The increasing volume of Brexit-related secondary legislation has coincided with a decrease in the number of Scottish Statutory Instruments laid before the Scottish Parliament for consideration, a Holyrood Committee has reported.
In a report of its work in 2018-19, the Delegated Powers and Law Reform (DPLR) Committee noted the extra requirements for instruments under the European Union (Withdrawal) Act 2018, and called for an update from the Scottish Government on the impact of the additional workload created by EU Exit legislation on the domestic SSI programme.
SSIs – a form of law made by the Scottish Ministers or other responsible authority such as the Lord President – are usually in the form of regulations, orders, rules or schemes which set out technical details or administrative matters necessary for primary legislation to operate, but can cover any subject matter ranging from criminal penalties, licensing schemes, implementing EU obligations, prescribing application forms, to providing procedural rules.
The Committee, whose role is to scrutinise SSIs from a technical perspective and report any drafting issues to the Scottish Government or other relevant rule-making authority, considered 243 instruments during this reporting period, compared with 279 considered in 2017-18.
Of the 243 instruments, 223 were laid by the Scottish Government and 20 by the Lord President's Private Office (LPPO); slightly fewer than last year where the numbers laid were 256 and 23 respectively.
The impact of EU Exit instruments has been explored by the Committee in its regular evidence session with the Minister for Parliamentary Business, Graeme Dey MSP.
At its meeting on 11 December 2018, the Minister told the Committee that to date domestic SSIs had not been held back as a consequence of Brexit legislation, but indicated that prioritisation may become necessary.
In a later evidence session on 7 May 2019, Mr Dey informed the Committee that prioritisation had become necessary, meaning that SSIs that were considered “non-urgent” were paused, which created a “backlog”.
There were 26 instruments reported this year, including five under the most serious reporting grounds – down from 11 last year – but the proportion of instruments reported in 2018-19 remains at 11.5%, as in the 2017-18 reporting period.
Of the instruments laid by the Lord President’s Private Office, which are used to update court rules in Scotland, only one was reported (5% of instruments considered), down from 8.5% last year, which was itself a significant improvement from the 20.5% in 2016-17 and 45% in 2015-16.
Over the course of the reporting year, the Scottish Government laid 12 amending instruments which corrected errors in instruments that were drawn to the attention of the Parliament by the Committee.
The are also errors in instruments that remain outstanding, but the Scottish Government has given a commitment to correct those by the end of this session.
Graham Simpson MSP, DPLR Committee Convener, said: “While the proportion of reported instruments has remained the same, the Committee is heartened by the improvement indicated by the reduced use of significant reporting grounds.
“The Committee is also pleased with the continued improvement in the quality of LPPO instruments which has been remarkable in recent years.
“The number of historic commitments is continuing to fall. The Committee welcomes this but suggests greater progress is needed in relation to new commitments.
“The Committee has also noted the continued decrease in the number of instruments laid this year and that this coincides with large volumes of EU Exit legislation. EU Exit SSIs have made up a significant part of SSI workload.
“The Committee is interested in exploring how the demands of these instruments have impacted on the Government's secondary legislation programme.”
Read the full report here.
The role of the Delegated Powers and Law Reform Committee is to consider SSIs from a technical perspective. The Committee:
To learn more about the work of the Delegated Powers and Law Reform Committee go to the Scottish Parliament website.