Letter from the Convener to the Minister for Parliamentary Business, 21 December 2021
Dear George,
I am writing to highlight the Delegated Powers and Law Reform Committee’s consideration of two recent SSIs.
Firstly, at its meeting on Tuesday 14 December, the Committee considered the Scottish Child Payment Regulations 2020 and the Disability Assistance for Children and Young People (Scotland) Regulations 2021 (Miscellaneous Amendments) Regulations 2022 (SSI 2021/Draft).
Section 97(9) of the Social Security (Scotland) Act 2018 requires the Scottish Ministers at the time of laying the instrument to also lay either:
While the Scottish Government laid responses to two reports by the Commission on this instrument on 29 November which conformed with section 97(9), a third set of amendments in this instrument were not reported on by the Commission prior to laying the instrument. While a statement under section 97(9)(b) was sent to the Social Justice and Social Security Committee on 1 December, the statement was not laid until 3 December.
The Committee therefore reported the instrument under the general reporting ground in respect of the failure to lay the necessary statement when laying the draft instrument on 29 November 2021, as required under section 97(9)(b) of the Social Security (Scotland) Act 2018.
While the Committee welcomed the Scottish Government’s apology for this oversight, and acknowledged it was only related to one set of minor technical amendments in the instrument and was corrected within 4 days, it expressed concern that this is still clearly a breach of the laying requirements and, as such, agreed to write to you to highlight its desire that all future instruments are laid correctly.
Secondly, at its meeting earlier today, the Committee considered the Public Health (Coronavirus) (International Travel and Operator Liability) (Scotland) Amendment (No. 13) Regulations 2021 (SSI 2021/470).
As you will know, there was an issue with the title of this instrument. Usual drafting practice requires that each amending instrument in a series should reflect the title of the principal Regulations which it amends and include a number indicating the number of SSIs amending the principal instrument in that year. This instrument amends the Health Protection (Coronavirus) (International Travel and Operator Liability) (Scotland) Regulations 2021 (SSI 2021/322) but the title of this instrument refers to ‘Public Health’ rather than ‘Health Protection’.
The Committee noted that the Scottish Government quickly confirmed that this was an error and acknowledged that the inconsistent title of this amending instrument may make it more difficult for users of the legislation to locate the amendments which it makes. The Committee appreciates that the instrument can still be identified by its SSI number and notes that the Scottish Government will draw users’ attention to the instrument in footnotes in subsequent amending instruments, where appropriate, in order to minimise the potential for confusion.
Notwithstanding these mitigations, the Committee was concerned about what appears to be an avoidable error and the difficulty this might cause for the general reader.
In relation to both instruments, while the Committee appreciates the significant demands the coronavirus pandemic is placing on the Scottish Government, it is obviously keen that such preventable errors are minimised. I would therefore be grateful to receive an update on what additional steps the Scottish Government is taking to ensure that such legislation continues to be drafted and laid correctly, even in this challenging environment, by Friday, 21 January 2022.
I look forward to hearing from you.
Yours sincerely,
Stuart McMillan MSP
Convener of the Delegated Powers and Law Reform Committee