SCOTLAND BILL
Supplementary Memorandum concerning the Delegated Powers in the Bill for the Delegated Powers and Regulatory Reform Committee
1.This supplementary memorandum has been prepared for the Delegated Powers and Regulatory Reform Committee to assist with its scrutiny of the Scotland Bill (“the Bill”). The Bill will have its Report stage in the House of Lords on 26th and 28th March 2012. This supplementary memorandum sets out a further delegated power that has been tabled as an amendment by the Government to be considered at Report stage.
2.In addition the Committee may wish to note that amendment 1 on the Marshalled List is a Government amendment seeking to remove clause 7 of the Bill on the partial suspension of Acts of the Scottish Parliament that are subject to scrutiny by the Supreme Court (clause 7 of the Bill includes delegated powers).
Amendment 52 – review and power to amend sections 37 to (Time limits for appeals on devolution issues in criminal proceedings)
Power conferred on: the Secretary of State
Power exercised by: order made by statutory instrument
Parliamentary procedure: draft affirmative in each House of Parliament
3.Clauses 37 and 38 of the Bill make provision for a new appeal right to the Supreme Court for certain issues arising in Scottish criminal proceedings. The new appeal right will apply to questions raised in Scottish criminal proceedings as to whether a public authority has acted compatibly with the European Convention on Human Rights or EU law. Amendments 33, 35, 37, 38, 39, 41, 44, 47, 49, 51, 53, 54 tabled for consideration at Report stage seek to make further amendments relating to the new appeal right and introducing time limits for appealing devolution issues to the Supreme Court in Scottish criminal proceedings.
4.Amendment 52will require the Secretary of State to undertake a review of the provisions providing for the new appeal right and the time limits for appealing devolution issues to the Supreme Court in Scottish criminal proceedings. The review must consider whether changes are required to these provisions and whether further provision should be made to the matters dealt with by those sections.
5.Once the review has reported the Secretary of State may want to implement the review and this may require changes to legislation. In order for this to happen Amendment 52 gives the Secretary of State a power by order to amend the provisions providing for the new appeal right and the time limits for appealing devolution issues to the Supreme Court in Scottish criminal proceedings. The power also allows the Secretary of State to make further provision regarding these matters.
6.The order making power cannot be used until the review has been concluded and in exercising the power forthe first time, the Secretary of State must take the review into account. In exercising the power the Secretary of State must consult the Scottish Ministers. As the purpose of the power is to amend the changes made in the Bill in respect of Supreme Court appeals the order making power may be used to amend or repeal primary legislation. The power could also be used to confer power on the Secretary of State or the Scottish Ministers to make an order or regulations. It is appropriate to take such a power as it is possible that the review under amendment 52 could suggest changes that would be most appropriately provided for by way of regulations or orders. It is appropriate for the power to be able to confer power to make regulations on the Scottish Ministers as the power relates to criminal proceedings. The power may also be used to make consequential, transitional or saving provision. It is appropriate to take this power as such provision made be required to ensure any amendments can come into force in an appropriate way.
7.The power can be used more than once. This is appropriate as it may be necessary to further amend the changes following the review e.g. to take account of operational issues or other changes made to criminal procedure in Scotland.
8.The power provided by this amendment will be subject to the affirmative procedure so a draft of the order will need to be approved by each House of Parliament before the order can be made by the Secretary of State. This procedure is considered to be appropriate given that the power may be used to amend primary legislation.
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