32nd Report, 2012 (Session 4): Subordinate Legislation

SP Paper 159 (Web Only)

SL/S4/12/R32

32nd 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 12 June 2012, the Committee agreed to draw the attention of the Parliament to the following instruments—

National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/163);

Parole Board (Scotland) Amendment Rules 2012 (SSI 2012/167);

Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 10 and Saving Provisions) Order 2012 (SSI 2012/160 (C.15)); and

Bluetongue (Scotland) Amendment Order 2012 (SSI 2012/184).

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

3. The instruments that the Committee determined that 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

National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/163) (Health and Sport Committee)

4. These technical amending Regulations have two main purposes, as well as making some other miscellaneous amendments.

5. First, the Regulations make amendments to the NHS superannuation scheme in connection with changes made by the Finance Act 2011. These changes relate to (a) an individual’s annual allowance in respect of year on year increases to pension savings, before those savings incur a tax charge (an annual allowance charge); (b) a new requirement that, in certain circumstances, the scheme must pay an annual allowance charge and reduce individual benefits accordingly; (c) an individual’s lifetime allowance in respect of total pension savings before those savings incur a tax charge, and the process by which an individual can protect that allowance at the current value; and (d) the determination advice by medical advisors as to whether an individual meets a severe ill-heath condition, as referred to in section 229 of the Finance Act 2004.

6. Secondly, the Regulations introduce amendments in connection with the introduction of the Isle of Man Unified Public Service Pension Scheme on 1 April 2012. These changes mean that dedicated pension transfer arrangements for staff moving from the NHS in the Isle of Man to the NHS in Scotland are discontinued, in respect of staff joining on or after 1 April 2012. Provisions which abate and suspend pensions on re-employment in the Isle of Man after retirement are also discontinued.

7. The Regulations are subject to negative parliamentary procedure and are due to come in to force on 28 June 2012. However, some provisions have retrospective effect, on various dates, as set out in regulation 1. Retrospective effect of these Regulations, before the coming into force date, is permitted by section 12 of the Superannuation Act 1972.

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

9. The Committee’s first question sought explanation as to the dates when regulations 27 to 29 have effect, and clarification of when they are intended by the Scottish Government to have effect.

10. The Committee is content with the clarification provided in the response as regards the retrospective effect date of regulation 29. That regulation specifically has effect from 11 August 2011, by regulation 1(6).

11. Regulation 27 introduces the amendment made by regulation 28 and 29. These are amendments to the National Health Service (Scotland) (Injury Benefits) Regulations 1998. Regulation 28 corrects a drafting error which the Committee reported on in relation to the earlier amending regulations SSI 2011/364.

12. Regulation 1(2) to (10) set out when these Regulations come into force, and when they have retrospective effect. Regulation 1(2) provides that the Regulations come into force on 28 June 2012 “and, except as provided in paragraphs (3) to (10), have effect from that date.”

13. Regulation 1(3) provides that regulation 27 has effect from 1 April 2008. However, that regulation introduces the amendments made by both regulations 28 and 29. Regulation 28 is not referred to in regulation 1(3) to (10), so that regulation 1(2) indicates that the effective date of regulation 28 is 28 June 2012.

14. The Scottish Government’s response contends that the interaction between the provisions is clear, as to the effective dates for regulations 27 to 29. It is contended that it is clear from the drafting that regulations 27 and 28 take effect on 1 April 2008, and regulation 29 takes effect on 11 August 2011. In relation to regulation 28, however, the Committee does not agree that the effect is clear or that the drafting implements clearly the Scottish Government’s intention of 1 April 2008 as the effective date.

15. The Committee considers that it is particularly important to specify clearly if it is intended that regulations should have retrospective effect.

16. Regulation 1(2) provides that regulation 28 has effect from 28 June 2012. However, regulation 27 introducing the amendment has effect from 1 April 2008. Only regulation 28 has the operative terms of the amendment. The Committee considers that that inconsistency can be readily clarified by making an amendment.

17. The Scottish Government’s response on the Committee’s second question acknowledges that there is a patent drafting error in regulation 7(c), (inserting regulation T3(10) in the 2011 Regulations), as the reference to section 273C of the Finance Act 2004 should refer to section 237C.

18. The inserted regulation T3(10) provides (generally) that certain scheme members can give a notice to the scheme administrator, specifying that the administrator and member are to be jointly liable for the payment of the annual allowance charge which may be due in respect of that member in accordance with section 237B of the 2004 Act. That provision is stated to be subject to section 273C of the 2004 Act.

19. The Committee agrees with the Scottish Government’s view that this is a patent error, given that there is no section 273C. The Committee also noted that it is proposed to correct the error by means of a printing correction slip.

20. The Committee draws the instrument to the attention of the Parliament on reporting ground (i) as regulation 1 appears to be defective in that it does not specify 1 April 2008 as the date from which regulation 28 will have effect, which is the Scottish Government’s intention. Instead, since specific provision is not made as regards the effect of regulation 28 in paragraphs (3) to (10) of regulation 1, regulation 1(2) provides for regulation 28 to have effect from 28 June 2012.

21. The Committee considers that it is particularly important to specify clearly if it is intended that regulations should have retrospective effect. The Committee therefore considers that, for regulation 28 to have effect as the Scottish Government intended, regulation 1 requires to be amended to make specific provision for the correct date when regulation 28 is to take effect.

22. The Committee also draws the instrument to the attention of the Parliament under the general reporting ground. It contains a drafting error in new regulation T3(10) of the National Health Service Superannuation Scheme (Scotland) Regulations 2011, inserted by regulation 7. The reference to “section 273C of the 2004 Act” should be to section 237C of the 2004 Act. The Committee accepts the Scottish Government’s view that, notwithstanding this typographical error, regulation T3(10) is likely to be construed as intended.

Parole Board (Scotland) Amendment Rules 2012 (SSI 2012/167) (Justice Committee)

23. This instrument amends the Parole Board (Scotland) Rules 2001 (“the principal Rules”) in order to change the requirements for the composition of a Board to hear particular types of cases. It also makes provision in relation to the calculation of time periods, electronic communication with the Parole Board for Scotland (“the Board”), and the materials which the Scottish Ministers are required to submit to the Board in certain cases.

24. The instrument is subject to negative parliamentary procedure and comes into force on 26 June 2012.

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

26. The principal Rules set out in detail how the Board operates when considering whether prisoners should be released from prison on licence. These Rules amend the principal Rules in a number of ways, but in particular they alter the composition of the Board.

27. At present, any three members of the Board designated by the chairman may sit to dispose of a particular case under Part III of the principal Rules. If an oral hearing is to take place, a legally qualified Board member must chair it. Separate provisions apply to Part IV cases where the Board is considering the release on life licence of a life sentence prisoner. These Rules are intended to alter the composition of the Board in Part III cases.

28. It appears to the Committee that the Scottish Ministers intended to amend rule 14 of the principal Rules so that the Board could sit with a quorum of two members in Part III cases (unless an oral hearing was required, in which case the quorum would be three). However, it considers that rule 14(2), as amended by these Rules, instead gives the chairman of the Board a discretion to appoint any two (but only two) members of the Board to dispose of a case, in lieu of his current discretion to appoint any three (but only three) members. It appears that, as rule 14 would stand, either the chairman could exercise his discretion (and appoint two members to determine a case) or it could be dealt with by the full Board. In the Committee’s view, this does not achieve the Ministers’ stated policy intention of enabling the Board to sit with two or more members in these cases.

29. In their response to the Committee, the Scottish Ministers accept that rule 7 of these Rules, which amends rule 14 of the principal Rules, does not adequately deliver their intended policy. They indicate that they intend to lay a corrective instrument which will revoke and replace rule 7 with a new rule to take account of the Committee’s concerns.

30. The Committee draws the instrument to the attention of the Parliament on reporting ground (i). Rule 7 of these Rules appears to be defectively drafted. It amends rule 14(2) of the Parole Board (Scotland) Rules 2001 so that the chairman of the Parole Board may appoint any two members of the Board to deal with a case. However, it appears that the Scottish Ministers’ policy intention was to enable the Board to sit with a quorum of two (and hence with more than two members in certain circumstances).

31. The Committee welcomes the Scottish Ministers’ commitment urgently to lay a corrective instrument which will revoke and replace rule 7 to address the issues identified by the Committee.

POINTS RAISED: INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 10 and Saving Provisions) Order 2012 (SSI 2012/160 (C.15)) (Justice Committee)

32. The purpose of this instrument is to commence sections 168 to 171 of, and consequential provisions in Schedule 7 to, the Criminal Justice and Licensing (Scotland) Act 2010 (“the 2010 Act”). The provisions come into force on 25 June 2012, but by article 3 are applied to criminal proceedings commenced on or after that date, irrespective of the date when an offence was committed.

33. The instrument is not subject to any parliamentary procedure.

34. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 3.

35. The Committee reports on two matters in relation to this instrument. The Committee accepted the clarification provided in the Government’s response in relation to the questions in paragraphs 4(a) and 4(b) in Appendix 3.

The meaning of article 3

36. In relation to section 168 of the 2010 Act (so far as inserting section 51B of the 1995 Act) and section 171 of that Act (so far as abolishing the plea of diminished responsibility) (“the provisions”), article 3 brings the provisions into force on 25 June 2012, and applies them to proceedings on or after 25 June 2012. It is specifically stated that the new provisions will apply irrespective of when the offence was committed. The provisions are therefore specifically applied to conduct which took place prior to commencement by an ancillary incidental provision.

37. In contrast, article 4(2) provides that, in relation to proceedings on or after 25 June in respect of conduct which took place before that date, the existing common law of diminished responsibility is to continue to apply. The case is to proceed as if the new provisions were not commenced.

38. The Committee therefore sought an explanation why article 3 required to apply those provisions from 25 June 2012 to offences committed prior to that date by additional ancillary provision, rather than article 4(2) alone providing for the saving and incidental application provision. The Committee also asked how this apparent contradiction between the articles is resolved, so that only article 4(2) must be given effect.

39. The Government’s response contends, in essence, that the drafting of article 3 follows a “standard” approach in relation to the commencement of provisions, and then savings. However, article 3 is not a “standard” commencement provision. It adds within the same sentence an incidental application provision which has a significant effect. It is therefore a commencement provision in a relatively unusual form.

40. The plain meaning of article 3 taken alone is that, as noted in paragraph 36, it brings the provisions into force on 25 June 2012, and then applies them to proceedings on or after 25 June 2012 – regardless of when the offence was committed.

41. The meaning of article 3, in that respect, is in contrast to the clear saving effect of article 4(2). Article 4(2) provides that, in relation to those proceedings and those offences committed before 25 June 2012, the provisions are not commenced, and the common law of diminished responsibility continues to apply.

42. The Committee accepts the Government’s view that considering the instrument as a whole a court would be likely to give effect to the saving provision in article 4(2). Nevertheless, it considers that the meaning of the instrument could be clearer, due to the tension described above, between articles 3 and 4.

The procedure applying to the instrument

43. The Committee’s questions 1 to 3 were directed at the enabling power which the Scottish Government is relying on to make the savings provisions in article 4 of the Order.

44. Section 201(2) of the 2010 Act contains a general ancillary power. This states that any power to make regulations or an order under the 2010 Act includes a power to make “(a) such incidental, supplementary, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient”.

45. Section 205(1) of the 2010 Act contains a “tailor made” power to make ancillary provisions in commencement orders under the Act. Commencement orders are not subject to parliamentary procedure, but the exercise of the more specific power in section 205(1) is subject to the negative procedure.

46. The Scottish Government has chosen to use the section 201(2) power and not the section 205(1) power to make the savings provisions in article 4 (and has laid the Order together with a covering note explaining to Parliament that it is not subject to procedure.) It is particular to the drafting of the 2010 Act that there is in effect a choice of which powers can be used to make article 4 of the Order, and also the procedure which applies.

47. The Committee accepted that, apart from the citation of the appropriate powers in the preamble, this procedural aspect does not affect the terms of this Order. It is accepted that this does not affect the validity and vires of the Order.

48. However, the Committee’s predecessor in Session 3, in its 69th report of 2010, reported on this aspect in relation to the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 6, Transitional and Savings Provisions) Order 2010 (SSI 2010/413). The Committee reported:

“While the Committee accepts this Order is intra vires, in general where an enabling Act provides for a particular power to make transitional or savings provisions in connection with the coming into force of the provisions of the Act (such as in section 205(1)), then the Committee would expect that power to be used to make such provisions, rather than any more general powers (such as in section 201(2)(a)). The Committee notes that, as a result of the Scottish government’s choice of power, there is no Parliamentary scrutiny of the ancillary provisions, when had section 205(1) been used the provisions would have been subject to negative procedure.”

49. The Government has therefore not followed that expectation in making this Order. The Committee reiterates the terms of the earlier report – and the expectation mentioned in it.

50. The Committee draws this instrument to the attention of the Parliament on reporting ground (h) as the meaning of the instrument could be clearer. The plain meaning of article 3 contradicts the saving provision made by article 4(2). Article 3 applies the commencement of sections 168 and 171 of the Criminal Justice and Licensing (Scotland) Act 2010 on 25 June 2012 to criminal proceedings which are commenced on or after that date, in relation to offences committed before that date. Article 4(2) disapplies the commencement of section 168 (so far as inserting section 51B of the Criminal Procedure (Scotland) Act 1995 (diminished responsibility)) and section 171 (so far as abolishing the plea of diminished responsibility) in relation to those proceedings, where the offence was committed before that date.

51. The Committee also draws this instrument to the attention of the Parliament on the general reporting ground. In relation to the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 6, Transitional and Savings Provisions) Order 2010, the Committee reported in October 2010 that:

“in general where an enabling Act provides for a particular power to make transitional or savings provisions in connection with the coming into force of the provisions of the Act (such as in section 205(1)), then the Committee would expect that power to be used to make such provisions, rather than any more general powers (such as in section 201(2)(a)). The Committee notes that, as a result of the Scottish Government’s choice of power, there is no Parliamentary scrutiny of the ancillary provisions, when had section 205(1) been used the provisions would have been subject to negative procedure.”1

52. While the Committee accepts that this Order is intra vires, it notes that the Scottish Government has not followed the expectation in that report in making this Order. It reiterates those terms of the report.

53. Furthermore, the Committee notes that, again as a result of the Scottish Government’s choice of power, there is no parliamentary scrutiny of the saving provisions in article 4, when, had section 205(1) been used, the provisions would have been subject to negative procedure.

Bluetongue (Scotland) Amendment Order 2012 (SSI 2012/184) (Rural Affairs, Climate Change and Environment Committee)

54. This Order implements Commission Implementing Regulation (EU) number 456/2012. It does so by making a technical amendment to the Bluetongue (Scotland) Order 2008.

55. The instrument is not subject to any parliamentary procedure and came in to force on 5 June 2012.

56. In considering the instrument, the Committee also considered the explanation that the Scottish Government provided in its letter to the Presiding Officer for its failure to lay the instrument before it has come into force. The correspondence is reproduced in Appendix 4.

57. The Committee was content with that explanation. However, while it does not affect the validity or operation of the instrument, there has been a failure to lay the Order before it has come into force, as required by section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. This automatically means that the Committee should report on the instrument under the reporting ground (j).

58. The Committee therefore draws the instrument to the attention of the Parliament under reporting ground (j), as there has been a failure to lay the instrument before it has come into force, as required by section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

59. The Committee does, however, find the explanation provided by the Scottish Government in the letter to the Presiding Officer of 6 June 2012 for this failure to be acceptable.

NO POINTS RAISED

60. At its meeting on 12 June 2012, the Committee also considered the following instruments and determined that it did not need to draw the attention of the Parliament to any instrument on any grounds within its remit:

Education and Culture Committee

Individual Learning Account (Scotland) Amendment Regulations 2012 (SSI 2012/172)

Health and Sport Committee

Sports Grounds and Sporting Events (Designation) (Scotland) Amendment Order 2012 (SSI 2012/164)

Adults with Incapacity (Requirements for Signing Medical Treatment Certificates) (Scotland) Amendment Regulations 2012 (SSI 2012/170)

National Health Service (Travelling Expenses and Remission of Charges) (Scotland) (No. 2) Amendment Regulations 2012 (SSI 2012/171)

Infrastructure and Capital Investment Committee

Property Factors (Scotland) Act 2011 (Commencement No. 2 and Transitional) Order 2012 (SSI 2012/149 (C.12))

Property Factors (Registration) (Scotland) Regulations 2012 (SSI 2012/181)

Justice Committee

Licensed Legal Services (Interests in Licensed Providers) (Scotland) Regulations 2012 (SSI 2012/154)

Local Government and Regeneration Committee

Town and Country Planning (Development Management Procedure) (Scotland) Amendment Regulations 2012 (SSI 2012/165)

Rural Affairs, Climate Change and Environment Committee

European Fisheries Fund (Grants) (Scotland) Amendment Regulations 2012 (SSI 2012/166)

Poultry Health Scheme (Fees) (Scotland) Regulations 2012 (SSI 2012/176)

Animal By-Products (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/179)

Leader Grants (Scotland) Amendment Regulations 2012 (SSI 2012/182)

Marine Licensing (Fees) (Scotland) Amendment Regulations 2012 (SSI 2012/183)

APPENDIX 1

National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/163)

On 30 May 2012, the Scottish Government was asked:

(1) Regulation 1 provides that regulation 27 has effect from 1 April 2008. However that regulation introduces the amendments made to the National Health Service (Scotland) (Injury Benefits) Regulations 1998 by regulations 28 and 29. Regulation 1 also provides that regulation 28 has effect from 28 June 2012, and regulation 29 has effect from 11 August 2011.

(a) Could you clarify on which dates it is intended that regulations 27 to 29 have effect?

(b) Could the provisions be clearer, if it is intended that regulation 28 has effect from 1 April 2008 rather than 28 June 2012 - consistently with regulation 27 having effect on 1 April 2008?

(c) Could the provisions be clearer, in respect that regulation 27 amends SI 1998/1594 in accordance with regulation 29 and has effect from 1 April 2008, but regulation 29 has effect from 11 August 2011? Why is it appropriate that regulation 27 has effect before 29, rather than on the same date?

(2) In regulation 7(c), (inserting regulation T3(10) in the 2011 Regulations), is the reference to section 273C of the 2004 Act an error, and should it refer to section 237C, as there is no section 273C? Assuming you agree, would you propose to correct this by an amendment?

The Scottish Government responded as follows:

(1a). Regulations 27 and 28 are to take effect on 1st April 2008. Regulation 29 is to take effect on 11th August 2011.

(1b). Regulation 1(2) is clear that the regulations have effect from 28th June 2012 except as provided in paragraphs (3) to (10) of that regulation. The exception in paragraph (3) provides that regulation 27 has effect from 1st April 2008. Since regulation 27 applies the amendment in regulation 28 it is clear that regulation 28 also has effect from 1st April 2008.

(1c). Although regulation 27 (which has effect from 1st April 2008) applies the amendments in regulation 29, the specific exception in regulation 1(6) makes it clear that regulation 29 is to have effect from 11th August 2011 as opposed to 1st April 2008. The same effect could be achieved in other ways but we think that the effect of these provisions is clear.

(2).The inserted provision should refer to section 237C instead of section 273C. Since it is clear from the context (and the absence of section 273C) that the provision is intended to refer to section 237C, we think that a court will construe that it refers to section 237C. In any event, the inserted provision applies only in relation to charges that are “due”. Since those charges will not be due if the exceptions in section 237C apply, the inserted provision will have the same effect. We will however rectify this error by correction slip.

APPENDIX 2

Parole Board (Scotland) Amendment Rules 2012 (SSI 2012/167)

On 31 May 2012, the Scottish Government was asked:

1. Rule 7 of these Rules amends rule 14 of the Parole Board (Scotland) Rules 2001 (“the principal Rules”) and, in particular, rule 14(2) is amended so that any case (other than a case to be dealt with by way of an oral hearing under rule 15A) may be dealt with by any 2 members of the Board appointed by the chairman for that purpose. Rule 14(2) accordingly appears to confer a discretion to appoint 2 members of the Board to deal with a case. However, it appears from subsequent provisions (and the Explanatory Note) that the intention is that 2 is the minimum number of members required to deal with a case, but that the Board might be constituted by a greater number of members. Standing the discretionary nature of rule 14(2) (and hence the possibility of the whole Board considering a matter if that discretion is not exercised), the Scottish Government is asked to explain the basis for relying on rule 14(2) to appoint more than 2 members to deal with a case.

2. Rule 14(6) of the principal Rules refers to the appointment under paragraph (2) of Board members for the purposes of a rule 15A hearing. Given the insertion of the words “other than a case that is to be dealt with by way of an oral hearing under rule 15A” into rule 14(2) by rule 7(b)(ii) of these Rules, the Scottish Government is asked to explain how rule 14(2) can be used to appoint members of a Board for the purposes of rule 15A.

3. Rule 14(7) of the principal Rules applies subject to rule 14(8), which is inserted by these Rules. As rule 14(7) appears only to apply in relation to members of the Board who have been appointed under rule 14(2) (and hence where the Board is constituted by 2 members), the Scottish Government is asked to explain how rule 14(7) could ever apply without rule 14(8) being triggered, and what purpose the alternatives in rule 14(7)(a) and (b) then serve as rule 14(8) would appear to override them.

4. Rule 15H of the principal Rules is amended to provide for the situation where the Board appointed for a rule 15A hearing (which would ordinarily have 3 members) has been reduced to 2. As before, rule 14(7) in relation to absent members appears only to apply in relation to members of the Board who have been appointed under rule 14(2). The Scottish Government is accordingly asked to explain how the newly-inserted rule 15H(3) could have effect, and the basis for the Board appointed for a rule 15A hearing reducing from 3 to 2 members.

5. Rule 16 of the principal Rules is substituted in its entirety by rule 13 of these Rules. Rule 16(2) refers to the situation where a Board constituted by 2 members cannot reach a unanimous decision, and obliges the chairman to appoint a third member “in terms of rule 14(2)”. The Scottish Government is asked to explain why rule 14(2) is considered to give a power to appoint a third member.

The Scottish Government responded as follows:

We accept the Committee’s points on this instrument and accept that the drafting of S.S.I. 2012/167, in particular rule 7, does not adequately deliver the intended policy, which is to allow the Board to operate with a quorum of 2 in certain cases. We apologise for that, and are grateful to the Committee for pointing out the issue.

It is our view that the issues raised all flow from the amendments made to rule 14(2) of the principal rules by rule 7 of S.S.I. 2012/167. We propose to address these issues by urgently laying a further set of amendment rules to revoke and replace rule 7 of the present rules with a new rule that takes account of the Committee’s points.

It is anticipated that only a small amount of re-drafting will be required to correct the issues that the Committee have raised. In particular, we will seek to -

  • Clarify the relationship between rule 14(2) of the principal rules and other rules (as amended by S.S.I. 2012/167), in particular rules 14(7), 14(8), 15H and 16;
  • Make clear in what circumstances and on what basis the Board can appoint further members to deal with a case.

APPENDIX 3

Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 10 and Saving Provisions) Order 2012 (SSI 2012/160 (C.15))

On 25 May 2012, the Scottish Government was asked:

1. Section 205(1) of the 2010 Act contains the express power to make savings provisions in connection with a commencement order. Would you agree that section 205 is being relied on to make the savings in article 4, and so should have been cited in the preamble? Otherwise, given that a specific power is conferred for this purpose, why is article 4 considered to be a proper and usual exercise of the powers in section 201 and 206?

2. Section 201(3) provides that commencement of provisions under section 206 is not subject to procedure (laid only), but an order using the powers in section 205 is subject to the negative procedure. Assuming you agree that the powers in section 205 are being relied on, would you agree that the whole provisions of this order are made in reliance of the power to combine negative and “laid only” provisions in section 33 of the Interpretation and Legislative Reform (S) Act 2010 (“ILRA”), and so the instrument is subject to the negative procedure?

3. If it is agreed that section 205 of the 2010 Act and section 33 of ILRA should have been included in the preamble as enabling powers, please explain the effect of the omission, given that the preamble does not include reference to other enabling powers available to make the instrument?

4. Article 3 applies the commencement of provisions to criminal proceedings commenced on or after 25 June 2012, irrespective of the date the offence was committed. However sections 168 and 171 of the 2010 Act provide for new statutory tests in relation to the special defence available to persons who lack criminal responsibility by reason of mental disorder at time of committing the offence; the plea of diminished responsibility; and the abolition of all common law rules on the special defence of insanity and the plea of diminished responsibility. These are substantive matters of criminal responsibility and penalty, rather than procedure. It appears that article 3 would have the effect of altering the substantive rules on criminal liability, in relation to relevant acts or omissions constituting offences committed before 25 June.

a. Could you fully explain why the commencement powers in section 201 and 206 of the 2010 Act permit the application of sections 168 and 171 to acts or omissions constituting offences which were committed before the date this order comes into force, and so in a different manner?

b. Could you explain whether and how, in consequence of the application of sections 168 and 171 to offences committed before 25 June 2012, any persons could be convicted of an offence, or subject to a higher penalty, who would not otherwise have been convicted if applying the law applicable to the relevant acts or omissions when done? If so, could you fully explain why the application provision in article 3 complies with article 7(1) of the European Convention on Human Rights, which prohibits the retrospective application of offences, so as to penalise conduct which was not criminal at the time when the relevant act or omission occurred?

The Scottish Government responded as follows:

1. As cited in its preamble, the Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No 10 and Savings Provisions) Order 2012 (‘the Order’) is made under the powers conferred by sections 201(1), (2) and 206(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (‘the Act’). In particular, saving provision is competently included in the Order by virtue of the reference in the preamble to section 201(2) of the Act. Section 201(2) enables the Scottish Ministers to make ‘such incidental, supplementary, consequential, transitional, transitory or saving provision’ in an order as they consider necessary or expedient.

As such, we do not agree that it was necessary for section 205 (Transitional provision etc) of the Act to be cited in the preamble of the Order Act to enable the making of saving provision. Indeed, we note that the following commencement orders made under the Act all included transitional or saving provision and none cited section 205 in their preambles: SSI 2010/385 and 413, 2011/157 and 178, 354. In this context, the saving provision made relates directly to the coming into force of the Act. As such in our view it was appropriate to include them in this Order rather than in a separate Order made under section 205(1). In other contexts, citation of section 205(1) may be necessary or appropriate and in particular, when textually amending an enactment.

2 & 3. In light of our reply to question 1, these questions do not require to be answered.

4a. As already explained, the Order has been made under authority of section 201(2) of the Act (amongst other powers). Section 201(2) of the Act enables the Order to contain saving provision. It also confers power to make different for different purposes.

4b. Before addressing the issue you raise, it may be helpful to explain our approach to commencement. In general terms, the provisions commenced by the Order will apply to any criminal proceedings begun on or after 25th June 2012, even if the conduct giving rise to the proceedings occurred before that date (Article 3). We have excepted from that general approach, changes made to the common law of diminished responsibility (Article 4(2)). The common law of diminished responsibility will continue to apply to proceedings commenced on or after 25th June 2012 where the conduct giving rise to the proceedings occurred before that date. In our view, it was necessary to adopt this approach in relation to diminished responsibility as developments in the common law since the Act received Royal Assent gave rise to the possibility that the abolition of the common law rules and the substitution of the provisions to be inserted as section 51B of the Criminal Procedure (Scotland) Act 1995 might have had the effect of making the plea of diminished responsibility unavailable in circumstances where it would otherwise have been available. The effect of Article 4(2) is to ensure that in those cases the common law of diminished responsibility will continue to have effect.

As such, the issue that you have identified arises only in relation to the abolition of the special defence of insanity and the application of section 168 of the Act. The provisions in section 168 that are to be inserted as section 51A of the Criminal Procedure (Scotland) Act 1995 replicate, in all material respects, the terms of the draft provision proposed by the Scottish Law Commission (‘the Commission’) in its Report on Insanity and Diminished Responsibility published in July 2004. In paragraph 5.66 of that Report, the Commission considers the issue raised. It states that the changes recommended to the special defence of insanity ‘do not have the effect of imposing criminal liability when none existed before, but of potentially removing or reducing such liability’. It went on to recommend that the new law should apply to all cases where proceedings are commenced after the relevant provisions come into force.

The Scottish Government agrees with the Commission’s assessment of the effect of the new provisions. The traditional formulation of the state of mind required to establish the special defence of insanity is that of a ‘total alienation of reason’ in regard to the crime charged. This is already interpreted as requiring the existence of a mental illness, and as excluding states of mind induced through the consumption of drugs or alcohol. However, the new provisions make clear that the availability of the defence is less dependent on the severity of that condition, as implied in the ‘total alienation of reason’ test, than on the impact the condition in question has on the ability to appreciate the wrongfulness of the act.

The Commission also concluded that it was already the case that the condition of psychopathy does not fall within the ambit of the existing special defence. The terms of section 51A(2) would not therefore operate to deprive an accused of a defence that existed previously.

In conclusion, we are content that our approach to commencement will not result in persons being convicted of an offence they could not have been convicted of, or subject to a higher penalty than that which could have been imposed, under the law applying at the time of the relevant acts or omissions.

On consideration of this response, on 31 May 2012 the Scottish Government was then asked:

Article 3 of the Order is not stated to be subject to article 4. In relation to section 168 of the 2010 Act (so far as inserting section 51B of the 1995 Act) and section 171 of that Act (so far as abolishing the plea of diminished responsibility) (“the provisions”), article 3 brings the provisions into force on 25 June 2012, and applies them to proceedings on or after 25 June 2012 – but where an offence was committed before 25 June 2012. Article 4(2) provides that in relation to those proceedings and those offences committed before that date, the provisions are not commenced, and the common law of diminished responsibility continues to apply.

Please explain—

(a) why article 3 required to apply those provisions, from 25 June 2012, to offences committed prior to that date, rather than article 4(2) alone providing for the saving and incidental application provision, and

(b) how this apparent contradiction between the articles is resolved, so that only article 4(2) must be given effect?

The Scottish Government responded as follows:

The explanatory notes to the Order set out in plain English our approach to commencement, namely:-

“The provisions come into force on 25th June 2012 and apply in general to all criminal proceedings commenced on or after that date, irrespective of when the conduct giving rise to the proceedings occurred. There is one exception to this general approach. In the light of developments in the common law of diminished responsibility that have occurred since the Act received Royal Assent, section 168 of the Act (in so far as inserting section 51B in the Criminal Procedure (Scotland) Act 1995) does not apply where the conduct giving rise to the proceedings took place before 25th June 2012, even when the proceedings are commenced after that date. In such cases the common law of diminished responsibility continues to have effect.”

In our view, Article 3 (Commencement of provisions) and Article 4(2) (Savings provision) of the Order clearly give effect to the above approach. In particular, Article 3 deals with commencement more generally (including the abolition of the plea of diminished responsibility) and Article 4(2) ensures that notwithstanding the general approach, the common law of diminished responsibility is preserved in certain cases. In our view, it is clear from the approach taken that Article 3 of the Order is subject to Article 4.

As question (a) infers, there are no doubt various ways in which the Order could have been drafted to deliver the approach set out in the explanatory note. Notwithstanding that, we are content that the interaction between Articles 3 and 4(2), and the overall legal effect of the Order, is clear.

We note that question 5b seems to suggest that the Order should have expressly stated that Article 3 of the Order is subject to Article 4. As already indicated, we disagree. Given the context, we consider the interaction between the provisions self-evident. The very essence of the savings provision (like any other savings provision in a commencement order) is to modify the general approach to commencement.

APPENDIX 4

Bluetongue (Scotland) Amendment Order 2012 (SSI 2012/184)

Breach of laying requirements: letter to Presiding Officer

The Bluetongue (Scotland) Amendment Order 2012 SSI 2012/184 was made by the Scottish Ministers under section 72 of the Animal Health Act 1981 on 31 May 2012. It came into force on 5 June 2012 and is being laid before the Scottish Parliament today, 6 June 2012.

Section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) (“the 2010 Act”) has not been complied with. In accordance with section 31(3) of the 2010 Act, this letter explains why.

The Order gives effect to an EU obligation – Commission Implementing Regulation (EU) No 456/2012. This was published in the Official Journal on 31 May 2012 (OJ No L 141, 31.05.2012, p7). By article 2 of the Regulation it was provided that it would come into force on the fifth day following its publication – i.e. 5 June 2012. Given the closure of the Parliament from 1 June to 5 June, 6 June is the earliest day on which the Order can be laid.


Footnotes:

1 Scottish Parliament Subordinate Legislation Committee. 69th Report, 2010 (Session 3). Report on Subordinate Legislation (SP Paper 544).

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