Sub-delegation
Our Adviser, Dr McCorkindale suggests that the Scottish Parliament “should be alert to the existence and exercise of this power of sub-delegation, for a number of constitutionally significant reasons”, as follows—
there is no requirement that UK Ministers consult with the Scottish Government or the Scottish Parliament before sub-delegating powers to Scottish Ministers under the Bill;
unlike other delegated powers contained in the Bill, there is no provision for the level of scrutiny to be applied to the exercise of sub-delegated powers (merely a commitment to make any sub-delegated power subject to ‘appropriate’ procedures before the Scottish Parliament);
with the content, purpose and regulation of sub-delegated powers left for another day, these devolution powers are the most ‘skeletal’ of this framework Bill’s provisions;
the scope of the sub-delegation powers includes the potential to confer constitutionally problematic powers such as powers to amend, suspend or repeal Acts of the Scottish Parliament, powers to make regulations with retrospective application or powers to make regulations that are incompatible with the NI Protocol itself (i.e. that enable Scottish Ministers to act incompatibly with the UK’s international obligations).1Briefing from SPICe, Professor Katy Hayward, and Dr Christopher McCorkindale on the Committee's consideration of the LCM for the Northern Ireland Protocol Bill. (2022).