Chamber and committees

Welcome to the Delegated Powers and Law Reform Committee’s 15th meeting in session 6, which is taking place fully online. As we are meeting online, it will be more challenging for members to indicate agreement to the items that are discussed. I therefore ask members to raise your hand if you are not content with a question that is put or if you wish to speak about an instrument.

The first item of business is consideration of an instrument subject to the made affirmative procedure, on which an issue has been raised.

The instrument revokes and replaces the Red Rocks and Longay Urgent Marine Conservation Order 2021 (SSI 2021/131), due to the extension of the boundary of the designated Red Rocks and Longay area of the inner sound of Skye marine protected area. The instrument is to be brought into force urgently to further the stated conservation objectives for the marine protected area to protect flapper skate and their eggs.

The instrument was made and laid before the Parliament on 9 December 2021 and came into force on 16 December 2021. Accordingly, it does not respect the requirement in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 that at least 28 days should elapse between the laying of an instrument that is subject to the negative procedure and the coming into force of that instrument.

In its letter to the Presiding Officer explaining the reason why the 28-day rule has not been complied with, the Scottish Government outlined that, following advice from NatureScot, the extended marine protected area has been redesignated urgently and section 28(2) has been breached to remove the risk of further impacts on the flapper skate nursery area as soon as possible.

Does the committee agree to report the instrument on reporting ground (j), on the basis that there has been a failure to lay the instrument in accordance with laying requirements under the Interpretation and Legislative Reform (Scotland) Act 2010? Also, is the committee content with the Scottish Government’s explanation provided for the failure to comply with the laying requirements?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

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

The instrument is one of a series of instruments that amend the Health Protection (Coronavirus) (International Travel and Operator Liability) Regulations 2021. Usual drafting practice requires that each amending instrument in a series should reflect the title of the principal regulations that it amends and should include a number indicating the number of Scottish statutory instruments amending the principal instrument in that year. However, when referring to the principal regulations, the title of this instrument refers to “Public Health” rather than “Health Protection”. The Scottish Government has confirmed that that was an error.

The next correctly designated instrument amending the consolidated international travel regulations is also numbered 13. The number in the title of further amending instruments will therefore not accurately reflect the number of instruments that have amended the international travel regulations in 2021. The Scottish Government confirmed that it does not propose to amend the citation provision in regulation 1 of the instrument, because that could cause further confusion. Instead, it will draw users’ attention to the instrument in footnotes in subsequent instruments, where appropriate.

Does the committee agree to report the instrument on the general reporting ground, in respect of a failure to follow proper drafting practice in the title of the instrument?

Mr Simpson wishes to comment.

Under agenda item 2, we are considering instruments subject to the affirmative procedure. No points have been raised on the following draft instruments.

Is the committee content with the instruments?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Finally, under agenda item 4, we are considering instruments not subject to parliamentary procedure. An issue has been raised on the following instrument.

The instrument amends the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 and the Act of Sederunt (Sheriff Appeal Court Rules) 2015. Paragraphs 3(2) and 3(3) insert new rules into the sheriff appeal court rules referring to an appeal under section 38(3), 44(3) and 67(3) of the Age of Criminal Responsibility (Scotland) Act 2019.

The committee identified an error due to an inconsistency in the cross-referencing in paragraphs 3(2) and 3(3) of the instrument. In correspondence, the Lord President’s private office explained that the reference to section 44(3) of the 2019 act should instead be to section 46(3) of that act, and it has committed to rectifying the error at the earliest appropriate opportunity.

Does the committee agree to draw the instrument to the attention of the Parliament on the general reporting ground in respect of the incorrect cross-reference? Also, does the committee welcome that the Lord President’s private office has committed to rectifying the error at the earliest appropriate opportunity?

I have one other point that I would like to highlight. In the information that we have received, the Lord President’s office has suggested that it is acting urgently in relation to the instrument that the Scottish Government brought in to change the age of criminal responsibility. Bearing in mind that the act was passed in 2019, clearly, there will have been communications between the Scottish Government and the Lord President’s private office in the period since then. I suggest that the committee writes to the Scottish Government and the Lord President’s private office to seek clarity on the communications that took place before the introduction of the instrument that the Scottish Government brought forward and on the situation that we have today. Is the committee agreed?

No member has indicated that they are not content or that they wish to speak, so we are agreed on those points.

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

I have looked through the meeting papers and the Official Report of our meeting on Tuesday 7 December and have considered the experience that we have all had over the past nearly 20 months.

Would it be fair to say that experience has shown that Governments cannot legislate for every eventuality, whether in primary or secondary legislation? There have been a number of complications and challenges for parliamentarians when we have attempted to undertake our work.

I will come back to that in a moment. Professor Tierney, do you want to add to that?

Yes.