Delegated Powers and Law Reform Committee

Meeting date: Tuesday, December 21, 2021

Official Report 455KB pdf

Instrument subject to Made Affirmative Procedure

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.

Public Health (Coronavirus) (International Travel and Operator Liability) (Scotland) Amendment (No 13) Regulations 2021 (SSI 2021/470)

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.

I agree with the recommendation. However, it has to be said that this is very sloppy drafting practice and should not be happening. We need to get the title right. It is all very well for the Scottish Government to say that it will put something in footnotes, but that means that ordinary members of the public will, frankly, find the regulations very difficult to follow. People should not need legal training to follow regulations, which are coming fast and furious at the moment. Perhaps that is why we are seeing more and more mistakes—it is because legislation is being drawn up at pace.

I am concerned about the checks and balances that have—or have not—been put in place. We just should not see such mistakes. It is probably worth sending a letter to the Scottish Government from the committee to highlight that we are not satisfied that such errors are being made.

Thank you, Mr Simpson. I echo those comments, particularly regarding clarity for members of the public. Anyone who is a lawyer will be able to navigate their way around the situation, but I suggest that, in order to give clarity for members of the public in what is a fast-moving situation—we have seen a number of regulations in the area—the Scottish Government needs to improve. This is not a common occurrence by any manner of means. This is the first time that it has happened, as we will all acknowledge. However, I agree that we should write to the minister to highlight our concerns.

Does the committee also wish to note that the Scottish Government undertakes to clarify the anomaly in the instrument’s title in footnotes to subsequent amending instruments?

Other than the comments that have been made, no member has indicated that they are not content or that they wish to speak, so we are agreed on both points.