Subordinate Legislation Committee
Meeting date: Tuesday, November 20, 2012
Official Report
350KB pdf
Instrument subject to Affirmative Procedure
Scotland Act 1998 (Modification of Schedule 5) (No 2) Order 2013 [Draft]
I welcome members to the 26th meeting in 2012 of the Subordinate Legislation Committee and ask everyone to turn off their mobile phones. First, I advise the committee that its annual report for 2011-12 will be published today. I believe that it demonstrates the committee’s good work in its efforts to improve the quality of subordinate legislation, although I note that today might not provide us with good examples in that respect.
Agenda item 1 is consideration of instruments subject to affirmative procedure. Although no points have been raised under any of the reporting grounds in relation to the draft order, the committee might wish to refer the following matters to the lead committee and the Parliament for consideration.
On the scope of the reservation, article 2 modifies the reservation of social security schemes set out in section F1 of schedule 5 to the Scotland Act 1998. The new exception to the reservation makes it clear that, once the order comes into force, the subject matter of section 69 of the Child Support, Pensions and Social Security Act 2000 will remain reserved. However, the section is to remain reserved as it will have effect on the date on which the order is due to come into force, which is 1 April 2013. Given that the date is in the future and that the Scottish Parliament does not have the power to control the subject matter of section 69, the fact is that, at the point at which the Parliament is being asked to approve the terms of the order, it is not clear what subject matter is being reserved by this provision.
On the extension of functions, article 3 modifies existing devolved statutory functions of Scottish ministers and local authorities to ensure that from 1 April 2013 they are to have effect as if the transfer of legislative competence made by article 2 of the order had had effect at the time the functions were conferred. The purpose of article 2 is to confer legislative competence over community grants and crisis loans on the Scottish Parliament with effect from 1 April 2013. Given that, by giving effect to article 2 in this manner from that date, article 3 makes provision that would be within the legislative competence of the Parliament on that date, the Parliament should be clear about the exact intended effect of article 3 if legislation is being made on its behalf by order promoted by the Scottish and United Kingdom Governments.
The Scottish Government’s policy note indicates that the intention is for local authorities and Scottish ministers to make provision for the new devolved matters of community care grants and crisis loans through the exercise of their powers to advance wellbeing under the Local Government in Scotland Act 2003. If that is the case, it is not clear why the exercise of the Parliament’s new competence under article 2 needs to extend more widely than those specific provisions to “any pre-commencement devolved enactment”. Without an exhaustive review of the statute book, it is not clear what the full effect of article 3 will be.
Given that, does the committee agree to refer those matters to the lead committee and the Parliament, which might well wish to seek an explanation of those matters from the Scottish Government to inform consideration of the draft order?
Members indicated agreement.
I agree and must admit that I am unhappy with the inherent uncertainty over the scope of what will be reserved. In a sense, we are being invited to approve what is essentially the issuing of a blank cheque. I am choosing my metaphor carefully, but it is well worth drawing the matter to the Government’s attention.
John Scott is of course correct, but I think that I can understand the timing issue. As the measure will affect the budgeting for and operation of local authorities and Government from the beginning of April, it is necessary to give legislative certainty well in advance of that, even though the strict possibility of introducing some uncertainty might arise. The situation is not dissimilar to that for the legislative consent motions that the Parliament passes, in which we essentially say that although it is our right to legislate we are allowing Westminster to do so on our behalf, on the basis of trust and prior agreement that things will be done properly.
The important thing is not necessarily the substantive matter but ensuring that the appropriate committee understands that the effect of agreeing to the order is to hand responsibility to Westminster to do things properly. That is what we should be reporting. Unless I have misunderstood the situation, I can see the case for doing things to the timescale that has been set out.
Although I agree entirely with Mr Stevenson, we are nonetheless being asked to approve something that we do not know anything about.
Indeed. That is why the committee is being asked to refer the order to the lead committee, because such a policy element is clearly for that committee rather than ourselves. Do members agree to refer the order to the lead committee in those terms?
Members indicated agreement.