Meeting of the Parliament 02 April 2015
I speak on the bill in my capacity as convener of the Delegated Powers and Law Reform Committee. Although the bill contains only one delegated power, the committee has concerns about how that power may be exercised. Indeed, the strength of the committee’s concerns is such that it agreed that I should take the unusual step of contributing to the debate from its perspective.
Section 3(2) provides that the Scottish ministers may, by order, bring sections 1 and 2 into force on an appointed day. Section 3(3) provides that such a commencement order
“may include transitional, transitory or saving provision.”
In considering the bill, the committee noted that a commencement order made under section 3 will not be subject to any form of parliamentary procedure, irrespective of whether it includes transitional provisions. That provision for the attachment of transitional provisions to a commencement order, combined with the lack of opportunity for parliamentary scrutiny of such provisions, has prompted me to speak today.
The committee has accepted in principle that
“transitional, transitory or saving provision”
may be required in a commencement order under the bill, but it considers that the use of such provisions could have a significant effect on certain persons who will be affected by the bill. For example, the committee noted that a commencement order that is made under section 3 could contain transitional provisions relating to the adjustment of prisoner release dates and that it may be possible for the powers to be exercised in such a way as to have different effects on different prisoners. The possibility of different effects on prisoners could, depending on the provisions, raise consideration of rights that are protected by the European convention on human rights.
The committee wrote to the Scottish Government to ask whether it would consider lodging an amendment to make the power at section 3(2) subject to parliamentary scrutiny through negative or affirmative procedure. The Government’s response explained that the powers in subsections (2) and (3) would be used to make a straightforward commencement order that would relate specifically to commencement of the bill. Therefore, the Scottish Government did not consider it necessary for the power to be subject to any form of parliamentary scrutiny.
However, on considering the response, the committee’s view remained that where a commencement order includes transitional, transitory or saving provision under section 3(3), it should be subjected to parliamentary scrutiny. Therefore, the committee recommended in its report that the Scottish Government lodge an appropriate amendment at stage 2 to make a commencement order made under section 3(2) subject to negative procedure if it contains such provisions.
However, the Government’s response to the report reiterated its view that it would not be appropriate for the power at section 3(2) to be made subject to any form of parliamentary procedure other than an order being laid before Parliament. The Government also pointed out that Parliament will be given an opportunity to express its views on a commencement order made under section 3 when it is laid.
We are not persuaded by that response. The committee’s view remains that, where a commencement order includes a transitional, transitory or saving provision that is of the potential significance of those for the bill, then such a power should be subject to parliamentary scrutiny.