Chamber and committees

No points have been raised with regard to the following instrument.

Is the committee content with the instrument?

Members indicated agreement.

Under agenda item 4, we are considering 4 instruments.

An issue has been raised in relation to the instrument, which creates new transitional provisions and changes the coming into force date of some provisions of the act by amending the principal regulations, the Disclosure (Scotland) Act 2020 (Commencement No 5, Saving and Transitional Provision) Regulations 2025.

In correspondence with the Scottish Government, which was published alongside the papers for this meeting, the committee raised the issue that the instrument does not specify a commencement date for the new regulations 13 to 15, which it inserts into the principal regulations. The Scottish Government confirmed that that was an error. The committee considers that the error impedes the operation of the instrument.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (i), as its drafting appears to be defective, in that there is no commencement date for the new regulations 13 to 15?

Members indicated agreement.

Minister, you will be aware that the committee recently published the report of our inquiry into framework legislation and Henry VIII powers. We will receive a full response from you in due course, but do you have any initial views on the report?

Thank you, minister. At the evidence session in October, you provided members with details of the steps that the Scottish Government had taken to ensure that a high quality of drafting is achieved. Between December 2024 and February 2025, there has been a notable increase in the number of instruments that have been withdrawn and relaid as a result of the committee’s raising concerns about their technical and legal accuracy. There were four such instruments in that quarter, compared with one in the same period last year. The committee picked up on that when it undertook its quarterly report. It would be useful for the committee to hear an explanation of that situation. You will be aware that I raised that question with the First Minister last week in the meeting of the Conveners Group.

The instrument sets out charges that are payable for services relating to the recognition of overseas qualifications. Under section 28(2) of the Interpretation and Legislative Reform Scotland Act 2010, instruments that are subject to the negative procedure must be laid at least 28 days before they come into force, not counting recess periods of more than four days. The instrument breaches that requirement as it was laid on 13 March 2025 and came into force on the 28 March 2025.

As required under the act, the Scottish Government has set out the reasons for the breach in a letter to the Presiding Officer, which will be published in the committee’s report on subordinate legislation that is considered at today’s meeting. It explains that the instrument requires to come into force by 28 March to provide a statutory basis for Scottish customers to be charged on the start date of a new contract.

Does the committee wish to draw the instrument to the attention of the Parliament under reporting ground (j), for failure to comply with laying requirements?

Members indicated agreement.

In correspondence with the Scottish Government, which is published alongside the papers for this meeting, the committee asked about the timing of a planned section 93 order to be made under the Scotland Act 1998, in the context of the wider legal issues that sit behind the making of the instrument.

The Scottish Government stated that arrangements are in place for the section 93 order to be made shortly and that it is due to be considered at the Privy Council in May 2025. It is of the view that the present instrument provides the necessary legal basis for the charging of the fees in Scotland and that the retrospective validation of fees that is proposed in the United Kingdom Government’s Border Security, Asylum and Immigration Bill will need to attach only to fees that were charged for services that were provided in Scotland before the present instrument came into force.

Does the committee wish to highlight to the lead committee the unusual history and context of the instrument, including the correspondence regarding the proposed section 93 order?

Members indicated agreement.

The Scottish Government has laid an amending instrument that the committee is also considering today, the Disclosure (Scotland) Act 2020 (Commencement No 5, Saving and Transitional Provision) Amendment (No 2) Regulations 2025. It inserts a coming into force date of 1 April 2025 for new regulations 13 to 15, which rectifies the error. Does the committee wish to welcome the fact that the Scottish Government has laid a corrective instrument, which will resolve the issue before the principal regulations come into force?

Members indicated agreement.

Thank you for that assurance, minister. You were sitting at the table this morning when we went through the other instruments and I am sure that you anticipated that there would be a question about them too. Notwithstanding the scrutiny that we have just undertaken on them, we are reporting another couple this morning. You are right that doing so is part of the scrutiny process that this committee undertakes, either when instruments are withdrawn to be relaid or when the issues with them are caught just before they are laid.

I am sure that I speak for colleagues when I say that we would be keen to understand what more the Scottish Government can undertake to do internally around the drafting of instruments so that there will be fewer such instances. That is not to say that there are many—there are not—but the fact is that another two instruments have been highlighted this morning. Can you indicate to the committee what additional measures you think the Government could look at to improve the output?