43rd Report, 2012 (Session 4): Subordinate Legislation

SP Paper 187 (Web Only)

SL/S4/12/R43

43rd 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
Hanzala Malik
John Pentland
John Scott

Committee Clerking Team:

Clerk to the Committee
Irene Fleming

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 18 September 2012, the Committee agreed to draw the attention of the Parliament to the following instrument—

Children’s Hearings (Scotland) Act 2011 (Commencement No. 5) Order 2012 (SSI 2012/246 (C.20)).

2. The Committee’s recommendation in relation to this instrument is 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 NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Children’s Hearings (Scotland) Act 2011 (Commencement No. 5) Order 2012 (SSI 2012/246 (C.20)) (Education and Culture Committee)

4. This Order brings into force certain provisions of the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”). The provisions are listed in the Schedule of the instrument.

5. The commencement of these provisions allows for the establishment of area support teams which are committees established by the National Convener for designated areas, to assist the Convener with her functions under section 6 of the Act (selection of members of children’s hearings).

6. The Order is not subject to any parliamentary procedure, and is due to come into force on 19 September 2012.

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

8. The Scottish Government has confirmed that through an oversight they omitted to commence paragraph 10(2)(a) of schedule 1 to the 2011 Act when commencing paragraph 10(1) of that schedule.

Paragraph 10(2) of schedule 1 identifies the functions which the National Convener is not entitled to delegate to another person. So in failing to commence paragraph 10(2)(a), which refers to the function of submitting annual reports, the Ministers would allow the National Convener to delegate this function, which would be contrary to the Parliament’s intention.

The Scottish Government has confirmed that a further commencement order will be made to rectify this. The Government considers that there should be no practical difficulty, as the annual report is not due to be prepared for some months. A further commencement order was laid on 14 September 2012, and the Committee will consider that order at a further meeting.

9. The Committee draws the Order to the attention of the Parliament on reporting ground (i). The drafting of the Order appears to be defective, in that the order omitted to commence paragraph 10(2)(a) of schedule 1 to the Children’s Hearings (Scotland) Act 2011. As a result of this omission, the National Convener may delegate the preparation of annual reports to Children’s Hearings Scotland contrary to the legislative intention.

10. The Committee does however welcome the fact that the Scottish Government has laid a further commencement order to rectify this, which the Committee will consider at a later date.

NO POINTS RAISED

11. At its meeting on 18 September 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

Elmwood College, Oatridge College and The Barony College (Transfer and Closure) (Scotland) Order 2012 (SSI 2012/237)

Jewel and Esk College and Stevenson College Edinburgh (Transfer and Closure) (Scotland) Order 2012 (SSI 2012/238)

Public Records (Scotland) Act 2011 (Commencement No. 2) Order 2012 (SSI 2012/247 (C.21))

Justice Committee

Act of Sederunt (Registration Appeal Court) 2012 (SSI 2012/245)

Criminal Cases (Punishment and Review) (Scotland) Act 2012 (Commencement, Transitional and Savings) Order 2012 (SSI 2012/249 (C.22)).

Local Government and Regeneration Committee

Local Government Pension Scheme (Administration) (Scotland) Amendment Regulations 2012 (SSI 2012/236)

Rural Affairs, Climate Change and Environment Committee

Crofting Reform (Scotland) Act 2010 (Commencement No. 3, Transitory, Transitional and Savings Provisions) Order 2012 [draft]

Bathing Waters (Scotland) Amendment Regulations 2012 (SSI 2012/243)

APPENDIX 1

Children’s Hearings (Scotland) Act 2011 (Commencement No. 5) Order 2012 (SSI 2012/246 (C.20))

On 7 September 2012, the Scottish Government was asked:

1. The Schedule commences Schedule 1, paragraph 10(1) of the 2011 Act on 19 September 2012, but not paragraph 10(2). Paragraph 10(1) incorporates the qualification that the functions of the National Convener conferred by virtue of the Act (or any other enactment) may be carried out on the National Convener’s behalf by a person as explained in the sub-paragraph, but other than the functions mentioned in paragraph 10(2).

Could you explain why it is appropriate to so commence paragraph 10(1) (without limited purposes) and not paragraph 10(2), and what the effect of that is in relation to the reference to 10(2) - or is there an intention also to commence paragraph 10(2) for any purposes?

2. The Schedule also commences (inter alia) on 19 September, Schedule 1, paragraph 14(7) of the 2011 Act (without limited purposes), but not paragraph 14(1). Paragraph 14(7) provides that an area support team must comply with a direction given to it by the National Convener about (a) the carrying out of the functions mentioned in sub-paragraph (1).

So far as that direction making power relates directly to the ability conferred by paragraph 14(1) of an area support team to carry out for its area the functions conferred on the National Convener by section 6 of the Act, could you clarify why it has been appropriate to so commence paragraph 14(7) (without limited purposes) and not 14(1)? Or is there any intention to commence paragraph 14(1) for any purposes?

The Scottish Government responded as follows:

1. Unfortunately it was overlooked that paragraph 24 of schedule 1 is in force. This paragraph requires that the National Convener prepare and submit to Children's Hearings Scotland an annual report. The next report will be due after 31 March 2013. The effect of not commencing paragraph 10(2)(a) of schedule 1 is that the National Convener could technically delegate this function. A further commencement order will be made shortly to commence paragraph 10(2)(a) to rectify this. There will be no practical effect since the annual report is not due for some months.

It is not intended that paragraph 10(2)(b) of schedule 1 will be commenced at this stage since paragraph 1(2) to (6) of schedule 2 is not yet in force.

2. The commencement of paragraph 14(1) of schedule 1 is not required at this stage since the selection of members of a children's hearing (under section 6) is an operational matter which will not require to take place until commencement of the new system as a whole. The provisions being commenced at this stage are to allow the National Convenor to start the process of establishing area support teams. The commencement of paragraph 14(7) is to ensure that in doing so an area support team must comply with any direction which National Convener may give to it about the carrying out of a function delegated to it under paragraph 14(2). The commencement of paragraph 14(7)(a) will therefore have no practical effect until substantive commencement of the Act which will include paragraph 14(1) of schedule 1 and section 6.

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