) Education, Children and Young People Committee

(h) (i) (j) and (General)

• Firefighters’ Pensions (Remediable Service) (Scotland) Regulations 2023 (SSI 2023/242) Criminal Justice Committee

(i) and (General)

• Non-Domestic Rates (Transitional Relief) (Scotland) Regulations 2024 (SSI 2024/5) Local Government, Housing and Planning Committee

• Firefighters’ Pension Schemes (Scotland) Amendment Order 2024 (SSI 2024/26) Criminal Justice Committee

• International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2024 (SSI 2024/Draft) Criminal Justice Committee

(j) and (General)

• National Health Service Pension Schemes (Remediable Service) (Scotland) Regulations 2023 (SSI 2023/246) Health, Social Care and Sport Committee

• Local Government Pension Scheme (Remediable Service) (Scotland) Regulations 2023 (SSI 2023/240) Local Government, Housing and Planning Committee

Commitments outstanding 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.ⁱThis will require a further Scotland Act Order to be brought forward at Westminster. The Scottish Government does not consider that the problems identified are particularly problematic nor that they will impede proper functioning of the devolution arrangements for forestry. See also letter from the Minister of Parliamentary Business, 2 March 2023. Further updates are also included in correspondence to the Scottish Government and Scotland Office in October 2023. The responses from the Scottish Government and Scotland Office are also available.

Town and Country Planning (Development Planning) (Scotland) Regulations 2023 (SSI 2023/101)[27th Report, 2023. Published on 25 April 2023] commitment to bring forward regulations to correct the reference at the next available opportunity.

Police Pensions (Remediable Service) (Scotland) Regulations 2023 (SSI 2023/239) [53rd Report, 2023. Published on 21 September 2023] commitments to correct the error in the preamble by correction slip, and to address the other points raised by way of an amending instrument.

Teachers’ Pensions (Remediable Service) (Scotland) Regulations 2023 (SSI 2023/ 241) [53rd Report, 2023. Published on 21 September 2023] commitment to correct these matters in the next amending instrument.

Firefighters’ Pensions (Remediable Service) (Scotland) Regulations 2023 (SSI 2023/ 242) [53rd Report, 2023. Published on 21 September 2023] commitment to correct the error in the preamble by correction slip, and to address these other matters by way of an amending instrument.

National Health Service Pension Schemes (Remediable Service) (Scotland) Regulations 2023 (SSI 2023/246) [53rd Report, 2023. Published on 21 September 2023] commitment to address these matters in the next amending instrument.

Budget (Scotland) Act 2023 Amendment Regulations 2023 (SSI 2023/Draft) [62nd Report. 2023. Published on 1 November 2023] commitment to address this in the next amending instrument.

Firefighters’ Pension Schemes (Scotland) Amendment Order 2024 (SSI 2024/26) [12th report 2024, Published on 20 February 2024] commitment to amend the instrument to correct the error at the next opportunity.

International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2024 [SSI 2024/Draft) (31st Report 2024, Published 1 May 2024] commitment to rectify the error at the earliest opportunity, which is anticipated to be in autumn of 2024.