Delegated Powers and Law Reform Committee [Draft]

Meeting date: Tuesday, November 7, 2023

Official Report 653KB pdf

Instruments subject to Affirmative Procedure

Under agenda item 3, we are considering three instruments subject to the affirmative procedure. An issue has been raised on the following instrument.

Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendments) (Scotland) Regulations 2023 [Draft]

The instrument is made under section 19(1) of the Retained EU Law (Revocation and Reform) Act 2023, which enables the Scottish ministers to make any provision that they consider appropriate in consequence of that act. The instrument updates various pieces of primary and secondary legislation to replace the term “retained EU law” and associated expressions with the term “assimilated law” and associated expressions.

In correspondence with the Scottish Government—which was published online with the agenda for this meeting—the committee queried paragraph 3 of schedule 1 of the instrument, which would amend the Freedom of Information (Scotland) Act 2002 by changing the words “EU obligation” to “assimilated obligation” in sections 26 and 45. In particular, the committee noted that those references to “EU obligation” seemed not previously to have been changed to “retained EU obligation” and asked the Scottish Government why it considered that the power in section 19 of the 2023 act enabled that amendment to be made.

In its response, the Scottish Government confirmed that the references to “EU obligation” in those sections have not been updated to “retained EU obligation”. The Scottish Government advised that such a change could have been made following enactment of the European Union (Withdrawal) Act 2018, but it did not say why that was not done. The Scottish Government considers those amendments to be consequential, in particular on the establishment by the 2023 act of “assimilated obligation” as a defined term within the body of assimilated law, including for the purposes of statutory interpretation.

The instrument in front of us seeks to change those references straight from “EU obligation” to “assimilated obligation”, skipping the step of updating them to say “retained EU obligation”. The committee notes that the term “EU obligation” is no longer a defined term.

It appears to the committee that the provision in question may address a failure to have updated those sections in consequence of the 2018 act, rather than making provision that is properly in consequence of the 2023 act. As such, the committee considers that there is room for doubt that the provision in question is envisaged by and within the limits of the enabling power. Therefore, there appears to be a doubt about whether the provision is intra vires.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (e), in that there appears to be a doubt about whether paragraph 3 of schedule 1 is intra vires?

Members indicated agreement.

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

Colleges of Further Education and Regional Strategic Bodies (Membership of Boards) (Scotland) Order 2023 [Draft]

Quality Meat Scotland (Amendment) Order 2023 [Draft]

Is the committee content with the instruments?

Members indicated agreement.