Letter from the Convener to the Secretary for State for Business, Energy and Industrial Strategy, 7 March 2022
Dear Secretary of State
At the meeting of the Delegated Powers and Law Reform Committee on 1 March, the Committee considered the implications for the delegated powers exercisable within the Scottish Parliament’s legislative competence of the amendment to the Professional Qualifications Bill (“the Bill”), as referred to in the further supplementary Legislative Consent Memorandum lodged by the Scottish Government with the Scottish Parliament on 28 February 2022.
Following previous consideration of the original, and first Supplementary LCM on the Bill, the Committee reported on 23 September 2021 and 4 February 2022, respectively, that legislative powers which are conferred on the Secretary of State and Lord Chancellor, and are exercisable within the Scottish Parliament’s legislative competence, should be subject to a requirement for the Scottish Ministers’ consent.
The Committee noted that the amendment to the Bill does not address the recommendation for a statutory consent requirement. Instead it provides for a statutory consultation process. Under that process, where UK Ministers want to use the powers in the Bill to make secondary legislation, they are under a statutory duty to consult the Scottish Ministers beforehand and publish a report on that consultation.
The Committee also noted that the amendment sets out a detailed process for agreeing the terms of the report on the consultation. However, it noted that this process is not about reaching agreement on the terms of the proposed secondary legislation, it is only about agreeing the terms of the report on the discussions. The Committee notes that the amendment to the Bill does not address the Committee’s request for a “consent” requirement for all powers exercisable within legislative competence.
The Committee would therefore be grateful if you could explain the UK Government’s reasons for providing for a consultation mechanism prior to the exercise of delegated powers within the legislative competence of the Scottish Parliament, but for not providing a requirement to obtain the Scottish Ministers’ consent?
I would also draw your attention to the Statutory Instrument Protocol 2 agreed between the Scottish Parliament and the Scottish Government, which provides a process for obtaining the approval of the Scottish Parliament to UK Government Ministers exercising certain regulation-making powers. The protocol applies where proposed provision in a statutory instrument is within the legislative competence of the Scottish Parliament and relates to matters which were previously within EU competence.
The Committee noted that the consultation process provided for in the amendment to this Bill does not allow for the effective operation of the SI Protocol 2 process, as it does not require the Scottish Ministers’ consent. The Committee considered that the amendment does not enable the Scottish Parliament to have a voice in relation to the exercise of the secondary legislation powers in the Bill by UK Ministers within the Parliament’s legislative competence.
The Committee seeks the Secretary of State’s views on what the appropriate role for the Scottish Parliament should be in relation to the scrutiny of the exercise of such powers.
I would be grateful if you were able to provide a response to the Committee’s questions by Monday, 21 March 2022.
I am also copying this letter to the Secretary of State for Scotland for his interest.
Yours sincerely
Stuart McMillan MSP
Convener of the Delegated Powers and Law Reform Committee