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The next item of business is stage 3 proceedings on the Apologies (Scotland) Bill. Members should have the bill as amended at stage 2, the marshalled list of amendments and the groupings of amendments. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon, and the period of voting for the first division will be 30 seconds. Members who wish to speak in the debate should press their request-to-speak buttons as soon as possible after I call the group. I would be grateful if members could now refer to the marshalled list of amendments.
Section 2—Legal proceedings covered
I will speak briefly to amendments 1 and 2.
Under section 2(3) of the bill, the Scottish ministers have the power to modify the exceptions in sections 2(1) and 2(1A) by way of regulations. The two proposed amendments are technical in nature and are intended to provide clarity and certainty as to the Scottish ministers’ power to make regulations. As our proposed amendments relate to the power to make subordinate legislation, we have written to the Delegated Powers and Law Reform Committee to explain them.
Amendment 1 simply clarifies the power that the Scottish ministers have to modify the exceptions to the legal proceedings that are covered by the bill in section 2 by way of regulations. It makes it absolutely clear, for the avoidance of doubt, that the Scottish ministers’ regulation-making power includes the ability to add to, remove or amend the exceptions in sections 2(1) and 2(1A). It does not extend the power of the Scottish ministers under section 2(3); it merely clarifies the scope of the power, as agreed between me and Ms Mitchell.
The effect of amendment 2 will be that, when the Scottish ministers make exceptions under section 2(3), they may make transitional, transitory or saving provision to cover situations in which proceedings have begun before an exception is created by regulations or, if an existing exemption is removed by regulations, to allow proceedings that have begun before the exception is removed to continue to apply the law that was in force at the time that they began. The purpose of the amendment is therefore to provide legal certainty and flexibility.
I move amendment 1.
I thank the minister for lodging amendments 1 and 2.
Amendment 1 does indeed clarify the purpose of an exception. Obviously, as legislation is passed in the future, the list of exceptions may need to be varied—exceptions may need to be added or removed.
We also support amendment 2, but could we have a little more clarification of the difference between a transitional and a transitory provision? Perhaps the minister could give some examples of when a provision would be transitional as opposed to transitory.
I again take the opportunity to thank the minister and his officials for working constructively with me to reach the stage at which I believe that we will have an amended bill that should meet both our broad aims.
I have little to add to what the minister said about the two amendments. They are technical in nature and aim to provide greater clarity and certainty about the subordinate legislation powers that are set out in section 2. Amendment 1 relates to the power to modify the exceptions and clarifies that the term “modify” covers adding to, removing or amending the exceptions in section 2(1). I am happy to support amendment 1.
Amendment 2 seeks to extend the scope of the regulation-making powers in section 2(3) to allow any such regulations to include transitional, transitory or saving provision. I think that there is an issue about the situation before the bill is passed and once it has been passed, which the minister might clarify.
Under the bill as it stands, a transitional, transitory or saving provision could be made only as part of a commencement order under section 5(4). That is fine if a change to the list of exceptions were to be made before the bill as a whole comes into force, but there might also be a need for a transitional, transitory or saving provision if the exceptions are modified at a later stage, once the bill as enacted is fully in force and the power to make commencement orders is no longer available. Amendment 2 therefore covers an important gap.
I have always considered it important to ensure that the legislation can be developed over the longer term. I hope that at some point in the future, as the legislation beds in and proves its worth, it will be possible to reduce the number of exceptions, so it is important that ministers have sufficient flexibility and power to modify the exceptions whenever the need for such changes arises.
This is de minimis; it is just a point for clarification. In relation to section 2, I presume that in the fourth line from the end where the word “proceeding” occurs it should be in the plural and be “proceedings”. Can the minister confirm that that is the case?
With regard to the reference in amendment 2 to transitional, transitory or saving provision, an act of the Scottish Parliament that amends a law in most cases also requires to make provision for the transition from the pre-existing law to the new law when it is fully in force—for example, to deal with cases that are under way when the new law is commenced. The purpose of such a transitional provision is to facilitate the change from one statutory regime to another. The purpose of a saving provision is to narrow and exclude the application of a new law so as to preserve the effect of a pre-existing legal rule in certain cases or circumstances. I hope that that makes clear at least what the transitional arrangement is for.
With regard to Annabel Goldie’s point about the word “proceeding”, I believe that she is correct, but I will check that with officials and respond in due course.
Amendment 1 agreed to.