Chamber and committees

Under agenda item 5, issues have been raised on three negative instruments.

Under section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, instruments subject to the negative procedure are required to be laid at least 28 days before they come into force, not counting recess periods of more than four days. In its letter to the Presiding Officer on the instrument, the Scottish Government explained that urgent action was required, as concerns have been raised by education authorities and managers of grant-aided schools about their ability to comply with the duties under earlier regulations as a result of an inability to procure certain foods due to disruption in the school food supply chain.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (j), in relation to the failure to lay the instrument in accordance with the laying requirements under the 2010 act?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

At the same time, is the committee content with the explanation that the Scottish Government has provided for this breach of the laying requirement?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

A similar issue has been raised on the following instrument.

Is the committee content with the instrument?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Under agenda item 4, we are considering five affirmative instruments.

Does the committee wish to draw the instrument to the attention of the Parliament on the general reporting ground in respect of the incorrect reference in paragraph 4(3) of new schedule 8A to the Greenhouse Gas Emissions Trading Scheme Order 2020, which is inserted by article 27 of the instrument, to article 18(11) of the free allocation regulation, which should have been to article 18a(11) of that regulation?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Does the committee also wish to welcome that the Scottish Government is liaising with the other United Kingdom Administrations with a view to correcting the error at the next available opportunity?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

The instrument relates to the phasing-in of border controls on imports of certain goods following EU withdrawal. It breaches section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, as it was laid on 22 December 2021 and came into force on 1 January 2022.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (j), in relation to the failure to lay the instrument in accordance with laying requirements under the 2010 act?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

The Scottish Government has provided an explanation of the reasons for the failure in a letter to the Presiding Officer and in response to the committee’s written questions. All of the committee’s correspondence on today’s instruments can be found in paper 3 of the online papers. Clearly, there is an issue between the Scottish Government and the UK Government. I suggest that we highlight that to the subject committee, which is planning to look at the instrument next week. It can then make any decision that it wishes to take as a result.

No member has indicated that they are not content with that course of action or that they wish to speak, so we are agreed on that.

Finally under this agenda item, no points have been raised on the following instrument.

Under agenda item 2, we are considering one instrument.

The committee is considering whether the appropriate scrutiny procedure and the appropriate category have been applied to the instrument. The instrument relates to the start date from which imports of animal products and certain plants, plant products and other objects to Scotland from European Union, European Economic Area and related countries will be subject to additional requirements.

The instrument has been laid under the negative procedure and is considered by the Scottish Government to be of low significance.

Is the committee content that the appropriate scrutiny procedure and categorisation have been applied to the instrument?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

The instrument amends the requirements and restrictions that affect international travellers arriving in Scotland. A number of issues have been raised on the instrument. I will cover each in turn.

First, regulation 7 amends the principal international travel regulations to insert regulation 16A, which requires eligible vaccinated arrivals to report the outcome of a day 2 lateral flow device test, and to insert regulation 16B, which requires such people to take a confirmatory test from a public provider if their lateral flow test result is positive. Neither the principal regulations nor this instrument specifies that the confirmatory test should be a PCR—polymerase chain reaction—test, although the policy note and Scottish Government guidance indicate that the confirmatory test should be a PCR test.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (h), on the basis that the meaning of the instrument could be clearer that the confirmatory test that is taken by an eligible vaccinated arrival following a positive day 2 lateral flow device test must be a PCR test? In so doing, does the committee wish to call on the Scottish Government to amend new regulation 16B of the Health Protection (Coronavirus) (International Travel and Operator Liability) (Scotland) Regulations 2021 to define the term “confirmatory test” at the next legislative opportunity?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Secondly, the policy note and the letter to the Presiding Officer that accompany the instrument state that the amended definition of World Health Organization list vaccines in regulation 3 comes into force at 4 am on 10 January 2022, alongside the changes to the list of relevant countries that can provide acceptable vaccination certification in schedule 1A. However, regulation 1 provides that regulation 3 came into force at 4 am on the earlier date of 7 January.

The Scottish Government confirmed that the commencement of regulation 3 on 7 January is an error. The change should have been implemented in Scotland at the same time as in England, on 10 January. As a result, it is possible that some travellers may have been classed as eligible vaccinated arrivals in Scotland sooner than intended.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (i), on the basis that its drafting appears to be defective?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

Finally, the instrument is in breach of laying requirements in section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, which provides that an instrument not subject to the negative or affirmative procedure must be laid before the Scottish Parliament as soon as practicable after the legislation is made, and in any event before the legislation is due to come into force. Regulations 1 to 5, 8, 9, 12 and 13 came into force at 4 am on 7 January, and the instrument came into force at 9.30 am later the same day.

Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (j), on the basis that it fails to comply with the laying requirements?

No member has indicated that they are not content or that they wish to speak, so we are agreed.

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

The instrument provides for the removal of the capacity limits on live events outdoors and removes the requirement for 1m physical distancing at outdoor event venues, outdoor exhibitions and outdoor spaces in sports stadia. It also amends the definition of the term “fully vaccinated” to introduce booster vaccinations.

Is the committee content with the instrument?

No member has indicated that they are not content or that they wish to speak, so we are agreed.