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Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
Thank you for that. The Law Society’s second submission helpfully references sections 39(6), 40(3) and 45(2) of the Regulation of Legal Services (Scotland) Bill, which could be part of the discussion.
Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
The instrument is made under section 19(1) of the Retained EU Law (Revocation and Reform) Act 2023, which enables the Scottish ministers to make any provision that they consider appropriate in consequence of that act. The instrument updates various pieces of primary and secondary legislation to replace the term “retained EU law” and associated expressions with the term “assimilated law” and associated expressions.
In correspondence with the Scottish Government—which was published online with the agenda for this meeting—the committee queried paragraph 3 of schedule 1 of the instrument, which would amend the Freedom of Information (Scotland) Act 2002 by changing the words “EU obligation” to “assimilated obligation” in sections 26 and 45. In particular, the committee noted that those references to “EU obligation” seemed not previously to have been changed to “retained EU obligation” and asked the Scottish Government why it considered that the power in section 19 of the 2023 act enabled that amendment to be made.
In its response, the Scottish Government confirmed that the references to “EU obligation” in those sections have not been updated to “retained EU obligation”. The Scottish Government advised that such a change could have been made following enactment of the European Union (Withdrawal) Act 2018, but it did not say why that was not done. The Scottish Government considers those amendments to be consequential, in particular on the establishment by the 2023 act of “assimilated obligation” as a defined term within the body of assimilated law, including for the purposes of statutory interpretation.
The instrument in front of us seeks to change those references straight from “EU obligation” to “assimilated obligation”, skipping the step of updating them to say “retained EU obligation”. The committee notes that the term “EU obligation” is no longer a defined term.
It appears to the committee that the provision in question may address a failure to have updated those sections in consequence of the 2018 act, rather than making provision that is properly in consequence of the 2023 act. As such, the committee considers that there is room for doubt that the provision in question is envisaged by and within the limits of the enabling power. Therefore, there appears to be a doubt about whether the provision is intra vires.
Does the committee wish to draw the instrument to the attention of the Parliament on reporting ground (e), in that there appears to be a doubt about whether paragraph 3 of schedule 1 is intra vires?
Members indicated agreement.
Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
Is the committee content with the instruments?
Members indicated agreement.
Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
Under agenda item 4, we are considering two instruments subject to the negative procedure, on which no points have been raised.
Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
There are 21 delegated powers in the bill. We have focused our questions on nine of them, which were those that have focused the minds and attention of stakeholders in the legal sector. However, the committee will report on all the delegated powers in the bill to the lead committee to help to inform its stage 1 considerations. You will be aware of an additional written submission from the Law Society giving additional views on some of the other delegated powers. Do you wish to make any final comments on any of the other delegated powers that are contained in the bill?
Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
Under agenda item 3, we are considering three instruments subject to the affirmative procedure. An issue has been raised on the following instrument.
Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
Under item 2, the committee will take evidence on the Regulation of Legal Services (Scotland) Bill from Siobhian Brown, the Minister for Victims and Community Safety. The minister is accompanied by two Scottish Government officials: Jamie Wilhelm, who is the legal services regulation reform manager, from the justice directorate; and Leanna MacLarty, who is a solicitor from the legal directorate. Good morning to you all.
I remind all attendees not to worry about turning on their microphones as broadcasting will deal with that. I invite the minister to make some opening remarks.
Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
Okay. Thank you.
Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
Thank you very much for that, minister.
I thank the minister and her officials for their evidence. The committee may follow up in writing if we have any additional questions that arise from the meeting.
I will suspend the meeting to allow the witnesses to leave the room.
10:15 Meeting suspended.Delegated Powers and Law Reform Committee
Meeting date: 7 November 2023
Stuart McMillan
Just for clarification, Mr Mundell is referring to section 20(6)—that is subsection 6 of section 20—not section 26.