Overview Parliamentary scrutiny of subordinate legislation
136.Section 96 sets out the parliamentary scrutiny procedures which are to apply to regulations made under the powers set out in the Act. For example, regulations to create types of assistance are to be subject to the affirmative procedure. The negative procedure will apply to regulations setting the period within which a request for re-determination must be made, and the period within which the Scottish Ministers must aim to make that determination. The negative procedure will also apply to regulations that alter the number of members of the Scottish Commission on Social Security. The negative and affirmative procedures are defined by sections 28 and 29 (respectively) of the Interpretation and Legislative Reform (Scotland) Act 2010. Put briefly, regulations subject to the negative procedure can be made by Ministers without prior parliamentary approval but Parliament can vote to annul them after they are made. Regulations subject to the affirmative procedure cannot be made by Ministers unless and until Parliament approves them in draft.
137.Section 97 sets out further procedural requirements for the making of regulations that deal with eligibility for, and rates of, assistance (i.e. regulations under any of the sections in Chapter 2 of Part 2 and regulations under the power to provide for top-ups to reserved benefits under section 79). The regulations in question are all subject to the affirmative procedure (see section 96), meaning that they cannot be made unless and until they are approved in draft by a resolution of the Scottish Parliament.
138.Section 97 provides that, before the Scottish Ministers can lay draft regulations before the Parliament for approval, they must first inform the Scottish Commission on Social Security (established by section 21) of their proposals for the regulations, tell the Parliament that they have done so, and make the proposals public. Those proposals must be in the form of draft regulations. This provides an opportunity for the Parliament and the public, as well as the Commission, to consider the proposals.
139.The Commission must then prepare a report commenting on the proposals, having regard to the Scottish social security principles and any relevant international human rights instruments. In the ordinary course of events, the Scottish Ministers will lay the draft regulations before the Parliament for approval only after the Commission has reported on the proposals. The Commission’s report must be made public. When laying the draft regulations before the Parliament for approval, the Scottish Ministers must also lay before the Parliament a response to the Commission’s report.
140.It is then for the Parliament to decide whether or not to approve the draft regulations in the usual way. Section 97(9)(b) allows for the possibility of the Scottish Ministers laying draft regulations before the Parliament for approval ahead of the Commission reporting. In that event, the Ministers will be required to lay before the Parliament a statement explaining why they consider it appropriate to proceed without waiting for the Commission’s report. It is then up to the Parliament to decide whether to approve the draft regulations in the usual way.
141.Section 97(10) provides that the process described in the preceding paragraphs does not apply to regulations which simply consolidate earlier regulations. Once regulations have been significantly amended a number of times, they can become hard to follow. A consolidation does not change the legal effect of the regulations as amended, but rather restates the current law for the sake of making it clearer and easier for users to follow. As the purpose of involving the Commission in scrutinising regulations is to have the benefit of expert insight into the effects of proposed changes to social security law, there is nothing for the Commission to report on for consolidation regulations (because the current law is not being changed). Nonetheless, if the Ministers or the Parliament particularly wished the Commission to report on a proposal to consolidate regulations, a report could be requested under section 22(1)(b) or (c).
142.Section 98 disapplies the procedural requirements set by section 97 for an initial period in relation to regulations providing for early years assistance (under section 32) and funeral expense assistance (under section 34). The timetable to which the Scottish Ministers intend to start delivering those assistance types means that regulations may need to be made before the Commission is established. Accordingly, regulations dealing with those assistance types are excepted from the section 97 process until the Commission has intimated to the Scottish Ministers and the Parliament that it is ready to begin its scrutiny work. At that point the need for the section 98 exception ceases, and subsection (4) provides for its repeal, to tidy up the statute book by clearing away the spent provision.