Scottish Statutory Instruments
Exiting The European Union
Social Security
Made
23rd December 2020
Coming into force
24th December 2020
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 28(2), 81(8) and 95 of the Social Security (Scotland) Act 2018(1) (“the 2018 Act”), section 2(2) of the European Communities Act 1972(2), section 13 of the European Union (Withdrawal Agreement) Act 2020(3) and all other powers enabling them to do so.
In accordance with section 97(2) of the 2018 Act, the Scottish Ministers have informed the Scottish Commission on Social Security (“the Commission”) of their proposals, notified the Scottish Parliament that they have done so and made their proposals publicly available by such means as they consider appropriate.
The Scottish Ministers have laid a response to the Commission’s report on the proposals for the regulations in accordance with section 97(9)(a) of the 2018 Act.
In accordance with section 96(2) of the 2018 Act and paragraphs 2 and 2A of schedule 2 of the European Communities Act 1972, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament(4).
1972 c.68. Section 2(2) of the European Communities Act 1972 (“the 1972 Act”) was amended by paragraph 15(3) of schedule 8 of the Scotland Act 1998 (c.46) (“the 1998 Act”) (which was amended by section 27(4) of the Legislative and Regulatory Reform Act 2006 (c.51) (“the 2006 Act”)). Section 2(2) was also amended by section 27(1)(a) of the 2006 Act and by Part 1 of the schedule of the European Union (Amendment) Act 2008 (c.7). Section 2(2) was repealed by section 1 of the European Union (Withdrawal) Act 2018 (c.16) from 31 January 2020. However, the obligations under section 2(1) of the 1972 Act, which may be implemented via section 2(2), are subject to savings provision under section 4(1) of the 2018 Act. The use of section 2(2) is preserved by section 1A of the European Union (Withdrawal) Act 2018, until IP completion day, being 31 December 2020 at 11:00pm, as defined in section 39(1) of the European Union (Withdrawal Agreement) Act 2020. The powers in section 2(2) are exercised as regards regulations 4, 5, 6, 7, 8, 9 and 10, and schedule 2 (other than paragraph 15) of these Regulations, so far as they apply to determinations as to whether the conditions in section 81(9) of the Social Security (Scotland) Act (“the 2018 Act”) are met. The functions conferred upon the Minister of the Crown under section 2(2), insofar as within devolved competence, were transferred to the Scottish Ministers by virtue of section 53 of the 1998 Act. The transfer is in terms of regulation 4 of S.I. 2017/444, which causes section 53(1) and (2) of the 1998 Act to have effect in relation to pre-commencement enactments, within the meaning of section 32 of the Scotland Act 2016 (c.11) as read with section 22(2) of that Act, relating to carer’s benefits, upon commencement of a provision which relies on the exception in relation to carer’s benefits in Section F1 of Part 2 of schedule 5 of the 1998 Act. Section 81 of the 2018 Act was commenced on 3 September 2018 by regulation 2 of S.S.I. 2018/250. Accordingly, responsibility for the exercise of functions in relation to carer’s benefits, within the meaning of section 22 of the Scotland Act 2016 (c.11), has transferred to the Scottish Ministers.
The powers to make these Regulations are exercised together by virtue of section 33(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10). These Regulations are subject to the affirmative procedure by virtue of section 33(3) of that Act. Paragraph 2 of schedule 2 of the European Communities Act 1972 (c.68) has been amended by section 27(2)(a) of the Legislative and Regulatory Reform Act 2006 (c.51). Paragraph 2A of the European Communities Act 1972 (c.68) has been modified by paragraph 5 of schedule 3 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10).