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Under agenda item 4, we are considering five affirmative instruments.

Does the committee wish to draw the instrument to the attention of the Parliament on the general reporting ground in respect of the incorrect reference in paragraph 4(3) of new schedule 8A to the Greenhouse Gas Emissions Trading Scheme Order 2020, which is inserted by article 27 of the instrument, to article 18(11) of the free allocation regulation, which should have been to article 18a(11) of that regulation?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Does the committee also wish to welcome that the Scottish Government is liaising with the other United Kingdom Administrations with a view to correcting the error at the next available opportunity?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

The instrument relates to the phasing-in of border controls on imports of certain goods following EU withdrawal. It breaches section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, as it was laid on 22 December 2021 and came into force on 1 January 2022.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (j), in relation to the failure to lay the instrument in accordance with laying requirements under the 2010 act?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

The Scottish Government has provided an explanation of the reasons for the failure in a letter to the Presiding Officer and in response to the committee’s written questions. All of the committee’s correspondence on today’s instruments can be found in paper 3 of the online papers. Clearly, there is an issue between the Scottish Government and the UK Government. I suggest that we highlight that to the subject committee, which is planning to look at the instrument next week. It can then make any decision that it wishes to take as a result.

No member has indicated that they are not content with that course of action or that they wish to speak, so we are agreed on that.

Finally under this agenda item, no points have been raised on the following instrument.

Under agenda item 2, we are considering one instrument.

The committee is considering whether the appropriate scrutiny procedure and the appropriate category have been applied to the instrument. The instrument relates to the start date from which imports of animal products and certain plants, plant products and other objects to Scotland from European Union, European Economic Area and related countries will be subject to additional requirements.

The instrument has been laid under the negative procedure and is considered by the Scottish Government to be of low significance.

Is the committee content that the appropriate scrutiny procedure and categorisation have been applied to the instrument?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

The instrument amends the requirements and restrictions that affect international travellers arriving in Scotland. A number of issues have been raised on the instrument. I will cover each in turn.

First, regulation 7 amends the principal international travel regulations to insert regulation 16A, which requires eligible vaccinated arrivals to report the outcome of a day 2 lateral flow device test, and to insert regulation 16B, which requires such people to take a confirmatory test from a public provider if their lateral flow test result is positive. Neither the principal regulations nor this instrument specifies that the confirmatory test should be a PCR—polymerase chain reaction—test, although the policy note and Scottish Government guidance indicate that the confirmatory test should be a PCR test.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (h), on the basis that the meaning of the instrument could be clearer that the confirmatory test that is taken by an eligible vaccinated arrival following a positive day 2 lateral flow device test must be a PCR test? In so doing, does the committee wish to call on the Scottish Government to amend new regulation 16B of the Health Protection (Coronavirus) (International Travel and Operator Liability) (Scotland) Regulations 2021 to define the term “confirmatory test” at the next legislative opportunity?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Secondly, the policy note and the letter to the Presiding Officer that accompany the instrument state that the amended definition of World Health Organization list vaccines in regulation 3 comes into force at 4 am on 10 January 2022, alongside the changes to the list of relevant countries that can provide acceptable vaccination certification in schedule 1A. However, regulation 1 provides that regulation 3 came into force at 4 am on the earlier date of 7 January.

The Scottish Government confirmed that the commencement of regulation 3 on 7 January is an error. The change should have been implemented in Scotland at the same time as in England, on 10 January. As a result, it is possible that some travellers may have been classed as eligible vaccinated arrivals in Scotland sooner than intended.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (i), on the basis that its drafting appears to be defective?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Finally, the instrument is in breach of laying requirements in section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, which provides that an instrument not subject to the negative or affirmative procedure must be laid before the Scottish Parliament as soon as practicable after the legislation is made, and in any event before the legislation is due to come into force. Regulations 1 to 5, 8, 9, 12 and 13 came into force at 4 am on 7 January, and the instrument came into force at 9.30 am later the same day.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (j), on the basis that it fails to comply with the laying requirements?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Also under this agenda item, no technical points have been raised on the following instrument.

The instrument provides for the removal of the capacity limits on live events outdoors and removes the requirement for 1m physical distancing at outdoor event venues, outdoor exhibitions and outdoor spaces in sports stadia. It also amends the definition of the term “fully vaccinated” to introduce booster vaccinations.

Is the committee content with the instrument?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

A number of issues were raised with the Scottish Government on the instrument. First, do members wish to report the following three errors on the general reporting ground? The first is that the definition of “EU withdrawal agreement” in regulation 2 is unnecessary, given that a definition of the term that is contained in schedule 1 to the Interpretation and Legislative Reform (Scotland) Act 2010 already applies.

The second error is that regulation 17(4)(b) refers to

“a child in respect of whom a person listed in paragraph (2)(a) has a relationship equivalent to those listed under the law of Scotland”,

and should instead refer to paragraph (3)(a) of regulation 17.

The third error is that the definitions of “civil partnership” and

“person who is living with another person as if they were in a civil partnership”

in regulation 17(4) are unnecessary in so far as they refer specifically to same-sex couples, on the basis that both same-sex and mixed-sex couples may enter into marriages and civil partnerships.

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Secondly, do members wish to report the following three errors on reporting ground (h), on the basis that the meaning could be clearer? The first error is that regulation 7(2) relates to how an individual’s ability to carry out both daily living and mobility activities is to be determined, and therefore that regulation 7(2)(a) should refer to both the tables in schedule 1, at part 2, on “Daily Living Activities”, and part 3, on “Mobility Activities”.

The second error is that the meaning of the term “medical treatment” as defined in regulations 2 and 16 could be clearer, and that the definition in regulation 2 could be removed.

The third error is that the meaning of “qualifying services” in regulation 2 within the definition of “residential educational establishment”, and in regulations 27(4) and 27(5)(b), and 32(3) and 32(4)(b) could be clearer.

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Additionally, do members wish to call on the Government to lay an amending instrument to rectify the errors in regulation 7(2)(a) and in respect of the term “medical treatment” as defined in regulation 2 before the instrument comes into force on 21 March 2022? Furthermore, do members wish to call on the Government to rectify in that amending instrument the other errors that the committee has identified?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Also under this agenda item, no points have been raised on the following draft instruments.

Is the committee content with the instruments?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Thank you, Mr Simpson. I echo those comments, particularly regarding clarity for members of the public. Anyone who is a lawyer will be able to navigate their way around the situation, but I suggest that, in order to give clarity for members of the public in what is a fast-moving situation—we have seen a number of regulations in the area—the Scottish Government needs to improve. This is not a common occurrence by any manner of means. This is the first time that it has happened, as we will all acknowledge. However, I agree that we should write to the minister to highlight our concerns.

Does the committee also wish to note that the Scottish Government undertakes to clarify the anomaly in the instrument’s title in footnotes to subsequent amending instruments?

Other than the comments that have been made, no member has indicated that they are not content or that they wish to speak, so we are agreed on both points.