Delegated Powers and Law Reform Committee
Meeting date: Tuesday, August 31, 2021
Official Report 498KB pdf
Contents
- Attendance
- Decision on Taking Business in Private
- Instruments subject to Made Affirmative Procedure
- Instruments subject to Affirmative Procedure
- Instruments subject to Negative Procedure
- Instruments not subject to Parliamentary Procedure
Instruments subject to Negative Procedure
We come to agenda item 4. Issues have been raised on four of the instruments under consideration.
Age of Criminal Responsibility (Scotland) Act 2019 (Register of Child Interview Rights Practitioners) Regulations 2021 (SSI 2021/233)
The regulations make provision for the establishment and maintenance of a register of child interview rights practitioners to provide children with advice, support and assistance in relation to their involvement in investigative interviews. Regulation 3(6)(a) provides that
“A person who is included in the register must comply with ... the Code of Practice”
for child interview rights practitioners that has been published by the Scottish Government. However, regulation 3(7), when compared against the mandatory requirements contained in paragraph 17 of the code of practice, appears to provide differing notification timescales and requirements for child interview rights practitioners—yet both must be complied with.
In light of that, does the committee wish to bring the instrument to the attention of the Parliament on reporting ground (h), on the basis that its meaning or form could be clearer, while also calling on the Scottish Government to clarify that issue as soon as possible?
Members indicated agreement.
There also appears to be an unusual or unexpected use of the enabling powers that are conferred by the parent statute. It would be more usual and expected for the Parliament to be given the opportunity to scrutinise the code of practice where there is a requirement in law to comply with it.
Does the committee wish to bring the regulations to the Parliament’s attention on reporting ground (g), on the basis that they have been made by the Scottish ministers with what appears to be an unusual and unexpected use of the enabling power?
Members indicated agreement.
National Health Service (Travelling Expenses and Remission of Charges) (Scotland) (No 2) Amendment Regulations 2021 (SSI 2021/241)
The second negative instrument on which an issue has been raised is SSI 2021/241. The amendment regulations amend the original regulations and provide for free dental treatment for all young people aged between 18 and 25. They were laid on 15 June 2021 and came into force on 24 August. As the Parliament was in recess from 26 June until 29 August, during which time the clock stopped, the regulations were laid less than 28 days before they came into force. They are therefore in breach of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, which requires that negative instruments are laid at least 28 days before they come into force, not counting recess periods of more than four days.
Do members have any comments?
The reason for the 28-day rule is to allow parliamentary scrutiny. There will be occasions when the Government will breach the rule for very good reasons—for example, there can be emergency legislation—and we will often accept that. However, I do not believe that the regulations fall into that category. There was simply no good reason, in my view, for the Government to breach the rule in this case, and we should push back strongly on it. The explanation, to be frank, does not wash. A change of minister is not a reason to breach the 28-day rule, in my submission.
On the point about the change of minister, it is clear that the officials would remain the same, unless there was also a change there. You raise a valid point, Graham.
Does the committee wish to draw the regulations to the Parliament’s attention on reporting ground (j), as they were laid less than 28 days before they came into force?
Members indicated agreement.
Although the committee’s expectation is that the Scottish Government should adhere to the 28-day rule in order to facilitate proper parliamentary scrutiny, does it nevertheless wish to note that it is satisfied with the explanation that has been provided for the failure to comply with the laying requirements, given the particular circumstances in this instance, notwithstanding the point that Graham Simpson raised a moment ago?
Members indicated agreement.
We will have the minister in front of the committee in a couple of weeks’ time, so we will be able to raise the point directly with him then.
Council Tax Reduction (Scotland) Regulations 2021 (SSI 2021/249)
Before we turn to the two drafting errors that have been raised regarding SSI 2021/249, I highlight that the regulations will consolidate the Council Tax Reduction (Scotland) Regulations 2012 (SSI 2012/303). For a number of years, the session 5 committee called on the Scottish Government to consolidate SSI 2012/303 and also the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (SSI 2012/319). This is a positive start to the new session. Does the committee wish to welcome the consolidation of the Council Tax Reduction (Scotland) Regulations 2012, as called for by the previous committee?
Members indicated agreement.
The Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (SSI 2012/319) are, however, yet to be consolidated. Does the committee wish to write to the Scottish Government asking whether and when those regulations will be consolidated?
Members indicated agreement.
Turning to the two drafting errors in SSI 2021/249, I note that there are incorrect references in regulations 20(3)(h) and 77(1). The full detail of those errors is in the published paper that lists all the correspondence with the Scottish Government. Does the committee wish to draw the regulations to the Parliament’s attention on the general reporting ground, in respect of those drafting errors?
Members indicated agreement.
Does the committee wish to welcome that the Scottish Government intends to introduce an amending SSI to correct those errors before the regulations come into force on 1 April 2022?
Members indicated agreement.
Milk and Healthy Snack Scheme (Scotland) Amendment (No 2) Regulations 2021 (SSI 2021/274)
An issue has been raised on SSI 2021/274, which makes a number of amendments to the Milk and Healthy Snack Scheme (Scotland) Regulations 2021 (SSI 2021/82). The amendment regulations were laid on 28 July 2021 and came into force on the following day, so they are clearly in breach of the 28-day rule.
A letter from the Scottish Government to the Presiding Officer explains that there was a need to bring the regulations into force with immediate effect in order to enable local authorities to make payments for the launch of the Scottish milk and healthy snack scheme on 1 August 2021. This is the second amending instrument that we are considering that has breached the 28-day rule. The instrument makes provision for the basis for the calculation of payments under the scheme, which is an important aspect of its operation.
Does the committee wish to draw the instrument to the Parliament’s attention on reporting ground (j), as it was laid less than 28 days before it came into force?
Members indicated agreement.
Although the committee might recognise the necessity for breach of the 28-day rule in this instance, does it wish to add in its report that it considers the circumstances of the breach to be unsatisfactory and to emphasise that the Scottish Government should normally comply with the laying requirements in order to facilitate timely parliamentary scrutiny of such important policy choices?
Members indicated agreement.
Registration of Independent Schools (Scotland) Amendment Regulations 2021 (SSI 2021/251)
No points have been raised on SSI 2021/251. Is the committee content with the regulations?
Members indicated agreement.