Seòmar agus comataidhean

Good morning and welcome to the Delegated Powers and Law Reform Committee’s 13th meeting in session 6. I remind everyone who is present to switch their mobile phones to silent.

Agenda item 1 is a decision on whether to take item 8 in private. Is the committee content to take that item in private?

Members indicated agreement.

Is the committee content with the instruments?

Members indicated agreement.

Does the committee wish to welcome the fact that the relaid draft order addresses issues that were reported by the session 5 committee at its meeting on 12 January 2021 in respect of the draft Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2021?

Members indicated agreement.

Thank you, Dr Fox.

Members will note that the instrument removes the requirement for products of animal origin and animal by-products to be accompanied by health certificates. That differs from previous instruments, which postponed the implementation of border control measures. As the approach appears to constitute a policy choice, does the committee agree that the categorisation should be of medium, rather than low, significance?

Members indicated agreement.

Before we finish the evidence session, I have a final question for our two witnesses. Would it be useful to have a procedure that was in between the affirmative procedure, which is subject to the 40-day period, and the made affirmative procedure, given the current circumstances that we face and the Covid regulations that are coming through?

I mean something with different time limits. Could a new procedure be created that was beneficial and enabled the committee and the Parliament to do the scrutiny work that has been discussed this morning?

An issue has been raised on the regulations, which amend the Ethical Standards in Public Life etc (Scotland) Act 2000 (Register of Interests) Regulations 2003 in light of changes made to the code of conduct for councillors and the model code of conduct for members of devolved public bodies.

The Ethical Standards in Public Life etc (Scotland) Act 2000 (Register of Interests) Amendment Regulations 2021 (SSI 2021/397) were laid before the Parliament on 8 November 2021 and were considered by the committee at its meeting on 23 November. The committee resolved to report those regulations on reporting ground (i), due to a failure in the regulations to make provision for all registrable interests, as set out in the revised model code, contrary to the policy intention. Those regulations would have come into force on 8 December.

The regulations now before us were laid on 25 November 2021 and came into force on 7 December 2021 to rectify the errors in SSI 2021/397 and to make further provision. The regulations are in breach of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, which requires that an instrument subject to the negative procedure be laid

“at least 28 days before the instrument comes into force”,

not counting recess periods of more than four days. Does the committee agree to report the instrument on reporting ground (j) for failure to lay it in accordance with laying requirements under the Interpretation and Legislative Reform (Scotland) Act 2010?

Members indicated agreement.

Thank you, Dr Fox.

It would be useful to make anyone who is watching these proceedings aware of the figures. Sixty-three made affirmative instruments were laid under the Public Health etc (Scotland) Act 2008, while 61 were laid under the Coronavirus Act 2020. In total, the procedure was used 132 times in Scotland between 20 March 2020 and 2 December 2021.

I think that we would all agree that it is difficult to do a direct comparison of uses of the procedure. Every instrument in the Scottish Parliament goes through the Delegated Powers and Law Reform Committee, whereas there is not a comparable arrangement at Westminster. I want to make anyone who is watching aware of that, because it is an important point to recognise.

Dr Fox, notwithstanding the numbers that you outlined, and recognising that your focus is on Westminster and not so much on the Scottish Parliament, do you have any thoughts on the nature of the instruments for which the made affirmative procedure has been used? With regard to the increase in the number of such instruments relating to public health—you indicated that, for a period, 17 per cent of instruments at Westminster were made affirmative instruments—do you think that the use of the procedure, from the point of view of the policy areas that such instruments have been used for, is appropriate and correct, or is it potentially overbearing?

Thank you. Will you give us your thoughts on urgency, which the committee will, clearly, look at in more depth? It is clear that, pre-pandemic, there were very few made affirmative instruments but, obviously, the situation has been totally different since the pandemic began.