Supplementary Delegated Powers Memorandum

SCOTLAND BILL Supplementary Memorandum concerning the Delegated Powers in the Bill for the Delegated Powers and Regulatory Reform Committee A.

INTRODUCTION

1. This supplementary memorandum has been prepared for the Delegated Powers and Regulatory Reform Committee to assist with its scrutiny of the Scotland Bill (“the Bill”).

The Scotland Office submitted a revised Delegated Powers

Memorandum to the Committee on 21 June 2011 when the Bill arrived in the House of Lords from the Commons1 and the Committee reported on the Bill in its 17th Report of Session 2010-12.

2. This supplementary memorandum covers some additional delegated powers which were agreed to on Day 1 of Committee stage in the House of Lords on 26 January 2012.

It explains in each case why the power has been taken and

explains the nature of, and the reason for, the procedure selected.

B.

DELEGATED POWERS

Clause 7: Partial suspension of Acts subject to scrutiny by Supreme Court Powers conferred on: the Scottish Ministers Powers exercised by: orders made by Scottish statutory instrument Parliamentary procedure: negative procedure but affirmative procedure where the orders add to, replace or omit any part of the text of an Act 3. References to numbered amendments in the paragraphs that follow are to those that appear in the First Marshalled List for Committee stage2.

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http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegatedpowers-and-regulatory-reform-committee/bills-considered/ 2 http://www.publications.parliament.uk/pa/bills/lbill/2010-2012/0079/amend/ml079-i.htm

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4. Clause 7 of the Bill amends section 33 of the 1998 Act and inserts a new section 33A to allow Law Officers to make a limited reference to the Supreme Court for a decision in relation to a question as to whether any provision of a Bill would be within the legislative competence of the Scottish Parliament. Paragraphs 25 to 29 of the Memorandum of 21 June 2011 explain this procedure in more detail and, in particular, explain the power of the Scottish Ministers to commence provisions which have been the subject of a limited reference to the Supreme Court and where it has decided those provisions are within the legislative competence of the Scottish Parliament.

5. Government amendment 12 implements recommendations made by the Subordinate Legislation Committee of the Scottish Parliament who issued a report on the delegated powers in the Bill in its 10th Report of 2011 (Session 3)3.

6. In paragraph 7 of its report the Committee stated that it ‘can envisage situations where the delay in commencement of the specified provisions may require further provision to be made to enable the Act to function as the Parliament intended’. The Committee Report went on to state that “Similarly, in the event of any of the provisions being found to be outside the Parliament’s legislative competence, some consequential modifications may be required as a result. In the event that a suitable power is not available in the Act itself, it may be appropriate to provide a power in section 33A to cater for such circumstances. The Committee recommends that further consideration is given to conferring such powers.”

7. The Government, in bringing forward amendment 12, proposed the new consequential order making powers conferred on Scottish Ministers in new subsections (9) and (10) in response to these Committee comments to give the Scottish Ministers the power to make appropriate consequential provision in these scenarios.

8. New subsection (9) provides that the Scottish Ministers may by order make such provision as they consider necessary or expedient (including provision amending 3

http://archive.scottish.parliament.uk/s3/committees/subleg/reports-11/sur11-10.htm 2

the Act) in consequence of any delay by virtue of new section 33A(2) in the coming into force of any provision of the Act.

9. New subsection (10) provides that, if the Supreme Court decides that any provision of the Act is outside the legislative competence of the Parliament, the Scottish Ministers may by order make such provision as they consider necessary in consequence of that decision in order to give full effect to any provisions of the Act which are within that competence.

10. Government amendment 12 also modifies section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010 in its application to commencement orders made by the Scottish Ministers under new section 33A(6). The effect of this is that those orders, which are to be subject to negative procedure in the Scottish Parliament, must be laid for a minimum period of 40 days (rather than the standard 28 day period provided by the 2010 Act) before they can come into force.

11. This is designed to eliminate the risk that the Scottish Parliament passes a negative resolution after provisions in a commencement order made under section 33A(6) have come into force. In this scenario, the resolution would have no effect as the provisions commenced would by that time already have the force of law. By increasing the laying period to 40 days, if the Parliament does pass a negative resolution within that period then, in terms of section 28 of the 2010 Act as modified, the instrument is not to come into force after that resolution.

12. Government amendment 12 also allows the Supreme Court to provide that an order under new section 33A(6) may be laid before the Scottish Parliament less than 40 days before it comes into force, in acknowledgement that there may be circumstances where it is desirable to bring provisions of an Act of the Scottish Parliament which were subject to a limited reference into force more urgently.

13. Government amendment 13 amends section 113 of the 1998 Act so that the supplementary order making powers contained at subsections (2) to (6) and (11) of that section also apply to the powers of Scottish Ministers to make orders

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under section 33A(6), (9) and (10). For example, this would allow a consequential order under new section 33A(10) to also make supplementary or incidental provision under the power at section 113(4)(a). It is thought appropriate to give the Scottish Ministers similar supplementary powers to those that are available to the Secretary of State when he makes subordinate legislation under other powers in the Scotland Act 1998. The Government did not think it was appropriate to confer all the supplementary powers under section 113 on Scottish Ministers (e.g the power in section 113(9)) and so that is why only some of those powers are conferred4.

14. Government amendment 14 makes consequential orders made by Scottish Ministers under new section 33A(9) and (10), in addition to their commencement power in new section 33A(6), subject to negative procedure in the Scottish Parliament (i.e. Type J procedure in terms of Schedule 7 to the 1998 Act).

15. However, where orders made by Scottish Ministers under new section 33A(6), (9) or (10) add to, replace or omit any part of the text of an Act, Government amendment 15 provides that they will be subject to affirmative procedure in the Scottish Parliament (Type L) rather than negative procedure (Type J).

16. It thought that these amendments place an appropriate level of Scottish Parliamentary procedure on the new order making powers conferred on the Scottish Ministers and are in line with the procedure recommended by the Subordinate Legislation Committee of the Scottish Parliament in their 10th Report of 20115

Scotland Office 1 March 2012

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Government amendment 3 amended a similar conferral of the supplementary powers in section 113 in the context of the new order making powers of Scottish Ministers under section 12 of the 1998 Act (see clauses 1 and 3 of the Bill). That amendment is purely a drafting amendment to align the approach taken to amending section 113 in both clauses 3 and 7 of the Bill and doesn’t change the range of powers conferred. 5 At paragraph 8 of that Report.

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