54th Report, 2012 (Session 4): Subordinate Legislation

SP Paper 219 (Web Only)

SL/S4/12/R54

54th Report, 2012 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

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

(a) any—

(i) subordinate legislation laid before the Parliament;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1;

and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

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

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

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

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

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

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 20 November 2012, the Committee agreed to draw the attention of the Parliament to the following instruments—

Adults with Incapacity (Public Guardian’s Fees) (Scotland) Amendment Regulations 2012 (SSI 2012/289)

Court of Session etc. Fees Amendment Order 2012 (SSI 2012/290);

High Court of Justiciary Fees Amendment Order 2012 (SSI 2012/291);

Sheriff Court Fees Amendment Order 2012 (SSI 2012/293);

Crofting Register (Scotland) Rules 2012 (SSI 2012/294);

Crofting Register (Fees) (Scotland) Order 2012 (SSI 2012/295);

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

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

Scotland Act 1998 (Modification of Schedule 5) (No.2) Order 2013 [draft].

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

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

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Adults with Incapacity (Public Guardian’s Fees) (Scotland) Amendment Regulations 2012 (SSI 2012/289) (Justice Committee)

6. This instrument specifies new fee levels payable to the Public Guardian for certain matters under the Adults with Incapacity (Scotland) Act 2000 for the periods 10 December 2012 to 31 March 2013, 1 April 2013 to 31 March 2014 and from 1 April 2014 onwards. The fees previously set by SSI 2008/52 are revoked.

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

8. The Scottish Government agrees that the two minor drafting errors described below have been identified but does not propose to correct them since it considers that they are of no operational effect. The reference to the fee currently payable is illustrative only and has no effect upon the fee to be charged under the instrument. The Committee accepts this but considers that it is normal practice to identify the existing level of fee within the instrument so that readers can identify the changes to fees which are being made. The Committee considers that this purpose has been frustrated by the drafting errors made.

9. The Committee draws this instrument to the attention of the Parliament under the general reporting ground as it contains two minor drafting errors.

10. Column 3 of the table contained in Schedule 1 sets out the fee currently payable for services provided by the Public Guardian. In entry 19 of the table the fee currently payable for estates valued between £250,001 and £500,000 is £800 and not £600-800 as stated in the instrument and similarly in entry 20 the fee currently payable for estates valued between £250,001 and £500,000 is £860 and not £660-860 as stated.

11. The Committee reports the matter despite the lack of operational effect because this instrument is one in a series of instruments revising court fee levels four of which contain patent drafting errors. When taken with the errors identified with the other fees instruments and drawn to the attention of the Parliament in this report the Committee is dissatisfied with the overall quality of this suite of instruments. It appears that there must be a doubt as to whether an adequate quality control process has been applied in relation to these instruments and the Committee considers that the Scottish Government may wish to reflect on this to ensure that its quality control process is robust.

Court of Session etc. Fees Amendment Order 2012 (SSI 2012/290) (Justice Committee)

12. This Order amends the Court of Session etc. Fees Order 1997, to specify new fee levels payable in the Offices of the Court, the Accountant of Court, and the Auditor of the Court.

13. The Order is subject to the negative procedure, and comes into force on 10 December 2012. Schedule 1 has a table of fees with the fees payable from that date. The table in Schedule 2 sets out the fees payable from 1 April 2013. The table in Schedule 3 sets out the fees payable from 1 April 2014.

14. In considering the instrument, the Committee asked the Scottish Government questions in relation to drafting errors. The correspondence is reproduced in Appendix 2.

15. The Scottish Government has acknowledged that the errors described below have been made in the commencement provisions in article 1. The effect of this is that the increased fees under this instrument cannot properly be charged.

16. However the Scottish Government has undertaken to lay an amending order, to come into force on 9th December 2012, which will correct these errors prior to this Order coming into force.

17. The Scottish Government has also acknowledged that there is a minor drafting error in Schedule 1. A reference to £2035 as the fee formerly payable in Part II(H)(I.)(1), column 3, of the table of fees in Schedule 1 is an error. It should read £20 – 35. This refers to a fee for registering a case and receiving and delivering up a bond of caution.

18. The Committee accepts that, as a reference to a fee formerly payable, the entry is illustrative only and has no effect upon the fees to be charged under this instrument but the Committee reports this error to the Parliament for the same reasons expressed in relation to the similar error in SSI 2012/289.

19. The Committee draws the Order to the attention of the Parliament on reporting ground (i).

20. The drafting of the Order appears to be defective. Article 1(2) brings article 5(b) into force on 1 April 2013 when article 5(a) ceases to have effect. Article 1(3) brings article 5(c) into force on 1 April 2014, when article 5(b) ceases to have effect. There are no such paragraphs (a) to (c) in article 5, and it is clear that the Order should have referred instead to the relevant paragraph of article 6. The effect of this is that the increased fees under this instrument cannot properly be charged.

21. The Committee welcomes that the Scottish Government has undertaken to lay an amending Order to correct the errors prior to this Order coming into force.

22. The Committee also draws the Order to the attention of the Parliament on the general reporting ground.

23. There is a minor drafting error in Part II(H)(I.)(1) of the table of fees in Schedule 1, in column 3. The fee formerly payable for registering a case and receiving and delivering up a bond of caution is narrated as £2035, when it should be £20 or £35. It is not considered that this error has any effect on the operation of the instrument.

24. The Committee welcomes that the Scottish Government has undertaken to correct this error in the amending Order to be laid to correct the errors in article 1.

High Court of Justiciary Fees Amendment Order 2012 (SSI 2012/291) (Justice Committee)

25. This Order amends the High Court of Justiciary Fees Order 1984, to specify new fee levels payable in the High Court of Justiciary.

26. The Order is subject to the negative procedure, and comes into force on 10 December 2012. Schedule 1 has a table of fees with the fees payable from that date. The table in Schedule 2 sets out the fees payable from 1 April 2013. The table in Schedule 3 sets out the fees payable from 1 April 2014.

27. In considering the instrument, the Committee asked the Scottish Government a question in connection with drafting errors. The correspondence is reproduced in Appendix 3.

28. The Scottish Government has acknowledged that the errors described below have been made in the commencement provisions in article 1. The effect of this is that the increased fees under this instrument cannot properly be charged.

29. However the Scottish Government has undertaken to lay an amending order, to come into force on 9th December 2012, which will correct these errors prior to this Order coming into force.

30. The Committee draws the Order to the attention of the Parliament on reporting ground (i).

31. The drafting of the Order appears to be defective. Article 1(2) brings article 3(b) into force on 1 April 2013 when article 3(a) ceases to have effect. Article 1(3) brings article 3(c) into force on 1 April 2014, when article 3(b) ceases to have effect. There are no such paragraphs (a) to (c) in article 3, and it is clear that the Order should have referred instead to the relevant paragraph of article 4. The effect of this is that the increased fees under this instrument cannot properly be charged.

32. The Committee welcomes that the Scottish Government has undertaken to lay an amending Order to correct the errors prior to this Order coming into force.

Sheriff Court Fees Amendment Order 2012 (SSI 2012/293) (Justice Committee)

33. This Order amends the Sheriff Court Fees Order 1997, to specify new fee levels payable in the Sheriff Court.

34. The Order is subject to the negative procedure, and comes into force on 10 December 2012. Schedule 1 has a table of fees with the fees payable from that date. The table in Schedule 2 sets out the fees payable from 1 April 2013. The table in Schedule 3 sets out the fees payable from 1 April 2014.

35. In considering the instrument, the Committee asked the Scottish Government a question in connection with the drafting error. The correspondence is reproduced in Appendix 4.

36. The Scottish Government has acknowledged that errors described below have been made in the commencement provisions in article 1. The effect of this is that the increased fees under this instrument cannot properly be charged.

37. However the Scottish Government has undertaken to lay an amending order, to come into force on 9th December 2012, which will correct these errors prior to this Order coming into force.

38. The Committee draws the Order to the attention of the Parliament on reporting ground (i).

39. The drafting of the Order appears to be defective. Article 1(2) brings article 2(11)(b) into force on 1 April 2013 when article 2(11)(a) ceases to have effect. Article 1(3) brings article 2(11)(c) into force on 1 April 2014. There is no article 2(11), and it is clear that the Order should have referred instead to the relevant sub-paragraphs of article 2(10). The effect of this is that the increased fees under this instrument cannot properly be charged.

40. The Committee welcomes that the Scottish Government has undertaken to lay an amending Order to correct the errors prior to this Order coming into force.

Crofting Register (Scotland) Rules 2012 (SSI 2012/294) (Rural Affairs, Climate Change and Environment Committee)

41. This instrument provides for the making up and keeping of the Crofting Register, the forms to be used in applications for registration and for rectification of the Register, and connected matters. It also provides for public access to the Register.

42. In considering the instrument, the Committee asked the Scottish Government for clarification on certain points. The correspondence is reproduced in Appendix 5.

43. Rule 6 specifies that different forms are to be used in respect of different applications for registration. In particular, rule 6(3) specifies that Form C is to be used for an application for first registration of a common grazing under section 24(1) of the Crofting Reform (Scotland) Act 2010 (“the Act”), or for land held runrig under section 32(1). Rule 6(4) goes on to specify that an application for first registration of a new common grazing (which is said to be an application under section 26(1)(a)) is to be made in Form D.

44. The Committee notes that the Scottish Government accepts that it is section 24(1)(a) which requires registration of new common grazings, and not section 26(1)(a), which relates to the procedure to be followed in doing so. It follows that the reference in rule 6(4) to section 26(1)(a) is an error.

45. Section 24(1)(a) requires the registration of new common grazings. Section 24(1)(b) permits the Crofting Commission to register existing common grazings. It is this latter section 24(1)(b) application which is intended to be made in Form C. However, rule 6(3) provides that all applications under section 24(1) are to be made in Form C. The rule accordingly catches section 24(1)(a) applications – which should be made on Form D – as well as the section 24(1)(b) applications for which it is intended.

46. The Scottish Ministers accept that rule 6(3) ought only to have referred to existing common grazings (i.e. section 24(1)(b) applications) and accordingly they accept that there is an error in the drafting of that rule. It appears to the Committee that this error risks causing substantial confusion to applicants for registration. Applicants seeking to register a new common grazing may expend time and money completing Form C in reliance on the provision in rule 6(3), only to be told that the application has to be rejected because it is in the wrong form.

47. The Scottish Ministers appear to consider that this risk may be mitigated by issuing guidance on completing the forms and by the provision of information by the Commission, with an amendment to follow at the next legislative opportunity. The Committee does not consider this to be an adequate response. It takes the view that this error has an effect on the operation of the instrument which may expose applicants to wasted expense and time. Accordingly, it recommends that the Scottish Ministers correct this error in early course.

48. The Committee draws the instrument to the attention of the Parliament on reporting ground (h).

49. The form or meaning of the instrument could be clearer, in that rules 6(3) and (4) make differing provision as to the form which is to be used when applying to register a new common grazing: the effect of rule 6(3) is that such an application is to be made on Form C, while the effect of rule 6(4) is that it should be made on Form D. The Scottish Ministers acknowledge that such an application should properly be made on Form D, and that accordingly there is an error in the drafting of rule 6(3).

50. The Committee considers that this error carries a substantial risk of confusion for potential applicants, who may incur unnecessary expense and wasted time in completing Form C in reliance upon rule 6(3), when they should instead have completed Form D. It does not consider that issuing non-statutory guidance and offering to correct this error at the next opportunity adequately mitigates the risk to applicants. It accordingly recommends that the Scottish Ministers consider laying an amending instrument to correct this error in early course, and preferably before the instrument comes into force on 30 November 2012.

51. The Committee draws the instrument to the attention of the Parliament on the general reporting ground.

52. There is an error in rule 6(4), which makes reference to section 26(1)(a) of the Crofting Reform (Scotland) Act 2010. That section specifies the procedure to be followed in applying for first registration of new common grazings. The Scottish Ministers accept that this ought instead to be a reference to section 24(1)(a), which requires the making of an application to register new common grazings.

Crofting Register (Fees) (Scotland) Order 2012 (SSI 2012/295) (Rural Affairs, Climate Change and Environment Committee)

53. This instrument prescribes the fees which are payable to the Keeper of the Registers of Scotland in respect of applications for registration in the Crofting Register, and requests for searches, reports, copies of documents and information from that Register.

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

55. The issue about this instrument is closely related to that considered in relation to the Crofting Register (Scotland) Rules 2012 (“the Rules”). Applications for first registration of new common grazings are made under section 24(1)(a) of the Crofting Reform (Scotland) Act 2010 (“the Act”) and for any other first registration of common grazings under section 24(1)(b). The Table of Fees specifies a fee of £90 for “Registration of a common grazing under section 24(1) of the Act”. The Committee considers that this fee applies regardless of whether it relates to a new common grazing under paragraph (a) of that section, or any other common grazing under paragraph (b).

56. However, the instrument goes on to provide specifically for a fee of £90 to be payable on registration of a new common grazing under section 26(1) of the Act. In relation to the Rules, the Scottish Ministers accepted that section 24(1)(a) is the provision under which registration of a new common grazing is required, and that section 26(1)(a) provides the procedure to be followed in making such an application.

57. The Committee considers that the effect of providing a fee for registration of a common grazing under section 24(1) of the Act is that this sets a fee which is payable when an application is made for first registration of a new common grazing (in terms of section 24(1)(a)) or when an application is made for first registration of any other common grazing (in terms of section 24(1)(b)). The instrument then goes on to provide for a further fee to be payable upon registration of a new common grazing, apparently under section 26(1) of the Act.

58. The Committee does not consider that an application for first registration of a new common grazing is made under section 26(1): it considers that properly this is an application under section 24(1)(a). Consequently, the instrument may be read either as imposing two fees for registration of a new common grazing (there being two applicable entries in the Table of Fees) or as imposing one fee (with the second provision being superfluous).

59. The Committee observes that, as this is a charging statute, the general principle of statutory interpretation is that it should be construed strictly against the state, so that the applicant benefits from any ambiguity in the drafting. It understands from correspondence with the Scottish Ministers that it is intended that a single fee of £90 be payable regardless of whether the application is to register a new common grazing or any other common grazing. That intention would accord with the result produced by a strict construction of the provision.

60. The Committee takes the view that the inclusion of the second entry is apt to cause confusion for applicants who may rightly identify that their application to register a new common grazing could equally fall to be charged under both of these entries. The Committee notes that the Scottish Ministers propose to clarify the matter by issuing guidance. This instrument introduces fees for an entirely new statutory regime. It contains a significant ambiguity which creates doubt as to the fees which are properly chargeable, and this is particularly undesirable given that the doubtful provisions impose charges. The Committee accordingly does not consider the issuing of guidance to be a satisfactory way of proceeding.

61. The Committee draws the instrument to the attention of the Parliament on reporting ground (h).

62. The form or meaning of the Table of Fees could be clearer. Applications for first registration of a new common grazing are made under section 24(1)(a) of the Crofting Reform (Scotland) Act 2010 and so are properly chargeable under the entry for “registration of a common grazing under section 24(1) of the Act”. However, a further entry purports to charge a fee for “registration of a new common grazing under section 26(1) of the Act”. Section 26(1)(a) specifies the procedure to be followed in an application under section 24(1)(a). It is accordingly unclear what effect this second entry is supposed to have, and it is also unclear whether applicants are chargeable only under the first entry, or whether both entries apply and accordingly two fees of £90 each are payable on the first registration of a new common grazing.

63. While the Committee welcomes the Scottish Ministers’ clarification that it is intended that only a single fee should apply to such an application, it does not consider that it is satisfactory to attempt to clarify this ambiguity by way of guidance. It appears to the Committee that this is a significant ambiguity within the Table of Fees, and accordingly it recommends that the Scottish Ministers consider laying an amending instrument to correct this error in early course, and preferably before the instrument comes into force on 30 November 2012.


INSTRUMENTS REFERRED TO LEAD COMMITTEE FOR CONSIDERATION

Scotland Act 1998 (Modification of Schedule 5) (No. 2) Order 2013 [draft]

64. The Committee agreed not to draw the instrument to the attention of the Parliament under any of the reporting grounds within the Committee’s remit, but to refer the following practical effects arising from the drafting of the order to the lead committee and the Parliament for consideration. The lead committee and the Parliament may wish to seek an explanation of these matters from the Scottish Government to inform consideration of the draft order.

Scope of the reservation
65. Article 2 of the order modifies the reservation of Social Security schemes set out in Section F1 of Schedule 5 to the Scotland Act 1998. The new exception to the reservation makes clear that, once the order comes into force, the subject matter of section 69 of the Child Support, Pensions and Social Security Act 2000 will remain reserved. However, section 69 is to remain reserved as it will have effect on the date on which the order is due to come into force - 1 April 2013.

66. As this is a date in the future, and as the Scottish Parliament does not have the power to control the subject matter of section 69, the Committee observes that at the point that the Parliament is being asked to approve the terms of the order it is not clear what subject matter is being reserved by this provision.

Extension of functions
67. Article 3 of the order modifies existing devolved statutory functions of the Scottish Ministers and local authorities so that from 1 April 2013 they are to have effect as if the transfer of legislative competence made by article 2 of the order had had effect at the time the functions were conferred.

68. The purpose of article 2 is to confer legislative competence over community grants and crisis loans on the Scottish Parliament with effect from 1 April 2013. By giving effect to article 2 in this manner from that date, article 3 makes provision that would be within the legislative competence of the Parliament on that date. The Parliament should therefore be clear exactly what the effect of article 3 is intended to be if legislation is being made on its behalf by order promoted by the Scottish and UK Governments.

69. The policy note submitted by the Scottish Government indicates that the intention is for local authorities and the Scottish Ministers to make provision for the new devolved matters of community care grants and crisis loans through the exercise of their powers to advance well-being under the Local Government in Scotland Act 2003. If that is the case it is not clear why the exercise of the Parliament’s new competence under article 2 needs to extend more widely than those specific provisions to “any pre-commencement devolved enactment”. Without an exhaustive review of the statute book it is not clear what the full effect of article 3 will be.

NO POINTS RAISED

At its meeting on 20 November 2012, the Committee considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Justice

Justice of the Peace Court Fees (Scotland) Order 2012 (SSI 2012/292)

Act of Adjournal (Criminal Procedure Rules Amendment No. 3) (Procedural Hearings in Appeals from Solemn Proceedings) 2012 (SSI 2012/300);

International Recovery of Maintenance (Hague Convention 2007) (Scotland) Regulations 2012 (SSI 2012/301).

APPENDIX 1

Adults with Incapacity (Public Guardian’s Fees) (Scotland) Amendment Regulations 2012 (SSI 2012/289)

On 7 November 2012, the Scottish Government was asked:

Whether in the table of fees contained in Schedule 1 to the instrument, the fee set out in Column 3 as the fee formerly payable in respect of:

  • entry 19 for estates with a value between £250,001 and £500,000 should read £800 rather than £600 - £800;
  • entry 20 for estates with a value between £250,001 and £500,000 should read £860 rather than £660 - £860;

and, if so, whether the Scottish Government intends to correct this error.

The Scottish Government responded as follows:

The Scottish Government acknowledges that the reference to “600 - 800” should read as a reference to “800” and that the reference to “660 – 860” should read as a reference to “860” in entry 19 and 20 respectively, in column 3 of the table of fees contained in Schedule 1 to the instrument.

The Government does not consider that there is a need to amend the instrument to deal with this point as the error has no legal effect. The reference to a fee formerly payable is illustrative only and has no effect upon the fee to be charged under that instrument.

APPENDIX 2

Court of Session etc. Fees Amendment Order 2012 (SSI 2012/290)

On 8 November 2012, the Scottish Government was asked:

1. It appears to be intended that article 6(b) is to come into force on 1 April 2013 (and article 6(a) cease to have effect on that date), and article 6(c) should come into force on 1 April 2014 (and article 6(b) cease to have effect on that date).

However, (i) article 1(2) brings article 5(b) into force on 1 April 2013 when article 5(a) ceases to have effect, and article 1(3) brings article 5(c) into force on 1 April 2014, when article 5(b) ceases to have effect, and (ii) there are no such paragraphs (a) to (c) of article 5.

Would you propose to correct these errors in the commencement of the provisions, by laying a revoking or amending instrument, timeously for the coming into force of certain provisions in the Order on 10 December 2012?

2. In Part II(H)(I.)(1) of the table of fees in Schedule 1 (on page 7), in column 3 the fee formerly payable for registering a case and receiving and delivering up a bond of caution is narrated as £2035, when it is plain from the footnote (b) that the previous fee in terms of S.I. 1997/688 is either £20 or £35.

Would you also propose to correct this by an amendment?

The Scottish Government responded as follows:

1. The Scottish Government acknowledges that the points raised above are errors and thanks the SLC legal advisors for bringing them to the Government's attention. The Government will lay an amending order, to come into force on 9 December 2012, which will correct these errors prior to this Order coming into force.

The amending order will also correct similar errors in the High Court of Justiciary Fees Amendment Order 2012 and the Sheriff Court Fees Amendment Order 2012.

2. The Scottish Government acknowledges that the reference to “2035” as the fee formerly payable in Part II(H)(I.)(1) of the table of fees in Schedule 1 (on page 7), column 3, is an error and agrees the entry should read “20 – 35”. The government would point out that as a reference to a fee formerly payable, the entry is illustrative only and has no effect upon the fee to be charged under this instrument. However, given that the government is to amend this order in connection with the points raised in question 1, it will take this opportunity to correct the error.

APPENDIX 3

High Court of Justiciary Fees Amendment Order 2012 (SSI 2012/291)

On 8 November 2012, the Scottish Government was asked:

It appears to be intended that article 4(b) is to come into force on 1 April 2013 (and article 4(a) cease to have effect on that date), and article 4(c) should come into force on 1 April 2014 (and article 4(b) cease to have effect on that date).

However, (i) article 1(2) brings article 3(b) into force on 1 April 2013 when article 3(a) ceases to have effect, and article 1(3) brings article 3(c) into force on 1 April 2014, when article 3(b) ceases to have effect, and (ii) there are no such paragraphs (a) to (c) of article 3.

Would you propose to correct these errors in the commencement of the provisions, by laying a revoking or amending instrument, timeously for the coming into force of certain provisions in the Order on 10 December 2012?

The Scottish Government responded as follows:

1. The Scottish Government acknowledges that the points raised above are errors and thanks the SLC legal advisors for bringing them to the Government's attention. The Government will lay an amending order, to come into force on 9 December 2012, which will correct these errors prior to this Order coming into force.

The amending order will also correct similar errors in the Sheriff Court Fees Amendment Order 2012 and the Court of Session etc. Fees Amendment Order 2012.

APPENDIX 4

Sheriff Court Fees Amendment Order 2012 (SSI 2012/293)

On 7 November 2012, the Scottish Government was asked:

It appears to be intended that article 2(10)(b) is to come into force on 1 April 2013 (and article 2(10)(a) cease to have effect on that date), and article 2(10)(c) should come into force on 1 April 2014 (and article 2(10)(b) cease to have effect on that date).

However, (i) article 1(2) brings article 2(11)(b) into force on 1 April 2013 when article 2(11)(a) ceases to have effect, and article 1(3) brings article 2(11)(c) into force on 1 April 2014, when article 2(11)(b) ceases to have effect , and (ii) there is no article 2(11).

Would you propose to correct these errors in the commencement of the provisions, by laying a revoking or amending instrument, timeously for the coming into force of certain provisions in the Order on 10 December 2012?

The Scottish Government responded as follows:

1. The Scottish Government acknowledges that the points raised above are errors and thanks the SLC legal advisors for bringing them to the Government's attention. The Government will lay an amending order, to come into force on 9 December 2012, which will correct these errors prior to this Order coming into force.

The amending order will also correct similar errors in the High Court of Justiciary Fees Amendment Order 2012 and the Court of Session etc. Fees Amendment Order 2012.

APPENDIX 5

Crofting Register (Scotland) Rules 2012 (SSI 2012/294)

On 9 November 2012, the Scottish Government was asked:

Rule 6(3) provides that an application for first registration of a common grazing under section 24(1) of the Crofting Reform (Scotland) Act 2010 is to be made in Form C. Section 24(1) deals with two different registration situations: under paragraph (a), an unregistered common grazing which is a new common grazing must be registered following a determination to constitute the land as a common grazing. Under paragraph (b), the Crofting Commission may apply to register any other unregistered common grazing. Section 26(1)(a) makes provision as to the procedure to be followed in applications for first registration of a new common grazing – they are to be submitted, with the appropriate fee, to the Commission. From this, it would seem clear that the Commission is not the applicant under section 24(1)(a). However, rule 6(3) appears to provide that all applications under section 24(1) – and not merely those under section 24(1)(b) which are to be made by the Commission – are to be made in Form C. It appears from rules 9(2) and 10(2) that Form C is intended for completion by the Commission, and not by any other applicant. Separately, we note that rule 6(4) bears to make further provision about applications for first registration of a new common grazing (which are stated to be made under section 26(1)(a)) so that those applications are to be made in Form D.

a. Does the Scottish Government agree that, on the face of it, rules 6(3) and 6(4) both purport to make provision as to the form which is to be used in applying for the first registration of a new common grazing – and that they provide for applications on Form C and Form D respectively?

b. Does the Scottish Government agree that the provision which requires a person to apply for registration of a new common grazing is in fact section 24(1)(a) rather than section 26(1)(a), which appears instead to specify that the application and accompanying fee are to be submitted to the Commission? If so, how does the Scottish Government propose to correct the reference to section 26(1)(a) in rule 6(4)?

c. Does the Scottish Government therefore agree, standing the apparent intention behind rule 6(4) and Form D, that the provision in rule 6(3) to the effect that all section 24(1) applications be made in Form C is an error? Does the Scottish Government accept that the effect of so providing creates a lack of clarity for persons applying for registration as to which form ought to be used, and how does it propose to remedy that matter?

The Scottish Government responded as follows:

a. The Scottish Government agrees that rule 6(3) should have referred only to applications for registration of existing common grazings. Rule 6(4) though clearly refers to a ‘new common grazing’ which is a defined term in the 2010 Act and the guidance which accompanies the application Forms will make it clear that Form D is to be used for first registration of new common grazings.

b. The Scottish Government agrees that section 24(1)(a) requires registration of new common grazings and section 26(1)(a) relates to the procedure to be followed when doing so. The Government proposes to amend the error in rule 6(3) at the next opportunity to amend the Rules, which it considers will put the position beyond doubt.

c. The Scottish Government considers that, despite the error in rule 6(3), the list of forms in the Schedule and the title of Form D make clear that form is to be used for first registration of a new common grazing. The guidance on completion of the Forms and information made available by the Commission will ensure that it will be clear to crofters, landlords, etc. which is the correct Form to be used in each case.

APPENDIX 6

Crofting Register (Fees) (Scotland) Order 2012 (SSI 2012/295)

On 9 November 2012, the Scottish Government was asked:

The Table of Fees in the Schedule to this instrument provides, among other things, that the fee payable for “Registration of a common grazing under section 24(1) of the Act” is £90. It also provides that the fee for “Registration of a new common grazing under section 26(1) of the Act” is £90. Section 24(1)(a) requires the registration of new common grazings, while section 24(1)(b) permits the Crofting Commission to apply for registration of any other common grazing. It accordingly appears that both of these fees are applicable on the first registration of a new common grazing. Separately, we note that section 26(1)(a) deals with the procedure to be followed in applying for first registration of a new common grazing, rather than requiring that the application be made.

  1. Does the Scottish Government agree that the same activity (first registration of new common grazings) appears to be chargeable under both of these provisions in the Table of Fees, and is that its intention?
  1. The Scottish Government is asked to explain what the effect in law of making these overlapping provisions is considered to be, and further to explain how it proposes to clarify this matter.

The Scottish Government responded as follows:

Registration of common grazings, whether of an existing common grazing or a new common grazing, falls under section 24(1) of the Act. That is made clear from the scheme of the group of sections (e.g. the lead-in to section 24(2) and as section 26(1) only refers back to registration, which is under section 24). The Table of Fees however deals with applications for registration, as set out in the heading to column 1 of the Table. It is each application which must be accompanied by the fee relative to registration. Specific provision is made in section 26(1) for applications about new common grazings. At present the same figure is prescribed for both sets of applications, but it would be possible in future to set different fees, so the figures appear under separate heads. There is only however one application for a single registration and only a single fee. Guidance to assist in completing application forms for registration will clarify which Forms are to be used in each case and the associated fee.

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