Public Services Reform (Scotland) Act 2010: Extension of Part 2 order making powers

Proposal to Extend the Part 2 Order-Making Powers

18. We consider there are several reasons why these order-making powers should be extended.

19. Flexibility. The order-making powers in Part 2 of the 2010 Act provide flexibility to make changes quickly, as and when opportunities arise, without the requirement for the lengthy process required for developing and scrutinising primary legislation.

20. Value in supporting Public Service Reform. At this time of tight public sector resources and increasing demands on public services, public sector bodies need to ensure that the services they provide remain affordable in the near future, sustainable longer-term and continue to support better outcomes for people across Scotland. In many cases, that requires reform to how public sector bodies operate, to release resources from back-office functions to front-line delivery; and reform to how they work alone and collectively to best serve people’s needs now and in future.

21. While the powers in Part 2 of the 2010 Act were last used in 2020, order-making was not a priority for much of the intervening period, as Scotland dealt with the pandemic. Looking ahead, the powers offer important tools to drive public service reform. They can be used to adjust the configuration of the public bodies landscape in order to release funds for front-line services and better meet future needs. They can also be used to unlock barriers to reform in some cases.

22. The powers can support the work of the Scottish Parliament. For instance, Scottish Ministers took forward an order referred to above, which created the new office of Commissioner for Ethical Standards in Public Life in Scotland, on behalf of Parliament.

23. The powers can benefit businesses and charities, as well as public services. The section 17 power has already been used to reduce burdens on businesses. For example, orders referred to above have amended requirements relating to agricultural tenancies, and streamlined and simplified the planning system.

24. The powers will be used responsibly. The order-making powers are subject to tight safeguards in the 2010 Act, including a strict super-affirmative procedure for approval. These safeguards mean that any proposed changes to primary legislation through the order-making powers are subject to rigorous examination and scrutiny. Scottish Ministers have only deployed the powers in appropriate cases, and most recently in 2020.