Official Report 533KB pdf
Under agenda item 3, we are considering three instruments subject to the affirmative procedure. An issue has been raised on the following instrument.
Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendments) (Scotland) Regulations 2023 [Draft]
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 鈥渞etained EU law鈥 and associated expressions with the term 鈥渁ssimilated law鈥 and associated expressions.
In correspondence with the Scottish Government鈥攚hich was published online with the agenda for this meeting鈥攖he committee queried paragraph 3 of schedule 1 of the instrument, which would amend the Freedom of Information (Scotland) Act 2002 by changing the words 鈥淓U obligation鈥 to 鈥渁ssimilated obligation鈥 in sections 26 and 45. In particular, the committee noted that those references to 鈥淓U obligation鈥 seemed not previously to have been changed to 鈥渞etained EU obligation鈥 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 鈥淓U obligation鈥 in those sections have not been updated to 鈥渞etained EU obligation鈥. 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 鈥渁ssimilated obligation鈥 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 鈥淓U obligation鈥 to 鈥渁ssimilated obligation鈥, skipping the step of updating them to say 鈥渞etained EU obligation鈥. The committee notes that the term 鈥淓U obligation鈥 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.
Also under this agenda item, no points have been raised on the following instruments.
Colleges of Further Education and Regional Strategic Bodies (Membership of Boards) (Scotland) Order 2023 [Draft]
Quality Meat Scotland (Amendment) Order 2023 [Draft]
Is the committee content with the instruments?
Members indicated agreement.