Delegated Powers and Law Reform Committee

Meeting date: Tuesday, May 5, 2020

Official Report 430KB pdf

Instrument subject to Affirmative Procedure

Direct Payments (Crop Diversification Derogation) (Scotland) Regulations 2020 (SSI 2020/135)

Agenda item 2 is consideration of an instrument that is subject to the provisional affirmative procedure. That means that the instrument is already in force but will lapse unless it is approved by the Parliament within 28 days.

The committee notes that the power under which SSI 2020/135 is made can be used to derogate from the European Union direct payments regulation only when two preconditions are met. First, the derogation must be only

“to the extent and for such a period as is strictly necessary”.

Secondly, the regulations must be

“both necessary and justifiable in an emergency”.

For the instrument to be within vires, both preconditions must be met. As the assessment of that is a policy consideration, the committee cannot reach a view on the matter. Therefore, the committee cannot say definitively whether the instrument raises a vires issue.

Does the committee wish to draw the issue to the attention of the lead committee, which is better placed to consider whether the preconditions are met?

Members indicated agreement.