Chamber and committees

A number of issues were raised with the Scottish Government on the instrument. First, do members wish to report the following three errors on the general reporting ground? The first is that the definition of “EU withdrawal agreement” in regulation 2 is unnecessary, given that a definition of the term that is contained in schedule 1 to the Interpretation and Legislative Reform (Scotland) Act 2010 already applies.

The second error is that regulation 17(4)(b) refers to

“a child in respect of whom a person listed in paragraph (2)(a) has a relationship equivalent to those listed under the law of Scotland”,

and should instead refer to paragraph (3)(a) of regulation 17.

The third error is that the definitions of “civil partnership” and

“person who is living with another person as if they were in a civil partnership”

in regulation 17(4) are unnecessary in so far as they refer specifically to same-sex couples, on the basis that both same-sex and mixed-sex couples may enter into marriages and civil partnerships.

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

Secondly, do members wish to report the following three errors on reporting ground (h), on the basis that the meaning could be clearer? The first error is that regulation 7(2) relates to how an individual’s ability to carry out both daily living and mobility activities is to be determined, and therefore that regulation 7(2)(a) should refer to both the tables in schedule 1, at part 2, on “Daily Living Activities”, and part 3, on “Mobility Activities”.

The second error is that the meaning of the term “medical treatment” as defined in regulations 2 and 16 could be clearer, and that the definition in regulation 2 could be removed.

The third error is that the meaning of “qualifying services” in regulation 2 within the definition of “residential educational establishment”, and in regulations 27(4) and 27(5)(b), and 32(3) and 32(4)(b) could be clearer.

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

Additionally, do members wish to call on the Government to lay an amending instrument to rectify the errors in regulation 7(2)(a) and in respect of the term “medical treatment” as defined in regulation 2 before the instrument comes into force on 21 March 2022? Furthermore, do members wish to call on the Government to rectify in that amending instrument the other errors that the committee has identified?

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 points have been raised on the following draft instruments.

Is the committee content with the instruments?

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

Thank you, Mr Simpson. I echo those comments, particularly regarding clarity for members of the public. Anyone who is a lawyer will be able to navigate their way around the situation, but I suggest that, in order to give clarity for members of the public in what is a fast-moving situation—we have seen a number of regulations in the area—the Scottish Government needs to improve. This is not a common occurrence by any manner of means. This is the first time that it has happened, as we will all acknowledge. However, I agree that we should write to the minister to highlight our concerns.

Does the committee also wish to note that the Scottish Government undertakes to clarify the anomaly in the instrument’s title in footnotes to subsequent amending instruments?

Other than the comments that have been made, no member has indicated that they are not content or that they wish to speak, so we are agreed on both points.

Is the committee content with the instruments?

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

Under agenda item 3, we are considering instruments subject to the negative procedure. An 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.

The committee’s next meeting will take place on Tuesday 11 January 2022. It will include an evidence session with the Deputy First Minister and Cabinet Secretary for Covid Recovery, John Swinney MSP, as part of the committee’s inquiry into the use of the made affirmative procedure during the pandemic.

Before I close the meeting, I would like to wish all colleagues on the committee, all our committee staff and anyone who is watching a very merry Christmas and a happy new year. I hope that you all stay safe over the festive period. I look forward to working with colleagues again in 2022. It has certainly been a pleasure working with you since I became the convener after the election this year. Thank you for all of our work together.

Welcome to the Delegated Powers and Law Reform Committee’s 15th meeting in session 6, which is taking place fully online. As we are meeting online, it will be more challenging for members to indicate agreement to the items that are discussed. I therefore ask members to raise your hand if you are not content with a question that is put or if you wish to speak about an instrument.

The first item of business is consideration of an instrument subject to the made affirmative procedure, on which an issue has been raised.

The instrument revokes and replaces the Red Rocks and Longay Urgent Marine Conservation Order 2021 (SSI 2021/131), due to the extension of the boundary of the designated Red Rocks and Longay area of the inner sound of Skye marine protected area. The instrument is to be brought into force urgently to further the stated conservation objectives for the marine protected area to protect flapper skate and their eggs.

The instrument was made and laid before the Parliament on 9 December 2021 and came into force on 16 December 2021. Accordingly, it does not respect the requirement in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 that at least 28 days should elapse between the laying of an instrument that is subject to the negative procedure and the coming into force of that instrument.

In its letter to the Presiding Officer explaining the reason why the 28-day rule has not been complied with, the Scottish Government outlined that, following advice from NatureScot, the extended marine protected area has been redesignated urgently and section 28(2) has been breached to remove the risk of further impacts on the flapper skate nursery area as soon as possible.

Does the committee agree to report the instrument on reporting ground (j), on the basis that there has been a failure to lay the instrument in accordance with laying requirements under the Interpretation and Legislative Reform (Scotland) Act 2010? Also, is the committee content with the Scottish Government’s explanation provided for the failure 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 points have been raised on the following instruments.

The instrument is one of a series of instruments that amend the Health Protection (Coronavirus) (International Travel and Operator Liability) Regulations 2021. Usual drafting practice requires that each amending instrument in a series should reflect the title of the principal regulations that it amends and should include a number indicating the number of Scottish statutory instruments amending the principal instrument in that year. However, when referring to the principal regulations, the title of this instrument refers to “Public Health” rather than “Health Protection”. The Scottish Government has confirmed that that was an error.

The next correctly designated instrument amending the consolidated international travel regulations is also numbered 13. The number in the title of further amending instruments will therefore not accurately reflect the number of instruments that have amended the international travel regulations in 2021. The Scottish Government confirmed that it does not propose to amend the citation provision in regulation 1 of the instrument, because that could cause further confusion. Instead, it will draw users’ attention to the instrument in footnotes in subsequent instruments, where appropriate.

Does the committee agree to report the instrument on the general reporting ground, in respect of a failure to follow proper drafting practice in the title of the instrument?

Mr Simpson wishes to comment.

Under agenda item 2, we are considering instruments subject to the affirmative procedure. No points have been raised on the following draft instruments.