Seòmar agus comataidhean

The purpose of this instrument is to add the characteristic of “sex” to the list of characteristics currently provided for by the 2021 act. The instrument also inserts interpretative provision for the term “sex”.

In correspondence with the Scottish Government, which was published alongside the papers for this meeting, the committee asked about the transitional provisions in the instrument. The committee notes that the transitional provisions were not included in the proposed draft of the instrument, which was considered by the committee on 16 September 2025.

Transitional provisions can be necessary when one legislative system ends and another begins. They make provision to specifically address those cases that straddle the transition.

Among other questions, the committee asked why the provisions are necessary, given the fact that, through the commencement provision, the instrument already limits the application of the regulations to after 5 April 2027.

The Scottish Government acknowledges in its response that there is no “old law” regarding sex-based prejudice, and states that it is seeking to make it clear that actions or conduct that took place prior to the commencement of the provisions will not fall within the scope of the new offences.

The committee sought further clarification on whether this provision might have an unintended effect on the application of sections 1 and 4 of the 2021 act as they currently apply in respect of all other characteristics. The Scottish Government responded that the instrument cannot have any legal impact on sections 1 and 4 for the purposes of those characteristics. The committee accepts this response, but considers that the provisions as currently drafted are unclear and unnecessary. The committee considers that transitional provisions should be used only where necessary to address genuinely transitional scenarios.

As such, does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (g), on the basis that it appears to be an unusual or unexpected use of the power conferred by the parent statute to make transitional provision, as it is not clear that the transitional provisions perform a transitional function?

Members indicated agreement.

That concludes the public part of the meeting.

10:18

Meeting continued in private until 10:20.

Under agenda item 4, we are considering one instrument.

That concludes the public part of the meeting.

10:10

Meeting continued in private until 10:20.

Does the committee wish to note that the proposed draft order appears capable of remedying the incompatibility with convention rights identified in X v Mental Health Tribunal for Scotland; that the proposed order goes beyond addressing the specific incompatibility identified by the court, which concerned recorded matters in the context of compulsion orders, by extending the recorded matters framework to other types of forensic orders, but that this is permitted by the scope of the power in section 12 of the Convention Rights (Compliance) (Scotland) Act 2001; that full technical scrutiny of the instrument will be carried out by the committee when the finalised draft order is laid under the affirmative procedure; and that the incompatibility was identified in October 2022, and that the proposed order is not expected to come into force until November 2026, and draw this to the attention of the lead committee?

Members indicated agreement.

Is the committee content that no reporting grounds are engaged?

Members indicated agreement.

In relation to the draft Care Home Services (Visits to and by Care Home Residents) (Scotland) Regulations 2026, regulation 8 imposes a statutory requirement on care home service providers to have regard to a code of practice in carrying out the duties imposed by the instrument. Given the importance of allowing time for affected service providers to prepare to comply with this new requirement, does the committee wish to welcome that the Scottish Government intends to publish the code of practice in advance of the requirement coming into force?

Members indicated agreement.

In relation to the draft Care Leaver Payment (Scotland) Regulations 2026, does the committee wish to welcome that the Scottish Government will address the typographical error in regulation 11(2)—to change “responsible authority” to “relevant authority”—either by correction slip or at the next suitable legislative opportunity?

Members indicated agreement.

In relation to the draft Legal Aid and Advice and Assistance (Fees) (Miscellaneous Amendment) (Scotland) Regulations 2026, does the committee wish to welcome that, through this instrument, the Scottish Government has, at the next suitable legislative opportunity, fulfilled a commitment to the committee in relation to the draft Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2026, to correct the erroneous references in the Civil Legal Aid (Scotland) Regulations 2002, and the minor drafting point that the instrument introduced in the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003?

Members indicated agreement.

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