52nd Report, 2012 (Session 4): Annual Report 2011-12

SP Paper 217 (Web Only)

SL/S4/12/R52

52nd Report, 2012 (Session 4)

Instruments laid in 2011-12

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:

Nigel Don (Convener)
Jim Eadie
Mike MacKenzie
Hanzala Malik
John Pentland
John Scott
Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Instruments laid in 2011-12

The Committee reports to the Parliament as follows—

INTRODUCTION

1. As part of its scrutiny role, the Subordinate Legislation Committee produces an annual report containing details of the Scottish statutory instruments (SSIs) laid before the Scottish Parliament in the previous year. The purpose of the annual report is to provide an analysis of the Committee’s activities in respect of its scrutiny of instruments. In particular, the report sets out details of instruments considered by the Committee which were drawn to the attention of the Parliament during the reporting period on one or more of the reporting grounds set out in Standing Orders. It also itemises the commitments made by the Scottish Government and the Lord President’s Private Office (LPPO) in response to the Committee’s comments, and details any action that has been taken.

2. The annual reporting process was introduced following a recommendation of the Committee in its 14th report of 2007, Inquiry into the Regulatory Framework in Scotland (SP Paper 751)1, published in Session 2 of the Parliament. In that report the Committee concluded that producing an examination of points raised in its reports on instruments and the steps being taken to address these points would help improve the scrutiny process.

3. The Committee’s role in scrutinising instruments is of primary importance in improving the quality of legislation, particularly in increasing the accessibility to the law for the user. One means by which it does this is by ensuring that legislation is as accurate and up to date as possible and it considers the annual report to be a key part of this process.

4. The Committee regards its scrutiny role on a number of levels. As a primary objective it would like to see all subordinate legislation presented to be as accurate and well-drafted as possible. In addition, legislative competence is vested in the Parliament. It is therefore also incumbent on the Committee to conduct its supervisory role effectively in ensuring that subordinate legislation under consideration falls within the powers delegated to the responsible authority by the Parliament and that these powers are exercised appropriately.

5. In doing this, the Committee considers a measure of effectiveness includes circumstances where its conclusions are accepted and either amending legislation is brought forward or the instrument in question is withdrawn. However, it also accepts that the Scottish Government or the LPPO may not always be in agreement with the conclusions that it draws. In particular, in relation to the more complex legislative questions that can be raised in relation to devolution or vires issues, it accepts that these can be, by their nature, subject to a range of legal interpretations. In such cases it is not for the Committee to offer a definitive view on the matter, but to draw alternative views to the attention of the Parliament where satisfied that there is a doubt over the matter. Ultimately it will be for the courts to determine the legal position.

6. Therefore, as well as ensuring the accuracy of legislation, the Committee considers that the scrutiny process provides a forum for an exchange of views which should ensure more robust legislation is produced having been subject to rigorous scrutiny. As such, it considers the scrutiny process to be an important tool in assisting the Parliament to ensure that legislation is fit for purpose, clear and accessible to the public.

7. By setting out this information, the report provides the opportunity to monitor the action that has been taken on the commitments made by the Scottish Government and the LPPO which the Committee considers to be an important aspect of improving the quality of legislation. The report also helps to identify the range of issues that have arisen during the course of the year regarding its activities in relation to its scrutiny.

8. In pursuing the objective of the accessibility of legislation to the end user, the Committee also has a number of projects ongoing including examining the feasibility of consolidating SSIs as well as examining ways of enabling improved scrutiny of transitional provisions. These points are discussed later in the report.

9. Finally, in order to provide an overview of the Committee’s activities in the previous year, details of the number of Bills, Legislative Consent Memorandums and any other points of significance that have arisen during the reporting period are also set out.

10. The Committee makes a number of recommendations throughout the report which are drawn together at the end of this introductory section.

Reporting period
11. Previous annual reports of this kind have covered the Committee’s activity in the preceding calendar year. The previous annual report therefore covered the Committee’s activity in 2010. As a departure from this practice, this report deals with instruments laid in the previous parliamentary year. The report therefore covers the first parliamentary year of session 4 (11 May 2011 to 10 May 2012).

12. The Committee considers this to be the most appropriate timescale in which to report on this activity as it is in line with the management of other parliamentary business. Also, portions of calendar years fall within different sessions, making it difficult for any meaningful analysis to be made in previous reports on instruments laid by calendar year. Reporting by parliamentary year will therefore, over the longer term, cover the Committee’s activities over a complete session.

13. In addition, the beginning of session 4 also marked the introduction of the new regime introduced by the Interpretation and Legislative Reform (Scotland) Act 2010 and so for all of these reasons it appears to be appropriate to the Committee to adjust the reporting timescale at this point to follow the parliamentary year.

14. As this is the first report of this type that reflects the Committee’s activities by parliamentary year, the figures for the parliamentary year 2010-11 have not been collated in this form before. No direct comparison can therefore be drawn with the figures contained in the Committee’s previous annual report (9th Report 2011, Report on Scottish Statutory Instruments laid in 20102). However, in order to provide some context, general statistics in relation to instruments laid in the final parliamentary year of session 3 (9 May 2010 to 22 March 2011) are provided for comparative purposes as far as a comparison can be drawn.

15. The Committee also acknowledges that the change to the reporting period has meant that the period of January to March 2011 has not been subject to any analysis by the Committee. The detail of points raised on these instruments by the Committee is therefore set out in Annex F.

Summary of recommendations

16. The Committee calls on the Scottish Government to give consideration to the scheduling of the laying of SSIs to ensure that peaks in the volume of SSIs brought forward are avoided as far as possible. (paragraph 57)

17. The Scottish Government is urged to take steps in order to ensure there is no increase in the number of instruments which give rise to the Committee drawing them to the Parliament’s attention under the significant reporting grounds. (paragraph 63)

18. The Committee urges the Scottish Government to pay close regard to the drafting of instruments as a step towards reducing the number of instruments reported on the grounds within its remit, particularly in relation to reducing the number of errors in instruments. (paragraph 70)

19. The Committee welcomes that, of the 15 instruments which did not comply with the laying requirements in 2011-12, it was not satisfied with the reasons given in the case of only three instruments. While recognising that there may be circumstances where non-compliance is unavoidable, the Committee recognises the importance of the laying requirements and the reasons why they exist. It therefore calls on the Scottish Government to take steps to ensure that the laying requirements are complied with wherever possible. (paragraph 89)

20. Where there is non-compliance with the laying requirements, the Committee urges the Scottish Government to provide as much information as possible in the explanation made in the letter to the Presiding Officer. (paragraph 90)

21. The figures for SSIs laid by the Scottish Government drawn to the Parliaments attention, broken down by lead committee show improvement in some areas, but also areas where further work is required. The Committee would therefore welcome further progress being made in addressing these figures to provide a greater reduction in the proportion of instruments reported on overall. (paragraph 116)

22. The Committee welcomes the overall figures for instruments laid by the Lord President’s Private Office on behalf of the Court in the reporting period. It considers that there could be some improvement in terms of the number of times ground (h) (form and meaning could be clearer) was engaged but the overall figures do not present the Committee with any particular concerns. (paragraph 128)

23. The Committee welcomes the progress made by the Scottish Government and the Lord President’s Private Office in meeting the commitments it made to correcting or amending instruments on which the Committee had reported and urges the Government to complete this process in early course. (paragraph 134)

24. The Committee considers that the figures relating to the withdrawal and relaying of SSIs demonstrates the effectiveness of robust scrutiny and partnership working which ensures that concerns raised are addressed before the instruments became law. (paragraph 138)

25. The Committee welcomes the commitments the Scottish Government has made which would support the Parliament’s scrutiny of transitional provisions. However, while recognising the Government’s reasons for not making these provisions standalone, the Committee is disappointed that the Government has not made a commitment to allow for a full 40 days for scrutiny of these instruments before they come into force, which would not include periods in which the Parliament is recess. While it recognises that there may be circumstances where it will not be possible to allow for 40 days the Committee considers that this should be the exception and that it should be achievable in most cases. It therefore urges the Government to reconsider this position. (paragraph 151)

26. While the Committee accepts that minor points do not affect the validity of instruments, it urges the Scottish Government and the Lord President’s Private Office to take steps to ensure that the number of these types of errors decreases. (paragraph 154)

27. The Committee recognises that the number of motions to annul does not necessarily have any bearing on the quality of instruments laid, but notes the information for its interest. (paragraph 161)

28. The Committee will continue to liaise with the Scottish Government in respect of the consolidation of SSIs and will pursue the issue of consolidation more generally. (paragraph 166)

INSTRUMENTS LAID IN 2011-12

Introduction

29. The Interpretation and Legislative Reform (Scotland) Act 2010 (“the 2010 Act”) was passed by the Parliament on 28 April 2010. The provisions in the Bill provide a framework for the management of Scottish statutory instruments. These provisions are set out in Part 2 of the Act and they came into force in April 2011. The first parliamentary year of session 4 (11 May 2010 to 10 May 2011) therefore covers the first year in which the new regime was in force.

30. The 2010 Act brought about a number of changes which have relevance to the Committee’s scrutiny role. In particular, the Act streamlined existing powers so that there are now three main types of Scottish statutory instrument3: affirmatives (which require to be approved by the Parliament before they can be made), negatives (which can be annulled by the Parliament within 40 days of being laid) and instruments which are laid only and are not subject to any parliamentary procedure (laid-no procedure instruments).

31. As a result most instruments now require to be laid before the Parliament, whether or not they are subject to any parliamentary control4. The Act also makes certain requirements for the laying of instruments before the Parliament which, where there is any non-compliance, constitute a ground on which an instrument can be brought to the attention of the Parliament.

Overview

32. In the 2011-12 parliamentary year, a total of 242 instruments were laid before the Parliament. Of these, 212 instruments were laid by the Scottish Government and 30 instruments were laid by the Lord President’s Private Office.

33. The 212 SSIs laid by the Scottish Government can be broken down as follows—

  • 42 affirmative instruments;
  • 126 negative instruments;
  • 44 laid–no procedure instruments.

34. The 30 SSIs laid by the LPPO can be broken down as follows—

  • 4 negative instruments
  • 26 laid-no procedure instruments

Reporting grounds

35. Under paragraph (a) of Rule 6.11 of Standing Orders, the Committee may determine that the attention of the Parliament should be drawn to an SSI on one or more of a range of technical and legal grounds. These grounds are set out in Rule 10.3.1 of the Standing Orders5 and are as follows—

Ground (a) (charges on or payments to the Scottish Consolidated Fund, and payments to local and public authorities) – draws to the Parliament’s attention instruments imposing payments to local or public authorities in return for any licence, consent or services, or requiring payment to or a charge on the Scottish Consolidated Fund.

Ground (b) (made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts) – draws the Parliament’s attention where the Scottish Ministers have exercised the power in such a way that it is excluded from challenge in the courts.

Ground (c) (where the instrument has retrospective effect where the parent statute confers no express authority so to provide) – this may raise questions on the validity of an instrument, but does not necessarily do so. This ground may raise serious issues which ought to be drawn to the Parliament’s attention before it takes a view on the disposal of the instrument.

Ground (d) (unjustifiable delay in publication or laying) – raises a significant issue of parliamentary process that may affect public awareness of the effect of the instrument and hinder that awareness where there is an unjustifiable delay in the instrument being available in the public domain.

Ground (e) (doubt as to whether the instrument is intra vires) – raises questions on the validity of an instrument, or provisions in it.

Ground (f) (raises a devolution issue) – raises questions on the validity of an instrument, or provisions in it.

Ground (g) (unusual or unexpected use of powers) – raises issues on the proper exercise or use of the powers conferred that may on occasion affect the operation of the instrument, or may raise questions of propriety and transparency.

Ground (h) (clarity of form or meaning) – raises issues on the clarity of the instrument, which may on occasion affect the operation of the instrument, or delivery of the intended policy.

Ground (i) (defective drafting) – raises serious issues of the efficacy of the drafting that may on occasion impede or prevent the delivery of the intended policy.

Ground (j) (non-compliance with laying requirements) – draws attention to any non-compliance with the laying requirements set out in section 28(2), 30(2) of 31 of the Interpretation and Legislative Reform (Scotland) Act 2010 and evaluates the reasons given for doing so from the Committee’s perspective.

The general reporting ground is a residual ground for reporting any other issues not impinging on the substance or policy of the instrument, including minor drafting errors which do not affect the proper operation of the instrument, failures to follow proper drafting practice or legislative process.

Reporting grounds: significant
36. The Committee considers some reporting grounds to be of more significance than others. The Committee has therefore determined that it has particular concerns where an instrument is drawn to the attention of the Parliament on one of the following grounds—

  • ground (e) – doubt as to whether it is intra vires;
  • ground (f) – raises a devolution issue; and
  • ground (i) – drafting appears to be defective.

37. These are referred to throughout this report as the significant reporting grounds. The Committee considers every report under one of these grounds to be a serious matter as these raise fundamental legal questions and so there is the potential for the validity of the instrument to be questioned.

38. The Committee recognises that points raised on these grounds will often be subject to a difference of opinion. However, raising questions on these grounds offers the opportunity for public debate on these points which, in line with its earlier assertion, is an important part of the scrutiny process. This in turn allows for more robust legislation.

Reporting grounds: advisory
39. The Committee also notes that some of the reporting grounds need not indicate issues with regard to validity or clarity but provide a means of drawing matters to the attention of the lead committee and the Parliament for consideration as part of their related scrutiny of the overall policy and effect of the instrument. For the purposes of this report the Committee refers to these grounds as advisory in nature.

40. The matters the Committee raises under these grounds therefore do not concern questions of competency or accuracy. Rather they are matters that the Committee considers the Parliament should be aware of in exercising its general supervisory role and considering whether to allow the legislation to proceed. Often they relate to policy matters (such as the imposition of significant charges) and so are matters which the lead committees should have regard to when considering the instruments. As such, instruments which engage these grounds are drawn to the lead committee’s attention to inform their consideration of instruments.

41. The Committee considers ground (a) (charges on or payments to the Scottish Consolidated Fund), ground (b) (made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts), ground (g) (unusual or unexpected use of the powers conferred by the parent statute) and ground (j) (non-compliance with laying requirements), where it is satisfied with the reasons given for non-compliance, generally to be advisory in nature.

42. The Subordinate Legislation Committee’s primary role is to consider the technical drafting of instruments, as well as their accuracy and their legal competence. In its scrutiny of instruments, the Committee will highlight to the lead committee where other circumstances exist which are of greater concern to the lead committee. To reflect this, the numbers of times instruments have been drawn to the Parliament’s attention on these advisory grounds have been removed from the overall figures (although the overall figures are recorded for the purpose of completeness). The only exception to this is where an instrument has been drawn to the Parliament’s attention on ground (j) (non-compliance with laying requirements) and the Committee has not been satisfied with the reasons given as this does have an impact on the accessibility of legislation.

Reporting grounds: other
43. Finally, while emphasising the importance of the significant reporting grounds, the Committee cannot lose sight of the grounds which are regarded as being of less significance and notes that even minor drafting errors can have an adverse impact on the efficacy of the instrument. This, amongst other things, can make it difficult to determine what the intention of the instrument is. Also, although not as significant in terms of the fundamental legal issues that the significant grounds raise, in terms of the overarching objective of ensuring the accessibility of legislation to the end user, the Committee regards the scrutiny of these grounds to be just as relevant.

44. These other grounds are as follows: ground (c) (where the instrument has retrospective effect where the parent statute confers no express authority so to provide), ground (d) (unjustifiable delay in publication or laying), ground (h) (clarity of form or meaning), and the general reporting ground (which includes minor drafting errors and failures to follow proper drafting practice).

45. The Committee may have serious concerns where an instrument is drawn to the attention of the Parliament on any of these other grounds. For example, concerns which are raised on ground (h) (clarity of form or meaning) could attract a varying level of concern. Such concerns may be seen as relatively minor if the defects do not affect the operation of the instrument, however, where an instrument is reported more than once on this ground it may be difficult to determine what the SSI originally set out to do.

46. In addition, where an instrument is reported on a combination of these other grounds or more than once on the same ground, this may cause the Committee to question whether overall the instrument is fit for purpose or whether it should be amended or replaced. Any concerns that the Committee has in relation to particular SSIs are therefore highlighted on a case-by-case basis. This report provides an analysis of instruments reported on these grounds and the Committee will continue to pursue these points robustly.

Minor points
47. Minor points which do not merit a report under the formal reporting grounds are of less importance. They are therefore dealt with informally rather than in the Committee’s published reports. However, they are still of interest to the Committee when assessing the quality of legislation and so this report also contains a brief examination of them.

Analysis of information in this report

48. Primary responsibility for complying with the laying requirements which apply to SSIs is placed on the responsible authority. The Scottish Ministers are given this responsibility for instruments made by them, the First Minister or the Lord Advocate and for instruments which are Orders in Council or Orders of Council6. However, in practice, the Scottish Ministers are also the authority with whom the Committee corresponds in relation to instruments made by other responsible authorities within the Scottish Administration; for example the Registrar General and the Keeper of the Registers. The Committee also corresponds with the Scottish Ministers in relation to UK statutory instruments which are subject to procedure in the Scottish Parliament. Accordingly this report considers all of these instruments in one section.

49. Acts of Sederunt and Acts of Adjournal made by the Court of Session and the High Court of Justiciary are treated separately for the purposes of this report. The 2010 Act now requires all such instruments to comply with the laying requirements set out in the Act. In practice the Lord President’s Private Office now assumes responsibility for these matters.

THE SCOTTISH GOVERNMENT

Overview

50. Table 1 shows that 212 instruments were laid by the Scottish Government in 2011-12. The Committee drew the Parliament’s attention to 56 of them, which is 26% of all instruments laid. The equivalent figures for the period 2010-11 show that a total of 415 instruments were brought forward by the Scottish Government of which 92 were reported on, which is 22% of all instruments received.

51. However, in terms of the advisory grounds set out earlier, only ground (j) (non-compliance with laying procedures) was engaged in 2011-12 and, of the 15 instruments reported on this ground, the Committee was satisfied with the reasons given for non-compliance with the laying requirements in 12 cases. As the focus of this report is on matters over which the Committee has concerns, the figures have been adjusted to remove SSIs drawn to the Parliament’s attention on the advisory grounds (a similar adjustment has been made to the figures for 2010-11). This adjustment therefore shows that the overall number of instruments drawn to the Parliament’s attention in 2011-12 is 44 which is 20% of all instruments. The equivalent adjustment for instruments laid in 2010-11 (which also includes instruments drawn to the Parliament’s attention on other advisory grounds) shows that the overall number of instruments drawn to the Parliament’s attention in 2010-11 is 85 which is also 20% of all instruments brought forward in that period. There has therefore been no change in the proportion of instruments reported on since 2010-11.

52. However, in considering these figures, it is worth noting that there were almost twice as many SSIs laid in 2010-11 than in 2011-12 which can be attributed to a peak in the number of instruments brought forward towards the end of session 3. A similar peak also occurred towards the end of earlier sessions. Table 2 provides an overall picture of the disparity in the number of instruments laid over the time periods January to March in 2011-12 and 2010-11.

53. The Committee could therefore expect there to have been an improvement in the overall proportion of instruments reported given the large discrepancy in the total number of instruments brought forward between the two periods. To put it in simple terms, the Committee could reasonably expect a consequent reduction in the number of instruments drawn to the Parliament’s attention where fewer instruments had to be produced.

54. The Committee does accept, however, that this is a very blunt analysis of the figures and that a lack of improvement in the quality of drafting is only one interpretation that can be made. An alternative observation could be that the figures demonstrate that, where the volume of instruments laid increases rapidly in a short period, the reduction in the time available to the Committee to consider each instrument may have a detrimental effect on the Committee’s important scrutiny function. Whether or not these figures demonstrate this is open to debate, however, it is worth reflecting on this as a possible explanation for the disparity in the figures.

55. The Committee accepts that there are circumstances where there will be an increase in the volume of the Scottish Government’s business at different points in the year and session. It is also clear that the closure of the legislature during periods of dissolution at the end of session will have an impact on the amount of legislation brought forward in the preceding two to three months.

56. However, as noted earlier, there are obvious advantages to both the Parliament and the Scottish Government for instruments to be scrutinised effectively. As a general observation, the volume of instruments has an inevitable impact on the scrutiny that can realistically be conducted by the Committee and it would therefore be beneficial to both the Committee and the Scottish Government for steps to be taken to reduce as far as possible the volume of instruments brought forward at the end of parliamentary sessions wherever possible. The Committee would also welcome steps to be taken to avoid such peaks in business at other points in year, such as towards the end of the financial year, for the same reasons.

57. Consideration should therefore be given to the volume of instruments laid being spread more evenly throughout the year. The Committee has already held positive discussions with the Scottish Government on this matter and so it would welcome an indication of any progress that has been made in this regard and a commitment from the Scottish Government that it will consider the scheduling of SSIs generally.

58. The Committee calls on the Scottish Government to give consideration to the scheduling of the laying of SSIs to ensure that peaks in the volume of SSIs brought forward are avoided as far as possible.

SSIs drawn to the attention of the Parliament: broken down by reporting ground

Instruments by reporting ground
59. This section of the report provides an analysis of the figures broken down by reporting ground which is set out in Table 3.

60. As stated earlier, the Committee considers some reporting grounds to be more significant than others. The grounds are therefore set out in the table under the three categories set out earlier. The three significant grounds are set out first, followed by the other grounds which raise matters on which the Committee has concerns. Finally, the advisory grounds which the Committee flags up for the attention of the lead committee are set out at the end. The figures for 2010-11 are also provided for comparison. Further details of the instruments are contained in Annex A.

61. The figures also include the proportion of instruments laid which were drawn to the attention of the Parliament in the reporting period (the percentages are rounded to the nearest whole number).

Significant grounds

62. In terms of the significant grounds, there is no difference in the proportion of instruments reported on ground (e) (doubt as to whether the instrument is intra vires) between 2010-11 and 2011-12. The proportion of instruments reported on ground (f) (raises a devolution issue) also remains unchanged. However, there is a slight increase in the proportion of instruments reported on ground (i) (drafting appears to be defective) since 2010-11.

63. However, none of these figures reflect an increase in the number of instruments reported on these grounds; in fact, there has been a reduction in the number of instruments reported on the ground of being ultra vires or defectively drafted and no change in the number of instruments reported on the grounds of a devolution issue. The Committee also welcomes the fact that the number of instruments reported on these three grounds is not particularly significant as set against the total number of instruments laid. However, it would not wish to see an increase in these figures.

64. The Scottish Government is urged to take steps in order to ensure there is no increase in the number of instruments which give rise to the Committee drawing them to the Parliament’s attention under the significant reporting grounds.

Other reporting grounds

Overview
65. In terms of the other reporting grounds, the Committee welcomes the overall reduction in the number of instruments which were drawn to the attention of the Parliament in these terms. In particular, the number of times ground (h) (form and meaning could be clearer) was reported has reduced substantially, although the proportion of instruments drawn to the attention of the Parliament on this ground has remained largely unchanged. It also welcomes the reduction from two to zero of the number of instruments reported on ground (c) (retrospective effect where the parent statute confers no express authority so to provide).

General reporting ground
66. The general reporting ground covers a range of issues including minor drafting points and failure to follow proper drafting practice. In addition, any instrument which breached the laying requirements prior to the implementation of the 2010 Act (“the 21-day rule”) was reported on the general ground.

67. The 21-day rule was replaced by the laying requirements set out in the 2010 Act and, as a result, a separate reporting ground was created (ground (j) (failure to comply with laying requirements)). Any breach of the laying requirements is therefore not included in the general reporting ground in the figures for 2011-12 as these are now reported on ground (j). The figures set out in the table show the number of instruments reported on the general ground in 2010-11 where the Committee was not satisfied with the reasons given for the breach of the 21-day rule (the overall figure is included in brackets for completeness).

68. The Committee notes the reduction in the number of times the general reporting ground was engaged between 2010-11 and 2011-12 and also that there has been an overall reduction in the proportion of instruments reported on the general ground. This however was is not unexpected given the removal of the 21-day rule to a separate category.

69. There is still, however, a large proportion of instruments reported on the general ground in relation to other matters such as minor drafting defects or failures to follow proper drafting practice. While accepting that points raised under this ground are often of a less serious nature, the Committee notes that these types of errors can have an impact on the operation of the instrument and it would therefore welcome a greater reduction in the points raised on this ground.

70. As a general conclusion, in considering the objective of ensuring accessibility of the law to the end user, the Committee cannot lose sight of these other reporting grounds and so the Committee would wish to see a reduction of any instruments being reported on these grounds in future.

71. The Committee urges the Scottish Government to pay close regard to the drafting of instruments as a step towards reducing the number of instruments reported on the grounds within it remit, particularly in relation to reducing the number of errors in instruments.

Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331)
72. By way of a demonstration of the scrutiny process in practice, a good example is the Committee’s scrutiny of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331).

73. In approaching the scrutiny of instruments, the Committee will raise any questions with the Scottish Government or the LPPO on the instruments under consideration (in practice this is delegated to the Committee’s legal advisers to carry out on its behalf). The response received then informs the Committee’s conclusions on the instrument in question.

74. With regard to the scrutiny of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331), the Committee raised a number of questions in relation to the instrument. The provisions in the SSI set out the rules for the management of prisons and young offenders institutions which would have an obvious direct impact on individuals and so it was of particular concern to the Committee that the points were dealt with satisfactorily.

75. However, the response received did not adequately address the points raised and so the Committee took the unusual step of taking oral evidence from Scottish Government officials on the SSI at its meeting on 4 October 2011. The evidence session offered the Committee the opportunity to explore the issues it had already raised in greater detail and it also gave the Government officials the opportunity to clarify the points. In its report on the SSI, the Committee drew the Parliament’s attention to the instrument on a number of grounds (all three of the significant grounds, ground (h) (form and meaning could be clearer) and on the general reporting ground).

76. While the experience in relation to this instrument could be regarded as a negative one, this demonstrates the effective operation of the Committee’s scrutiny role and how the outcome can be positive when the process is engaged with effectively from both sides. Although the Committee’s preference would be that instruments did not give rise to such serious concerns, the evidence session enabled issues to be aired in a public forum and it also allowed for a detailed examination of the points and a robust exchange of views. It was therefore a constructive exercise overall and, in response to the Committee’s concerns, an amending instrument was brought forward by the Government shortly afterwards which addressed the points raised.

77. In light of this experience, the Committee will consider taking oral evidence on SSIs in future, in particular where the Committee considers that this will assist effective scrutiny of the instrument.

Advisory grounds

Overview
78. As noted earlier, the advisory grounds need not indicate issues with regard to validity or clarity but provide a means of drawing matters to the attention of the lead committee and the Parliament for consideration as part of their related scrutiny of the overall policy and effect of the instrument.

79. In terms of the figures for 2011-12, the Committee notes that no instruments were reported on ground (a) (charge on the Scottish Consolidated Fund), ground (c) (retrospective effect) and ground (g) (unusual or unexpected use of the powers) in 2011-12. In 2010-11 one, two and one instruments respectively were drawn to the Parliament’s attention under these grounds.

Non-compliance with laying requirements (reporting ground (j))
80. As already noted, non-compliance with the laying requirements set out in the 2010 Act is also regarded as an advisory ground where the Committee is satisfied for the reasons given for non-compliance. It follows therefore that it is concerned where it is not satisfied with the reasons given. The most common laying requirement, referred to as the 28-day rule, requires that any SSI laid under the negative procedure should not come into force until 28 days have elapsed since the SSI was laid. This rule exists to ensure that the public has notice of any imminent changes to the law and it also allows the Parliament time to consider any motion to annul the instrument before it comes into force and replaces the previous 21-day rule. The Committee recognises the importance of this rule and therefore considers that the laying requirements be complied with wherever possible.

81. The Committee also notes that, under section 31 of the 2010 Act, any SSI which fails to comply with the laying requirements must be accompanied by a letter to the Presiding Officer explaining why this is the case. Any SSI which fails to comply is automatically reported on ground (j) so that the lead committee and the Parliament are aware of the non-compliance. Since there may be some circumstances in which non-compliance with the rule is to be preferred to action not being taken until a later date, the reasons for non-compliance are then considered separately by the Committee. It therefore reports on ground (j) as a matter of course but raises concerns with the lead committee where it has not found the reasons for non-compliance to be satisfactory.

82. The information contained in the letter to the Presiding Officer is therefore of significance in helping the Committee to form a view on the circumstances which have resulted in non-compliance with the laying requirements. The level of detail in these letters can vary, which often results in follow-up information having to be sought.

83. The Committee therefore urges the Scottish Government to provide as much information as possible when the laying requirements have not been complied with so that the Committee can reach an informed decision on whether the reasons given for non-compliance are reasonable or not.

84. While recognising that there may be times when non-compliance with the laying requirements in the 2010 Act is inevitable or unavoidable, the Committee is concerned to keep the number of times SSIs are reported on this basis to a minimum wherever possible. In particular, the Committee is aware that non-compliance with the laying requirements often occurs when an instrument requires to be brought into force at the same time as instruments affecting the rest of the UK, such as in relation to food safety. The Committee has therefore been working with the Food Standards Agency to ensure that such non-compliance is kept to a minimum. This issue also regularly arises in other subject areas in the context of EU implementation.

85. In such cases the Committee is not concerned with policy issues in relation to implementation or the tactics deployed when negotiating with the European Commission. The Committee is concerned to ensure that proper respect has been given to the laying requirements set down in the 2010 Act (and with those of the other legislatures within the United Kingdom) so that the respective bodies can scrutinise the measures effectively and hold the respective executives to account. The Committee will therefore express serious concerns where non-compliance has occurred due to a lack of proper planning and so would not like to see any increase in this number in future and, ideally, would hope that no further SSIs are brought forward in these circumstances.

86. In terms of the figures for 2011-12, the Committee notes that of the 15 SSIs which were drawn to the attention of the Parliament on this ground, the Committee reported that it was not satisfied with the reasons given in three cases—

  • Extraction Solvents in Food Amendment (Scotland) Regulations 2011 (SSI 2011/306)
  • Inshore Fishing (Prohibition of Fishing for Cockles) (Solway Firth) (Scotland) Order 2011 (SSI 2011/319)
  • Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Amendment Order 2011 (SSI 2011/336)

87. With regard to SSI 2011/306, the Committee noted that the 28-day rule could have been complied with if there had better advanced planning on the part of the Scottish Government.

88. In the case of SSI 2011/319, the Scottish Government conceded that the SSI should have been laid timeously and committed to examining its working practices to ensure such projects are managed more effectively in future.

89. In terms of SSI 2011/336, the failure to comply appears to have arisen due to an oversight on the part of the Scottish Government. Detail of all of these instruments is contained in Annex E

90. The Committee welcomes that, of the 15 instruments which did not comply with the laying requirements in 2011-12, it was not satisfied with the reasons given in the case of only three instruments. While recognising that there may be circumstances where non-compliance is unavoidable, it recognises the importance of the laying requirements and the reasons why they exist. It therefore calls on the Scottish Government to take steps to ensure that the laying requirements are complied with wherever possible.

91. Where there is non-compliance with the laying requirements, the Committee also urges the Scottish Government to provide as much information as possible in the explanation made in the letter to the Presiding Officer.

SSIs drawn to the attention of the Parliament: broken down by lead committee

Introduction
92. Table 4 provides a breakdown of the instruments reported on by lead committee in 2011-12 in comparison with the nearest equivalent figures for instruments laid in 2010-11. In doing so, the Committee accepts that not all of the figures are directly comparable, particularly as the remits of the Rural Affairs, Climate Change and Environment Committee; the Local Government and Regeneration Committee; the Education and Culture Committee; and the Infrastructure and Capital Investment Committee were revised at the beginning of session 4.

93. In addition changes have also been brought about by the 2010 Act as a consequence of which all instruments now require to be laid before the Parliament. This change has had particular impact on instruments brought forward by the Lord President’s Private Office (LPPO) which are dealt with in a separate section of this report.

94. Although the figures are not completely directly comparable, the Committee still considers the figures from 2010-11 helpful in providing some comparison. It also considers that analysing the figures in this way gives a rough indication of how the various government departments are performing, though it recognises that individual departmental responsibilities are not necessarily in line with the various committee remits.

95. In order to focus on the issues of concern to the Committee, as discussed earlier, the instruments reported on grounds which it considers to be advisory are not included in the overall figures. Therefore figures relating to the number of reports raised on ground (j) are not included where the Committee was satisfied with the reasons given for non-compliance with the laying requirements. In addition, no instruments laid by the Scottish Government gave rise to the Parliament’s attention being drawn on grounds (a), (b) or (g) in 2011-12. The equivalent adjustment has been made for the figures for 2010-11 (the overall figures are included in brackets for completeness).

Overview
96. In 2011-12 the Rural Affairs, Climate Change and Environment Committee (RACCE) considered the largest number of instruments, having considered 52 instruments in total during the reporting period. The Infrastructure and Capital Investment Committee considered the largest number of instruments drawn to the Parliament’s attention by the Subordinate Legislation Committee.

97. The Justice Committee considered the largest proportion of instruments drawn to the Parliament’s attention (35%) in relation to the overall number of instruments it considered.

Rural Affairs, Climate Change and Environment Committee
98. In terms of comparison with the previous parliamentary year, the Committee welcomes that the overall proportion of instruments considered by the RACCE Committee which had been drawn to the Parliament’s attention by the SLC decreased slightly from 17% in 2010-11 to 15% in 2011-12.

99. The Committee notes that of the eight instruments considered by the RACCE Committee which were drawn to the Parliament’s attention, one was reported on two of the significant grounds: ground (e) (doubt as to whether it is intra vires) and three were reported on the defective drafting ground (ground (i)).

Health and Sport Committee
100. The Committee is pleased to see a significant improvement in the figures for instruments considered by the Health and Sport Committee. While there has been a significant reduction in the number of instruments considered by the Health and Sport Committee in 2011-12 (30) as compared with 2010-11 (70), there has also been an overall decrease in the proportion of instruments reported on in the same period from 29% to 17%. The Committee welcomes this downward trend and expects this to continue in subsequent years.

101. In terms of the detail, the Committee notes that the Food Hygiene (Scotland) Amendment Regulations 2012 (SSI 2012/75) was drawn to the Parliament’s attention on one of the significant reporting grounds (ground (f) – raises a devolution issue).

102. The SLC’s concerns on this instrument related to the provisions for health marking which resulted in different rules applying to products across borders within the UK. The Committee questioned whether this was permitted under the terms of the derogation allowed by the EU. It also noted that products from England and Wales would not be capable of being marketed lawfully in Scotland. As a result criminal offences might be committed when there had been no intention to discriminate against products within the UK.

103. The SLC’s concerns in reporting related primarily to the direction to the prosecution authorities not to enforce the Scottish instrument until the UK had adopted a common position. The Committee did not consider this to be a satisfactory way of resolving the issue and thought it appropriate to draw the matter to the attention of the lead committee and the Parliament. This difficulty was however temporary and was subsequently resolved by the other jurisdictions in the UK making equivalent legislation.

Justice Committee
104. On first consideration, the figures for the Justice Committee are not as positive as would be hoped. While there has been a significant reduction in the overall number of instruments considered by the Committee from 73 in 2010-11 to 23 in 2011-12, there has been an increase in the proportion of instruments reported on, from 26% to 35%. However, in terms of actual numbers of instruments, there has been an overall reduction in the number reported on from 19 in 2010-11 to 8 in 2011-12. This downward trend is welcomed.

105. Of the instruments considered by the Justice Committee in 2011-12, two were reported on the significant reporting grounds. One was the Civil Legal Aid (Scotland) Amendment Regulations 2012 (SSI 2012/64). The other was the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331), referred to earlier in this report, which was reported on all three significant grounds as well as on ground (h) (form and meaning could be clearer) and on the general ground.

Local Government and Regeneration Committee
106. The proportion of instruments drawn to the Parliament’s attention which were considered by the Local Government and Regeneration Committee has not changed at all – 20% were drawn to the Parliament’s attention in both 2011-12 and 2010-11.

107. However, while there has been no change in the proportion of instruments drawn to the Parliament’s attention, there has been a slight decrease in total number of instruments considered by the Committee and so it would have expected the overall proportion of SSIs drawn to the Parliament’s attention to have reduced. It therefore considers that there should be a greater improvement in these figures in subsequent years.

108. The Committee welcomes the fact that none of the instruments reported on were drawn to the Parliament’s attention on any of the significant grounds.

Education and Culture Committee
109. The number of instruments considered by the Education and Culture Committee has halved from 56 in 2010-11 to 28 in 2011-12. This has also involved a significant decrease in the proportion of instruments reported from 30% to 18% which is a trend the Committee welcomes and hopes to see continue in subsequent years.

110. The Committee did note, however, that two of the instruments reported on in 2011-12 were drawn to the Parliament’s attention on ground (i) (drafting appears to be defective) which is a significant ground.

Infrastructure and Capital Investment Committee
111. In terms of the overall figures, there was a significant increase in the number of instruments considered by this Committee from 20 in 2010-11 to 38 in 2011-12 and an increase in the number of instruments drawn to the Parliament’s attention from 2 in 2010-11 to 10 in 2011-12. In addition, two of the instruments drawn to the Parliament’s attention in 2011-12 were reported on a significant reporting ground (ground (i) (drafting appears to be defective)). The Committee is therefore disappointed that there has not been an overall improvement in these figures and expects to see better progress in forthcoming years.

Economy, Energy and Tourism Committee
112. The figures for instruments considered by this Committee are so small that it is difficult to draw any meaningful conclusion on the figures. Two out of 9 instruments were reported on in 2010-11 which was 22% of instruments during that period and only one out of three instruments was reported on in 2011-12 which is 33%.

113. The Committee welcomes the downward trend in the number of instruments reported on which fell within the Economy, Energy and Tourism Committee’s remit. However, it notes that the SSI reported on in 2011-12 was reported on ground (i) (drafting appears to be defective) which is a significant ground.

Other committees and the Parliament
114. Three instruments were considered by the Finance Committee and two by the Equal Opportunities Committee in 2011-12, none of which were drawn to the Parliament’s attention on any of the reporting grounds.

115. In addition, unusually, the Subordinate Legislation Committee was designated lead committee in consideration of one SSI which also was not drawn to the attention of the Parliament on any of the reporting grounds.

116. Finally, two instruments were referred directly to the Parliament, neither of which was reported on under any of the reporting grounds.

Conclusion

117. The figures show improvement in some areas, but also areas where further work is required. The Committee would therefore welcome further progress being made in addressing these figures to provide a greater reduction in the proportion of instruments reported on overall.

LORD PRESIDENT’S PRIVATE OFFICE

Introduction

118. As noted earlier, acts of sederunt and acts of adjournal are laid by the Lord President’s Private Office (LPPO) on behalf of the Court of Session and High Court of Justiciary as the responsible authority and are subject to the same scrutiny by the SLC as any other SSI.

119. As these instruments are laid separately from those laid by the Scottish Government, this part of the report provides a separate analysis of these figures.

Overview

120. Table 5 provides an overview of the total number of instruments brought forward by the LPPO in 2011-12 as compared with the number laid in 2010-11. The figures show that there has been an overall increase in all of the figures; there has been an increase in the total number of instruments brought forward from 20 in 2010-11 to 30 in 2011-12 and, of these, four instruments were reported in 2010-11 and seven in 2011-12 which is 20% and 23% of all instruments laid during the respective reporting periods. As noted earlier, the focus of this report is on matters over which the Committee has concerns. The figures have therefore been adjusted to remove SSIs drawn to the Parliament’s attention on the advisory grounds (a similar adjustment has been made to the figures for 2010-11). Making this adjustment shows that 17% of SSIs were drawn to the Parliament’s attention in 2011-12, as opposed to 15% in 2010-11. There is therefore no significant difference in the figures between the two reporting periods.

121. It should be noted that in session 3, prior to the implementation of the 2010 Act, most acts of sederunt or acts of adjournal did not require to be laid before the Parliament. They were, however, still subject to the scrutiny of the SLC, although no lead committee was designated and no parliamentary control applied. These instruments are therefore included in these figures.

122. The provisions in the 2010 Act require most instruments to be laid before the Parliament which includes all instruments brought forward by the LPPO. These instruments are also referred to a lead committee, although it is still the case that no parliamentary control applies to the majority of these instruments.

SSIs drawn to the attention of the Parliament: broken down by reporting ground

123. The Committee is pleased to note that none of the instruments laid by the LPPO were reported on any of the significant grounds (i.e. grounds (e), (f) and (i)). The only ground where there was any significant change in the figures was on instruments reported on ground (h) (form or meaning could be clearer).

124. As with the statistics relating to instruments laid by the Scottish Government, points raised on any of the advisory grounds have been removed from the overall figures. In the case of instruments laid by the LPPO, one instrument was drawn to the Parliament on reporting ground (g). In terms of reporting ground (j), on the one instance where the ground was engaged, the Committee was satisfied with the reasons given for non-compliance which is reflected in the presentation of this figure in the table. This is therefore reflected in the overall figures.

125. The Act of Sederunt (Contempt of Court in Civil Proceedings) 2011 (SSI 2011/388) was reported by the Committee on ground (g) (unusual or unexpected use of the powers conferred by the parent statute) as well as on ground (h) (form and meaning could be clearer) for a number of reasons. The Committee welcomes that none of these are significant grounds.

126. With regard to the application of ground (g), in this case, the Committee regarded it in an advisory manner and so referred the matter to the Justice Committee as lead committee which then pursued the matter with the Lord President and which was addressed as a result.

SSIs drawn to the attention of the Parliament: broken down by lead committee

127. For obvious reasons, the majority of instruments laid by the LPPO are referred to the Justice Committee for consideration. The designation of lead committee for instruments laid by the LPPO has only applied since the implementation of the 2010 Act which requires all instruments to be laid before the Parliament. The remit of the Justice Committee is therefore engaged in these cases.

128. The LPPO also brought forward some instruments at the end of session 3 which, under the previous regime, did not require to be laid before the Parliament. These account for the six “not laid” instruments considered in 2011-12. Given the change in regime, it is difficult to draw any meaningful comparison with the previous years. However, the Committee notes these figures for its interest.

Conclusion

129. The Committee welcomes the overall figures for instruments laid by the Lord President’s Private Office on behalf of the Court in the reporting period. It considers that there could be some improvement in terms of the number of times ground (h) (form and meaning could be clearer) was engaged but the overall figures do not present the Committee with any particular concerns.

SCOTTISH STATUTORY INSTRUMENTS - GENERAL

Commitments: Scottish Government and Lord President’s Private Office

130. Throughout periods of reporting, the Scottish Government and the LPPO often make commitments in response to points raised on instruments by the Committee relating to defective drafting or other errors. Such commitments generally involve amending provisions being brought forward to address the Committee’s concerns.

131. During this reporting period, the Scottish Government made a commitment to address some of the concerns raised by the Committee in respect of 20 instruments on which the Committee drew to the attention of the Parliament.

132. The Scottish Government has confirmed that of the 20 instruments identified for correction/amendment, 17 of these corrections/amendments have been met (either by means of a corrective instrument or a correction slip), with a further three currently outstanding.

133. The Lord President’s Private Office gave a commitment to address the issues raised by the Committee’s on the Act of Adjournal (Criminal Procedure Rules Amendment No. 4) (Disclosure) 2011 (SSI 2011/242) which it did through bringing forward the Act of Adjournal (Criminal Procedure Rules Amendment No. 5) (Miscellaneous) 2011 (SSI 2011/290).

134. Further information on all commitments is provided in Annex B.

135. The Committee welcomes the progress made by the Scottish Government and the Lord President’s Private Office in meeting the commitments it made to correcting or amending instruments on which the Committee had reported and urges the Government to complete this process in early course.

Withdrawal of instruments

136. The Committee notes that the following instruments were withdrawn or revoked during the reporting period—

  • London Olympics and Paralympics Games (Advertising and Trading) (Scotland) Regulations 2011 [draft]
  • Scottish Natural Heritage Draft Code of Practice on Deer Management (SG 2011/225)
  • Aquatic Animal Health (Miscellaneous Modifications) (Scotland) Regulations 2011 [draft]
  • Storage of Carbon Dioxide (Inspections) (Scotland) Regulations 2011 [draft]
  • Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges etc.) (Scotland) Regulations 2011 (SSI 2011/394)
  • Police (Retention and Disposal of Motor Vehicles) Amendment (Scotland) Regulations 2011 (SSI 2011/395)

137. The two negative instruments were revoked by the Scottish Government for policy reasons.

138. However, all four of the draft affirmative instruments were withdrawn by the Scottish Government to address points which had been raised either in light of comments made by the Committee or following initial queries raised by the legal advisers prior to the instruments being considered by the Committee.

139. The Committee considers that this demonstrates the effectiveness of robust scrutiny and partnership working which ensures that concerns raised are addressed before the instruments became law.

Transitional provisions

140. During the reporting period the Committee gave careful consideration to the scrutiny of transitional provisions following concerns which arose in relation to the operation of the provisions in two cases. In particular it gave consideration to the scrutiny of these provisions where they were included as part of a commencement order (“bolt-on transitional provisions”). Such instruments are not subject to parliamentary control since commencement orders usually require only to be laid. This can be contrasted with separate orders making transitional provision (“standalone transitional provisions”) which are usually either subject to the negative or the affirmative procedure.

141. In the first case, an appeal was referred to the Court of Session regarding the provisions in the SSI which made transitional provision in relation to the commencement of the Adoption and Children (Scotland) Act 2007 (SSI 2009/267). The Court identified that the policy decision to include a cut-off date for the management of existing adoption cases meant that the case before it was not covered by either the old regime or the new one brought about by the Act. The Court therefore had to interpret the Act and order in a manner which made provision for the case.

142. In considering the case, the Court questioned the appropriateness of complex transitional provisions being contained within a commencement order which was not subject to any parliamentary control.

143. In the separate second case, the Court considered the effectiveness of transitional provisions contained within an SSI which dealt with the winding up of the Commission for the Regulation of Care and the transfer of its functions to Social Care and Social Work Improvement Scotland under the Public Services Reform (Scotland) Act 2010. This order was made using a standalone transitional power and was subject to the negative procedure but did not attract particular attention in the Parliament. In this case, while the instrument was not found to be defective, the clarity of the provisions was questioned by the Court.

144. The Committee notes that this instrument was brought forward towards the end of session 3 when there was a peak in the number of instruments laid. It was also brought forward as part of a package of measures implementing the provisions within the Public Services Reform (Scotland) Act 2010 which took place within a challenging timetable. This case therefore demonstrates the potential consequences of a large volume of instruments being laid over a short period of time and the impact that this can have on the exercise of proper scrutiny.

145. These cases illustrate that, notwithstanding that transitional provisions are considered to be standard practice and to be highly technical in nature, they can substantially affect an individual’s rights and remedies. In both cases the Parliament’s scrutiny of the provisions came into some criticism and so the Committee gave consideration to how this could be addressed.

146. The Committee recognised that where both standalone and bolt-on transitional powers have been given to ministers it is for ministers to choose which power to use in any particular case. However, as a general observation the Committee concluded that the Scottish Government should, wherever possible, avoid including complex transitional provisions which can affect an individual’s rights, such as those in SSI 2009/267, within commencement orders. In order for there to be effective scrutiny of such provisions the Committee concluded that they should be made using standalone powers which would make them subject to some parliamentary control. However the Scottish Government was not able to agree to this as a general approach.

147. In the absence of a commitment from the Scottish Government to do so, the Committee sought measures that would support more effective scrutiny of bolt-on transitional provisions by the Parliament although no procedural remedies would be available.

148. The 2010 Act does not set down any specific requirements for the time at which a commencement order is to be laid. However a convention exists that there should be a minimum of 10 days’ notice between a commencement order being laid and it coming into force. In recognition of the complexity of these cases, the Scottish Government committed to allowing a period of 40 days between laying instruments containing complex transitional provisions and them coming into force. However, unlike the time period specified in the 2010 Act for negative instruments, the Government would not commit to these being parliamentary sitting days. The 40-day period could therefore apply over a recess period during which no scrutiny could be conducted.

149. Instruments not subject to any parliamentary procedure are not generally accompanied by the usual policy note which would accompany instruments subject to the affirmative or negative procedure. These notes set out details of the policy intention of the instrument and are therefore a useful aide to scrutiny. Transitional provisions can involve complex issues which require an understanding of the policy and so it is sometimes difficult for the Committee to identify any potential defects or issues arising in the absence of a policy note.

150. In response to the Committee’s concerns, in order to support parliamentary scrutiny both from a technical and policy perspective, the Government committed to providing a policy note in circumstances where a commencement order contained complex transitional provisions but which was not subject to any parliamentary control.

151. Finally as a general approach, the Committee committed to giving careful consideration to transitional provisions during its consideration of delegated powers provisions in primary legislation. Where the Scottish Government is seeking both bolt-on and standalone powers in a Bill, the Committee will wish to explore the justification for both types of power being granted and an explanation of how they might be used.

152. The Committee welcomes the commitments the Scottish Government has made which would support the Parliament’s scrutiny of transitional provisions. However, while recognising the Government’s reasons for not making these provisions standalone, the Committee is disappointed that the Government has not made a commitment to allow for a full 40 days for scrutiny of these instruments before they come into force, which would not include periods in which the Parliament is recess. While it recognises that there may be circumstances where it will not be possible to allow for 40 days the Committee considers that this should be the exception and that it should be achievable in most cases. It therefore urges the Government to reconsider this position.

Minor Points

153. During its scrutiny of instruments in 2011-12, the Committee identified a total of 56 instruments on which minor points were raised (generally typographical or referencing errors). This can be broken down into 48 instruments laid by the Scottish Government and eight instruments laid by the LPPO.

154. While not affecting the validity of the instrument, these points are areas that the Committee considers the Scottish Government or the LPPO as appropriate should correct at the earliest opportunity.

155. While the Committee accepts that minor points such as these do not affect the validity of instruments, it urges the Scottish Government and the LPPO to take steps to ensure that the number of these types of errors decreases.

Motions to Annul

156. Motions to annul the following four instruments were lodged by members during the reporting period—

  • Inshore Fishing (Prohibition of Fishing for Cockles) (Solway Firth) (Scotland) Order 2011 (SSI 2011/319)
  • Non-Domestic Rates (Levying) (Scotland) (No.2) Regulations 2012 (SSI 2012/29)
  • National Health Service (Superannuation Scheme and Pension Scheme) (Scotland) Amendment Regulations 2012 (SSI 2012/69)
  • Bankruptcy Fees etc. (Scotland) Regulations 2012 (SSI 2012/118)

157. The motion to annul the Inshore Fishing (Prohibition of Fishing for Cockles) (Solway Firth) (Scotland) Order 2011 (SSI 2012/319) was withdrawn after the Rural Affairs, Climate Change and Environment Committee had taken evidence from the Cabinet Secretary for Rural Affairs and the Environment at its meeting on 5 October 2011.

158. The motion to annul the Non-Domestic Rates (Levying) (Scotland) (No.2) Regulations 2012 (SSI 2012/29) was disagreed to by the Local Government and Communities Committee by division at its meeting on 7 March 2012.

159. The motion to annul the National Health Service (Superannuation Scheme and Pension Scheme) (Scotland) Amendment Regulations 2012 (SSI 2012/69) was withdrawn following debate by the Health and Sport Committee at its meeting on 17 April 2012.

160. The motion to annul the Bankruptcy Fees etc. (Scotland) Regulations 2012 (SSI 2012/118) was disagreed to by the Justice Committee by division at its meeting on 22 May 2012.

161. In addition, motions to annul the Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges etc.) (Scotland) Regulations 2011 (SSI 2011/394) and the Police (Retention and Disposal of Motor Vehicles) Amendment (Scotland) Regulations 2011 (SSI 2011/395) were lodged and subsequently withdrawn following a commitment by the Cabinet Secretary for Rural Affairs and the Environment to revoke the instruments and bring forward new instruments after receiving representations from Members.

162. The Committee recognises that the number of motions to annul does not necessarily have any bearing on the quality of instruments laid, but notes the information for its interest.

Consolidation

163. As stated earlier, the Committee’s overarching objective is to ensure the accessibility of legislation to the general public. As part of this objective, the Committee agreed to pursue the issue of consolidation of instruments which have been amended a number of times or to the extent that it was difficult to discern what was the current law.

164. The Committee therefore agreed a number of courses of action including—

  • to ask the Scottish Government to provide an explanation of its plans for consolidation, if any, when introducing an instrument that amends another;
  • to continue to encourage consolidation, as appropriate, through its regular weekly and annual reporting;
  • to explore with the Scottish Government the feasibility of its publishing an informal consolidated text where available; and
  • to explore with the Scottish Government the possibility of identifying areas of law where efforts to consolidate could best be targeted.

165. While in principle the Committee would like to see as many instruments as possible be consolidated, it recognises that consolidation can be very resource intensive exercise both from the perspective of the Parliament as well as the Government. Therefore the Committee has agreed to target its efforts. In particular, in terms of seeking an explanation under the first bullet point above, the Committee has sought an explanation from the Government where there appears to be merit in consolidation being brought forward for the purposes of accessibility.

166. The Committee also welcomes the consolidating instruments brought forward by the Government set out in Annex D.

167. The Committee will continue to liaise with the Scottish Government in respect of these points and will pursue the issue of consolidation more generally.

OTHER BUSINESS

Introduction

168. Although the focus of this report is on the Committee’s activities in relation to its scrutiny of instruments, in order to give a full picture of the Committee’s activities throughout the reporting period, the following section sets the Committee’s activity in respect of other matters within its remit.

Bills

169. A primary function of the Committee is to consider the delegated powers provisions in any public or private Bills introduced in the Parliament. Over the reporting period, the Committee has considered and reported on the following eight Bills at Stage 1:

Alcohol (Minimum Pricing) (Scotland) Bill;
National Library of Scotland Bill;
Land Registration etc. (Scotland) Bill;
Budget (Scotland) Bill;
Criminal Cases (Punishment and Review) (Scotland) Bill;
Long Leases (Scotland) Bill;
Police and Fire Reform (Scotland) Bill; and
Welfare Reform (Further Provision) (Scotland) Bill.

170. The Committee also considered and reported on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill at Stage 1 and as amended at Stage 2.

171. All of the Bills were Government Bills and the Committee’s recommendations led to a number of changes being made by the Government to the delegated powers provisions in Bills. Through its scrutiny process, the Committee also aims to ensure that the correct balance between primary and secondary legislation is maintained.

172. The Committee’s consideration of Bills is usually carried out through written correspondence with Scottish Government officials. However, sometimes the extent of the delegated powers in Bills means that the scrutiny is better conducted through oral evidence.

173. This was the case in relation to the delegated powers provisions in the Alcohol (Minimum Pricing) (Scotland) Bill, in particular the minimum price per unit of alcohol would be set and modified using delegated powers. In particular any price set will require to be compatible with EU trade laws and so it was of importance that the Committee gave careful consideration to these provisions and the parliamentary control that would apply to them once the Bill was passed. The Committee therefore took oral evidence from the Cabinet Secretary for Health and Sport which enabled it to explore the issues in detail and give thorough scrutiny of these provisions.

174. The Welfare Reform (Further Provision) (Scotland) Bill was largely an enabling Bill with the detail of the provisions being made through delegated powers and so it was of importance that careful scrutiny was given to these powers. With this in mind, the Committee took oral evidence from Scottish Government officials in order to also give thorough consideration to these provisions.

175. Both of these sessions allowed the Committee to scrutinise the delegated powers in detail which enabled it to provide a comprehensive report of its views to the Parliament.

Legislative Consent Memorandums

176. The Committee has also considered three Legislative Consent Memorandums (LCMs). LCMs are prepared in relation to Westminster Bills which seek to change the law or alter Scottish Ministers’ or the Scottish Parliament’s powers in relation to devolved matters. The three LCMs considered by the Committee were on:

London Olympic Games and Paralympic Games (Amendment) Bill;
Welfare Reform Bill; and
Scotland Bill.

Public Body Consent Memorandums

177. The Committee considered four Public Body Consent Memorandums (PBCMs). PBCMs relate to draft orders made under sections 1 to 5 of the Public Bodies Act 2011 which would fall within the Scottish Parliament’s legislative competence. This mechanism was created to make provision for orders being brought forward under the Act which related to cross-border matters and so which would require the consent of the Scottish Parliament before proceeding further.

178. Interim arrangements were put in place to allow these orders to be considered by the Committee and a relevant subject committee before being considered by the whole Parliament. In terms of the Committee’s role, it was agreed that it would give consideration to these orders as it would to other instruments laid before the Parliament and so it would report to the Parliament on the usual reporting grounds. More permanent arrangements are due to be considered by the Standards, Procedures and Public Appointments Committee subsequently which are expected to follow the interim arrangements.

179. Four PBCMs were considered by the Committee in 2011-12 and it had no points to raise on any of the orders. These were:

Public Bodies (Abolition of the National Endowment for Science, Technology and the Arts) Order 2012 [draft];
Advisory Committee on Hazardous Substances (Abolition) Order 2012 [draft];
Inland Waterways Advisory Council (Abolition) Order 2012 [draft]; and
British Waterways Board (Transfer of Functions) Order 2012 [draft].

Conclusion

180. The Committee sees this annual reporting process as an opportunity to take stock of its activities over the previous year and that this report demonstrates the advantages of effective scrutiny taking place. The Committee therefore considers that this report provides a useful starting point in considering the scrutiny of instruments over session 4 of this Parliament.

181. With this in mind it will continue to pursue the issues raised over the coming years and will be monitoring the effect of its scrutiny and the responses made to it very carefully.

ANNEX A – REPORTING GROUNDS: 11 MAY 2011 TO 10 MAY 2012

(a) Charge on the Scottish Consolidated Fund

  • None

(b) Made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts

  • None

(c) retrospective effect where the parent statute confers no express authority so to provide

  • None

(d) unjustifiable delay in the publication or the laying of it before Parliament [1

  • International Criminal Court (Darfur) Order 2009 (SI 2009/699)

(e) doubt as to whether it is intra vires

  • Scottish Local Government Elections Order 2011 [draft]
  • Pigs (Records, Identification and Movement) (Scotland) Order 2011 (SSI 2011/327)
  • Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331)

(f) raises a devolution issue

  • Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331)
  • Food Hygiene (Scotland) Amendment Regulations 2012 (SSI 2012/75)

(g) unusual or unexpected use of the powers conferred by the parent statute

LPPO instrument

  • Act of Sederunt (Contempt of Court in Civil Proceedings) 2011 (SSI 2011/388)

(h) meaning could be clearer

  • Marketing of Horticultural Produce (Scotland) Amendment Regulations 2011 (SSI 2011/324)
  • Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331)
  • Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No.9, Transitional and Savings Provisions) Order 2011 (SSI 2011/354)
  • Double Jeopardy (Scotland) Act 2011 (Commencement and Transitional Provisions) Order 2011 (SSI 2011/365)
  • Patient Rights (Treatment Time Guarantee) (Scotland) Regulations 2012 [draft]
  • Patient Rights (Complaints Procedure and Consequential Provisions) (Scotland) Regulations 2012 (SSI 2012/36)
  • Scottish Secure Tenancies (Proceedings for Possession) (Pre-Action Requirements) Order 2012 [draft]
  • Scottish Secure Tenancies (Proceedings for Possession) (Confirmation of Compliance with Pre-Action Requirements) Regulations 2012 (SSI 2012/93)
  • Town and Country Planning (Continuation in force of Local Plans) (Highland) (Scotland) Order 2012 (SSI 2012/90)

LPPO instruments

  • Act of Sederunt (Jurisdiction in Respect of Parental Responsibility and Measures for the Protection of Children Rules) (SSI 2011/192)
  • Act of Sederunt (Contempt of Court in Civil Proceedings) 2011 (SSI 2011/388)
  • Act of Sederunt (Fees of Messengers-at-Arms) (No.2) 2011 (SSI 2011/431)
  • Act of Sederunt (Fees of Sheriff Officers) (No.2) 2011 (SSI 2011/432)

(i) drafting appears to be defective

  • Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No.1) Order 2011 (SSI 2011/279)
  • Storage of Carbon Dioxide (Inspections) (Scotland) Regulations 2011 [draft]
  • Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/ 331)
  • Education (Fees) (Scotland) Regulations 2011 (SSI 2011/389)
  • Control of Volatile Organic Compounds (Petrol Vapour Recovery) (Scotland) Regulations 2011 (SSI 2011/418)
  • Public Records (Scotland) Act 2011 (Commencement No. 1) Order 2012 (SSI 2012/21)
  • Housing (Scotland) Act 2010 (Commencement No. 6, Transitional and Savings Provisions) Order 2012 (SSI 2012/39).
  • Civil Legal Aid (Scotland) Amendment Regulations 2012 (SSI 2012/64)
  • Public Contracts (Scotland) Regulations 2012 (SSI 2012/88)
  • Snares (Training) (Scotland) Order 2012 (SSI 2012/124)

(j) failure to comply with laying requirements

  • Aquatic Animal Health (Scotland) Amendment Regulations (SSI 2011/259)
  • Plastic Kitchenware (Conditions of Imports from China) (Scotland) Regulations 2011 (SSI 2011/282)
  • Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No.1) Amendment Order 2011 (SSI 2011/287 (C.26))
  • International Criminal Court (Libya) Order 2011 (SI 2011/1696)
  • Food Additives (Scotland) Amendment (No 2) Regulations (SSI 2011/305)
  • Extraction Solvents in Food Amendment (Scotland) Regulations 2011 (SSI 2011/306)*11
  • Inshore Fishing (Prohibition of Fishing for Cockles) (Solway Firth) (Scotland) Order 2011 (SSI 2011/319)*
  • Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Amendment Order 2011 (SSI 2011/336)*
  • Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2011 (SSI 2011/356)
  • Police (Retention and Disposal of Motor Vehicles (Scotland) Amendment Revocation Regulations 2011 (SSI 2011/429)
  • Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges etc.) (Scotland) Revocation Regulations 2011 (SSI 2011/428)
  • Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (SSI 2012/3)
  • Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2012 (SSI 2012/108)
  • Firemen’s Pension Scheme Amendment (Scotland) Order 2012 (SSI 2012/106)
  • Firefighters’ Pension Scheme (Scotland) Amendment Order 2012 (SSI 2012/107)

LPPO instrument

  • Act of Sederunt (Fees of Sheriff Officers) (Amendment) 2012 (SSI 2012/7)

General reporting ground

  • Knife Dealer’s Licence (Historical Re-enactment Events) (Scotland) Order 2011 (SSI 2011/263)
  • Local Governance (Scotland) Act 2004 (Remuneration) Amendment Regulations 2011 (SSI 2011/264)
  • Construction Contracts (Scotland) Exclusion Order 2011 [draft]
  • Scheme for Construction Contracts (Scotland) Amendment Regulations 2011 [draft]
  • Local Democracy, Economic Development and Construction Act 2009 (Commencement No.1) (Scotland) Order 2011 (SSI 2011/269)
  • Local Electoral Administration (Scotland) Act 2011 (Commencement) Order 2011 (SSI 2011/277)
  • Local Democracy, Economic Development and Construction Act 2009 (Commencement No. 2) (Scotland) Order 2011 (SSI 2011/291)
  • Storage of Carbon Dioxide (Inspections) (Scotland) Regulations 2011 [draft]
  • Scottish Local Government Elections Order 2011 [draft]
  • Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/331)
  • Local Government Pension Scheme (Miscellaneous Amendments) (Scotland) Regulations 2011 (SSI 2011/349)
  • National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2011 (SSI 2011/ 364)
  • Pigs (Records, Identification and Movement) (Scotland) Amendment Order 2011 (SSI 2011/351)
  • Town and Country Planning (Listed Buildings and Buildings in Conservation Areas) (Scotland) Amendment Regulations 2011 (SSI 2011/376)
  • Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No.2) Amendment Order 2011 (SSI 2011/437)
  • Patient Rights (Treatment Time Guarantee) (Scotland) Regulations 2012 [draft]
  • Children’s Hearings (Scotland) Act 2011 (Commencement No.3) Order 2012 (SSI 2012/1)
  • Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2012 (SSI 2012/26)
  • Bus Service Operators Grant (Scotland) Amendment Regulations 2012 (SSI 2012/33)
  • Patient Rights (Complaints Procedure and Consequential Provisions) (Scotland) Regulations 2012 (SSI 2012/36)
  • Teachers’ Superannuation (Scotland) Amendment Regulations 2012 (SSI 2012/70)
  • Police Pensions (Contributions) Amendment (Scotland) Regulations 2012 (SSI 2012/71)
  • Public Contracts (Scotland) Regulations 2012 (SSI 2012/88)
  • Utilities Contracts (Scotland) Regulations 2012 (SSI 2012/89)
  • Firemen’s Pension Scheme Amendment (Scotland) Order 2012 (SSI 2012/106)

LPPO instruments

  • Act of Adjournal (Criminal Procedure Rules Amendment No.4) (Disclosure) 2011 (SSI 2011/242)
  • Act of Adjournal (Criminal Procedure Rules Amendment No.7) (Double Jeopardy (Scotland) Act 2011) 2011 (SSI 2011/387)

ANNEX B – COMMITMENTS: 11 MAY 2011 TO 10 MAY 2012

Commitments met

  • Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No.1) Order 2011 (SSI 2011/279)
    Commitment met by Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No 1) Amendment Order 2011 (SSI 2011/287(C.26))
  • Local Democracy, Economic Development and Construction Act 2009 (Commencement No. 2) (Scotland) Order 2011 (SSI 2011/291)
    Commitment met by Local Democracy, Economic Development and Construction Act 2009 (Commencement No. 3) Order 2011 (SSI 2011/337) (C.30)
  • Scottish Local Government Elections Order 2011 [draft]
    Commitment met by Scottish Local Government Elections Amendment Order 2012 [draft]
  • Pigs (Records, Identification and Movement) (Scotland) Order 2011 (SSI 2011/327)
    Commitment met by Pigs (Records, Identification and Movement) (Scotland) Amendment Order 2011 (2011/351)
  • Prisons and Young Offenders Institutions (Scotland) Rules 2011 (SSI 2011/ 331)
    Commitment met by Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2011 (SSI 2011/356)
  • National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2011 (SSI 2011/ 364)
    Commitment met by National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/163)
  • London Olympic Games and Paralympic Games Act 2006 (Advertising and Trading) (Scotland) Regulations 2011 [draft]
    Commitment met by amended London Olympic Games and Paralympic Games Act 2006 (Advertising and Trading) (Scotland) Regulations 2011 [draft]
  • Education (Fees) (Scotland) Regulations 2011 (SSI 2011/389)
    Commitment met by Education (Fees, Awards and Student Support) (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/72)
  • Control of Volatile Organic Compounds (Petrol Vapour Recovery) (Scotland) Regulations 2011 (SSI 2011/418)
    Commitment met by Waste (Scotland) Regulations 2012 [draft]
  • Public Records (Scotland) Act 2011 (Commencement No. 1) Order 2012 (SSI 2012/21)
    Commitment met by Public Records (Scotland) Act 2011 (Commencement No. 1) Amendment Order 2012 (SSI 2012/42)
  • Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2012 (SSI 2012/26)
    Commitment met by correction slip
  • Housing (Scotland) Act 2010 (Commencement No. 6, Transitional and Savings Provisions) Order 2012 (SSI 2012/39)
    Commitment met by Housing (Scotland) Act 2010 (Commencement No. 7 and Transitional Provision) Order 2012 (SSI 2012/91)
  • Teachers’ Superannuation (Scotland) Amendment Regulations 2012 (SSI 2012/70)
    Commitment met by correction slip
  • Public Contracts (Scotland) Regulations 2012 (SSI 2012/88)
  • Utilities Contracts (Scotland) Regulations 2012 (SSI 2012/89)
    Commitments met by Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2012 (SSI 2012/108)
  • Firemen’s Pension Scheme Amendment (Scotland) Order 2012 (SSI 2012/106)
    Commitment met by correction slip
  • Snares (Training) (Scotland) Order 2012 (SSI 2012/124)
    Commitment met by Snares (Training) (Scotland) (No. 2) Order 2012 (SSI 2012/161)

LPPO instrument

  • Act of Adjournal (Criminal Procedure Rules Amendment No.4) (Disclosure) 2011 (SSI 2011/242)
    Commitment met by Act of Adjournal (Criminal Procedure Rules Amendment No 5) (Miscellaneous) 2011 (SSI 2011/290)

Commitments outstanding

  • Marketing of Horticultural Produce (Scotland) Amendment Regulations 2011 (SSI 2011/324)
    Government to amend at earliest opportunity
  • Patient Rights (Treatment Time Guarantee) (Scotland) Regulations 2012 [draft]
    Government to correct at next available opportunity
  • Police Pensions (Contributions) Amendment (Scotland) Regulations 2012 (SSI 2012/71)
    Government to correct by means of an amending instrument

ANNEX C – INSTRUMENTS WHICH THE COMMITTEE HAS IDENTIFIED AS BEING SUITABLE FOR CONSOLIDATION: 11 MAY 2011 TO 10 MAY 2012

  • Plant Health (Import Inspection Fees) (Scotland) Regulations 2005 (SSI 2005/216)
  • Firemen’s Pension Scheme Amendment (Scotland) Order 2012 (SSI 2012/106)
  • Waste (Scotland) Regulations [draft]

ANNEX D – CONSOLIDATING INSTRUMENTS LAID IN THE REPORTING PERIOD: 11 MAY 2011 TO 10 MAY 2012

  • The Common Agricultural Policy Schemes (Cross-Compliance) (Scotland) Regulations 2011 SSI 2011/415
  • The Common Agricultural Policy Single Farm Payment and Support Schemes (Scotland) Regulations 2011 SSI 2011/416
  • The Bankruptcy Fees etc. (Scotland) Regulations 2012 SSI 2012/118
  • Public Contracts (Scotland) Regulations 2012 (SSI 2012/88)
  • Utilities Contracts (Scotland) Regulations 2012 (SSI 2012/89)

ANNEX E – NON-COMPLIANCE WITH LAYING REQUIREMENTS: 11 MAY 2011 TO 10 MAY 2012

Committee content with reason for non-compliance

  • Aquatic Animal Health (Scotland) Amendment Regulations (SSI 2011/259)
  • Plastic Kitchenware (Conditions of Imports from China) (Scotland) Regulations 2011 (SSI 2011/282)
  • Wildlife and Natural Environment (Scotland) Act 2011 (Commencement No.1) Amendment Order 2011 (SSI 2011/287 (C.26))
  • International Criminal Court (Libya) Order 2011 (SI 2011/1696)
  • Food Additives (Scotland) Amendment (No 2) Regulations (SSI 2011/305)
  • Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2011 (SSI 2011/356)
  • Police (Retention and Disposal of Motor Vehicles (Scotland) Amendment Revocation Regulations 2011 (SSI 2011/429)
  • Removal, Storage and Disposal of Vehicles (Prescribed Sums and Charges etc.) (Scotland) Revocation Regulations 2011 (SSI 2011/428)
  • Specified Products from China (Restriction on First Placing on the Market) (Scotland) Amendment Regulations 2012 (SSI 2012/3)
  • Public Contracts and Utilities Contracts (Scotland) Amendment Regulations 2012 (SSI 2012/108)
  • Firemen’s Pension Scheme Amendment (Scotland) Order 2012 (SSI 2012/106)
  • Firefighters’ Pension Scheme (Scotland) Amendment Order 2012 (SSI 2012/107)

LPPO instrument

  • Act of Sederunt (Fees of Sheriff Officers) (Amendment) 2012 (SSI 2012/7)

Committee not content with reason for non-compliance

  • Extraction Solvents in Food Amendment (Scotland) Regulations 2011 (SSI 2011/306)
  • Inshore Fishing (Prohibition of Fishing for Cockles) (Solway Firth) (Scotland) Order 2011 (SSI 2011/319)
  • Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Amendment Order 2011 (SSI 2011/336)

ANNEX F – INSTRUMENTS LAID: 1 JANUARY 2011 TO 22 MARCH 2011

Reporting Grounds: 1 January 2011 to 22 March 2011

(a) Charge on the Scottish Consolidated Fund

None

(b) Made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts

None

(c) retrospective effect where the parent statute confers no express authority so to provide

None

(d) unjustifiable delay in the publication or the laying of it before Parliament

None

(e) doubt as to whether it is intra vires:

  • Edinburgh College of Art (Transfer) (Scotland) Order 2011 (SSI 2011/54)
  • Public Services Reform (General Teaching Council for Scotland) Order 2011 (SSI 2011/draft)
  • Public Services Reform (Agricultural Holdings) (Scotland) Order 2011 (SSI 2011/draft)
  • Licensing (Food Hygiene Requirements) (Scotland) Order 2011 (SSI 2011/128)
  • Licensing (Food Hygiene Requirements) (Scotland) (No 2) Order 2011 (SSI 2011/177)

(f) raises a devolution issue

None

(g) unusual or unexpected use of the powers conferred by the parent statute

  • Community Payback Orders (Prescribed Persons for Consultation) (Scotland) Regulations 2011 (SSI 2011/1)
  • Provision of Water and Sewerage Services (Reasonable Cost) (Scotland) Regulations 2011 (SSI 2011/119)

LPPO instrument

  • Act of Sederunt (Fees of Sheriff Officers) 2011 (SSI 2011/47)

(h) meaning could be clearer

  • Water Environment (Controlled Activities) (Scotland) Regulations 2011 (SSI 2011/draft)
  • Edinburgh College of Art (Transfer) (Scotland) Order 2011 (SSI 2011/54)
  • Additional Support for Learning (Sources of Information) (Scotland) Amendment Order 2011 (SSI 2011/102)
  • Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011 (SSI 2011/121)
  • Extreme Pornography (Electronic Commerce Directive) (Scotland) Regulations 2011 (SSI 2011/137)
  • Debt Arrangement Scheme (Scotland) Regulations 2011 (SSI 2011/141)
  • Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2011 (SSI 2011/160)

(i) drafting appears to be defective

  • National Health Service (Superannuation Scheme) (Scotland) Regulations 2011 (SSI 2011/117)
  • Local Government Finance (Scotland) Amendment Order 2011 (SSI 2011/made)
  • Licensing (Scotland) Act 2005 (Consequential Provisions) Order 2011 (SSI 2011/150)
  • Bankruptcy and Diligence etc. (Scotland) Act 2007 (Commencement No8 Transitional) Order 2011 (SSI 2011/179) (C.16)

General reporting ground

Breach of 21-day rule

  • Animal By-Products (Enforcement) (Scotland) Regulations 2011 (SSI 2011/171) [Committee content with reason for breach]
  • Licensing (Food Hygiene Requirements) (Scotland) (No 2) Order 2011 (SSI 2011/177) [Committee content with reason for breach]

Other reasons

  • Public Services Reform (Scotland) Act 2010 (Commencement No.3) Order 2011 (SSI 2011/30)
  • Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011 (SSI 2011/45)
  • Healthcare Improvement Scotland (Requirements as to Independent Health Care Services) Regulations 2011 (SSI 2011/draft)
  • Healthcare Improvement Scotland (Inspections) Regulations 2011 (SSI 2011/draft)
  • Public Services Reform (Joint Inspections) (Scotland) Regulations 2011 (SSI 2011/draft)
  • Public Services Reform (Social Services Inspections) (Scotland) Regulations 2011 (SSI 2011/draft)
  • Children’s Hearings (Scotland) Act 2011 (Consequential Provision) and Public Appointments and Public Bodies etc (Scotland) Act 2003 (Amendment of Specified Authorities) Order 2011 (SSI 2011/draft)
  • National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Scotland) Regulations 2011 (SSI 2011/55)
  • Marine Licensing (Exempted Activities) (Scottish Offshore Region) Order 2011 (SSI 2011/57)
  • Road Works (Inspection Fees) (Scotland) Amendment Regulations 2011 (SSI 2011/91)
  • Officers of Court’s Professional Association (Scotland) Regulations 2011 (SSI 2011/90)
  • Plastic Materials and Articles in Contact with Food (Scotland) Amendment Regulations 2011 (SSI 2011/100)
  • National Health Service (Superannuation Scheme) (Scotland) Regulations 2011 (SSI 2011/117)
  • Sale of Tobacco (Display of Warning Statements) (Scotland) Regulations 2011 (SSI 2011/132)
  • Parole Board (Scotland) Amendment Rules 2011 (SSI 2011/133)
  • Town and Country Planning (General Permitted Development) (Non-Domestic Microgeneration) (Scotland) Amendment Order 2011 (SSI 2011/136)
  • Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SSI 2011/139)
  • Insolvency Act 1986 Amendment (Appointment of Receivers) (Scotland) Regulations 2011 (SSI 2011/140)
  • Debt Arrangement Scheme (Scotland) Regulations 2011 (SSI 2011/141)
  • Licensing (Scotland) Act 2005 (Consequential Provisions) Order 2011 (SSI 2011/150)
  • Food Labelling (Declaration of Allergens) (Scotland) Regulations 2011 (SSI 2011/152)
  • Police Pensions (Amendment) (Scotland) Regulations 2011 (SSI 2011/154)
  • National Health Service (Dental Charges) (Scotland) Amendment Regulations 2011 (SSI 2011/168)
  • Animal By-Products (Enforcement) (Scotland) Regulations 2011 (SSI 2011/171)

LPPO instruments

  • Act of Sederunt (Sheriff Court Rules) (Enforcement of Securities over Heritable Property) 2010 (SSI 2010/324)

Commitments: 1 January 2011 to 22 March 2011

Commitments met

  • Healthcare Improvement Scotland (Requirements as to Independent Health Care Services) Regulations 2011 (SSI 2011/draft)
  • Healthcare Improvement Scotland (Inspections) Regulations 2011 (SSI 2011/draft)
  • Public Services Reform (Joint Inspections) (Scotland) Regulations 2011 (SSI 2011/draft)
  • Public Services Reform (Social Services Inspections) (Scotland) Regulations 2011 (SSI 2011/draft)
    Commitments met by Public Services Reform (Scotland) Act 2010 (Consequential Modifications) Order 2011 (SSI 2011/draft)
  • National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Scotland) Regulations 2011 (SSI 2011/55)
    Correction slip issued
  • Marine Licensing (Exempted Activities) (Scottish Offshore Region) Order 2011 (SSI 2011/57)
    Correction slip issued
  • National Health Service (Superannuation Scheme) (Scotland) Regulations 2011 (SSI 2011/117)
    Commitment met by National Health Service Superannuation Scheme (Scotland) Amendment Regulations 2011 (SSI 2011/173)
  • Licensing (Food Hygiene Requirements) (Scotland) Order 2011 (SSI 2011/128)
    Commitment met by Licensing (Food Hygiene Requirements) (Scotland) (No 2) Order 2011 (SSI 2011/177)
  • Town and Country Planning (General Permitted Development) (Non-Domestic Microgeneration) (Scotland) Amendment Order 2011 (SSI 2011/136)
    Commitment met by Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2011 (SSI 2011/357)
  • Extreme Pornography (Electronic Commerce Directive) (Scotland) Regulations 2011 (SSI 2011/137)
    Commitment met by Extreme Pornography (Electronic Commerce Directive) (Scotland) Amendment Regulations 2011 (SSI 2011/170)
  • Local Government Finance (Scotland) Amendment Order 2011 (SSI 2011/made)
    Commitment met by Local Government Finance (Scotland) Amendment (No. 2) Order 2011 (SSI 2011/draft)
  • Children’s Hearings (Scotland) Act 2011 (Consequential Provision) and Public Appointments and Public Bodies etc (Scotland) Act 2003 (Amendment of Specified Authorities) Order 2011 (SSI 2011/draft)
    Commitment met by amendment of an incorrect paragraph reference in the draft SSI before it was signed
  • Licensing (Scotland) Act 2005 (Consequential Provisions) Order 2011 (SSI 2011/150)
    Commitment met by Licensing (Scotland) Act 2005 (Consequential Provisions) Amendment Order 2011 (SSI 2011/187)
  • Police Pensions (Amendment) (Scotland) Regulations 2011 (SSI 2011/154)
    Correction slip issued
  • Animal By-Products (Enforcement) (Scotland) Regulations 2011 (SSI 2011/171)
    Correction slip issued

Commitments outstanding

  • Road Works (Inspection Fees) (Scotland) Amendment Regulations 2011 (SSI 2011/91)
    Government to remove redundant definitions at next available opportunity
  • Additional Support for Learning (Sources of Information) (Scotland) Amendment Order 2011 (SSI 2011/102)
    Government to correct at earliest opportunity
  • Debt Arrangement Scheme (Scotland) Regulations 2011 (SSI 2011/141)
    Government to correct error at the first legislative opportunity

Consolidating instruments laid: 1 January 2011 to 22 March 2011

  • Water Environment (Controlled Activities) (Scotland) Regulations 2011 (SSI 2011/draft)
  • National Health Service (Superannuation Scheme) (Scotland) Regulations 2011 (SSI 2011/117)
  • Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SSI 2011/139)
  • Animal By-Products (Enforcement) (Scotland) Regulations 2011 (SSI 2011/171)
  • The Debt Arrangement Scheme (Interest, Fees, Penalties and Other Charges) (Scotland) Regulations 2011 (SSI 2011/238)

Footnotes:

1 Scottish Parliament Subordinate Legislation Committee 14th Report, 2007 (Session 2) Report on the Inquiry into the Regulatory Framework in Scotland (SP Paper 751).

2 Subordinate Legislation Committee, 9th Report 2011, Report on Scottish Statutory Instruments laid in 2010, SP Paper 23 available here—http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/.aspx

3 The 2010 Act makes specific provision for affirmative and negative procedure. Any instrument not falling within one of these categories by default only requires to be laid and is not subject to any parliamentary procedure. In addition, primary legislation can make particular provision for other types of procedure as required. An example of this is provisional affirmatives which can be brought into force immediately but must be approved by resolution of the Parliament in order to remain in force.

4 The 2010 Act makes provision for “excepted instruments”, reflecting those which were previously treated as local instruments, which do not require to be laid before the Parliament.

5 Scottish Parliament Standing Orders, Rule 10.3.1.

6 Orders in Council are made by Her Majesty with the advice of the Privy Council and Orders of Council are made by the Privy Council in exercise of powers conferred upon the Privy Council alone

7 The figures in brackets here and in the tables throughout the report show the total number of instruments drawn to the Parliament’s attention which includes instruments reported on the advisory grounds and, with regard to ground (j), where the Committee was satisfied with the reasons given for non-compliance with the laying requirements. To provide an overall picture of matters of concern to the Subordinate Legislation Committee, these have been removed from the overall figure.

8 In 2010-11, the equivalent reporting ground (failure to comply with the 21-day rule) was included within the general ground.

9 The figures in brackets here and in the tables throughout the report show the total number of instruments drawn to the Parliament’s attention which includes instruments reported on the advisory grounds which are: grounds (a), (b), (g) and, with regard to ground (j), where the Committee was satisfied with the reasons given for non-compliance with the laying requirements. To provide an overall picture of matters of concern to the Subordinate Legislation Committee, these have been removed from the overall figures.

10 In 2009 and 2010-11, the equivalent reporting ground (failure to meet the 21-day rule) was included in the general ground.

11 The asterisks indicate where the Committee was not satisfied with the reasons given for non-compliance with the laying requirements

Back to top

This website is using cookies.
We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we’ll assume that you are happy to receive all cookies on this website.