Delegated Powers and Law Reform Committee

Meeting date: Tuesday, February 22, 2022

Official Report 468KB pdf

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Instruments subject to Made Affirmative Procedure

Under agenda item 2, we are considering three instruments. An issue has been raised on the following instrument.

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Coronavirus Act 2020 (Alteration of Expiry Date) (Scotland) Regulations 2022 (SSI 2022/40)

The instrument extends the expiry date of various provisions of the Coronavirus Act 2020 that apply in Scotland, from 24 March 2022 to 24 September 2022. In correspondence with the Scottish Government, the committee asked two questions related to the instrument. First, clarification was sought on the statement in the accompanying policy note that only the made affirmative procedure was available for the instrument. Secondly, the committee sought clarification on the extension of the expiry, by regulation 2(a) of the instrument, of section 18(2) of the 2020 act and part 2 of schedule 13 to the act.

In response, the Scottish Government first confirmed that section 95(5) of the Coronavirus Act 2020 gives a choice between the affirmative and made affirmative procedures.

Secondly, the Scottish Government acknowledged that regulation 2(a), read on its own, implies that the transitional provisions in paragraphs 15 and 16 of schedule 13, and section 18(2) and paragraph 10 of that schedule so far as it relates to paragraphs 15 and 16, are also extended to 24 September 2022. However, the lead-in text to regulation 2 makes clear explicitly that the instrument, and so regulation 2(a), extends the relevant provisions only

“when they would otherwise expire by virtue of section 89 of the Act”.

The Scottish Government thanked the committee for drawing this matter to its attention. It has since laid an amended policy note to clarify that a choice of procedure is available and to add an explanation of the combined effect of regulation 2(a) of the instrument and section 89(2)(s) of the Coronavirus Act 2020.

Do members have any comments on the instrument?

I want to put on record some concerns about the instrument and suggest how we might satisfactorily address those concerns.

I have a general concern about the extension of the powers at this time, given that we are emerging from the Covid pandemic and that it could be perceived that the emergency powers are being extended into a non-emergency period. A number of the provisions come into effect from 24 March to 24 September. There was an opportunity to use either the affirmative or made affirmative procedure—the Government has clarified that both routes were open—but the Government still decided to use the made affirmative procedure, which limits the scrutiny by the Parliament of the measures in the instrument.

I therefore propose that we delay further consideration of the instrument and write to the relevant minister, who is the Deputy First Minister, to ask whether we can have an evidence session with him so that we can put those concerns to him and seek reassurance in relation to the measures that will be extended and the use of the made affirmative procedure for the instrument.

We have a short space of time available, so I would be content for the committee to write as suggested, and then we can take the matter from there. Is that okay with everyone?

Members indicated agreement.

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

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Scottish Landfill Tax (Standard Rate and Lower Rate) Order 2022 (SSI 2022/46)

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Health Protection (Coronavirus) (International Travel and Operator Liability) (Scotland) Amendment (No 3) Regulations 2022 (SSI 2022/53)

Is the committee content with the instruments?

Members indicated agreement.