20th Report, 2012 (Session 4): Subordinate Legislation

SP- Paper 115 (Web Only)

SL/S4/12/R20

20th Report, 2012 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament;

(ii) [deleted

(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;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Chic Brodie
Nigel Don (Convener)
James Dornan (Deputy Convener)
Mike MacKenzie
Michael McMahon
John Pentland
John Scott

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Assistant Clerk
Rob Littlejohn

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 17 April 2012, the Committee agreed to draw the attention of the Parliament to the following instruments—

Public Contracts (Scotland) Regulations 2012 (SSI 2012/88);

Utilities Contracts (Scotland) Regulations 2012 (SSI 2012/89);

Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2012 (SSI 2012/108);

Scottish Secure Tenancies (Proceedings for Possession) (Confirmation of Compliance with Pre-Action Requirements) Regulations 2012 (SSI 2012/93); and

Town and Country Planning (Continuation in force of Local Plans) (Highland) (Scotland) Order 2012 (SSI 2012/90).

2. The Committee’s recommendations in relation to those instruments are set out below.

3. In addition, the Committee agreed to refer the following instrument to the lead Committee for consideration—

Waste (Scotland) Regulations 2012 [draft].

4. Although the matter does not relate to a formal reporting ground, the Committee considered that the practical effect of the instrument is something that the lead committee may wish to consider further. The Committee’s deliberations are set out later in this report.

5. Finally, the instruments that the Committee determined it did not need to draw the Parliament’s attention to are set out at the end of this report.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Public Contracts (Scotland) Regulations 2012 (SSI 2012/88) (Infrastructure and Capital Investment Committee)

6. The Regulations consolidate the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1) (the “2006 Regulations”) and all subsequent amendments – the 2006 Regulations have been amended six times. They also introduce some changes.

7. The instrument gives effect in Scots law to: Directive 2004/18/EC on the co-ordination of procedures for the award of public works contracts, public supply contracts and public services; Directive 89/665/EEC on the co-ordination of the laws, regulation and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended; and Directive 2007/66/EC with regard to improving the effectiveness of review procedures concerning the award of public contracts.

8. The above Directives were previously given effect in Scots law by the 2006 Regulations. The Scottish Government has supplied with these 2012 Regulations a useful table of changes and derivations, which shows the text of changes and where numbering has changed.

9. The Regulations are subject to negative procedure and come into force on 1 May 2012.

10. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 1.

11. The Scottish Government has acknowledged that there are drafting errors in the instrument. It undertook to bring forward an amending instrument to correct the errors, which is also considered in this report (SSI 2012/108).

12. The drafting errors relate to the following—

  • The list of contracting authorities in regulation 3 and Schedule 1 does not include Health Boards constituted under section 2 of the National Health Service (Scotland) Act 1978, while the Special Health Boards so constituted are included. This omission was contrary to the policy intention.

  • The list of authorities in Schedule 1 does not take into account the recent merger of the National Archives of Scotland with the General Registers Office, to become the National Records of Scotland.

  • Schedule 1 also includes the Crofters Commission. This should have referred to the Crofting Commission as the new statutory name of the body.

13. The Committee therefore draws this instrument to the attention of the Parliament on reporting ground (i). The drafting of Schedule 1 appears to be defective in the respect that the list of contracting authorities in the Schedule omits Health Boards constituted under section 2 of the National Health Service (Scotland) Act 1978.

14. The Committee also draws this instrument to the attention of the Parliament on the general reporting ground in two respects—

  • Schedule 1 includes within the list of contracting authorities the National Archives, the General Register Office for Scotland and the Scottish Record Office. The Scottish Government has acknowledged that that listing requires to be amended to take into account the merger of the National Archives of Scotland with the General Register Office, forming the National Records of Scotland.

  • There is a drafting error in Schedule 1. The reference to the Crofters Commission should be to the Crofting Commission, being the correct designation of the Commission when the Regulations come into force on 1 May 2012.

15. The Committee welcomes the fact that the Scottish Government has brought forward an amending instrument to correct these errors in time for the coming into force of the Regulations on 1 May 2012.

Utilities Contracts (Scotland) Regulations 2012 (SSI 2012/89) (Infrastructure and Capital Investment Committee)

16. The Regulations consolidate the Utilities Contracts (Scotland) Regulations 2006, and introduce some changes to those Regulations. The 2006 Regulations have been amended by six instruments. The Scottish Government has supplied with these Regulations a useful table of changes and derivations, which shows the text of changes and where numbering has changed.

17. The instrument gives effect in Scots law to: Directive 2004/17/EC co-ordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors; Directive 92/13/EEC co-ordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities in the water, energy, transport and telecommunications sectors; and Directive 2007/66/EC with regard to improving the effectiveness of review procedures concerning the award of public contracts.

18. The Regulations are subject to negative procedure and come into force on 1 May 2012.

19. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 2.

20. The Scottish Government has acknowledged that there are drafting errors in the instrument. It undertook to bring forward an amending instrument to correct the errors, which is also considered in this report (SSI 2012/108).

21. The errors relate to the following—

  • There is an error in Schedule 5, in describing the extent of the revocation of the Public Contracts and Utilities Contracts (Postal Services and Common Procurement Vocabulary Codes) Amendment (Scotland) Regulations 2008 (SSI 2008/376), which is one of the instruments that amend the principal 2006 Regulations, which are consolidated by these Regulations. The drafting copies out the corresponding revocation in the Public Contracts (Scotland) Regulations 2012, instead of providing for revocation of those 2008 Regulations in so far as extending to the Utilities Contracts (Scotland) Regulations 2006.

  • Again in Schedule 5, there is a typographical error. The substitutions made in regulations 4(d) and 6(4) to (6) of the Defence and Security Public Contracts Regulations 2011 (S.I. 2011/1848) have the effect that the title of these Regulations becomes “the Utilities Contracts (Scotland) Regulations 2012 2006”, rather than just “2012”.

22. The Committee considered for both those points that it is sufficiently clear from the context which provisions are intended. The effect of the first error is limited. The provision does not revoke the amending instrument SSI 2008/376 so far as it extends to the Utilities Contracts (Scotland) Regulations 2006. SSI 2008/376 is one of the six instruments amending those principal 2006 Regulations, which are revoked in any case by Schedule 5.

23. The Scottish Government has acknowledged that there is a further matter of drafting practice. The instrument provides, in the interpretation article 2(1), for the references made through it to Directives 2004/18/EC and 2004/17/EC and Commission Regulation (EC) 1564/2005 to be references to those enactments “as amended from time to time”. References are made to Regulation 1564/2005 in various places, to refer to the forms of notice used in the procurement procedures, contained in the Regulation.

24. That provision in article 2(1) makes the appropriate “ambulatory reference” to the European Union provisions, in accordance with paragraph 1A of Schedule 2 to the European Communities Act 1972. However, the appropriate explanation in the preamble to the instrument is omitted in relation to Regulation 1564/2005. Such an explanation is appropriate as a matter of proper drafting practice, although the preamble is not part of the operative provisions of the instrument. This is because paragraph 1A of Schedule 2 to the 1972 Act contains the pre-condition that, to make the “ambulatory reference”, the Scottish Ministers must determine that it is either necessary or expedient for the references to the EU legislation to be construed as references as amended from time to time.

25. The Committee agrees with the Government’s view that the “ambulatory reference” to Regulation 1564/2005 has been properly made in regulation 2(1), but the omission above in the preamble is reported as a failure to follow the proper drafting practice.

26. The Committee therefore draws this instrument to the attention of the Parliament on the general reporting ground in the following respects—

  • There is a drafting error in Schedule 5. The revocation of the Public Contracts and Utilities Contracts (Postal Services and Common Procurement Vocabulary Codes) Amendment (Scotland) Regulations 2008 (SSI 2008/376) extends to the whole Regulation so far as extending to the Public Contracts (Scotland) Regulations 2006, when it should extend to the Utilities Contracts (Scotland) Regulations 2006.

  • There is a further error in Schedule 5. The substitutions made in regulations 4(d) and 6(4) to (6) of the Defence and Security Public Contracts Regulations 2011 (SI 2011/1848) should have replaced “the Utilities Contracts (Scotland) Regulations 2006” but the provision omits “2006”.

  • There is a failure to follow proper drafting practice in the second paragraph of the preamble. That paragraph should have added reference to Commission Regulation (EC) No 1564/2005, in addition to the existing references to Directives 2004/18/EC and 2004/17/EC.

27. The Committee welcomes that the Scottish Government has brought forward an amending instrument to correct the drafting errors in time for the coming into force of the Regulations on 1 May 2012.

Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2012 (SSI 2012/108) (Infrastructure and Capital Investment Committee)

28. The Regulations correct drafting errors in Schedule 1 to the Public Contracts (Scotland) Regulations 2012 (SSI 2012/88), and Schedule 5 to the Utilities Contracts (Scotland) Regulations 2012 (SSI 2012/89). The Committee identified these errors in its consideration of those instruments (as noted above).

29. The instrument is subject to negative procedure and comes into force on 1 May 2012, on the same date as those principal Regulations.

30. The Regulations were laid on 30 March 2012. Taking into account the parliamentary recess for Easter, this breaches the “28-day rule” for negative procedure instruments.

31. Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 sets out the rule that a Scottish statutory instrument which is subject to negative procedure must be laid before Parliament as soon as practicable after it is made, and in any event at least 28 days before the instrument comes into force.

32. A failure to comply with section 28(2) does not render the instrument invalid, but the Scottish Government must explain to the Presiding Officer why the laying requirements have not been complied with.

33. The Scottish Government’s letter to the Presiding Officer on this instrument sets out why it was appropriate not to comply with the 28 day rule. In short, the Committee has identified the errors which are corrected by these Regulations, and it is appropriate to bring this instrument into force on the same day as the two instruments being corrected, for the correct functioning of the instruments. The Scottish Government’s letter is included in Appendix 3.

34. Although it is not ideal that the 28 day rule has been broken because of the need to correct two instruments which have recently been made, the Committee considers that the reasons provided for the failure to comply with the 28-day rule are acceptable.

35. The Committee therefore draws the instrument to the Parliament’s attention under reporting ground (j), as there has been a failure to lay the instrument at least 28 days before it comes into force as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

36. In doing so, the Committee finds the explanation provided by the Scottish Government for this failure to be acceptable, since urgent action was required to correct errors in the Public Contracts (Scotland) Regulations 2012 and the Utilities Contracts (Scotland) Regulations 2012 identified by the Committee in time for the coming into force of those Regulations on 1 May 2012.

Scottish Secure Tenancies (Proceedings for Possession) (Confirmation of Compliance with Pre-Action Requirements) Regulations 2012 (SSI 2012/93) (Infrastructure and Capital Investment Committee)

37. Tenants who rent properties from local authorities and registered social landlords generally do so on Scottish secure tenancies. Where a landlord wishes to recover possession of a property and evict the tenant, it must obtain a court order which permits it to do so. The procedure with which a landlord must comply is laid down in sections 14 to 16 of the Housing (Scotland) Act 2001 (“the 2001 Act”).

38. This instrument prescribes the form in which landlords must confirm to the court that they have complied with the pre-action requirements in section 14A of the 2001 Act.

39. The Regulations are subject to negative procedure and come into force on 1 August 2012.

40. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 4.

41. When a landlord seeks to bring proceedings to recover possession of a property let on a Scottish secure tenancy, it usually does so by way of summary cause. Rarely, it may be appropriate instead to proceed by ordinary cause. These different procedures are subject to separate rules of court and different terminology is used in each of them.

42. The Committee understands what the Scottish Ministers are trying to achieve in making these Regulations: their intention is that, where a landlord wishes to raise proceedings to recover possession of a property, the documents lodged with the court must contain a statement which confirms that the landlord has complied with the pre-action requirements. However, it appears that the Scottish Ministers may not have used the correct terminology in making the Regulations. In particular, regulation 2 provides that “the writ submitted for warrant must include a statement of claim with an averment confirming to the court that the pre-action requirements … have been complied with.”

43. Regulation 2 uses a mixture of terminology appropriate to summary causes (“statement of claim”) and ordinary causes (“warrant”) as well as imprecise general terminology (“writ”) which could potentially be interpreted as applying to either procedure. The Committee considers that the courts, if required to do so, could interpret the regulation as applying either to summary cause or to ordinary cause proceedings, although it would require a strained interpretation of the words which refer to the other procedure in order to do so. In the circumstances, the Committee takes the view that it would be difficult for the end user to understand exactly what is intended. The Committee considers that the meaning of the instrument would have been clearer had the Scottish Ministers used the correct terminology in framing this provision.

44. The Committee draws the instrument to the attention of the Parliament on reporting ground (h). The form or meaning of the instrument could be clearer, in that the terminology used in regulation 2 is insufficiently precise, risks confusion between different types of court procedure, and does not appear adequately to make reference either to ordinary cause or to summary cause procedure.

Town and Country Planning (Continuation in force of Local Plans) (Highland) (Scotland) Order 2012 (SSI 2012/90) (Local Government and Regeneration Committee)

45. The purpose of this Order is to continue in force certain specified provisions of the eight existing local plans for the Highland area, notwithstanding the adoption of the Highland-wide Local Development Plan. The Highland-wide plan relates to the whole of the area covered by those eight existing local development plans.

46. This Order is made under paragraph 7 of Schedule 1 to the Town and Country Planning (Scotland) Act 1997. It is not subject to any parliamentary procedure and came into force on 1 April 2012.

47. In considering the instrument, the Committee asked the Scottish Government for clarification of two points. The correspondence is reproduced in Appendix 5.

48. The Committee was content with the clarification provided by the Scottish Government in relation to its second question. It concerned paragraph 2 of Part 8 to Schedule 1 of the Order (Badenoch and Strathspey Local Plan), which refers to the provisions of the “Proposals Map”.

49. The Scottish Government has confirmed in answer to the Committee’s first question that the provisions of each of the eight local development plans are intended to continue in force only in relation to their respective smaller areas, and not the greater Highland-wide area. It considers this to be self-evident from the terms of article 2(1) of the Order, and takes the view that there is no need for further wording in the article to clarify that intention.

50. The Scottish Government also considered it appropriate to duplicate the wording used in the enabling power in paragraph 7 of Schedule 1 to the 1997 Act (as amended). The first part of the paragraph states that Ministers may “by order direct that any of the provisions of the old development plan shall continue in force in relation to the area to which the plan so approved, or as the case may be adopted, relates.”

51. The Committee considered that, while the policy intention underlying the Order is clear, it is required to consider the drafting of the Order in relation to the reporting grounds.

52. As regards the meaning and effect of article 2(1), there is a plain divergence between the position, on the one hand, that the continuation of the provisions of each of the eight local plans by the Order can only mean that they continue to apply to the area to which they currently apply and, on the other hand, the wording of article 2(1). Article 2(1) states that the provisions of the various local plans shall continue in force in relation to the whole area to which the Highland-wide LDP relates.

53. The Committee is sympathetic to the view taken in the response that the wording of article 2(1) follows exactly that in the enabling power in paragraph 7 of Schedule 1 to the 1997 Act. However, whether the wording is appropriate to be duplicated depends on the effect which is intended to be achieved by the Order (in relation to the areas of the local plan provisions to be continued in force, and how those areas relate to the area of a new local development plan). There may be other circumstances where it would be more appropriate to duplicate the wording of the enabling power. In this situation, there are eight existing local plans, covering areas within the larger Highland-wide area. The Committee considers that the Order could have made clearer the “self-evident” position – that each plan is only continued in relation to its own area.

54. The Committee also notes that it appears that it would also have been possible to have made incidental or supplemental provision to make the position clearer. Section 275(2A) of the 1997 Act permits incidental or supplemental provisions in an order.

55. The Committee draws the instrument to the Parliament’s attention under reporting ground (h) as its meaning could be clearer. The meaning of article 2(1) could be clearer in the respect that the article provides that the specified provisions of the eight local plans described in paragraphs (a) to (h) shall continue in force in relation to the area to which the Highland-wide Local Development Plan relates. The Order could have made it clearer that the continuation of the provisions of each local plan can only mean that they continue to apply in relation to their respective areas, and no further.

INSTRUMENTS REFERRED TO LEAD COMMITTEE FOR CONSIDERATION

Waste (Scotland) Regulations 2012 [draft] (Rural Affairs, Climate Change and Environment Committee)

56. The primary purpose of these Regulations is to create measures which will contribute to implementation of Scotland’s Zero Waste Plan. This will also contribute to implementation of the European Union Waste Framework Directive.

57. In particular, the regulations introduce various duties regarding the separate collection of dry recyclable waste (glass, metals, plastics, paper or card) and food waste. Further details about these duties are set out in paragraph 6 of the Executive Note.

58. The regulations also correct defective drafting reported by the Committee in respect of SSI 2011/418 in relation to permit requirements for petrol vapour recovery during refuelling at service stations.

59. The regulations also make consequential changes to the waste management licensing regime to take account of changes in the way in which animal by-products are regulated.

60. The Regulations are subject to the affirmative procedure. If approved, they will come into force on the day after the day on which they are made.

61. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 6.

62. The Committee considers that it is important that the terms of criminal offences are clear and unambiguous. These regulations create new statutory duties in relation to waste management which will be set out as sections 34(2L) and (2F) of the Environmental Protection Act 1990. Failure to discharge these duties is a criminal offence by virtue of section 34(6) of that Act. Section 34(2L) requires waste to be managed in a manner that promotes “high quality recycling”. Section 34(2H) provides an exception from the duty to present food waste separately for collection provided that “mixed waste is presented for collection in a manner that ensures that the amount of food waste collected is not significantly less than would be the case were the wastes not mixed”.

63. The Committee was concerned that these duties could lack the level of clarity which would normally be expected when outlining the scope of criminal offences. However, the Scottish Government has advised that it intends to supplement understanding of the primary duties through a code of practice to be issued under section 34(7) of the Act. Section 34(10) of the Act provides that such a code is admissible in evidence in court proceedings and is to be taken into account by the court where relevant to the proceedings.

64. The Committee accepts that it is possible to assist the interpretation of the duties through the code of practice. However, as the code is not currently available, it is not possible to assess whether the code and the new sections combined are sufficiently clear. The Committee also notes that the code is not subject to parliamentary scrutiny.

65. The Committee draws the attention of the lead committee to the duties imposed by the new section 34(2L) and (2F) as read with (2H) of the Environmental Protection Act 1990 which these regulations create. The scope of these duties will be informed by a code of practice to be issued by the Scottish Ministers which is not subject to parliamentary scrutiny. The clarity of the new offences created of failing to discharge these duties requires to be assessed in conjunction with a code of practice which is not yet available. The lead committee may wish to explore the scope of the duties and the clarity of these offences as part of its consideration of the instrument.

NO POINTS RAISED

66. At its meeting on 17 April 2012, the Committee also considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Education and Culture Committee

Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Amendment Order 2012 (SSI 2012/99)

Justice Committee

Act of Sederunt (Rules of the Court of Session Amendment) (Fees of Shorthand Writers) 2012 (SSI 2012/100)

Act of Sederunt (Fees of Shorthand Writers in the Sheriff Court) (Amendment) 2012 (SSI 2012/101)

APPENDIX 1

Public Contracts (Scotland) Regulations 2012 (SSI 2012/88)

On 23 March 2012, the Scottish Government was asked:

1) Please clarify why it appears that the list of contracting authorities in regulation 3 and Schedule 1 does not include a Health Board constituted under section 2 of the National Health Service (S) Act 1978, while a Special Health Board so constituted is included?

(2) The Schedule 1 list of contracting authorities includes the National Archives, the General Register Office for Scotland, and the Scottish Record Office. The National Archives of Scotland (NAS) were known as the Scottish Record Office before 1999, becoming an Executive Agency in 1993. On 1 April 2011, NAS merged with the General Register Office to become the National Records of Scotland.

In light of that background, why has it been considered appropriate to retain the “Scottish Record Office” in Schedule 1, and not include the “National Records of Scotland”, as contracting authorities for the purposes of the Regulations?

(3) Schedule 1 also includes the Crofters Commission. Would you agree this is an error and should have referred to the Crofting Commission, because section 1(1) of the Crofting Reform (Scotland) Act 2010 provided that the body was re-named, and this has effect on 1 April 2012 by virtue of SSI 2011/334, prior to these Regulations coming into force? Would you propose to correct this by means of an amendment?

The Scottish Government responded as follows:

We are grateful to you for highlighting the points raised and accept that there are errors within the instrument which require to be corrected.

We are preparing an amending instrument (The Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2012), which we intend to lay as soon as possible with a view to coming into force on 1 May 2012. These Regulations will address all three points you have made in your email.

APPENDIX 2

Utilities Contracts (Scotland) Regulations 2012 (SSI 2012/89)

On 23 March 2012, the Scottish Government was asked:

(1)(a) In relation to the second paragraph of the preamble, and the definition of Commission Regulation (EC) No 1564/2005 in regulation 2(1), please confirm that in accordance with the statutory pre-condition in paragraph 1A of Schedule 2 to the European Communities Act 1972, the Scottish Ministers have determined that it is necessary or expedient for the various references to that Regulation in the instrument to be construed as references to the Regulation as amended from time to time?

(b) Given that the preamble confirms that the statutory pre-condition has been implemented to make the references “ambulatory” in relation to Directives 2004/18 and 2004/17, but omits it for Regulation 1564/2005, could you comment on the effect of this omission?

(2) There appears to be an error in Schedule 5, in describing the extent of the revocation of S.S.I 2008/376, which duplicates the corresponding revocation in S.S.I 2012/88, instead of providing for revocation of those 2008 Regulations insofar as extending to the Utilities Contracts (Scotland) Regulations 2006. If you agree, would you propose to correct this by amendment?

(3) There appears to be an error in Schedule 5, so far as the substitutions made in regulations 4(d) and 6(4) to (6) of S.I. 2011/1848 have the effect that the title of these Regulations becomes “the Utilities Contracts (Scotland) Regulations 2012 2006”. If you agree, would you propose to correct this by amendment?

The Scottish Government responded as follows:

Thank you for your email regarding the Utilities Contracts (Scotland) Regulations 2012.

We are grateful to you for highlighting the points raised in your email and accept that there are errors in Schedule 5 to the instrument that require to be corrected. We are preparing an amending instrument (The Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2012) which we intend to lay as soon as possible with a view to coming into force on 1 May 2012. These Regulations will address both points you have made in your email with regards to Schedule 5 (points (2) and (3)).

With regards to point (1)(a) concerning the ambulatory reference, we confirm that the Scottish Ministers have determined that it is necessary or expedient for the references to Regulation 1564/2005 to be construed as references to the Regulations as amended from time to time. We agree that reference to these Regulations should have been included alongside reference to the Directives in relation to the ambulatory references.

Regarding (1)(b), we consider that this omission is a matter of drafting style and does not affect the material provisions of the instrument or the ambulatory reference. We therefore do not propose any further amendment.

APPENDIX 3

Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2012 (SSI 2012/108)

Breach of laying requirements: letter to Presiding Officer

The above instrument was made by the Scottish Ministers under section 2(2) of the European Communities Act 1972 on 28 March 2012. It is being laid before the Scottish Parliament today and is to come into force on 1 May 2012.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has not been complied with. In accordance with section 31(3) of that Act, this letter explains why.

The Regulations correct errors in Schedule 1 to the Public Contracts (Scotland) Regulations 2012 and Schedule 5 to the Utilities Contracts (Scotland) Regulations 2012.

The Subordinate Legislation Committee noted in its letter from 23 March 2012, that there is no entry in Schedule 1 to the Public Contract (Scotland) Regulations 2012 listing Health Boards constituted under section 2 of the National Health Service (Scotland) Act 1978. Without this amendment, Health Boards will be subject to the incorrect procurement threshold level from 1 May 2012. This is an omission which we seek to correct with this amendment. In order to fully update the listing for Health authorities, we have inserted entries for the Common Services Agency and Health Improvement Scotland for the same reason.

We are also taking this opportunity to make other amendments to address further issues identified by the Committee. We are amending Schedule 1 to reflect the merger of the National Archives for Scotland (in the Schedule listed by the name of the predecessing authority, the Scottish Records Office) with the General Register Office to create National Records of Scotland. We are also correcting minor errors in that schedule and in Schedule 5 to the Utilities Contracts (Scotland) Regulations 2012.

We believe it is necessary for the instrument to be laid and come into force breaching the 28 day rule, because the amendments refer to two instruments which will both come into force on the 1 May 2012 and the amendments are necessary for the correct functioning of those two instruments as they were intended in compliance with our obligations under European Law.

APPENDIX 4

Scottish Secure Tenancies (Proceedings for Possession) (Confirmation of Compliance with Pre-Action Requirements) Regulations 2012 (SSI 2012/93)

On 23 March 2012, the Scottish Government was asked:

1. Section 14(1) of the Housing (Scotland) Act 2001 provides that the landlord under a Scottish secure tenancy may raise proceedings by way of summary cause for recovery of possession of the house. In terms of rule 4.1 of the Summary Cause Rules 2002, a summary cause action shall be commenced by summons. Furthermore, the summons requires to be authenticated by the sheriff clerk in terms of rule 4.4(1), or failing that by the sheriff in terms of rule 4.4(2), the authenticated summons being warrant for service (rule 4.4(3)). The Scottish Government is accordingly asked to explain:

a) why regulation 2 of these Regulations uses the terminology appropriate to an ordinary cause (“writ”, instead of summons, and “warrant” instead of authentication), when an action for possession under section 14 proceeds by way of summary cause?

b) whether the Scottish Government considers that these Regulations have any effect, given that no writ is lodged for warranting in a summary cause?

c) if the Scottish Government’s position is that “writ” and “warrant” require to be given an expansive reading such that these terms might encompass “summons” and “authentication” respectively, on what basis does it reach that conclusion, and is the intention sufficiently clear?

The Scottish Government responded as follows:

The Scottish Government does not consider that the use of the word “writ” or “warrant” will cause any difficulty in the operation of the Regulations.

Court action is commenced by service of court papers, which are commonly referred to as a “writ”. "Summons" is simply the more specific term for the writ that initiates a court action using the summary cause procedure. The more specific term for the type of writ that initiates an ordinary cause action or a summary application is an “initial writ”, normally referred to using both words to show the type of writ it is.

By way of illustration, the Summary Cause Rules contain a Glossary at Appendix 2, which includes definitions of both summons and writ: -

a summons - the form which must be filled in to begin a summary cause;

a writ - a legally significant writing.

As a further illustration of how the terms are understood and used, Lord Macphail (in his book Sheriff Court Practice, 3rd Edition) writes at para 31.68: -

"The initiating writ in a summary cause action is a summons".

An example of a generic use of “writ” in legislation can be found at section 32(1) of the Solicitors (Scotland) Act 1980, which makes it an offence for an unqualified person “to draw or prepare any writ relating to any action or proceedings in any court”. The term is undefined in that Act, but would not be understood as allowing an unqualified person to prepare a summons in relation to a summary cause and to be restricted in its application only to actions that were initiated by “initial writ”.

The Scottish Government does not consider that the use of a more generic term will give anyone operating the Regulations a difficulty in understanding what it refers to.

On the “warrant” aspect of the questions, the reference in the instrument to "a writ submitted for warranting" can only in practice refer to the document that is the subject of an application for a summons, and again the Scottish Government cannot see any difficulty with this aspect of the wording.

Although a Sheriff Clerk “authenticates” a summons, Rule 4.4 of the Summary Cause Rules 2002 provides that the authenticated summons is warrant for service of the summons and warrant for arrestment in relation to the remedies it seeks. The landlord’s purpose in submitting the writ to the court is to commence action by serving the writ on the tenant, and possibly also to pursue arrestment, not authentication of the writ in some abstract sense. The applicant wants warrant to proceed with an action in the usual way based on the authentication of the summons. The wording used is readily understood by practitioners. The alternative wording suggested in the question could have been used and would have the same effect. The wording is not capable of being understood to refer to any other process.

As the Executive Note records, there was consultation in the preparation of the instrument. Those consulted included the Legal Services Agency and a firm of solicitors who undertake repossessions work, neither of whom indicated any difficulty with the wording that has been used.

APPENDIX 5

Town and Country Planning (Continuation in force of Local Plans) (Highland) (Scotland) Order 2012 (SSI 2012/90)

On 23 March 2012, the Scottish Government was asked:

1. The power in paragraph 7 of Schedule 1 to the 1997 Act (read with paragraph 6) enables the Scottish Ministers to direct that so much of an old development plan as relates to the area to which a newly adopted Local Development Plan (“LDP”) relates will continue in force, instead of ceasing to have effect. Please explain—

(a) Why does article 2(1) specify that provisions of the various Local Plans shall continue in force in relation to the whole area to which the Highland-wide LDP relates, given that it appears evident from the article that the 8 local plans which will continue in force each relate to smaller areas within the Highland-wide LDP area; and the power could be exercised to continue the plans in force in relation to their respective areas?

(b) Given that the power in paragraph 7 enables the provisions of the old Plans to continue in force to the extent specified in the Order, would the meaning and effect of the provision have been clearer if provision had been made to the effect that the existing local plans are continued in relation to their respective areas, rather than relating to the whole Highland-wide area?

2. Paragraph 2 of Part 8 to schedule 1 of the Order (Badenoch and Strathspey Local Plan) refers to the provisions of the “Proposals Map”. From inspection of the local plan on the website referred to in the footnote on page 1, it appears that the provisions are in the “Strategy Diagram”? Is this agreed to be an error, or can it be clarified where this Proposals Map can be viewed?

The Scottish Government responded as follows:

1(a) and (b). In drafting the Order the Scottish Government had considered the questions raised but had concluded that it was unnecessary and undesirable to introduce extraneous wording which would have no additional effect on the operation of the provisions.

Paragraph 6 of Schedule 1 to the Town and Country Planning (Scotland) Act 1997 provides that on the adoption of a local development plan the provisions of an old development plan shall cease to have effect to the extent to which those provisions relate to the area covered by the adopted local development plan. The local plans listed in article 2(1) of the Order are old development plans. Paragraph 6 is, however, subject to Paragraph 7. This confers on the Scottish Ministers the power to direct that the provisions shall continue in force in relation to the area to which the adopted local development plan relates, in this case Highland-wide Local Development Plan (“the HwLDP”). The provisions of the local plans specified in the Order shall continue in force (to the extent specified in the order) if the Scottish Ministers make such a direction. Article 2(1) therefore states, following the manner in which the power in paragraph 7 is framed, that the specified provisions shall continue in force in relation to the area to which the HwLDP relates.

It is considered that it is self-evident that the continuation of the provisions of a local plan by the Order could only mean that they would continue to apply to the area to which they currently apply. It is therefore wholly unnecessary to state in the Order that the provisions are only continued in force in relation to the areas of the particular individual local plans. It is not considered that the inclusion of any such provision would have made the meaning and effect of the Order any clearer. There would have been no purpose in the inclusion within the Order of a provision which stated that the provisions of a local plan would not apply in relation to an area to which that local plan did not relate. The provision of the local plans could only ever apply to the area to which they relate.

2. The Badenoch and Strathspey Local Plan is a local plan prepared under Part 2 of the Town and Country Planning (Scotland) Act 1997 (“the 1997 Act”) before it was replaced by the new provisions inserted by section 2 of the Planning etc. (Scotland) Act 2006. In terms of section 11(3) of the old Part 2 a local plan is to consist of a written statement setting out the planning authority’s proposals for development and use of land and (under section 11(3)(b)) a map showing those proposals. Section 11(3) of the 1997 Act re-enacted with modifications section 9(3) of the Town and Country Planning (Scotland) Act 1972. In terms of regulation 26 of the Town and Country Planning (Structure and Local Plans)(Scotland) Regulations 1983 (SI 1983/1590) the map comprised in a local plan in compliance with section 11(3) ‘shall be called the proposals map’. It is permissible for inset maps to be contained in or accompany the proposals map to show policies or proposals in greater detail. Any such policies or proposals shown on an inset map are deemed to be shown on the proposals map. The 1983 Regulations are continued in force for the purposes of these local plans by SSI 2008/427.

The reference to the proposals map in the Order is not an error. It is the correct terminology for maps contained in a local plan by virtue of section 11(3) of the 1997 Act. The proposals map forming part of the Badenoch and Strathspey Local Plan is comprised of the maps, including the “Strategy Diagram” made available on the planning authority’s website as specified in the Order.

APPENDIX 6

Waste (Scotland) Regulations 2012 (SSI 2012/draft)

On 23 March 2012, the Scottish Government was asked:

1. To explain the meaning of “a manner that promotes high quality recycling” in the duty imposed by new section 34(2L) of the Environmental Protection Act 1990 and whether it is considered the meaning of that expression is sufficiently precise for those to whom the duty applies to be clear what they must do to discharge that duty since failure to do so could render them liable to prosecution under section 34(6);

2. To explain the intended effect of new section 34(2H) of the 1990 Act and whether it is considered the meaning of that expression is sufficiently precise for those to whom the duty in section 34(2F) applies to be clear what they must do to take advantage of the option to depart from section 34(2F) set out in section 34(2H) since failure to discharge the duty in section 34(2F) could render them liable to prosecution under section 34(6).

The Scottish Government responded as follows:

1. The Scottish Government considers that the nature of a duty to manage waste in a manner that promotes high quality recycling will be readily understood in the waste management sector.

For example it considers that a person who compacts separately collected dry recyclable waste will fail in the duty to promote high quality recycling, if the waste is compacted to such an extent that it cannot be accepted for recycling at a materials recovery facility (and might therefore require to be incinerated).

Further, the Scottish Government intends to give guidance in respect of this duty in a code of practice issued under section 34(7) of the Environmental Protection Act 1990 as proposed to be amended by these Regulations, which will assist relevant persons subject to the duty to take all steps necessary to discharge the duty and so avoid the penalty.

Section 34(10) of that Act provides that the code shall be admissible in evidence in court proceedings and that the court shall where relevant take it into account.

The Scottish Government therefore considers that the meaning of the expression is sufficiently precise for those to whom the duty applies.

2. The Scottish Government intends that the derogation should only be available where mixed collection does not materially affect their primary objective of ensuring a reliable supply of good quality food waste from food businesses for recycling.

It therefore considers, having regard to that objective, that it should be for the person seeking to rely on the derogation to show that the amount of food waste in a mixed collection is not significantly less than would be the case were food waste separately collected.

The Scottish Government considers that it will be possible for persons subject to the food waste duty in section 34(2F) of the 1990 Act who wish to take advantage of the derogation to assess whether a mixed waste collection will meet the specified criteria, and therefore that the meaning of the derogation will be sufficiently clear in respect of any particular food waste source.

Further, and to assist persons subject to the food waste duty, the Scottish Government intends to issue guidance in respect of that duty otherwise as set out in answer 1 above. That guidance will cover the scope and requirements of the derogation.

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