Scottish Government Consultation on Proposals for a Better Regulation Bill


The Scottish Government has published a consultation on proposals for a Better Regulation Bill. The Bill, which could be introduced to the Scottish Parliament in 2013, will seek "to improve further the way regulations are applied in practice across Scotland, by better defining national expectations and standards and the context for local variations". Within this overall objective, the consultation covers a wide range of topics and proposals.

Core proposal

The core proposal is that the Scottish Government should have new powers to impose duties on local authorities and other regulators to implement national regulation systems and policies approved by the Scottish Government and the Scottish Parliament. This is regarded as promoting consistency among regulators, particularly in the way regulations are applied and the process leading up to regulatory decisions. The consultation emphasises that national standards may not be the most appropriate solution for every issue and will not be applied as a matter of routine. But where national standards are defined, a local authority or other regulator would have to obtain Scottish Ministers' approval to opt-out from or vary the standards.

Other proposals

Views are requested on a range of other issues that may be included in the Bill:

a new statutory duty on regulatory authorities to consider and report on the impact of their regulatory activity on business and/or how their regulatory activity respects the Scottish Government's principles of better regulation;
a new "sunsetting" policy, where each new regulation must be regularly reviewed or falls automatically. This would provide a mechanism to monitor systematically whether the regulation is still needed, remains fit for purpose, and does not impose a disproportionate burden;
a policy that all new regulations affecting business will come into force on one of two common commencement dates (in April and October). This would give greater certainty to business and allow for forward planning;
new national standards requiring all public sector bodies in Scotland (including local authorities and NHS Boards) to pay suppliers' invoices in less than 30 days. The Consultation also asks what lower period should be allowed, noting that the Scottish Government operates on a "10-day norm" for invoice payment;
whether there are any legislative or non-legislative measures that might promote prompt payment of business to business invoices, how beneficial such measures would be, and how they would be enforced. The Consultation refers to mandatory application of a late payment penalty, legislating for maximum payment periods, or requiring more transparent reporting of company payment performance, while also noting that any measure would have to be carefully assessed against legal impediments and its effect on the competitiveness of Scottish business;
the most effective mechanism for introducing a link between the planning fees payable in each planning authority area and the assessed performance of that planning authority. Where sustained improvements in performance did not occur the Scottish Government would have the power to reduce the planning fees payable in a local authority area; and
extension of a statutory appeal mechanism to challenges against Scottish Ministers' decisions in infrastructure projects. At present some decisions, for example consenting an onshore windfarm under the Electricity Act 1989, can only be challenged by way of judicial review. The Consultation asks whether this should be replaced with a statutory appeal mechanism, which is likely to include a fixed period in which any legal challenge must be lodged.


Better regulation is high on the political agenda, particularly in the current economic climate. Excessive or inconsistent regulation is often cited as placing unnecessary burdens on business, particularly small businesses, and undermining the Scottish Government's central objective of sustainable economic growth. Both the UK and Scottish Governments have already introduced measures to promote better regulation, although the Consultation seeks to draw a distinction between the Scottish Government's commitment to better regulation and the UK Government's commitment to reducing regulation.

This is a very open consultation. On the core proposal the Consultation asks for views not only on whether the Scottish Government should be able to impose national standards but also on any specific regulations which should be candidates for new national standards. Respondees are also invited to propose legislative or non-legislative mechanisms to encourage prompt payment of invoices. It will be interesting to see what proposals come forward and ultimately make it into a Better Regulation Bill. Few people would disagree with the objectives underlying the Consultation. The challenge will be to find these improvements in regulation without placing further burdens on already over-stretched regulators or undermining the social and environmental objectives protected by the regulation.