Chamber and committees

Dear Stuart,

Thank you for your letter of 16 September following my appearance before the Delegated and Law Reform Committee on Tuesday, 14 September 2021.

I would like to take this opportunity to reiterate my appreciation of the role that the Committee fulfils in scrutinising new and existing delegated powers.

Covid SSIs

I would refer the Committee to the Coronavirus Acts: Eighth report to Scottish Parliament. The report includes information on the operation of the provisions of Part 1 of each of the Acts and includes an update on the status of those provisions, and confirmation that Scottish Ministers are satisfied that the status of those provisions is appropriate. In addition the report covers the reporting requirements relating to Scottish Statutory Instruments (SSIs) made by Scottish Ministers where the main purpose relates to coronavirus, excluding those made by Scottish Ministers under the first or second Scottish Act or UK Act (Coronavirus Act 2020).

The Scottish Government expect to publish the Coronavirus Acts: Ninth report to the Scottish Parliament by mid-October covering the period up to 30 September 2021.

Packages of SSIs implementing a range of Acts

There are currently a further 3 implementation SSIs planned relating to the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021. This package of SSIs will be laid as follows;

• 1 SSI in October (Affirmative)
• 2 SSIs in November (1 Affirmative, 1 Laid no Procedure)

Implementation of the Forensic Medical Science (FMS) Act is expected to begin in January 2022.

Implementation of The Disclosure (Scotland) Act 2020 is expected to begin in November 2021.

Implementation of Civil Partnership Act 2020 is expected to begin in October 2021.

Planning (Scotland) Act 2019

We are producing a revised implementation programme for the Planning (Scotland) Act 2019, including an update on our work on other aspects of the wider planning reform programme, and we are preparing to publish that soon.

Much of the implementation of this Act had to be paused as a result of the pandemic and the implications for stakeholder engagement. However, we have progressed some aspects of the Act and are now close to laying regulations and commencing the relevant provisions which will introduce:

The new right for communities to prepare their own local place plans, which planning authorities must take into account when preparing their local development plans.

The provisions for local development plans form another vital aspect of the new planning system and the Government is preparing to commence a consultation this autumn on draft development planning regulations and associated regulations relating to open space strategies and play sufficiency assessments. These regulations are being timed to be in force alongside the approval and adoption of Scotland’s Fourth National Planning Framework which, under provisions introduced by the 2019 Act, will also form part of the development plan. We anticipate laying that suite of regulations in spring 2022.

The Government previously consulted on a new approach to measuring and improving performance and a new structure for planning fees, and this concluded immediately before the pandemic in early 2020. We paused the work at that stage as we did not consider it to be the right time to progress change. However, this work has recommenced and we are working with the High Level Group on Planning Performance to finalise the arrangements and regulations for planning fees, which we anticipate laying this winter.

Most of the remaining 2019 Act commencements and associated regulations are expected to be laid in a staged approach through the course of 2022. We will set that out further in our revised implementation programme.

Social Security (Scotland) Act 2018

As we deliver our programme of devolved benefits over the coming years, a number of pieces of legislation are being developed as we continue to implement the Social Security (Scotland) Act 2018. Below is a list of areas where further regulations are expected to be introduced over the next six months: 

• Child Disability Payment
• Adult Disability Payment
• Best Start Grant
• Uprating of Benefits (annual process alongside the Scottish Budget)

Transport (Scotland) Act 2019

The Transport (Scotland) Act 2019 is a multi-topic piece of legislation with an extensive number of SSIs needed to implement the various parts. The implementation of the Act was affected by the Covid Pandemic and preparations for the end of the transition period. This impacted particularly on the development of guidance and regulations and the related consultation processes. However officials have recommenced work on all aspects of the Act and implementation work will ramp up throughout the current session.

You specifically asked about commencement legislation. It is intended that the next set of commencement regulations – the fourth for the Act so far – will be made and laid towards the end of this year and with a view to bringing into force in January 2022. This commences the part of the Act dealing with workplace parking licensing, along with a small number of provisions relating to smart ticketing, parking, road works and Scottish Canals.

Given the multi-topic nature of the legislation, I think it would be more useful to provide an update on some of the key topics with further planned Secondary Legislation individually: 

• Workplace parking licensing (WPL) – as mentioned above it is intended that provisions on this issue will be commenced in January 2022 with the necessary underpinning regulations also being laid in January 2022. We anticipate that non- statutory guidance will then be published in the months following this. Once the regulations and guidance are in place and in force, local authorities will be able to take forward local WPL schemes, and these must include their own consultations and impact assessments.
• Smart ticketing – it is anticipated that some smart ticketing provisions will be commenced in January 2022, specifically to facilitate the establishment of the National Smart Ticketing Advisory Board.
• Parking - It is anticipated that the legislation needed for the enforcement of the parking prohibitions in the Act will be laid during 2022 and 2023, allowing local authorities to begin enforcement of those prohibitions by summer 2023.
• Bus – as per the Minister for Transport’s letter to all members in June, work to implement part three of the 2019 Act resumed earlier this year, and we are consulting at present to help inform the development of the necessary secondary legislation and guidance. The consultation closes on 6th October and the analysis is expected to be completed towards the end of the year, following which secondary legislation will be developed and introduced as soon as possible.
• Road works - section 109 of the Act came into force as of 14 January 2021. All other sections of Part 9 are progressing towards commencement, with sections 113, 114, 115 anticipated to come into force in January 2022. Policy work to draft necessary codes of practice and other operational guidance is currently underway.

Secondary legislation plans

I am happy to commit to writing to the Scottish parliament every 3 months to provide an update on the forthcoming volumes of secondary legislation.

Moveable Transactions Bill

The Programme for Government announced that a Moveable Transactions Bill will be introduced in the first year of the Parliament, and I am in the process of discussing the timetabling of this year’s legislative programme with Conveners.

Commencement regulations for the Prescription (Scotland) Act

The Scottish Government is currently analysing the responses it received to its public consultation on draft commencement regulations for the Prescription (Scotland) Act 2018. We are working towards laying commencement regulations early next year (2022).

Scottish Law Commission

I am committed to working towards the implementation of recommendations in those reports mentioned in the programme for Government 2021-22 over the course of this parliamentary session. These are the Reports on trusts, judicial factors, title conditions, contract – and subject to sight of the Scottish Law Commission’s final recommendations - cohabitation and damages for personal injury. The timing and content of each legislative programme is, of course, a matter for Cabinet to decide as part of the development of the annual Programme for Government.

As recognised by the interim Chief Executive of the Scottish Law Commission the Report on Unincorporated Associations relates to matters which are currently reserved to Westminster, notably by virtue of section C1 of Schedule 5 to the Scotland Act 1998 in so far as it concerns the creation, operation, regulation and dissolution of types of business association, other than charities. The Implementation of any recommendations would be beyond the competence of the Scottish Parliament and would require to be taken forward by the UK Government. The Scottish Government recognises the impact that a lack of clarity in this area of the law can have. Scottish Ministers wrote to the UK Government seeking their thoughts on how best the recommendations might be taken forward. The Scotland Office subsequently consulted on these reforms in 2012. Following that consultation they concluded that the proposals required some further work. The matter remains one for the UK Government.

The Scottish Law Commission's function in respect of recommending the repeal of obsolete legislation is one that they undertake jointly with the Law Commission for England and Wales. The Scottish Government supports the need to ensure that such legislation is repealed to modernise and simplify the statute book, reduce its size and make it easier for people to use. Like the Scottish Law Commission we very much hope that the draft Statute Law (Repeals) Bill contained in their 2015 Report will be introduced in the UK Parliament soon.

Delegated powers in Bills

I can confirm I will endeavour to identify at an early point any Government Bills which are expected to have significant delegated powers and bring these to the Committee’s attention.

I hope that this response has been helpful.

Kind regards

George Adam