Delegated Powers and Law Reform Committee

Meeting date: Tuesday, March 1, 2022

Official Report 519KB pdf

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Instruments subject to Made Affirmative Procedure

Under agenda item 3, we are considering two Scottish statutory instruments.

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Coronavirus Act 2020 (Alteration of Expiry Date) (Scotland) Regulations 2022 (SSI 2022/40)

As well as holding the evidence session with the Deputy First Minister just now, the committee previously exchanged written correspondence with the Scottish Government. That correspondence can be read in paper 1 for this meeting and it led to the Scottish Government revising its policy note. Do members wish to make any further comments on the regulations?

That was a very useful session that we had with the Deputy First Minister just now.

The instrument deals with a number of areas. I could be content with some of them, but there is one that I am really not comfortable with, which is the power to close student accommodation and boarding accommodation. As we heard during the earlier discussion, the power has never been used during the entire pandemic—the Government has relied on guidance—so I can see no justification for hanging on to it for another six months. I do not think that Mr Swinney made a compelling argument for doing so. If the Government did not use a power—which was an emergency power—during the height of the pandemic, I can see no justification for hanging on to it now that we are in a much better place than we have been.

The instrument throws up the issue of what happens when we, as parliamentarians, are asked to approve instruments that contain a number of provisions, some of which we like and some of which we do not. There needs to be some flexibility in the system to allow us all to pick and choose. If that could be reported to the lead committee, that would be useful.

On the basis that I do not like one of the provisions, I will vote against the instrument, but I would much rather have the ability to pick off any provisions that I do not like. However, that option is unfortunately not available to us. On that basis, I will vote against it.

I echo what Mr Simpson said, and I draw attention to the Deputy First Minister’s response in relation to why the powers need to be extended and how we come to a decision on the basis of their being necessary and proportionate. I thought that he gave a very full response in relation to that, but he said that it all comes down to the judgment of the minister at the end of the day.

In the light of the fact that the particular provision on boarding accommodation that Mr Simpson referenced was not used throughout the height of the pandemic or at the most extreme periods, I think that it may fail that test of being necessary. On that basis, I am minded to vote against the instrument.

I have listened to what has been said and I can sort of understand an element of it. At the same time, I am very worried about throwing babies out with the bath water. There is a lot of stuff in the instrument that is necessary and I will vote in favour of keeping it.

I note the concerns that have been raised by colleagues and I have some sympathies with the point about superfluous provisions that are highly unlikely to be used, which means that there are questions about whether it is essential include them in the SSI. That opens up a wider discussion about quality assurance in such legislation, which we have to consider, bearing in mind the committee’s recent report. However, on the balance of probabilities, I do not think that it is a major risk if we permit the provisions to continue for another six months.

Is the committee content with the instrument?

Members: No.

There will be a division on whether we wish to make no recommendations in relation to the Coronavirus Act 2020 (Alteration of Expiry Date) (Scotland) Regulations 2022.

For

Kidd, Bill (Glasgow Anniesland) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Sweeney, Paul (Glasgow) (Lab)

Against

Hoy, Craig (South Scotland) (Con)
Simpson, Graham (Central Scotland) (Con)

The result of the division is: For 3, Against 2, Abstentions 0.

The committee therefore agrees to make no recommendation. However, members’ concerns about the instrument have been expressed and will be noted on the record. A report will be published and sent to the lead committee, and those concerns will be noted in it.

Also under this agenda item, no points have been raised on the following instrument.

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Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No 5) Regulations 2022 (SSI 2022/74)

Is the committee content with the instrument?

Members indicated agreement.