Part 6: Remedial Regulations
138.Part 6 empowers the Scottish Ministers to change the law, by regulations, in order to cure an incompatibility (or potential incompatibility) with the UNCRC requirements as defined by section 1. It sets out two processes for making such regulations, one that is normally to be followed and an alternative process where there is a need to act more quickly than the normal process would allow.
Section 39: Remedial regulations
139.Section 39 confers power on the Scottish Ministers to make remedial regulations. The power can be used for the following purposes, on condition that the Scottish Ministers consider that necessary or expedient and are satisfied that there are compelling reasons for making remedial regulations as distinct from taking any other course of action:
to address an incompatibility (or potential incompatibility) between, on the one hand, the UNCRC requirements and, on the other, any provision of “
affected legislation ” (an Act of the Scottish Parliament, an Act of the UK Parliament or subordinate legislation made under either kind of Act, which would be within the legislative competence of the Scottish Parliament to make);to address an incompatibility (or potential incompatibility) arising from anything done by a member of the Scottish Government (members of the Scottish Government are identified in section 44(1) of the Scotland Act 1998).
140.Criminal offences can be created by remedial regulations. Subsection (4) provides that a fine imposed on a person convicted under summary procedure of an offence created by remedial regulations cannot exceed level 5 on the standard scale. The standard scale is set in section 225 of the Criminal Procedure (Scotland) Act 1995. At the time of the publication of these Notes, a level 5 fine is £5,000.
Section 40: Remedial regulations: procedure
141.Section 40 sets out the normal process for making remedial regulations under section 39. An alternative process is set out by section 41 for urgent situations.
142.Section 40 provides that remedial regulations are normally subject to parliamentary scrutiny by way of the affirmative procedure, which is set out in section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010. It means that the regulations cannot be made unless the Scottish Parliament approves a draft of them.
143.Section 40 provides for additional procedural requirements, beyond those of the affirmative procedure, to apply to remedial regulations. Subsection (2) requires the Scottish Ministers to carry out a consultation process before it lays draft remedial regulations before the Parliament to seek its approval under the affirmative procedure. The Scottish Ministers are to invite the public to make comments on the draft remedial regulations within a 60-day comment period. A day is not to be counted if the Parliament is dissolved (which is to say that the day falls during the election period between one session of the Parliament ending and the new one beginning following the election). Nor is a day to be counted if it is a day within a period of 5 or more days during which the Parliament is in recess (details of when the Parliament is in recess can be found on its website, its recesses typically coincide with school holidays in Scotland).
144.Only once they have carried out the consultation required by subsection (2) may the Scottish Ministers seek the Parliament’s approval of draft remedial regulations under the affirmative procedure. Subsection (4) requires that, when it does so, the Scottish Ministers must lay before the Parliament alongside the draft regulations a document summarising the comments received during the consultation period and, if the draft regulations being laid before the Parliament differ from the draft of the regulations consulted on, a statement of how they differ and why.
Section 41: Urgent remedial regulations
145.Whereas section 40 sets out the normal process for making remedial regulations under section 39, section 41 sets out a special process for urgent cases. Under the section 41 process, remedial regulations can be made and come into force immediately but will cease to have effect if the Scottish Parliament has not approved them by resolution within a certain period of their being made. The section 41 process also requires consultation on the regulations and allows for the possibility of their being changed, or replaced, within that period.
146.The period within which remedial regulations must be approved by resolution of the Parliament if they are to remain in force is 120 days (subsection (8)), but subsection (10) creates a special rule about how those 120 days are to be counted. A day is not to be counted if the Parliament is dissolved (which is to say that the day falls during the election period between one session of the Parliament ending and the new one beginning following the election). Nor is a day to be counted if it is a day within a period of 5 or more days during which the Parliament is in recess (details of when the Parliament is in recess can be found on its website, its recesses typically coincide with school holidays in Scotland).
147.Immediately after making remedial regulations following the section 41 process, the Scottish Ministers must give notice of them to the public and the Scottish Parliament (subsection (2)). In giving notice of the regulations to the public, the Scottish Ministers must invite comment on them within a 60 day period (but those 60 days are to be counted in the manner described in the paragraph above in relation to the 120 day period).
