Official Report 527KB pdf
Under agenda item 2, we are considering two instruments. An issue has been raised on the following instrument.
Management of Offenders (Scotland) Act 2019 and the Prisoners (Early Release) (Scotland) Act 2025 (Consequential Modifications) Regulations 2026 [Draft]
This instrument concerns the early release from prison of prisoners who are liable or eligible to be removed from the United Kingdom. It would change the point at which such a prisoner could be removed from prison for that purpose, to align with the equivalent position on early release on licence.
The instrument would also create a new power for Scottish ministers to make subordinate legislation. It would be a power to change, by order, the minimum period of the sentence that a prisoner must serve before they can be removed in this way. The draft policy note states that Scottish ministers would intend to use the power, if granted, to change the minimum period from a quarter to 15 per cent of the sentence, to align with the equivalent rule for early release on licence.
The committee considers that the creation, by subordinate legislation, of a new power to make subordinate legislation is unusual, and generally undesirable, because Parliament is unable to scrutinise and amend the proposal in the way that it would be able to do, had it been proposed in a bill.
The committee also considers that using an ancillary power to create a new power to make subordinate legislation is particularly unusual, and the committee expects particular justification to be provided.
Does the committee wish to draw the present instrument to the attention of the Parliament on reporting ground (g), in that the conferral by regulation 2(2)(c) of a new power to make subordinate legislation appears to be an unusual and unexpected use of the enabling power?
Members indicated agreement.
The committee will set out fuller consideration of the use of the enabling power in this instrument in its report to Parliament and to the lead committee on the subordinate legislation considered at this meeting.
Also under this agenda item, no points have been raised on the following instrument.
Companies Act 2006 (Scottish public sector companies to be audited by the Auditor General for Scotland) Order 2026 [Draft]
Is the committee content with the instrument?
Members indicated agreement.