Delegated Powers and Law Reform Committee

Meeting date: Tuesday, January 7, 2020

Official Report 448KB pdf

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Instruments subject to Negative Procedure

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Environmental Impact Assessment (Transport) (EU Exit) (Scotland) (Amendment) Regulations 2019 (SSI 2019/415)

Agenda item 3 is consideration of negative instruments. Scottish statutory instrument 2019/415 amends provisions that will, on exit day, become retained European Union law on environmental impact assessments relating to the construction of new roads and other road and transport works.

The wording of the provision that is inserted by regulation 3(4) suggests that rights can be derived from a provision of a particular EU directive after the United Kingdom leaves the EU. However, section 4(2)(b) of the European Union Withdrawal Act 2018 provides expressly that rights under EU directives do not become part of domestic law on exit day, subject to certain exceptions. The Scottish Government agrees that the directive does not have legal effect after exit day; however, that could be clearer in the drafting of the regulations. As the meaning could be clearer, does the committee agree to draw the regulations to the attention of the Parliament on reporting ground (h)?

Members indicated agreement.

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Plant Health (Official Controls and Miscellaneous Provisions) (Scotland) Regulations 2019 (SSI 2019/421)

SSI 2019/421 implements the new EU plant health regulation and the plant health elements of the new official controls regulation and associated tertiary legislation. The regulations were laid before the Parliament on 11 December 2019 and came into force on 14 December 2019. Accordingly, they do not comply with the requirement 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 the instrument.

As the regulations fail to comply with the requirements of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, the committee is required under standing orders to draw them to the attention of Parliament on reporting ground (j). Does the committee agree to do so?

Members indicated agreement.

Is the committee content with the reasons given for the failure to comply with section 28?

Members indicated agreement.

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Restriction of Liberty Order etc (Scotland) Amendment Regulations 2019 (SSI 2019/423)

SSI 2019/423 updates the list of specified equipment that can be used for the purposes of electronic monitoring in Scotland. The regulations were laid before the Parliament on 17 December 2019 and came into force on 20 December 2019. As such, as with the previous instrument, they do not comply with the 28-day requirement, and the committee is required by standing orders to draw them to the attention of the Parliament. Does the committee agree to do so?

Members indicated agreement.

In addition, upon reading what we have in front of us, the committee may wish to ask a number of questions and, specifically, why it came about that we had to get the regulations through in three days at the end of last year. I propose that we write to the Scottish Government this week to find out a bit more. Does the committee agree to do so?

Members indicated agreement.