20.08.2020
Nearly one in ten Scottish Statutory Instruments (SSIs) laid before the Scottish Parliament for consideration in the 2019-20 parliamentary year were aimed at addressing the consequences of the Covid-19 pandemic, a Holyrood Committee has reported.
In its annual report for 2019-20, the Delegated Powers and Law Reform (DPLR) Committee said Coronavirus-related legislation represented a “significant” proportion of its workload in recent months.
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 to ensure that proposed laws are within the powers the Parliament has delegated to Ministers and to ensure SSIs are accurate, achieve the intended policy and the drafting is clear to the end user, considered 255 instruments during this reporting period, compared with 243 considered in 2018-19.
Of the 255 instruments, 243 were laid by the Scottish Government and 12 by the Lord President's Private Office (LPPO), on behalf of the Court of Session and High Court of Justiciary, to update court rules in Scotland.
The coronavirus pandemic accounted for 23 of the 243 Scottish Government instruments, 9.5% of the total.
The urgency required in addressing the public health emergency was the reason given for many of the breaches of the Parliament’s “28-day rule”, which provides that where a Scottish statutory instrument is subject to the negative procedure it must be laid at least 28 days before the instrument comes into force.
The pandemic was also one of the reasons for the substantially increased use of “made affirmative” procedure, which means that an instrument may come into force as soon as it is made but will lapse after 28 days unless the Parliament approves it.
Meanwhile, the volume of Brexit-related instruments has declined in the last year.
There has been a number of instruments that have passed through the Parliament to address deficiencies in legislation that would arise on the UK’s withdrawal from the European Union, though the volume has significantly reduced compared with the last reporting period.
In 2019-20, 15 SSIs were considered under an SSI protocol created to assist committees in prioritising their scrutiny of these instruments, down from 31 instruments in the previous reporting period.
Under a separate protocol for considering UK statutory instruments stemming from the European Union (Withdrawal) Act 2018, which require the consent of the Scottish Ministers because they relate to devolved areas, the Scottish Parliament considered 34 consent notifications, down from 93 in the previous reporting period.
Bill Bowman MSP, DPLR Committee Convener, said:
“The Covid-19 pandemic has been a significant aspect of the Committee's work this year as we considered both primary and secondary legislation aimed at addressing the public health emergency and its consequences. This is something the Committee will continue to monitor in the next parliamentary year.
“The Committee also notes the reduction in the volume of EU Exit legislation in this reporting year and is interested in exploring what the volume of legislation in this area might be as we approach the end of the Brexit transition period.”
Mr Bowman added: “The DPLR Committee’s role is key in scrutinising the powers being delegated to Ministers by the Parliament. During lockdown the Committee has had to balance the need for secondary legislation to be implemented quickly with the need for proper scrutiny. This it has done and continues to do as the pandemic has continued. The coming year will be challenging but the Committee will continue to fulfil its obligations to the Parliament.”
Background
The full report on the Work of the Delegated Powers and Law Reform Committee 2019-20 is available here.
The role of the Delegated Powers and Law Reform Committee is to consider SSIs from a technical perspective. It:
- scrutinises SSIs on behalf of the Parliament to ensure that proposed laws are within the powers the Parliament has delegated to Ministers in the parent Act – a law which is not within the enabling powers is invalid and has no legal effect;
- checks the quality of each SSI to ensure that it is accurate, achieves the intended policy and the drafting is clear to the end user; and
- through exchange of correspondence and its reports, encourages and monitors corrective action by the Scottish Government and other rule making authorities.
To learn more about the work of the Delegated Powers and Law Reform Committee go to the Scottish Parliament website.
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