60th Report, 2012 (Session 4): Subordinate Legislation

SP Paper 235 (Web Only)

SL/S4/12/R60

60th Report, 2012 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

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

(a)

(i) subordinate legislation laid before the Parliament;

(ii) any Scottish Statutory Instrument not laid before the Parliament but classed as general according to its subject matter;

and, in particular, to determine whether the attention of 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;

(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 11 December 2012, the Committee agreed to draw the attention of the Parliament to the following instruments—

Energy Performance of Buildings (Scotland) Amendment (No. 3) Regulations 2012 (SSI 2012/315);

Materials and Articles in Contact with Food (Scotland) Regulations 2012 (SSI 2012/318);

Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (2012/319) and;

Welfare of Animals at the Time of Killing (Scotland) Regulations 2012 (SSI 2012/321)

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

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

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Energy Performance of Buildings (Scotland) Amendment (No. 3) Regulations 2012 (SSI 2012/315) (Local Government and Regeneration Committee)

4. This instrument amends the Energy Performance of Buildings (Scotland) Regulations 2008 (“the principal Regulations”), principally to provide for disclosure of energy performance data in certain circumstances. It also revokes a number of provisions in the Energy Performance of Buildings (Scotland) Amendment Regulations 2012 and in the Energy Performance of Buildings (Scotland) Amendment (No. 2) Regulations 2012 which are redundant as a result of the amendments made by this instrument to the principal Regulations.

5. This instrument also corrects an error which was introduced into regulation 7 of the principal Regulations by the Energy Performance of Buildings (Scotland) Amendment (No. 2) Regulations 2012.

6. The instrument is subject to the negative procedure and comes into force on 21 December 2012.

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

8. This instrument inserts a definition of the term “excluded building” into the principal Regulations. The term is then used so that the keeper of the register cannot disclose energy performance data which relates to an excluded building (regulation 12A), or data which includes information revealing the location of an excluded building (regulation 13). The definition extends to a “building owned, occupied or used from time to time by […] the Royal Family”. The Scottish Ministers have confirmed that this does not relate solely to official residences of the Royal Family in Scotland, i.e. the Palace of Holyroodhouse.

9. No definition of “the Royal Family” is provided in the instrument, and it does not appear to the Committee that there is a definition elsewhere in statute or customarily used which assists. Instead, the Royal Family appears to mean different things in different contexts. The Scottish Ministers have referred to the website of the British Monarchy by way of explanation. Differing definitions appear to be applied for differing purposes even within that website. It accordingly appears to the Committee that confusion may arise as to the scope of this exclusion.

10. A further difficulty arises in understanding what a building “used from time to time” is. The Scottish Ministers have advised that this is not supposed to relate to any sort of property right. They also commented that neither a single use nor mere attendance at an event held within a building would be sufficient. However, the Committee does not consider that this assists in ascertaining what would be sufficient for the purposes of this provision. It accordingly considers that the scope of this exclusion is unclear as a result.

11. This instrument inserts a new regulation 12A into the principal Regulations, and substitutes in its entirety regulation 13. These provisions are similar in form. Both relate to the disclosure of data, although regulation 12A concerns data relating to a particular building or building unit, whereas regulation 13 concerns bulk access data. The conditions applicable before disclosure may be authorised differ slightly.

12. Both of these regulations contain provision, at paragraph (3), that “where an opt-out is in effect in respect of data relating to the building or building unit, the keeper must, when disclosing information under paragraph (1), inform the authorised recipient that an opt-out is in effect.” In relation to regulation 12A, it is clear what “the building or building unit” means in paragraph (3): it is the particular building or building unit about which the request has been made. It is less clear how this operates in relation to regulation 13. The request under regulation 13 is not for data relating to a particular building or building unit, but instead for “one or more specific descriptions of data”. It is accordingly not clear what is meant by “the building or building unit” for the purposes of paragraph (3): no building or building unit has been referred to elsewhere in the regulation.

13. The Scottish Ministers have indicated that the intention is that the benefit of the opt-out will still apply when applications are made under regulation 13, and they appear to suggest that paragraph (3) should be read as if it provided for the keeper to notify authorised recipients of any opt-outs in place in respect of any building or building unit which falls within the description of data sought. While this may have been the intention, it is not clear that the drafting delivers it adequately. The Committee accordingly considers that the form or meaning of regulation 13(3) could be clearer.

14. The Committee draws the instrument to the attention of the Parliament on reporting ground (h) in respect of the following two matters:

15. The form or meaning of the instrument could be clearer in that it is unclear who falls within the definition of “the Royal Family” for the purposes of the definition of “excluded building” and it is also unclear what “use from time to time” of a building entails, standing the Scottish Ministers’ explanation that this is not intended to refer to a property right, that single use would be insufficient and mere attendance at an event in a building would be insufficient.

16. The form or meaning of regulation 13(3) could be clearer, in that it is not clear from its drafting that the keeper must notify authorised recipients of the existence of any opt-outs in place in relation to buildings or building units about which information is being disclosed by virtue of a request under regulation 13(1), when that appears to be the Scottish Ministers’ policy intention.

Materials and Articles in Contact with Food (Scotland) Regulations 2012 (SSI 2012/318) (Health and Sport Committee)

17. The general purpose of the Regulations is to provide for the execution and enforcement in Scotland of the Commission Regulation (EU) No. 10/2011 on plastic materials and articles intended to come into contact with food. That Regulation updates and replaces all existing rules on plastic materials and articles intended to come into contact with food into a single EU Regulation.

18. The Regulations are also a consolidation, revoking 5 sets of Regulations and consolidating into one instrument nearly all existing national legislation on materials and articles intended to come into contact with food. (The exception is the Plastic Kitchenware (Conditions on Imports from China) (Scotland) Regulations 2011, which covers separate matters.) Parallel Regulations have been made for England and Wales.

19. The Regulations are subject to the negative procedure, and will come into force on 22 December 2012.

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

21. Regulation 20 sets out the requirements for each food authority (local authority) in its area to enforce the Regulations. Regulation 20(1)(b) provides that each food authority must execute and enforce the Regulations, except in relation to the provisions referred to in paragraph (3). That indicates the apparent intention that these are not to be the responsibility of the food authority. Paragraph (3) states the contrary proposition- that each food authority in its area must execute and enforce these Regulations in so far as they relate to the Article 4 of Regulation 2023/2006 (the provision specified in regulation 5).

22. It appeared to the Committee that this drafting error may have arisen due to the comparable provision in the Materials and Articles in Contact with Food (England) Regulations 2012 being adapted incorrectly for the Regulations. In England a distinction is properly made between regulation 20(1)(b) and 20(3), since port health authorities have functions in relation to the former, but not the latter. In Scotland there are no port health authorities, so no distinction is required or appropriate.

23. The Scottish Government contends that this is a matter of drafting clarity and that regulation 20 achieves its intended effect – to confer all the appropriate enforcement functions on the food authority. However, the Government recognises that it would be reasonable for a reader to infer from regulation 20(1)(b) that a body other than the food authority would have the functions conferred upon it by paragraph (3), which would not be the policy intended.

24. The Committee considers that since paragraphs (1)(b) and (3) of regulation 20 contain directly contradictory statements they do not together achieve the intended effect that each food authority must enforce the requirements of Article 4 of EU Regulation 2023/2006.

25. The Committee therefore draws the Regulations to the attention of the Parliament on reporting ground (i). Sub-paragraph (1)(b) of regulation 20 appears to be defectively drafted since it contains two contradictory propositions. Regulation 20(1)(b) states that food authorities are not to enforce the Regulations in relation to the provisions specified in paragraph (3). Paragraph (3) however states that food authorities are to do so.

26. The Committee notes that the Scottish Government has undertaken to correct this error by laying an amending instrument, and considers that this should be done as soon as possible.

Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (2012/319) (Welfare Reform Committee)

27. The Policy Note states that the Regulations implement a policy of the introduction of measures to reduce the council tax liability of persons who have a low income.

28. They implement this policy by establishing a scheme of reductions to council tax for persons who have reached the qualifying age for state pension credit, using powers in the Local Government Finance Act 1992, which allow the Scottish Ministers to make regulations to reduce council tax liabilities. The Council Tax Reduction (Scotland) Regulations 2012 already considered by the Committee establish a reduction scheme for persons of working age.

29. The Policy Note also states that there will be a transfer of funds from the UK Government to the Scottish budget, equivalent to the expected costs of Council Tax support, minus 10%. The Scottish Government and COSLA have agreed to add a further £40m for 2013/14.

30. The Regulations are subject to the negative procedure. They will come into force on 28 January 2013. However they prescribe council tax reductions for the financial year starting 1 April 2013, and subsequent years.

31. These Regulations once in force would replace the Council Tax Benefit (Persons who attained the qualifying age for state pension credit) Regulations 2006 (SI 2006/216). The Council Tax Benefit Reduction (Scotland) Regulations 2012 would replace the Council Tax Benefit Regulations 2006 (SI 2006/215).

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

33. The Committee sought a written explanation from the Scottish Government, on two matters related to the clarity of the drafting. First, regulation 9 refers to “an income-related benefit”, but that term is not defined in these Regulations. A defined term in regulation 2(1) is “qualifying income-related benefit”.

34. Regulation 9 states that where an applicant in receipt of an “income-related benefit” is a member of a family, then for the purposes of the Regulations, the income and capital of any member of that family is to be treated as the income and capital of the applicant.

35. The Government’s response confirmed that it is intended to refer to income-related benefits other than a “qualifying income-related benefit” as defined in regulation 2(1). The response did not otherwise clarify which other benefits this is designed to cover.

36. “Income-related benefit” is not an expression which is defined in these Regulations. The expression is defined in the Social Security Benefits and Contributions Act 1992 and the Social Security Administration Act 1992 as presently meaning income support, housing benefit and council tax benefit. However that definition is not added in these Regulations, and it is not clear that that definition is intended to be applied. Some confusion might also arise for the reader, so far as “income-related employment and support allowance” and “qualifying income-related benefit” are defined expressions for the purposes of these Regulations.

37. Second, regulation 27(1)(v) includes as income for the purposes of the Regulations, any payment of rent made to an applicant who (i) owns the “freehold” or leasehold interest in any property or is a tenant of any property, and where the applicant meets the other criteria in paragraphs (ii) and (iii).

38. The written response from the Scottish Government acknowledged that regulation 27(1)(v) ought to have covered an applicant who owns property in Scotland, rather than referring to the “freehold”. The Scottish Government has undertaken to amend this provision.

39. The Committee draws the instrument to the attention of the Parliament on reporting ground (h), as the meaning of the Regulations could be clearer in these two respects.

40. First, the meaning of “income-related benefit” in regulation 9 could be clearer.

41. The expression is not defined by the Regulations. It would have been clearer to have defined it for the purposes of regulation 9, and in respect that it is intended to exclude for those purposes “qualifying income-related benefits” as these are defined in regulation 2(1).

42. Second, the meaning of regulation 27(1)(v)(i) could be clearer. It would have been clearer to have referred to an applicant who owns property in Scotland, rather than owning the freehold interest in property, which is the terminology applying in England.

43. The Committee notes that the Scottish Government has undertaken to lay an amendment to correct that second point, and considers this should be done as soon as possible. The Committee also recommends that an amendment is made to clarify the first point.

44. The Committee draws the instrument to the attention of the Parliament on the general reporting ground, in relation to the following minor drafting errors.

45. First, in the definition of “official error” in regulation 2(1), “the Upper Tribunal of a court” should refer to “the Upper Tribunal or a court”.

46. Second, the inclusion of regulation 4(3) is a drafting error in respect that it was not intended to apply the extension of the definition of “young person”, which is made by that paragraph, in each case where “young person” is mentioned in the Regulations.

47. Third, in regulation 29(8)(c), the citation of the Children and Families (Wales) Measure” omits “2010” as the year of the instrument.

48. The Committee notes that the Scottish Government has undertaken to correct those first and second points by laying an amending instrument. The Committee considers that the amendment should also correct the third point.

Welfare of Animals at the Time of Killing (Scotland) Regulations 2012

(SSI 2012/321) (Rural Affairs, Climate Change and Environement Committee)

49. This instrument makes provision for the implementation in Scotland of Council Regulation (EC) No. 1099/2009 (“Regulation 1099/2009”) on the protection of animals at the time of killing. In particular, it:

  • provides that the slaughter or killing of animals, subject to limited exceptions, may only be carried out by persons who hold a certificate of competence;
  • makes provision about conditions which must be satisfied before a certificate is granted, the procedure for granting or refusing a certificate, suspension or revocation of a certificate, modification of a certificate and the fees payable in respect of these matters;
  • provides for the preservation of certain national rules which are stricter than those in Regulation 1099/2009;
  • provides for enforcement of the instrument, including powers of entry, powers to inspect and seize goods and articles, and powers to issue enforcement notices;
  • specifies that certain failures to comply with the instrument or with Regulation 1099/2009 will constitute an offence, and fixes penalties;
  • creates an appeal process in respect of decisions about certificates and decisions to issue enforcement notices;
  • contains transitional provisions which will apply, until 8 December 2019, instead of the provisions in Regulation 1099/2009 concerning the layout, construction and equipment of slaughterhouses operating when this instrument comes into force.

50. The instrument is subject to the negative procedure and comes into force on 1 January 2013.

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

52. Article 26 of Regulation 1099/2009 enables member states to maintain in force stricter national rules which are aimed at maintaining more extensive protection of animals at the time of killing. Member states may only maintain in force stricter national rules which were in force at 8 December 2009. Schedule 1 to this instrument contains those rules (which derive from the Welfare of Animals (Slaughter or Killing) Regulations 1995 (“the 1995 Regulations”)).

53. In relation to paragraphs 9, 10 and 11 of Schedule 1, it appears to the Committee that the rules contained there, while based on provisions in the 1995 Regulations, do not have the same scope. Paragraphs 9 to 11 relate to the gas stunning of pigs and poultry. The equivalent provisions in the 1995 Regulations are in Schedule 7, which concerns the gas killing of pigs and birds. The Scottish Ministers take the view that, while there are differences in terminology, the same process is being described as “stunning” in this instrument and “killing” in the 1995 Regulations.

54. On considering Annex 1, it appears that exposure to carbon dioxide at high concentration may be used for the simple stunning of pigs (i.e. it will require to be followed by another process ensuring death). Inert gases, and carbon dioxide associated with inert gases, may similarly be used for the simple stunning of pigs and poultry. By contrast, Schedule 7 to the 1995 Regulations does not provide for simple stunning by exposure to gas, followed by killing by another method. It provides for killing by exposure to gas alone.

55. It accordingly seems doubtful whether these provisions can properly said to represent the maintenance of existing national rules. They appear to have been modified after 8 December 2009, and so it is doubtful whether they fall within Article 26. It is therefore doubtful whether they are compatible with EU law, and accordingly a devolution issue arises.

56. Part 1 of Schedule 5 repeals various provisions in primary legislation which are replaced by this instrument, including Schedule 9 of the Deregulation and Contracting-Out Act 1994 (“the 1994 Act”) which is repealed in part. Schedule 9 confers powers to transfer enforcement functions in relation to slaughterhouses and knacker’s yards from local authorities to central government various enactments. This instrument purports to repeal paragraph 2, which relates to functions under the Slaughterhouses Act 1974. That Act applies only in England and Wales. The Scottish Ministers have advised that this should instead have been a reference to paragraph 3, which relates to functions under the Slaughter of Animals (Scotland) Act 1980 (which applies only in Scotland). The Committee observes that this instrument purports, for Scotland only, to repeal something which does not apply in Scotland. The Committee also notes that the Scottish Ministers’ admitted intention was to repeal paragraph 3 of Schedule 9 to the 1994 Act, not paragraph 2. By purporting instead to repeal paragraph 2, it appears that this has frustrated their policy intention in respect of the 1994 Act. The drafting of Part 1 of Schedule 5 accordingly appears to be defective.

57. This instrument repeals or revokes a range of earlier animal welfare legislation. It also repeals or revokes provisions of other enactments which have amended the repealed or revoked legislation. Part 2 of Schedule 5 revokes, among other things, paragraph 158 of Part II of Schedule 2 to the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999. That paragraph modifies regulation 7 of the 1995 Regulations, which provides for the issuing of codes of practice. It has the effect of providing that codes of practice made by the Scottish Ministers will be laid before the Scottish Parliament rather than being laid before the Westminster Parliament.

58. The Scottish Ministers have indicated that their intention was also to revoke regulation 7 of the 1995 Regulations. They have not done so. They have taken the view, however, that there will be no practical effect as there are no codes of practice in existence and they do not propose to introduce any. They have undertaken to revoke regulation 7 at the next convenient opportunity. Given that it was the Ministers’ intention to revoke regulation 7, and not to alter the procedure for laying codes of practice, it appears that the instrument does not deliver their policy intention, and so is defectively drafted.

59. Regulation 25 permits parties to appeal against decisions under these Regulations to the sheriff. The appeal takes the form of a summary application. Regulation 25(3)(c) provides that an appeal must be lodged with the sheriff clerk within the period of 28 days from the day on which the decision appealed was made. However, regulation 25(4) makes provision for appeals lodged outwith that time: the sheriff may hear a late appeal “on good cause being shown”.

60. Where a sheriff is asked to exercise a discretionary power of this nature, it is usually “on cause shown”. Occasionally, as here, different formulations are used. For example, the default rules for summary applications are contained in rule 2.6 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999: where an instrument such as this one makes no provision about time limits, a default period of 21 days applies, with the sheriff being given discretion “on special cause shown” to hear the summary application.

61. The Scottish Ministers were asked to explain what a party seeking to lodge a late appeal would require to demonstrate to the sheriff to satisfy this test, and to explain how it differed from the tests of “cause shown” and “special cause shown”. In their response, they have simply asserted that the same formulation may be found in a range of other instruments, that this is a discretionary power and that it would be for the sheriff to determine what constitutes good cause in the circumstances of each case. The Committee does not consider that any of these points explains what the test involves.

62. It accordingly appears to the Committee that it is unclear exactly what test is being applied here. It is not clear whether it is an intermediate stage between “cause shown” and “special cause shown”, or whether it is merely an alternative formulation of the “special cause shown” test. The fact that this test is used in a number of other instruments does not help to clarify its meaning – all it does is point to the fact that this question has had to be litigated on a number of occasions already. Accordingly, it appears to the Committee that the form or meaning of regulation 25(4) could be clearer.

63. The consequential amendments in Schedule 4 modify the definitions of “slaughter” found in article 2(1) of the Foot-and-Mouth Disease (Scotland) Order 2006 and the Foot-and-Mouth Disease (Slaughter and Vaccination) (Scotland) Regulations 2006. The effect is that those provisions will read ““Slaughter” includes causing the death of an animal by any process other than slaughter […]”. The Scottish Ministers have advised that, for the purposes of these instruments, “slaughter” has to be defined in such a way as to cover all means of killing, including killing for human consumption and killing for other purposes. They consider that this is sufficiently clear from the amended definitions.

64. The Committee considers that the amended definitions are capable of being read in the sense that the Scottish Ministers contend for, and to that extent they deliver the Ministers’ intentions. It does not consider, however, that it is sufficiently clear from the definitions themselves that this is what is meant since it requires knowledge that “slaughter” would otherwise have a technical sense (of killing for human consumption) and that the Ministers’ intention was to disapply that technical sense for the purposes of these instruments. The Committee does not consider that this would be clear to readers of this instrument who do not have specialist knowledge of the subject-matter. Accordingly, it appears that the form or meaning of paragraphs 3 and 4 of Schedule 4 to this instrument could be clearer.

65. The Committee draws the instrument to the attention of the Parliament on reporting ground (f) as paragraphs 9 to 11 of Schedule 1 to the instrument raise a devolution issue in that it is not clear that they are compatible with EU law, because it is doubtful whether those provisions are properly within the ambit of Article 26 of Council Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing.

66. The Committee draws the instrument to the attention of the Parliament on reporting ground (i) in respect of the following matters.

67. Part 1 of Schedule 5 to the instrument appears to be defectively drafted, in that it erroneously purports to repeal paragraph 2 of Schedule 9 to the Deregulation and Contracting-Out Act 1994 (which it cannot do because that provision does not extend to Scotland), when the Scottish Ministers’ intention was instead to repeal paragraph 3 of that Schedule.

68. The instrument appears to be defectively drafted, in that Part 2 of Schedule 5 revokes paragraph 158 of Part II of Schedule 2 to the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (which modifies regulation 7 of the of Animals (Slaughter or Killing) Regulations 1995) without also revoking regulation 7. It appears that it was the Scottish Ministers’ intention to revoke regulation 7, and that the revocation of paragraph 158 was consequential on that, but the revocation of regulation 7 has been omitted.

69. The Committee draws the instrument to the attention of the Parliament on reporting ground (h) in respect of the following matters.

70. The form or meaning of regulation 25(4) could be clearer, in that it is unclear what the test of “good cause being shown” to allow an appeal to be received late involves and how this differs from the default test of “special cause shown” in rule 2.6 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999.

71. The form or meaning of paragraphs 3 and 4 of Schedule 4 could be clearer, in that they modify the definitions of slaughter in the Foot-and-Mouth Disease (Scotland) Order 2006 and in the Foot-and-Mouth Disease (Slaughter and Vaccination) Regulations 2006 so that they read ““Slaughter” includes causing the death of an animal by any process other than slaughter”. While it is possible to construe this as a reference to killing by any means, it appears to be dependent on knowing that slaughter (as used within the definition itself) would ordinarily have a technical meaning as referring to killing for human consumption. It is not clear that this would be readily apparent to end users of the instrument without specialist knowledge of the subject-matter.

NO POINTS RAISED

45. At its meeting on 11 December 2012, the Committee also considered the following instruments and determined that it did not need to draw the attention of the Parliament to any instrument on any grounds within its remit:

Justice Committee

Knife Dealers (Licence Conditions) (Scotland) Order 2012 [draft]

Civic Government (Scotland) Act 1982 (Metal Dealer’s Exemption Warrants) Order 2012 (SSI 2012/324)

Local Government and Regeneration Committee

Planning etc. (Scotland) Act 2006 (Supplementary and Consequential Provisions) Order 2013 [draft]

Public Services Reform (Planning) (Pre-application consultation) (Scotland) Order 2013 [draft]

Public Services Reform (Planning) (Local Review Procedure) (Scotland) Order 2013 [draft]

Rural Affairs, Climate Change and Environment Committee

Plant Health (Scotland) Amendment (No. 2) Order 2012 (SSI 2012/326)

Crofting Register (Scotland) Amendment Rules 2012 (SSI 2012/327)

Crofting Register (Fees) (Scotland) Amendment Order 2012 (SSI 2012/328)

APPENDIX 1

Energy Performance of Buildings (Scotland) Amendment (No. 3) Regulations 2012 (SSI 2012/315)

On 29 November the Scottish Government was asked:

1. The definition of “excluded building” inserted by regulation 3(c) provides that it means, among other things, “a building owned, occupied or used from time to time by… the Royal Family”.

a. Does this extend only to official residences of the Royal Family in Scotland (i.e. the Palace of Holyroodhouse)?

b. If it is not, and the term accordingly includes private residences, the term “Royal Family” does not appear to be defined. Does it include any person who is in the line of succession to the throne of the United Kingdom and Northern Ireland, or does some more limited definition (e.g. those entitled to be styled “Royal Highness” in virtue of the Letters Patent of King George V dated 30 November 1917) apply? Please explain the intended meaning of the term, and whether this is considered to be sufficiently clear for the purposes of identifying which buildings fall within the definition of “excluded building”.

c. Ownership and occupation of a building (the latter presumably under a lease or licence to occupy) may be relatively easily determined as matters of fact and law. However, the exclusion also extends to buildings “used from time to time”. What property right is intended to be encapsulated by this formulation, and what degree of use is necessary in order to establish the exclusion? Is repeated use of whatever nature necessary, and does it, for example, include buildings to which members of the Royal Family merely have resort on occasion?

2. Regulation 6 substitutes in its entirety regulation 13. The new regulation 13(3) provides that the keeper of a register must inform the authorised recipient that an opt-out is in effect “[w]here an opt-out is in effect in respect of data relating to the building or building unit”. Standing the requirement in regulation 13(2)(a) that the authorised recipient has made a request for one or more specific descriptions of energy performance data, and the requirement in 13(2)(e) that the disclosure may be made only where the data does not relate only to a particular building or building unit, what building or building unit is being referred to in regulation 13(3)? While this expression may readily be understood in the context of the equivalent subsection of new regulation 12A (which relates to requests relating to a particular building or building unit), it is not clear what this means when the request is for energy performance data of one or more specific descriptions, instead of a request relating to a particular building or building unit.

The Scottish Government responded as follows:

1(a) the definition of excluded buildings does not only extend to official residences of the Royal Family.

1(b) The term “Royal Family” is not defined. This is not unusual and the term is used without further definition in various other enactments including for example, section 41 of the Freedom of Information (Scotland) Act 2002 (asp 13) and section 7(6) of the Requirements of Writing (Scotland) Act 1995 (c. 7). It is considered that the meaning of the terms is sufficiently clear without further definition. Information is available on this matter from the official website of the British Monarchy:

http://www.royal.gov.uk/ThecurrentRoyalFamily/Overview.aspx

1(c) The formulation of ‘used from time to time’ is not intended to refer to or be related to a property right. This formulation would include regular or repeated occasional use. Use on a single occasion would not be within the ambit of the definition nor, for example, would mere attendance at an event held in a building be sufficient.

2 An opt-out is in effect where the owner or occupier of a building or building unit has given notice (and not withdrawn that notice) to the keeper of a register that data is not to be disclosed so as to enable the contact to be made with the owner or occupier. The keeper of a register may disclose bulk data under regulation 13 provided (among other things) that that data does not relate to a particular building or building unit. The fact that the data may not relate to a particular building does not remove the benefit of the opt-out. It is possible for a request for data to be made and dealt with under regulation 13 which would be sufficient to enable the recipient to contact the owners or occupier of properties. It is envisaged that regulation 13 will be used to support and inform energy and carbon saving initiatives. These may, for example, involve the identification of areas where the buildings have a low energy efficiency rating so as to target the promotion of energy efficiency initiatives. If the owner or occupier of a building or building unit in such an area has given notice that an opt-out is in effect in relation to the building or building this information is to be given to the recipient in terms of regulation 13(3). It is not considered that there is any ambiguity as to the meaning of regulation 13(3) in its context.

APPENDIX 2

Materials and Articles in Contact with Food (Scotland) Regulations 2012 (SSI 2012/318)

On 3 December 2012, the Scottish Government was asked:

Please explain the intended meaning and effect of regulation 20(1)(b) and (3). That subparagraph (b) provides that each food authority in its area must execute and enforce these Regulations except in relation to the provisions referred to in paragraph (3), indicating the apparent intention that these are not to be the responsibility of the food authority. Paragraph (3) states a contrary proposition- that each food authority in its area must execute and enforce the provisions of Regulation 2023/2006 specified in regulation 5 (which refers to Article 4 (conformity with good manufacturing practice) of that Regulation).

Given the apparent contradiction within the drafting of this provision does the Scottish Government consider this provision properly confers functions on the food authority in relation to the matters referred to in regulation 20(3) and is this sufficiently clear ?

The Scottish Government responded:

The Scottish Government is grateful to the Committee for raising this matter and accepts that regulation 20 has not been drafted as clearly as it could have been.

Regulation 20(1) confers functions on the food authority in respect of the European Regulations referred to in paragraph (1)(a) and these Regulations. It would be reasonable for a reader to infer, by virtue of the reference to paragraph (3) in paragraph 1(b), that a body other than the food authority would have functions conferred upon it by paragraph (3). However, paragraph (3) nevertheless confers functions on the food authority (in respect of Regulation 2023/2006 in relation to these Regulations). Whilst a different approach to drafting regulation 20 could have improved its clarity, the Scottish Government considers that the provision does achieve its intended effect: the relevant functions are conferred on the food authority.

This is further supported by the fact that these Regulations consolidate existing law (as the accompanying documentation explains) which conferred these functions on the food authority. It is also relevant that during the public consultation (which included consultation with food authorities) no concerns were raised about the meaning of this provision. Nevertheless, the Scottish Government appreciates the concern raised by the Committee.

The Scottish Government would like to undertake to the Committee to amend regulation 20 at the next appropriate opportunity to improve the drafting.”

APPENDIX 3

Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012 (2012/319)

On 29 November 2012, the Scottish Government was asked:

(1) In relation to the Council Tax Reduction (Scotland) Regulations 2012, we asked for explanation why, by reference to the purpose of the provisions, the Regulations do not relate to any of the reserved matters described in Section F1, Part 2, Schedule 5 to the Scotland Act 1998. Is your explanation the same in relation to these Regulations, or would you have anything to add?

(2) In the definition of “official error” in regulation 2(1), is the reference to “a subsequent decision of the Upper Tribunal of a court” an error and should it refer to “or a court”? If so would you propose to correct this by an amendment?

(3) Regulation 4(3) extends the definition of “young person” for the purposes of the Regulations to include “a child or young person in respect of whom section 145A of the 1992 Act applies for the purposes of entitlement to child benefit but only for the period prescribed under section 145A(1) of that Act”.

In relation to the Council Tax Reduction (Scotland) Regulations 2012, the Scottish Government has considered that the equivalent regulation 4(3) is otiose, and has undertaken to lay an amendment in the first quarter of next year to omit the paragraph. Would you propose that a similar amendment will be laid in relation to these Regulations?

(4) In regulation 9, is the reference to “an income-related benefit” an error, as the defined term in regulation 2(1) is a “qualifying income-related benefit”? If so would you propose to correct this by amendment, given that the defined term includes for the purposes of regulation 9, income support and income-based jobseeker’s allowance as well as “income-related” employment and support allowance?

(5) Regulation 27(1)(v) includes as income for the purposes of the Regulations any payment of rent made to an applicant who (i) owns the freehold or leasehold interest in any property or is a tenant of any property, and where the applicant meets the other criteria in paragraphs (ii) and (iii).

As “freehold” is the description of ownership of property in England and Wales and not Scotland, is it intended to include in that requirement the ownership of property in Scotland? If so should the provision be amended so that it has that intended effect?

(6) In regulation 29(8)(c), the citation of the Children and Families (Wales) Measure” omits the year of the instrument (which is given in subparagraph (d). Would you propose to correct this by amendment?

The Scottish Government responded:

Question 1

The Scottish Government’s view is that these Regulations do not relate to any of the reserved matters described in Section F1 of Schedule 5 to the Scotland Act 1998 for the same reasons given with regard to the Council Tax Reduction (Scotland) Regulations 2012. In summary, that view is taken because the Regulations operate by reducing a person’s liability for council tax and do not provide assistance for social security purposes to help the person meet a council tax liability. Calculation of council tax liability is not a reserved matter. We have nothing further to add.

Question 2

The definition of “official error” should refer to the Upper Tribunal “or” a court, and this will be corrected by an amending instrument which the Scottish Government proposes to lay in the first quarter of next year.

Question 3

Although regulation 4(3) has no adverse effect on the operation of the Regulations it is otiose and the Scottish Government will take the opportunity provided by the amending instrument referred to above to remove it.

Question 4

Regulation 9 should not refer to a “qualifying income-related benefit” because, by virtue of regulation 12(2), the Regulations do not apply to a person if that person, or any partner of that person, is a person on income support, an income-based jobseeker’s allowance or an income-related employment and support allowance. In those circumstances the reference to “income-related benefit” in regulation 9 refers to income-related benefits other than a qualifying income-related benefit. (Persons in receipt of a qualifying income-related benefit will be dealt with under the Council Tax Reduction (Scotland) Regulations 2012 by virtue of regulation 12(1)(b) of those Regulations.)

Question 5

Regulation 27(1)(v) should cover an applicant who owns property in Scotland and it will be amended accordingly.

Question 6

The reference in regulation 29(8)(c) is to the Children and Families (Wales) Measure 2010”, which is correct.”

APPENDIX 4

Welfare of Animals at the Time of Killing (Scotland) Regulations 2012 (SSI 2012/321)

On 3 December 2012, the Scottish Government was asked:

1. Part 1 of Schedule 5 repeals paragraphs 1, 2 and 5 of Schedule 9 to the Deregulation and Contracting Out Act 1994. It appears that paragraph 2 relates to the transfer of functions under the Slaughterhouses Act 1974 from local authorities in England or Wales to the Minister of Agriculture, Fisheries and Food or the Secretary of State respectively. Paragraph 3 relates to the transfer of functions under provisions of the Slaughter of Animals (Scotland) Act 1980 (which are also repealed by this Schedule) from local authorities to the Secretary of State. Was it intended that Part 1 of Schedule 5 repeal paragraph 3 instead of paragraph 2 of Schedule 9 to the Deregulation and Contracting Out Act 1994? If so, what do you consider to be the effect of this error and how do you propose to remedy it?

2. Regulation 2(1) of these Regulations defines the “Rabbinical Commission”. Is this the body established (or continued in existence) by Part IV of Schedule 12 to the Welfare of Animals (Slaughter or Killing) Regulations 1995? If so, is this considered to be sufficiently clear in the absence of cross-reference to those provisions?

3. Article 29 of Council Regulation 1099/2009 contains two transitional provisions – one in respect of Article 14(1) and Annex II (which is given effect by regulation 27, which disapplies those provisions until the specified date of 8 December 2019), and one in respect of the simplified procedure for issuing certificates of competence to persons demonstrating relevant professional experience of at least three years. That simplified procedure appears to be given effect by regulation 8(a)(ii), but there does not appear to be any provision which time-limits the operation of that provision to the grant of certificates until 8 December 2015. Why has it not been considered necessary to include transitional provision in the Regulations in respect of that provision?

4. Article 26 of Council Regulation 1099/2009 permits the maintenance by member states of stricter national rules which are in force at the time of entry into force of the Regulation. By virtue of Article 30, it came into force on 8 December 2009. Paragraphs 9 to 11 of Schedule 1 represent additional requirements to those in the Regulation. However, they appear to have a different scope to the related provisions of the Welfare of Animals (Slaughter or Killing) Regulations 1995, i.e. those in Schedule 7 which relate to the killing of pigs and birds by exposure to gas mixtures, rather than the stunning of pigs and poultry. Could you please explain why these provisions are considered to fall within the ambit of Article 26 when it appears that the national rules in force at the coming into force of the Regulation related to killing rather than merely stunning? Should those provisions not be within the ambit of Article 26, would there be any alternative basis for purporting to make them?

5. In relation to the appeals provision in regulation 25, could you please explain:

a. what the test of “good cause shown” mentioned in regulation 25(4) involves, and how it differs from the ordinary position of the sheriff’s discretion being exercised on cause shown – or, indeed, from the default rule on extension of time limits in summary applications (contained in rule 2.6(3) of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999) that this may be done on special cause shown? Is it sufficiently clear what an appellant will have to demonstrate to meet this test should he or she require to lodge an appeal out of time?

b. why it is considered necessary to provide in regulation 26(5) that the sheriff may hear evidence, standing a) the provision in regulation 26(3)(a) that an appeal may be taken on any issue of fact or law and b) the powers of the sheriff in relation to the disposal of summary applications under section 50 of the Sheriff Courts (Scotland) Act 1907.

6. Paragraphs 3 and 4 of Schedule 4 make consequential amendments to the Foot-and-Mouth Disease (Scotland) Order 2006 and the Foot-and-Mouth Disease (Slaughter and Vaccination) (Scotland) Regulations 2006. In each case, the effect appears to be to modify the definition of “slaughter” so that it reads ““slaughter” includes causing the death of an animal by any process other than slaughter […]”. Standing the apparent circularity of this definition, could you please clarify the effect of this provision and, in particular, whether this means that slaughter is to be taken as including causing the death of an animal by any means? Do you consider that the definition is sufficiently clear, particularly when the needs of end-users of the instruments are considered?

7. Part II of Schedule 5 revokes paragraph 158 of Part II of Schedule 2 to the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999. That provision modifies regulation 7 of the Welfare of Animals (Slaughter or Killing) Regulations 1995. It does not appear, however, that regulation 7 is revoked or modified by these Regulations. Could you please explain why paragraph 158 falls to be revoked when the provision it modifies appears still to be in force, and the effect that revoking it will have upon regulation 7?

The Scottish Government responded:

1. The reference to paragraph 2 was intended to be a reference to paragraph 3. The error has no effect because the Slaughterhouses Act 1974 does not form part of Scots law. Section 48 of the Slaughterhouses Act 1974 provides that it does not extend to Scotland. The effect of paragraph 3 not being revoked as intended is that the Scottish Ministers still have the power, now redundant, to make regulations providing for the transfer of functions of local authorities in executing and enforcing section 7 of the Slaughter of Animals (Scotland) Regulations 1980 to themselves. At the next convenient opportunity we will revoke paragraph 3 in order to tidy up the statute book.

2. The reference to the Rabbinical Commission is to the same body referred to in Part IV of Schedule 12 to the Welfare of Animals (Slaughter or Killing) Regulations 1995 and which continues in existence. It was not considered necessary further to define the Rabbinical Commission because it is a statutory body; there is no other body called “the Rabbinical Commission” and those who work in the industry will know the body to which the Regulations refer. We therefore consider that there is no scope for confusion and that the provision is sufficiently clear.

3. A policy choice arose regarding how to deal with this provision and the decision was taken to issue certificates which would be subject to an expiry date which will appear on the face of the certificates. Regulation 11(2) provides expressly that a certificate or a temporary certificate may be granted subject to an expiry date. From the point of view of practical enforcement of these Regulations and the checking of Certificates of Competence in slaughterhouses, it was considered that it would be more practical to stamp certificates showing the period that they are valid for.

4. Paragraphs 9 to 11 of the Schedule 1 to the Regulations are equivalent in scope to the related provisions of Schedule 7 to the Welfare of Animals (Slaughter or Killing) Regulations 1995. The apparent differences are differences in terminology only. Stunning is a stage of the killing process. In Regulation 1099/2009 ‘stunning’ is defined as “any intentionally induced process … including any process resulting in instantaneous death”, it therefore includes ‘killing’, whereas in the Welfare of Animals (Slaughter or Killing) Regulations 1995 “stunning” and “killing” were defined as separate processes. The term ‘killing’ is not defined in Regulation 1099/2009. An animal subject to the gases at the concentrations required by Regulation 1099/2009 would be “killed” for the purposes of the 1995 Regulations, even if the same process would be defined as “stunning” under Regulation 1099/2009 and these Regulations. Accordingly, the rules do fall within the ambit of Article 26.

5. (a) This formulation is vey [sic] well precedented [sic], recent examples can be found in SSIs such as 2010/330, 2009/141, 2009/225. Regulation 25(4) confers a discretion upon the sheriff to allow late lodgement of an appeal. The sheriff will, in exercising that discretion, be exercising a judicial function. The sheriff would have to consider what constitutes “good cause” in the circumstances. It is for the sheriff to apply the test to the circumstances.

6. (b) We read the reference in the letter of 3 December to regulation 26(5) as a reference to regulation 25(6) and the reference to regulation 26(3(a) as a reference to regulation 25(3)(a). Again this formulation is very well precendented [sic]. Recent examples can be found in SSI 2011/318 and 2009/339. Examples can also be found in primary legislation, for example in Section 64 of the Civic Government (Scotland) Act. The express reference to the power to hear evidence is considered useful to make it clear for the end users of the legislation.

7. Yes, this means that slaughter is to be taken as including causing the death of an animal by any means. The amendment is required due to a change in the terminology used in the 1995 Regulations and Regulation 1099/2009. The references to slaughter in the Foot-and-Mouth Disease (Scotland) Order 2006 and the Foot-and-Mouth Disease (Slaughter and Vaccination) (Scotland) Regulations 2006 require to cover all means of killing. That is, killing not just for human consumption, which is generally what “slaughter” means, but also killing for purposes other than human consumption. We consider that the definition is sufficiently clear.

8. The intention was also to revoke regulation 7 of the Welfare of Animals (Slaughter or Killing) Regulations 1995. The effect of the revocation of paragraph (8) is that codes of practice will be subject to the pre-devolution dual parliamentary procedure. However, this is of no practical effect because there are no codes of practice in existence and there is no intention to introduce any. At the next convenient opportunity we will tidy up the statute book by revoking regulation 7.

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