Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

27th Report, 2011 (Session 3)

Legislative Consent Memorandum on Welfare Reform Bill

Remit and membership

Remit:

1. The remit of the Subordinate Legislation Committee is to consider and report on-

(a) any-

(i) subordinate legislation laid before the Parliament;

(ii) Scottish Statutory Instrument not laid before the Parliament but classified as general according to its subject matter;

(iii) Pension or grants motion as described in Rule 8.11A.1;

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation; and

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Bob Doris (Deputy Convener)
Helen Eadie
Rhoda Grant
Alex Johnstone
Ian McKee
Elaine Smith
Jamie Stone (Convener)

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Jake Thomas

Support Manager
Lori Gray

Legislative Consent Memorandum on Welfare Reform Bill

The Committee reports to the Parliament as follows—

1. At its meeting on 15 March 2011, the Committee considered the provisions in the Welfare Reform Bill (“the Bill”) which confer on the Scottish Ministers powers to make subordinate legislation.

2. The Scottish Government provided the Parliament with a legislative consent memorandum (“LCM”).

3. The Scottish Government has indicated that it does not intend to bring forward a Legislative Consent Motion before the end of session 3. Paragraphs 26 and 27 of the LCM set out its reasons for taking this course of action and it is understood that the Health and Sport Committee, as lead committee, is not intending to consider the LCM this session. The Subordinate Legislation Committee therefore submits this report to the Health and Sport Committee under Rule 9B.3.6 of Standing Orders for its information at this stage. It will be for the successor Subordinate Legislation Committee in session 4 to determine whether it endorses this report for submission to the appropriate lead committee.

Delegated powers provisions

Clause 33(1): Power to make supplementary and consequential provision etc.

4. Clause 33(1) permits “the appropriate authority” by regulations to make such consequential, supplementary, incidental or transitional provision in relation to the introduction of Universal Credit as that authority considers appropriate. In general, the appropriate authority is the Secretary of State. However, where the provision falls within the legislative competence of the Scottish Parliament, the appropriate authority is the Scottish Ministers.  Similarly, the appropriate authority is the Welsh Ministers when the provision falls within the legislative competence of the National Assembly for Wales.

5. Paragraph 10 of the LCM states that this power will enable the Scottish Ministers to make necessary amendments to Scottish legislation to remove references to existing benefits and replace them with references to Universal Credit.

6. The Committee notes that regulations made by the Scottish Ministers under this clause may amend, repeal or revoke any primary or secondary legislation.  Regulations which amend or repeal primary legislation are subject to affirmative procedure, while all other regulations are subject to negative procedure.

7. The Committee further notes that regulations made by the Secretary of State under clause 33 are subject to negative procedure, whereas those made by the Welsh Ministers are subject to affirmative procedure.

8. Despite the different procedural approaches taken in each jurisdiction, the Committee considers the approach chosen for Scotland to be appropriate and in accordance with normal practice.

9. The Committee therefore reports to the lead committee that it considers the power in clause 33 to be acceptable in principle and that the power should be subject to affirmative procedure when used to amend or repeal primary legislation, and should be otherwise subject to negative procedure.

Clause 89(2): Power to make supplementary and consequential provision

10. Clause 89(2) permits the Scottish Ministers by regulations to make such consequential, supplementary or incidental provision in relation to the introduction of Personal Independence Payment as they consider appropriate, provided that the provision is within the legislative competence of the Scottish Parliament. Clause 89(1) confers a similar power on the Secretary of State, but no power is conferred on the Welsh Ministers in relation to Personal Independence Payment.

11.The Committee notes that this power gives the Scottish Ministers similar powers in relation to the introduction of Personal Independence Payment as clause 33 does in relation to the introduction of Universal Credit. It therefore envisages this power would similarly be exercised to replace references to Disability Living Allowance in Scottish legislation with references to Personal Independence Payment.

12. The Committee does, however, note that this power differs slightly from that in clause 33(1) in that it does not confer power on the Scottish Ministers to make transitional provision. Power to make transitional provision in relation to the coming into force of provisions in relation to Personal Independence Payment is given only to the Secretary of State under clause 90. However, given the limited circumstances in which it is envisaged that the Scottish Ministers will use their powers conferred by this clause, the Committee does not consider that this would be problematic. Accordingly, the Committee considers this power to be acceptable in principle.

13. The Committee notes that regulations made by the Scottish Ministers under this clause may amend, repeal or revoke any primary or secondary legislation passed or made before the day on which the Bill is passed. The regulations may also amend or repeal any provision of an Act passed on or after that day, but within the same session of Parliament. Regulations which amend or repeal primary legislation are subject to affirmative procedure. All other regulations are subject to negative procedure. By contrast, regulations made by the Secretary of State under clause 89 are subject to negative procedure.

14. Despite the different procedural approach taken in each jurisdiction, the Committee considers the approach chosen for Scotland is appropriate and in accordance with normal practice.

15. The Committee therefore reports to the lead committee that it considers the power in clause 89 to be acceptable in principle and that the power should be subject to affirmative procedure when used to amend or repeal primary legislation, and should be otherwise subject to negative procedure.

16. The Committee also draws the lead committee’s attention to the fact that the Bill has not properly adopted the standard terminology for “the negative procedure” and “the affirmative procedure” set out in sections 28 and 29 of the Interpretation and Legislative Reform (Scotland) Act 2010, which comes into force on 6 April 2011.