Delegated Powers and Law Reform Committee

Meeting date: Tuesday, January 18, 2022

Official Report 463KB pdf

Instruments subject to Made Affirmative Procedure

Under agenda item 3, we are considering two made affirmative instruments. Issues have been raised on the following instrument.

Health Protection (Coronavirus) (International Travel and Operator Liability) (Scotland) Amendment Regulations 2022 (SSI 2022/2)

The instrument amends the requirements and restrictions that affect international travellers arriving in Scotland. A number of issues have been raised on the instrument. I will cover each in turn.

First, regulation 7 amends the principal international travel regulations to insert regulation 16A, which requires eligible vaccinated arrivals to report the outcome of a day 2 lateral flow device test, and to insert regulation 16B, which requires such people to take a confirmatory test from a public provider if their lateral flow test result is positive. Neither the principal regulations nor this instrument specifies that the confirmatory test should be a PCR—polymerase chain reaction—test, although the policy note and Scottish Government guidance indicate that the confirmatory test should be a PCR test.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (h), on the basis that the meaning of the instrument could be clearer that the confirmatory test that is taken by an eligible vaccinated arrival following a positive day 2 lateral flow device test must be a PCR test? In so doing, does the committee wish to call on the Scottish Government to amend new regulation 16B of the Health Protection (Coronavirus) (International Travel and Operator Liability) (Scotland) Regulations 2021 to define the term “confirmatory test” at the next legislative opportunity?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Secondly, the policy note and the letter to the Presiding Officer that accompany the instrument state that the amended definition of World Health Organization list vaccines in regulation 3 comes into force at 4 am on 10 January 2022, alongside the changes to the list of relevant countries that can provide acceptable vaccination certification in schedule 1A. However, regulation 1 provides that regulation 3 came into force at 4 am on the earlier date of 7 January.

The Scottish Government confirmed that the commencement of regulation 3 on 7 January is an error. The change should have been implemented in Scotland at the same time as in England, on 10 January. As a result, it is possible that some travellers may have been classed as eligible vaccinated arrivals in Scotland sooner than intended.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (i), on the basis that its drafting appears to be defective?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Finally, the instrument is in breach of laying requirements in section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, which provides that an instrument not subject to the negative or affirmative procedure must be laid before the Scottish Parliament as soon as practicable after the legislation is made, and in any event before the legislation is due to come into force. Regulations 1 to 5, 8, 9, 12 and 13 came into force at 4 am on 7 January, and the instrument came into force at 9.30 am later the same day.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (j), on the basis that it fails to comply with the laying requirements?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

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

Health Protection (Coronavirus) (Requirements) (Scotland) Amendment Regulations 2022 (SSI 2022/6)

The instrument provides for the removal of the capacity limits on live events outdoors and removes the requirement for 1m physical distancing at outdoor event venues, outdoor exhibitions and outdoor spaces in sports stadia. It also amends the definition of the term “fully vaccinated” to introduce booster vaccinations.

Is the committee content with the instrument?

No member has indicated that they are not content or that they wish to speak, so we are agreed.