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Legislative Consent Memorandum Police Crime Sentencing Courts and the Health and Care Bills response

Letter from the Minister for Parliamentary Business to the Convener, 21 October 2021

Dear Stuart,

Thank you for your letter of the 6 October regarding the LCMs for the Police, Crime, Sentencing and Courts Bill and the Health and Care Bill and in particular the issue the committee has raised regarding the powers conferred on UK Ministers in devolved areas not formerly within EU competence.

Regarding question (i), which related to the Police, Crime, Sentencing and Courts Bill, the Scottish Government does not consider that the powers conferred on the Secretary of State, insofar as within devolved competence, fall within areas formerly within EU competence before the UK fully withdrew from the EU and as such the protocol does not apply.

We have considered question (iii), which relates to the Health and Care Bill. In respect of clause 87, the Scottish Government is currently discussing this clause with the UK Government. We have asked the UK Government to amend this clause to ensure that the consent of the Scottish Ministers is obtained if the regulations contain any provision which falls within legislative competence. Once discussions on that issue are concluded, we will respond separately to the Committee on this question as it relates to clause 87.

In respect of clause 123 of the Health and Care Bill, the Scottish Government does not consider that the powers conferred on the Secretary of State, insofar as within devolved competence, fall within areas formerly within EU competence before the UK fully withdrew from the EU and as such the protocol does not apply.

In respect of clause 125 of the Health and Care Bill, the Scottish Government considers that the question posed is of a hypothetical nature, as the UK Government position remains that the online advertising provisions are reserved. As it stands the Secretary of State would exercise powers for the whole of the UK. The Scottish Government consider this to be an unsatisfactory position, given our position that elements of clause 125 are devolved. Should the provisions in the Bill be amended to recognise this, the Scottish Government will update the Committee.

I note the Committee’s view that the Scottish Parliament would expect to have a role in scrutinising the exercise of delegated powers conferred on UK Ministers, and you ask how I envisage that could be facilitated in devolved areas that do not fall within areas formerly within EU competence before the UK fully withdrew from the EU.

The Scottish Government recognises the Parliament’s interest in scrutinising any proposals by the UK Government to legislate in devolved areas. As you will be aware there is a protocol in place between the Scottish Government and the Scottish Parliament to facilitate scrutiny of proposals by the UK Government to legislate through subordinate legislation in devolved areas that would have formally been within the competence of the EU. There isn’t, nor has there ever been, a similar arrangement to provide for scrutiny by the Scottish Parliament of proposals by the UK Government to legislate through subordinate legislation in devolved areas that were not previously within the competence of the EU.

Although I am happy to consider further how the Scottish Parliament could best scrutinise the exercise of delegated powers in devolved areas that do not fall within areas formerly within EU competence before the UK fully withdrew from the EU I do not have a specific proposal to offer. My view is that any process would need to be flexible and take account of factors such as the type and significance of the power being exercised, whether or not the power was exercisable subject to the consent of the Scottish Ministers, and the extent and timing of engagement by the UK Government with Scottish Ministers. Our officials worked together when developing the protocol for scrutiny of proposals to legislate through subordinate legislation in devolved areas that would have formally been within the competence of the EU, and I suggest it would be helpful to remit the issue to them to consider options.

If you are content with this proposal I will ask my officials to take matters forward.

George Adam