Delegated Powers and Law Reform Committee
The DPLR Committee ("the Committee") is essential to the Parliament’s scrutiny function. It considers almost every piece of primary and secondary legislation. Its role is to:
check all secondary legislation coming before the Parliament for legal and technical accuracy;
check whether proposed powers to make secondary legislation in Bills are appropriate;
report its findings to the Parliament, to support MSPs’ scrutiny; and
look at certain Bills which are based on reports from the Scottish Law Commission. The Commission recommends changes to the law so it keeps pace with the way we live and work.
This Legacy Report seeks to:
give an overview of the Committee’s work over the course of the current session,
indicate ongoing or forthcoming issues; and
describe ways of working that the current committee has found useful and that the successor committee may wish to adopt.
The Committee hopes that this assists its successor committee, which it wishes well.
The DPLR Committee is a mandatory committee (that is, mandated under Standing Orders)i. It is also largely a technical committee, in that it considers most matters from a technical or legal perspective. For example, it is not considering the policy merits of subordinate legislation, but considering whether it works as a matter of law.
Policy consideration for subordinate legislation takes place in lead committees, and by the Parliament as a whole.
Similarly, the Committee considers powers being delegated in Bills (and UK Bills in the cases of LCM consideration) through a lens of parliamentary scrutiny, its technical drafting and appropriateness. In relation to each power, it considers:
whether the delegation of the power is appropriate or whether it should instead be on the face of the Bill;
whether the power has been clearly drafted and goes no further than necessary to meet the stated policy intention; and
if it is to be delegated, whether the level of parliamentary procedure (e.g. negative, affirmative or otherwise) that is proposed for future scrutiny of exercises of the power is appropriate.
Committee Members consider that the Committee operates most effectively by understanding and embracing its technical function, and with Members respecting one another’s views.
In fully understanding this role, Committee Members have developed positive working relationships between one another, and the Committee is focused on what it is mandated to do. This also has the effect that all Members are generally able to agree on most recommendations unanimouslyii, resulting in stronger scrutiny.
The Committee recognises the strong working relationships among members this session, focused on the Committee’s technical and legal scrutiny, and recommends that its successor committee aims to achieve a similar dynamic.
The DPLR Committee’s scrutiny of subordinate legislation (which is most often in the form of Scottish Statutory Instruments (“SSIs”)) is central to its work. SSIs appear on almost every agenda. The Committee also considers UK statutory instruments that are laid in the Scottish Parliament, and documents that are not subordinate legislation but are subject to parliamentary control.
The Committee’s role, as set out under Standing Orders, is to consider subordinate legislation from a legal and technical perspective. It then sets out its findings to the Parliament and lead committees in the form of a report following each meeting at which subordinate legislation is consideredi.
In addition to setting out its findings on individual instruments, the Committee also seeks to take on an oversight role, to ensure high standards are maintained in the drafting of subordinate legislation.
The main vehicles the Committee has to achieve this are regular (biannual) evidence sessions with the Minister for Parliamentary Businessii, which are complemented by additional periodic reports looking at the overall quality of subordinate legislationiii.
Additionally, where there have been more serious concerns about the drafting of instruments (for example, after the first quarter of the 2025/26 Parliamentary Year) issues have been raised by the Convener in the Chamber through a Committee Announcementi, and also at the Conveners’ Group meeting with the First Ministerv.
The Committee’s additional reports focus on the quality of instruments considered in quarters of the Parliamentary Year (these also touch on other matters) and an additional Annual Report which compiles this information. These reports are in addition to the annual report which every committee in the Scottish Parliament is required to produce under Standing Orders.
These reports are considered helpful, and support the Committee in holding the Minister for Parliamentary Business and the Scottish Government to account. They do this by identifying trends and recurring issues, that allow the Committee to press for consistently high quality instruments. These reports also aid transparency, by allowing the Committee to highlight matters it considers particularly important, and help the Committee keep track of commitments made by the Scottish Government (and other bodies which lay subordinate legislation, such as the Court of Session and High Court) to correct issues identified by the Committee in subordinate legislation.
However, the Committee recommends its successor committee may wish to consider producing two biannual reports looking at instruments, which can then be a hook for sessions with the Minister for Parliamentary Business, as well as the (Standing Orders mandated) Annual Report.
The Committee suggests that this would be a more logical reporting pattern. It would half the number of similar reports produced by the Committee each year from six (four quarterly and two annual reports) to three (two biannual reports and an annual report), and be more closely aligned with the scrutiny aim of holding the Scottish Government to account.
The Committee has found its sessions with the Minister for Parliamentary Business, complemented with additional reports, an effective way to achieve its role in providing oversight in relation to the overall quality of subordinate legislation.
The successor committee may wish to consider a reporting pattern which is more closely aligned to the biannual sessions with the Minister for Parliamentary Business, such as producing two biannual reports, which look at the quality of instruments over six months. These could then be discussed with the Minister for Parliamentary Business.
A further mandatory function of the DPLR Committee is to consider the delegated powers provisions in bills introduced in the Scottish Parliament.
The Committee scrutinises the delegated powers:
during Stage 1 of a Bill and reports to the relevant lead committee; and
after Stage 2 of the Bill, if there are any new or substantially altered powers, reporting to the Parliament.
At both stages, the Committee considers, in relation to each delegated power in a bill:
whether the delegation of the power is appropriate or whether it should instead be on the face of the Bill;
whether the power has been clearly drafted and goes no further than necessary to meet the stated policy intention; and
if it is to be delegated, whether the level of parliamentary procedure (e.g. negative, affirmative or otherwise) that is proposed for future scrutiny of exercises of the power is appropriate.
The Committee has generally taken a tiered approach to its scrutiny. For the majority of Bills, where it has not been fully content with delegated powers, it has raised questions with the Scottish Government or Members-in-charge by correspondencei.
Although less common, the Committee has taken oral evidence at Stage 1, generally where it had more significant questions in relation to delegated powers. This has happened for a number of Bills during Session 6, including the Regulation of Legal Services (Scotland) Billii, the National Care Service (Scotland) Bill (which became the (Care Reform (Scotland) Bill), and the Scottish Parliament (Recall and Removal of Members) Billii.
Issues and general themes in relation to Bills have also been raised in the Committee’s biannual sessions with the Minister for Parliamentary Business.
Recommendations made by the Committee often lead to changes being made to delegated powers at Stage 2. There are many examples of Parliamentary scrutiny procedures being “upgraded” to allow for greater scrutiny of use of powers; additional requirements being added, such as statutory requirements to consult before using a power; and elements of powers being removed in Bills as a result of Committee scrutiny.iv
Consideration of Bills as amended at Stage 2 can prove more challenging given the sometimes tight timescales prior to Stage 3. The Committee has found this for the Housing (Scotland) Bill and Land Reform (Scotland) Bill, which had significant alterations to delegated powers made at Stage 2, with the Committee only having a short time to consider these powers before Stage 3.
The Committee has raised this issue with the Minister for Parliamentary Business during the biannual sessions. It also wrote in April 2024 to the Parliamentary Bureau to raise this issue, receiving a response from the Presiding Officer.v
The Committee is broadly content with processes in place for scrutiny of delegated powers in Bills at Stages 1 and 2 (notwithstanding concerns over timetables in some instances), and suggests that its successor committee adopts similar approaches.
The Committee also highlights its approach to considering delegated powers in Bills, which has also largely focused on technical and legal aspects. The Committee considers that this approach has allowed it to obtain a number of positive changes to Bills over the Session, and suggests that its successor committee may wish to similarly aim to keep the focus on technical and legal questions.
LCMs are lodged in relation to UK Parliament Bills which make provision applying to Scotland for any purpose within the legislative competence of the Parliament, or which alters that legislative competence or the executive competence of the Scottish Ministers.
In any case, where the Bill that is the subject of the memorandum contains provisions conferring powers on the Scottish Ministers to make subordinate legislation, the DPLR Committee must consider those provisions, and may report on them. The Committee (and its predecessor Committee in Session 5) also considers powers to make subordinate legislation within devolved competence that are being conferred on UK Ministersi.
In relation to powers in UK Parliament Bills, the Committee considers, similar to Scottish Parliament Bills, the same matters as are outlined at paragraphs 6 and 23.
However, the most frequent issue the Committee has considered in relation to LCMs throughout Session 6 has been in relation to powers conferred on UK Ministers in devolved areas.
Since November 2022, the Committee's general position in relation to powers in UK Bills conferred on UK Ministers in devolved areas, has been:
(a) The Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all legislative powers within devolved competence.
(b) Where such powers are exercised by the Secretary of State in devolved areas, there is no formal means by which the Scottish Parliament can scrutinise such regulations or be notified that they had been laid before the UK Parliament.
(c) If such powers contain a requirement for the Scottish Ministers’ consent when exercised within devolved competence, the Scottish Parliament can scrutinise the Scottish Ministers’ consent decision.
The Committee will scrutinise powers conferred on UK Ministers not subject to a requirement for Scottish Ministers’ consent and may suggest matters for the lead committee to consider.
(d) As a minimum, powers when exercised by the Secretary of State in devolved areas should be subject to the process set out in the SI Protocol 2 where the power is within the scope of that protocol.
Questions the Committee has in relation to LCMs most commonly focus on the issues outlined in the paragraph above. The Committee regularly asks questions about what scrutiny role the Scottish Parliament will have in relation to UK SIs which make provision in devolved areas, and, with respect to powers which are conferred on both Scottish and UK Ministers, how it is to be decided who will exercise the powersii.
The Committee has also found an increasing number of powers being taken by the UK Government in non-former EU areas (and so not within the scope of SI Protocol 2). In a similar vein, it has also found an increasing number of powers to which SI Protocol 2 cannot be effectively applied even if in a former EU area, because there is no requirement for UK Ministers to obtain the Scottish Ministers’ consent before exercising the powers within devolved areas.
The Committee has often asked questions in relation to such powers, for example: whether consideration has been given to requiring that UK Ministers obtain the consent of the Scottish Ministers before exercising the power; or whether some other mechanism (such as a requirement to consult the Scottish Ministers) should be included in the power.iii
Where consent or consult mechanisms have been included in legislation, the Committee has also generally been able to obtain political commitments from the Scottish Government to keep the Scottish Parliament updated in relation to the use of such powers, so Scottish Ministers can be held accountable for their decisions or views in relation to themiv.
The Committee has also regularly asked questions about this issue in its biannual sessions with the Minister for Parliamentary Business, and corresponded with the UK and Scottish Governments in December and January 2024 – 25v.
The Committee considered an update in relation to a proposed new protocol, developed by Scottish Government and Scottish Parliament officials, for Scottish Government notification to the Scottish Parliament of UK Government SIs which make provision in devolved areas, at its meeting on 24 March 2026.vi The alternative scrutiny model to SI Protocol 2 would enable the Scottish Parliament to consider all statutory instruments made by UK Ministers in devolved areas, after the instrument has been made. It would also enable the Parliament to scrutinise any Scottish Government responses to consent or consultation requirements in relation to such instruments, together with the Scottish Government’s view on the appropriateness of proceeding by UK SI and details of any stakeholder engagement.
At its meeting on 24 March 2026, the Committee agreed to recommend that the revised protocol comes into effect at the start of Session 7.
A final issue the Committee encounters in relation to LCMs is timing difficulties. While noting that the timing of LCMs is influenced by events in the UK Parliament, and not entirely in the Scottish Government’s gift, the Committee has also raised with the Minister for Parliamentary Business the impact of some of the very short timescales on Committee scrutiny. Standing Orders have had to be suspended in relation to the Committee’s (and lead committees’) roles for LCMs on a number of occasions, and the Committee has found itself able to only consider, and not report on, LCMs on other occasions (sometimes deciding to write letters instead).
In light of the Committee’s general position that the Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all legislative powers within devolved competence, the Committee agrees that the new SI protocol outlined at paragraph 43 above will facilitate effective and proportionate scrutiny of all UK SIs made within devolved competence. The Committee recommends that the revised protocol comes into effect at the start of Session 7.
The Committee also highlights to its successor committee that timetabling is often a problem for consideration of LCMs, and suggests it may wish to continue to press for time to be allowed for proper scrutiny wherever possible.
The DPLR Committee can be designated as the lead committee in relation to Scottish Law Commission (“SLC”) Bills. SLC bills originate from SLC reports and meet the criteria set out in the Scottish Parliament’s Standing Orders (Rule 9.17A) and determined by the Presiding Officer (the most recent determination being set out in the Business Bulletin of 24 March 2021).i
One of the key criteria is that SLC Bills for the DPLR Committee make provision which is not likely to generate substantial controversy among stakeholders.
In Session 6, the Committee has been designated as lead committee in consideration of five SLC Bills—
(i) Moveable Transactions (Scotland) Bill;
(ii) Trusts and Succession (Scotland) Bill;
(iii) Judicial Factors (Scotland) Bill;
(iv) Leases (Automatic Continuation etc.) (Scotland) Bill; and
(v) Contract (Formation and Remedies) (Scotland) Bill.
The Committee has generally found its experience leading on these Bills from a policy perspective to be positive, and it has enhanced the work of the Committee.
The Committee considers its scrutiny has been able to enhance legislation as it goes through Parliament, with changes made to the Moveable Transactions (Scotland) Bill at Stage 2 which strengthened protections for consumers against predatory lending in relation to statutory pledge, and ensuring that the Judicial Factors (Scotland) Bill took account of the opportunity the Bill presented to help in cases of missing people, in each case following strong engagement with stakeholders.ii
The Scottish Government has also told the Committee that it is seeking to ensure a regular “pipeline” of suitable SLC Bills are introduced, as it seeks to use their work to ensure the law is simplified, modernised and improved, in keeping with the aims of the SLC.
The Committee has also found its engagement with the SLC to be positive, having visited their offices on three occasions over the Parliamentary Session, to meet with Members of the SLC, and discuss their work.
One linked issue which the Committee has encountered – in relation to both its work on SLC Bills and within its wider work scrutinising subordinate legislation – is the role of section 104 Orders – Orders made under section 104 of the Scotland Act 1998.
Sometimes, when the Scottish Parliament passes an Act (or other legislation), consequential changes are needed to areas of law that are reserved to the UK Parliament in order for the Act to be effective, or to have full effect. Section 104 of the Scotland Act allows the King or a UK Government Minister, by secondary legislation, to make any such provision as they “consider necessary or expedient in consequence of” the Scottish legislation. Such Orders are only subject to scrutiny in the UK Parliament.
Section 104 Orders have been or will be necessary in relation to the Moveable Transactions (Scotland) Act 2023, the Trusts and Succession Scotland Act 2024, and the Judicial Factors (Scotland) Act 2025.iii Such Orders can take between 18 months to two years to come forward after the legislation is enacted.
The Committee also considered issues related to section 104 orders when scrutinising a section 30 Order connected to the Assisted Dying for Terminally Ill Adults (Scotland) Bill, at its meeting of 13 January 2026. The Scottish Government anticipated that, in addition to the section 30 Order, a section 104 Order would be needed in the UK Parliament. The Committee highlighted, in its report of that meeting, that this may result in scrutiny challenges for the Scottish Parliament.iv
The timescales involved in this case were notably shorter: While no section 104 Order can be finalised until a Bill is passed (and that Bill ultimately fell at Stage 3 on 17 March 2026), it was suggested to the Parliament that discussions about such an order were ongoing between the Scottish and UK Governments “at pace” in December 2025.v
The Committee suggests that its successor committee may wish to encourage the next Scottish Government to continue its work on SLC reports and to consider introducing Bills which may meet the criteria to be scrutinised by the DPLR Committee, and maintain a positive working relationship with the SLC.
In relation to this work, the Committee also suggests that its successor committee seeks to engage with the Scottish Government and the SLC to discuss which areas are being prioritised for further work by the Scottish Government in the next Session.
The Committee also suggests that its successor committee may wish to look further at the issue of section 104 Orders, including what might be done to expedite the timescales which typically elapse between a Bill being passed and the related section 104 Order being brought forward. Accordingly, the Committee suggests that its successor committee may wish to consider a short inquiry into this issue.
During Session 6, the DPLR Committee carried out two self-initiated inquiries.
Inquiry into use of the made affirmative procedure during the coronavirus pandemic
Towards the end of 2021, the Committee held an inquiry into the use of the made affirmative procedure used during the COVID-19 pandemic. “Made affirmative” was the parliamentary procedure used for many of the SSIs which brought in many of the major changes and restrictions in response to the COVID-19 pandemic. Under this procedure, an SSI can come into force immediately, but remains in force only if Parliament passes an affirmative resolution within a fixed period.
This procedure allowed changes to be brought into force quickly. However, it meant that substantial changes were brought into force before any parliamentary scrutiny.
The Committee published its report on 10 February 2022i and held a Chamber debate on 22 February 2022.ii
A key outcome of the inquiry is that the Committee has now agreed, with the Scottish Government, a process for requesting expedited scrutiny of certain affirmative instruments which could otherwise be “made affirmative” SSIs.iii
This is a process for requesting expedition, on a case-by-case basis, if the Scottish Government wishes to bring forward an affirmative SSI under the Public Health etc. (Scotland) Act 2008, Coronavirus (Scotland) Act 2020 or Coronavirus (Recovery and Reform) (Scotland) Act 2022 and to ask the Parliament to consider it in a shorter timeframe than usual.
Framework Legislation and Henry VIII Powers
In Winter 2024-25, the Committee held an inquiry into Framework Legislation and Henry VIII powers to find out more about how framework legislation impacts on parliamentary scrutiny and stakeholders engaging with the Parliament. The Committee was also interested in hearing views on how Henry VIII powers are used.
As part of its scrutiny, the Committee engaged with many stakeholders including academics, representative bodies, legal bodies, legislators from many different jurisdictions, and former officials.
The Committee went on a fact-finding visit to meet members of the House of Lords' Delegated Powers and Regulatory Reform Committee, Lord Lisvane (former Clerk to the House of Commons) and the Office of the Parliamentary Counsel to hear about their experience of framework legislation and Henry VIII powers, and well as meeting (online) with the Chair of the New South Wales Legislative Council Regulation Committee.iv
The Committee's report was published on 24 March 2025.v The Chamber debate was held on 24 April 2025.ii
Key outputs from the inquiry included setting out a description of what the Committee considers framework legislation to be, and its view on the frequency of such legislation. The Committee has also published guidance setting out its views on the use of framework legislation and Henry VIII powers, and the justification it expects the Scottish Government to share with the Committee when introducing framework legislation.iv
The Committee hopes this will help the successor committee, future subject committees and stakeholders in scrutinising legislation, as well as those in charge of drafting Bills.
The Committee highlights these self-initiated inquiries to its successor committee, in particular their outputs (the process for expediting certain affirmative instruments and guidance document on framework legislation and Henry VIII powers). It recommends the successor committee retains the guidance as its own, to assist with scrutiny of framework legislation.
The Committee further highlights the benefit it found in engaging with parliamentary counterparts and stakeholders in relation to these inquiries, and encourages its successor committee to seek out similar opportunities.
The DPLR Committee’s work is promoted by the Parliament’s Communications Office ("PCO") to external audiences.
In addition to standard outputs from PCO (news releases and social media promotion), the Committee has worked with the PCO to start producing a regular Committee newsletter for stakeholders.
Newsletters give periodic updates to stakeholders on key work undertaken by the Committee in relation to all elements of its work, as well as an insight into the Committee’s Members.
Feedback on the newsletter has been positive – and the Committee has found it a helpful way to communicate its work to a wider audience.
The Committee suggests that its successor committee considers continuing a regular newsletter as a way to communicate its work to an external audience.