Public Law

I posted recently about the Alcohol etc. (Scotland) Bill, passed by the Scottish Parliament on 10 November. The 21-day ‘standstill’ period that applies to all Scottish Parliament legislation has now expired, so the Bill should be receiving Royal Assent any day now. When that happens, it will be interesting to see if and how an obvious mistake in the Bill is dealt with.

When Bills are passed they often contain sections numbered 2A, 2B, 3A and such like, reflecting the fact that those sections were not in the Bill as first drafted but rather were added by amendment. Before the Bill is submitted to Her Majesty for Royal Assent (which turns it into an Act), Parliamentary Counsel amends the text so that all the sections and cross-references appear in the usual order – i.e. start at 1 and keep going until you reach the end of the Bill or run out of numbers (the latter has never happened to my knowledge, though the Companies Act 2006 may have come close).

The very first provision in the Alcohol Bill is section A2, added by amendment during the Stage 3 debate. This “sunset clause” would have made the Government’s minimum pricing policy expire after 6 years unless the Parliament renewed it. But since the minority Government’s attempt to have minimum pricing amended back into the Bill failed (it had been amended out at Stage 2 by the opposition parties), what exactly is this section supposed to achieve?

Fortunately, we need not speculate on the intentions of our wise and learned tribunes, with the Official Report of the Stage 3 debate available to enlighten us. After the Government’s proposed reintroduction of minimum pricing was defeated, the next amendment on the schedule was the sunset clause. Since the policy itself had not been adopted you’d think the sunset amendment would inevitably be voted down, but its supporters refused to allow something so trifling as logic to dampen their support for the clause. Most bizarrely, however, MSPs from one party who had contributed to minimum pricing defeat then actually changed sides to vote in favour of the sunset clause, thus ensuring its adoption! That vote concluded the first group of amendments, and was followed immediately by this exchange:

The Deputy Presiding Officer: Group 2 is on further restrictions on the promotion of alcohol et cetera. Amendment 23, in the name of Ian McKee, is grouped with amendments 26 and 27. Ian McKee—

Jackie Baillie: On a point of order, Presiding Officer. I wonder whether you can provide some clarification, because I think that the Parliament has just agreed to a sunset clause for something that has just vanished into the sunset.

The Deputy Presiding Officer: That might well be the case, but it is not my role to comment on the Parliament’s decisions. I call Ian McKee.”

Brilliant.

Presumably you’re not a Deputy Presiding Officer of the Scottish Parliament, and so you should feel no compunction about commenting on the Parliament’s decisions. If you can see a solution to this problem, don’t keep it to yourself – the comments box awaits.

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone