Letter from the Convener to the Minister for Parliamentary Business regarding the Legislative Consent Memorandum for the Police Crime Sentencing and Courts Bill and the Health and Care Bill, 6 October 2021
At the meeting of the Delegated Powers and Law Reform Committee on 28 September, the Committee considered the delegated powers relevant to Scotland in both the Police, Crime, Sentencing and Courts Bill and the Health and Care Bill as referred to in the Legislative Consent Memorandums lodged by the Scottish Government on 6 August and 31 August 2021 respectively. The Committee has since published its reports on both LCMs:
A similar issue arose in the Committee’s consideration of both Bills in relation to powers conferred on UK Ministers in devolved areas not formerly within EU competence. This letter covers each in turn.
Police, Crime, Sentencing and Courts Bill
Clauses 40 to 42 include provision conferring three police powers on UK Ministers in devolved areas, albeit they do not appear to arise in areas formerly within EU competence. These regard the extraction of data from digital devices. While the LCM states that the Scottish Government does not currently recommend that consent is given for these provisions, it also states that “the Scottish Government intends to bring forward a supplementary memorandum for these provisions in order to ensure a consistent approach that takes account of Scotland’s distinct position.”
While the Committee would expect to consider these powers in any supplementary LCM, in the first instance it agreed to write to you to ask:
whether the three powers conferred on the Secretary of State by clauses 40 to 42, insofar as within devolved competence, fall within areas formerly within EU competence before the UK fully withdrew from the EU; and
how, where the process for scrutiny by the Scottish Parliament set out in SI Protocol 2 does not apply, the Parliament is to scrutinise the exercise of delegated powers conferred on UK Ministers in devolved areas that do not fall within areas formerly within EU competence before the UK fully withdrew from the EU.
Health and Care Bill
Clauses 87 and 123 in the Health and Care Bill include provisions conferring powers on UK Ministers in partially devolved areas. There is no requirement in the Bill that Scottish Ministers’ consent is sought before using the relevant regulation making powers.
The Committee agreed to write to you to ask:
whether the powers conferred on the Secretary of State by clauses 87 and 123, insofar as within devolved competence, fall within areas formerly within EU competence before the UK fully withdrew from the EU; and
how, where the process for scrutiny by the Scottish Parliament set out in SI Protocol 2 does not apply, the Parliament is to scrutinise the exercise of delegated powers conferred on UK Ministers in devolved areas that do not fall within areas formerly within EU competence before the UK fully withdrew from the EU.
Finally, also under the Health and Care Bill, the Committee noted that clause 125 includes provision to enable the Secretary of State to make regulations in relation to the prohibition of paid for advertising of less healthy food and drink online.
The Committee acknowledged the differing views between the UK Government and the Scottish Government as to whether the provisions are within the legislative competence of the Scottish Parliament. However, should the provisions be considered to be within the legislative competence of the Scottish Parliament, the Parliament would expect to have a role in scrutinising the exercise of delegated powers conferred on UK Ministers.
So, should clause 125 be considered to be devolved, the Committee agreed to write to you to ask:
how do you envisage the Scottish Parliament scrutinising the exercise of delegated powers conferred on UK Ministers in devolved areas that do not fall within areas formerly within EU competence before the UK fully withdrew from the EU.
I would be grateful if you were able to provide a response to each question by Friday 22 October 2021.
I am copying this letter to the Conveners of the Criminal Justice Committee and the Health, Social Care and Sport Committee as the lead committees for the respective LCMs.
Yours sincerely,
Stuart McMillan MSP
Convener of the Delegated Powers and Law Reform Committee