Supplementary Legislative Consent Memorandum
Legislative and Regulatory Reform Bill
Background
1. Supplementary to the memorandum (LCM (S2) 3.1) lodged by Tom McCabe Minister for Finance and Public Service Reform, this memorandum details the effects of an amendment to the Legislative and Regulatory Reform Bill laid in the UK Parliament on 11 January 2006 which would affect the exercise of powers and the making of subordinate legislation relating to the implementation of EU obligations and for which the Scottish Executive intends to seek the Parliament's consent by way of a Legislative Consent Motion.
Content of the Additional Proposal
Combining Instruments Requiring Different Procedures
2. This amendment to the Legislative and Regulatory Reform Bill incorporates an additional clause, enabling Statutory Instruments (SIs), made under s.2(2) of the European Communities Act (1972) to be combined with other SIs made under different enabling powers.
3. It is already possible for Statutory Instruments (SIs) of the same type, which go through the same parliamentary procedure, to be combined into one instrument. This proposal would enable provision made under s.2(2) of the European Communities Act (ECA) to be combined into the one instrument with provision made under different enabling powers requiring different procedure. Thus provision made under s.2(2) could be combined with provision under other enabling powers which were subject to a less onerous parliamentary procedure, rather than only those which went through the same procedures. In all cases, however, the combined instrument is subject to the more onerous procedure. Importantly, this means that there is no reduction in Parliament's opportunity to scrutinise any instrument.
4. This proposal links in with Clause 26 in the Legislative and Regulatory Reform Bill, described in the original Memorandum (LCM (S2) 3.1). It is currently only possible to make regulations under s. 2(2), rather than other forms of secondary legislation. Therefore at the moment s. 2(2) regulations cannot be combined in a single instrument with e.g. an order made under an enabling power in another Act. Clause 26 provides that s. 2(2) could also be used to make orders, schemes and rules.
5. It is the view of the Scottish Executive that the net effect of this amendment will be to widen the powers available to the Scottish Ministers to implement EU obligations more flexibly. This effect thus fits with the aim described in the original Memorandum (LCM (S2) 3.1) on the Legislative and Regulatory Reform Bill. Similarly, since this provision relates to sections of the European Communities Act 1972 that cover a complex mix of reserved and devolved matters under Schedules 4 and 5 to the Scotland Act 1998, the Scottish Ministers again consider it appropriate to pursue these changes by way of a Westminster Bill with the consent of the Scottish Parliament through a Legislative Consent Motion.
Financial Implications
6. The direct costs associated with the Bill will be mainly administrative and are expected to be minor in Scotland. The indirect costs associated with the exercise of the new power cannot be known with certainty at this stage but are also expected to be minor. The reduction in need for Scottish Statutory Instruments that should result might be expected to result in some savings.
Scottish Executive
February 2006