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20th Report, 2011 (Session 3)

Certification of Death (Scotland) Bill as amended at Stage 2

Remit and membership


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)


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

Certification of Death (Scotland) Bill as amended at Stage 2

The Committee reports to the Parliament as follows—

1. At its meetings on 8 March 2011, the Subordinate Legislation Committee considered the delegated powers provisions in the Certification of Death (Scotland) Bill as amended at Stage 2.  The Committee submits this report to the Parliament under Rule 9.7.9 of Standing Orders.

2. The Scottish Government provided the Parliament with a supplementary delegated powers memorandum on the provisions in the Bill (“the supplementary DPM”)1.

3. The Committee is content with the powers at sections: 2(9) to (11), 28(1A) to (1C) and 28(3).

Delegated powers as amended – section 24A(7) of the 1965 Act (inserted by section 2) and section 4(7)

Stage 1 Report

4. At Stage 1, the Committee reported with recommendations in relation to the powers in sections 2 (suspension of referral of certificates for review during emergencies) and 4(7) (suspension of applications under section 4 during emergencies.

5. The Government responded to the Committee’s stage 1 Report in these terms––

“In relation to the delegated powers in sections 2 and 4(7), the Scottish Government confirms that it will seek to amend the Bill at Stage 2 to adopt the emergency affirmative procedure for these powers, discounting periods of recess.”

Section 2 (suspension of referral of certificates for review during emergencies)

6. The Committee’s recommendation in relation to section 2 has been taken forward in the amendments at section 2(9) to (11).

Section 4(7) (suspension of applications under section 4 during emergencies)

7. The Committee’s recommendation in relation to section 4(7) has been taken forward in the equivalent amendments in section 28(1A) to (1C) (orders and regulations).

8. These amendments provide for the “emergency affirmative” procedure.  A suspension order must be laid in Parliament and ceases to have effect at the end of 28 days beginning with the date on which it was made, unless before the end of that period, the order has been approved by resolution of the Parliament.  (No account is taken of any period of dissolution, or recesses of more than 4 days.) The Committee is content that this addresses its concern about the procedure for scrutiny of suspension of the requirements for review of medical certificates.

Revocation of orders of suspension

9. The Committee notes that the Scottish Government’s amendments do not provide separately for the parliamentary procedure applicable to the revocation of a suspension order.  The Committee notes that this would have the effect of requiring that revocation orders are approved within 28 days in order to continue in effect.  A revocation order simply reinstates the requirements for the review of medical certificates set out in the Bill, therefore the Committee considers that it is not appropriate for such an order to be subject to a requirement for approval.

10. The Committee therefore recommends that orders which revoke orders of suspension made under section 24A(7) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 or under section 4(7) of the Bill should be subject only to the requirements of section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010 which sets the new default requirements for scrutiny of Scottish statutory instruments from 6 April 2011.