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.
1
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
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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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