10th Report, 2013 (Session 4): Subordinate Legislation

SP Paper 263 (Web Only)

SL/S4/13/R10

10th Report, 2013 (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 5 February 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Public Services Reform (Commissioner for Ethical Standards in Public Life in Scotland etc.) Order 2013 [draft] (SG 2013/4).

Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations 2013 (SSI 2013/7)

Energy Performance of Buildings (Scotland) Amendment Regulations 2013 (SSI 2013/12)

2. The Committee’s recommendations in relation to the instrument 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: DRAFT INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Public Services Reform (Commissioner for Ethical Standards in Public Life in Scotland etc.) Order 2013 [draft] (SG 2013/4) (Standards, Procedures and Public Appointments Committee)

4. This instrument establishes a new office of Commissioner for Ethical Standards in Public Life in Scotland (CESPLS). The functions of the Commission for Ethical Standards in Public Life in Scotland (the Commission) and its two members: the Public Standards Commissioner for Scotland and the Public Appointments Commissioner for Scotland (the Commissioners) are transferred to CESPLS. The Commission and the Commissioners are then abolished.

5. This instrument is a draft of an instrument which the Scottish Ministers propose to make under the Public Services Reform (Scotland) Act 2010. It is required to be laid before the Parliament for the purposes of consultation by section 26(1) of the 2010 Act. The consultation period must run for at least 60 days and the Scottish Ministers must take into account representations received during that period when making the order. The order itself is subject to the affirmative procedure. The Committee will scrutinise the draft laid under that procedure in the usual way, in due course.

6. The Committee has identified two minor drafting errors in the draft order. These are explained in the following paragraphs.

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

8. Paragraph 3 of Schedule 2 to the order amends section 9 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 by substituting “Commissioner for Ethical Standards in Public Life” for “Public Standards Commissioner for Scotland” when the correct title of the new commissioner is the Commissioner for Ethical Standards in Public Life in Scotland.

9. Schedule 1 to the order makes textual amendments to the Scottish Parliamentary Commissions and Commissioners etc. Act 2010 consequential on the transfer of functions by the order. Paragraph 20 modifies section 18 of the Act. In line with other amendments to the Act the word “it” which appears at the end of section 18(1) should be changed to “the Commissioner” but this change has been omitted.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations 2013(SSI 2013/7) (Infrastructure and Capital Investment Committee)

10. This instrument amends the Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Regulations 2004 (“the principal Regulations”). It revokes Schedule 2 of the principal Regulations, which makes provision for a type of grant assistance known as GRO for owner occupation, and replaces it with a new Schedule 2 which makes provision for a new type of grant assistance known as Partnership Support for Regeneration, or PSR. Further provision is made in a new Schedule 5 for another type of grant assistance to be known as Innovation and Investment Fund grant, or IIF.

11. The Regulations, which are made under section 93(2) of the Housing (Scotland) Act 2001 (“the 2001 Act”), are subject to the negative procedure and come into force on 1 March 2013.

12. The Committee considered an earlier version of this instrument, the Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations) 2012 (“the 2012 Regulations”) at its meeting on 23 October 2012. It reported that that instrument appeared to be defectively drafted in one respect, and that its form or meaning could have been clearer in another. The Committee then considered an instrument on 27 November 2012 which revoked the 2012 Regulations.

13. The Committee notes that this instrument appears to address both of the issues which it raised in respect of the 2012 Regulations, and welcomes the intention to make these changes.

14. In considering the instrument, the Committee asked the Scottish Government for further information about how the consultation requirements in section 93(4) of the 2001 Act had been complied with. The correspondence is reproduced in appendix 1.

15. Section 93(4) of the 2001 Act requires the Scottish Ministers, before making regulations under section 93(2), to consult with such bodies representing local authorities, such bodies representing registered social landlords, and such other persons, all as the Ministers think fit. The Committee accordingly considers that, before making regulations, the Ministers must consult with persons in each of these three groups as they see fit – it is for the Ministers to determine the bodies which they consider to be representative of local authorities and of registered social landlords. The Committee does not consider that the discretion afforded to the Ministers offers them the opportunity to choose not to consult one of the three categories because they did not deem it necessary.

16. The Scottish Ministers carried out a consultation on the 2012 Regulations between May and July 2012. Before making this instrument, the Scottish Ministers consulted the persons who had responded to the consultation on the 2012 Regulations (7 bodies in total) on the draft of this instrument. The Committee understands that this subsequent consultation involved bodies who are representative of registered local landlords, as well as other persons whom the Ministers saw fit to consult. However, the Committee does not understand the subsequent consultation to have involved any body which the Scottish Ministers considered to be representative of local authorities.

17. In their response, the Scottish Ministers argue that the consultation on the 2012 Regulations is sufficient to discharge the requirement to consult upon this instrument. The Committee observes that the majority of this instrument is in identical terms to the 2012 Regulations, and so it considers that there is some merit in this argument. However, the provision of the 2012 Regulations which the Committee reported as appearing to have been defectively drafted is not identical in this instrument. It appears to have been substantially altered in order to address the concerns raised by the Committee. Accordingly, the Committee considers that the question is whether the requisite consultation has taken place in respect of the replacement provision.

18. The Scottish Ministers’ position is that the requirements of this instrument are not substantially different to those in the 2012 Regulations. They characterise them as being “expressed in a different way”. The Committee considers that this rather understates the position. The reported provision in the 2012 Regulations made reference to an external document, from which it was not possible to deduce any particular procedure which was to be followed (or how the unrelated procedure mentioned in that document was to be adopted). By contrast, the equivalent provision of this instrument clearly sets out five specific requirements which must be complied with. It is not at all clear to the Committee how consultation on the defective provision of the 2012 Regulations can be taken to imply consultation on the corrected provision in this instrument. The Committee notes that the consultation document did not set out detailed policy proposals as to the procedures to be followed. Instead, it directed consultees to the annexed draft of the 2012 Regulations for the detail of what was involved, and simply asked whether they had any comments on the provisions of the draft regulations which would add IIF grants to the principal Regulations. This accordingly appears to represent consultation on the defective provision itself, not on the underlying policy.

19. The Committee therefore takes the view that the earlier consultation is inadequate to cover the entirety of this instrument, and so it does not consider that the Scottish Ministers may rely upon it to discharge the consultation requirement. A limited consultation exercise was carried out in relation to the corrective instrument. As previously noted, it does not appear to be disputed that the consultation carried out in relation to this instrument failed to include a body representing local authorities, and so it too appears to the Committee to be insufficient to discharge the consultation requirement.

20. As a consequence, the Committee does not consider that the Scottish Ministers have properly discharged the consultation requirement in section 93(4) of the 2001 Act in respect of this instrument. There has accordingly been a failure to comply with the requirements prescribed by the Parliament for the exercise of this power. As the Ministers have not complied with those requirements, there appears to be a doubt whether this instrument is intra vires.

21. The Committee draws the instrument to the attention of the Parliament on reporting ground (e). There appears to be a doubt whether the instrument is intra vires, in respect that the statutory consultation requirements specified in section 93(4) of the Housing (Scotland) Act 2001 do not appear to have been complied with. It does not appear that the Scottish Ministers have consulted with such bodies representing local authorities as they think fit before making this instrument, as section 93(4) requires.

Energy Performance of Buildings (Scotland) Amendment Regulations 2013 (SSI 2013/12) (Local Government and Regeneration Committee)

22. This instrument amends the Energy Performance of Buildings (Scotland) Regulations 2008 (“the principal Regulations”) in consequence of the introduction of the Green Deal energy efficiency scheme under Part 1 of the Energy Act 2011.

23. The instrument is subject to the negative procedure. It was made on 22 January 2013, laid before the Parliament on 23 January 2013 and came into force on 27 January 2013. There has accordingly been a failure to lay the instrument at least 28 days before it comes into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

24. The Committee has considered the explanation for this failure that the Scottish Ministers provided in their letter to the Presiding Officer. The correspondence is reproduced in Appendix 2.

25. In light of that explanation, the Committee asked the Scottish Government for a further explanation of certain matters relating to the failure to comply with the 28 day rule.. This correspondence is reproduced in Appendix 2.

26. It appeared to the Committee that, in their letter to the Presiding Officer, the Scottish Ministers rest their explanation for the failure to comply with the 28 day rule substantially upon the fact that the making of this instrument was a necessary pre-condition in order that the Secretary of State might make the Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) (Amendment) Regulations 2013 (“the Framework Amendment Regulations”). In turn, they point to the necessity of that instrument in order that the Green Deal might be launched, as intended, on 28 January 2013 throughout Great Britain.

27. In the Committee’s view, this does not appear to proceed upon a proper interpretation of section 11 of the Energy Act 2011, which contains the powers for making the relevant provisions of the Framework Amendment Regulations. Section 11(6) confers a power upon the Secretary of State to make provision in the Framework Regulations about the circumstances in which green deal data is to be updated. However, section 11(2) provides that the section 11(6) power applies only where one or more of the first, second or third conditions are met. Those conditions are set out in subsections (3) to (5). The Committee does not understand it to be disputed that the first condition is fulfilled by the coming into force of the Energy Performance of Buildings (England and Wales) etc. (Amendment) Regulations 2013, and that the second condition is fulfilled by the coming into force of this instrument.

28. However, the Committee differs from the Scottish Ministers as to the effect of section 11(2). The Scottish Ministers’ position is that both the first and second condition required to be fulfilled in order that the Framework Amendment Regulations might extend to the whole of Great Britain. The Committee is unable to concur in this analysis. It appears to controvert the plain words of section 11(2), which provides that the section 11(6) power applies only where one or more of the first, second or third conditions are met. In the Committee’s view, section 11(2) clearly makes the operation of the section 11(6) power dependent upon the occurrence of any one of the three conditions.

29. The Committee accordingly considers that the making of this instrument on 27 January 2013 was not a necessary pre-condition for the Secretary of State to make the Framework Amendment Regulations on the following day. To the extent that the Scottish Ministers argue that this necessity obliged them not to comply with the 28 day rule, the Committee disagrees.

30. The Committee also sought further information from the Scottish Ministers as to the planning and preparation which was undertaken for the making of this instrument. The Ministers indicate that dialogue has taken place with the UK Government over recent months. They go on to advise that “in late 2012” it became clear that final text from the Department for Energy and Climate Change would not be available until early 2013. It is unclear to the Committee whether this was before or after the laying of the draft Framework Amendment Regulations before the UK Parliament on 10 December. In other words, it is unclear whether the inability to comply with the 28 day rule became apparent after it was too late to do anything about it, or whether the Ministers were aware of this fact at a point where they could still have laid an instrument in compliance with the 28 day rule.

31. The Scottish Ministers express the view that a co-ordinated approach has been taken to the laying of these instruments. The Committee accordingly finds it surprising that the Minister go on to narrate that they did not receive the final text of the English instrument until after it had been signed, and that they only discovered at that stage that it differed from the draft which they had prepared. Had a co-ordinated approach truly been adopted, then it appears to the Committee that this would not have happened.

32. The Committee observes that the purpose of the 28 day rule is twofold: it allows an adequate opportunity for public notice of the change in the law prior to it taking effect, and it allows time for Parliamentary scrutiny (including the possibility of annulment) before the instrument comes into force. It appears to the Committee that both of these purposes were substantially frustrated by the manner in which this instrument was made, laid and brought into force within a four day period.

33. The Committee accepts that, as the English instrument was not going to be laid timeously at Westminster, it was by that stage impossible for the Scottish Ministers to comply with the 28 day rule. It does not consider, however, that this explains why the Ministers were not in a position to make and lay this instrument at the same time as, or shortly after, the English instrument.

34. Fundamentally, it appears to the Committee that there has been a failure to plan adequately for the laying and coming into force of a series of related instruments, both in this Parliament and in the UK Parliament. In particular, that process has failed to take adequate account of both Parliaments’ procedural rules in respect of laying. In the case of this instrument that failure appears to have been compounded by the decision to await the final text of the English instrument, rather than proactively seeking to ensure that the drafts of this instrument were up to date so that the final approved text could be made contemporaneously with the English instrument.

35. The Committee draws the instrument to the attention of the Parliament on reporting ground (j). There has been a failure to lay the instrument at least 28 days before it comes into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

36. The Committee recognises that, in policy terms, the coming into force of this instrument at the same time as the Energy Performance of Buildings (England and Wales) etc. (Amendment) Regulations 2013 may have been considered necessary in order to ensure consistent application throughout Great Britain of the Green Deal. However, it does not consider that the Scottish Ministers have adequately explained why they, in conjunction with the Secretary of State, were unable to agree a timetable for the making of both sets of regulations which properly respected the procedural rules on laying applicable in this Parliament and in the UK Parliament.

37. The Committee does not find the Scottish Ministers’ explanation as to why they were not in a position to make and lay this instrument at the same time as, or shortly after, the Energy Performance of Buildings (England and Wales) etc. (Amendment) Regulations 2013 to be persuasive or helpful. It observes that only two sitting days elapsed between the laying of this instrument and its coming into force. The Committee accordingly considers that the Scottish Ministers’ failure to comply with the requirements of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has meant that there has neither been an adequate opportunity for public notice of the change in the law prior to it taking effect, nor any time for Parliamentary scrutiny of this instrument before it came into force.

NO POINTS RAISED

38. At its meeting on 5 February 2013, 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:

Education and Culture Committee

Children’s Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013 [draft]

Looked After Children (Scotland) Amendment Regulations 2013 (SSI 2013/14)

Health and Sport Committee

Social Care and Social Work Improvement Scotland (Requirements for Care Services) Amendment Regulations 2013 [draft]

Rural Affairs, Climate Change and Environment Committee

Bovine Viral Diarrhoea (Scotland) Amendment Order 2013 (SSI 2013/21)

APPENDIX 1

Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations 2013 (SSI 2013/7)

On 25 January 2013, the Scottish Government was asked:

1. These Regulations are made in exercise of the powers in section 93(2) of the Housing (Scotland) Act 2001. Section 93(3) requires that, before the Scottish Ministers make regulations under section 93(2), they must consult with a) such bodies representing local authorities, b) such bodies representing registered social landlords and c) such other persons, as they think it. The Policy Note, at paragraph 8, deals with the consultation process. It indicates that, before making these Regulations, a consultation was undertaken with seven bodies which had responded to an earlier consultation on the (revoked) Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations 2012 (SSI 2012/258). It appears that those seven respondents were Clyde Valley Housing Association, Home Scotland, East Ayrshire Council, Glasgow City Council, the Chartered Institute of Housing, Glasgow and West of Scotland Forum of Housing Associations, and the Scottish Federation of Housing Associations.

a. The Scottish Government is accordingly asked to explain how it has discharged the requirement, in terms of section 93(3)(a), to consult with such bodies representing local authorities as it sees fit before making these Regulations.

b. To the extent that the Scottish Government proposes to rely upon the earlier consultation on the revoked instrument, it is asked to explain how this discharges the requirement to consult on Schedule 2 insofar as it inserts Part 3 of Schedule 5 to the Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Regulations 2004. The new Part 3, as contained in these Regulations, appears to differ materially from Part 3 as it appeared in the revoked instrument and which was the basis of consultation. The third paragraph of page 3 of the Consultation on The Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations 2012 (as published by the Scottish Government in May 2012), which simply refers respondents to Schedule 2 to the draft instrument being consulted on, is referred to for its terms.

The Scottish Government responded as follows:

For the avoidance of doubt, the wording of section 93(4) of the Housing (Scotland) Act 2001 requires Ministers to consult with such bodies as they think fit. That discretion applies to the three categories of bodies and persons that are set out at section 93(4) of the Act.

1a. Discharge of requirement to consult:

Before making the Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations 2012 (SSI 2012/258; “the 2012 Regulations”), the Scottish Government undertook a 12 week public consultation. As part of that it consulted specifically with Scottish Federation of Housing Associations, the Convention of Scottish Local Authorities, all local authorities, all mainstream RSLs, non-registered housing associations, and Homes for Scotland. That consultation included bodies in all three categories set out in section 93(4) of the Housing (Scotland) Act 2001. The consultation attached draft Regulations and invited comment on them. Comments were only received from 7 of the bodies consulted.

As the Subordinate Legislation Committee will recall, at its meeting of 23 October 2012 it expressed concerns about the drafting of the 2012 Regulations. The Scottish Government therefore agreed to revoke them, before they could come into force, and has taken those concerns fully into account in making the Housing (Scotland) Act 2001 (Assistance to Registered Social Landlords and Other Persons) (Grants) Amendment Regulations 2013 (SSI 2013/7; “the 2013 Regulations”), which is the instrument the Committee is now considering.

Prior to making the 2013 Regulations, the Scottish Government decided briefly to invite comment from the 7 respondents to the 12 week public consultation. Those bodies included the 2 local authorities that responded to the consultation. The Scottish Government did not see fit to consult more widely, as the changes between the instruments are not substantial and are changes of a type that might commonly be made between a consultation draft of Regulations (where consultation is accompanied by a draft) and the final version, without seeking further views from consultees. As the Policy Note narrates, none of the 7 bodies responded to the invitation to comment.

The Scottish Government’s view is that Ministers had already met the consultation requirement with the 12 week 2012 consultation, as the 2013 Regulations deliver the policy that was consulted on. The 2012 Regulations did not come into force (though they were made) and therefore the matters considered in the 2012 consultation will only take effect once the 2013 Regulations come into force.

1b. Procedure adopted and specific changes:

The Scottish Ministers did not see fit to undertake a further public consultation in respect of the 2013 Regulations, as they do not in policy terms differ significantly from the 2012 Regulations. The changes between the two instruments relate to how that policy is expressed, to reflect concerns expressed by the Subordinate Legislation Committee regarding reference to an external document in Part 3 of Schedule 2, to the way in which an eligibility criterion was expressed (and hence its vires), and a few minor printing points. The Committee’s legal advisers have highlighted the change made in response to the first of these concerns.

Part 3 of Schedule 5 relates to the procedure to be followed by a local authority in making an Innovation and Investment Fund (IIF) grant. The change in that procedure between the two sets of Regulations reflects concerns expressed by the Committee in its legal advisers’ questions of 28 September 2012. These were that the previous provision might constitute sub-delegation and did not clearly set out procedures to be followed by local authorities in considering applications for grant.

In practice, the requirements as set out in the 2013 Regulations are not significantly different from those councils would have undertaken using the 2012 Regulations, though they are expressed in a different way. The Committee will note that the provision made by the 2013 Regulations makes the procedure for IIF grants identical to the procedure to be followed for Partnership Support for Regeneration (PSR) grants, minus three elements of that procedure which are not required for IIF grants. (The PSR grant procedure in at Part 3 of Schedule 2, as inserted by Schedule 1 to the 2013 Regulations.)

Those consulted in the 12 week public consultation had the opportunity to comment on these procedural requirements, as they appeared in the draft Regulations that formed part of the consultation in the context of PSR grants. There were no comments from consultees to suggest that these requirements would give difficulty, which is unsurprising given that in essence they set out the evidence that an authority must require from applicants to allow proper appraisal of a proposed project.

The procedure adopted by the 2013 Regulations addresses the Committee’s concerns and provides a clearer statement of the procedure local authorities are to follow. There may be advantages from the consistency of approach between both types of grant that the provision produces. The Scottish Government is grateful to the Committee for highlighting the issues in the procedure set out in the 2012 Regulations.

The Scottish Government’s position is that any requirement to consult with bodies representing local authorities was met through the public consultation in 2012. Had the matters identified by the Committee been raised earlier, in consultation responses, then they would have been addressed prior to making the 2012 Regulations without further consultation. Although these matters were identified later, the Scottish Government does not see that as altering its ability to address them in the way that has been followed here.

APPENDIX 2

Energy Performance of Buildings (Scotland) Amendment Regulations 2013 (SSI 2013/12)

On 25 January 2013, the Scottish Government was asked:

1. In its letter to the Presiding Officer of 23 January 2013, the Scottish Government indicates that the making of these Regulations on 27 January 2013 is a necessary pre-condition in order that the Secretary of State may also make the Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) (Amendment) Regulations 2013 on that day, given that those Regulations are to be made under section 11(6) of the Energy Act 2011. The Scottish Government suggests that section 11(4)(b) of the Energy Act 2011 makes it a pre-condition of the exercise of the section 11(6) power that the Energy Performance of Buildings (Scotland) Regulations 2008 (“the principal Regulations”) have been amended by regulations made under section 10(3) (i.e. this instrument). Given that section 11(2) provides that section 11(6) applies if “one or more of the first, second or third conditions is met”, and that the first condition would appear to be met by the coming into force on 27 January of the Energy Performance of Buildings (England and Wales) etc. (Amendment) Regulations 2013, the Scottish Government is asked to explain:

a. Whether it agrees that the section 11(6) power becomes exercisable, without qualification, once any one of the conditions set out in subsections (3) to (5) of section 11 is met, and – if it disagrees – the basis for that view; and

b. Accordingly, why it considers the making of these Regulations to be a necessary pre-condition for the making of the Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) (Amendment) Regulations 2013?

2. The letter further narrates that it was considered necessary to delay the making of these Regulations until the Secretary of State had made the equivalent instrument for England and Wales, the Energy Performance of Buildings (England and Wales) etc. (Amendment) Regulations 2013. It also narrates that that instrument was made on 9 January and laid before Parliament on 11 January. Given the stress which the letter lays upon the desirability of ensuring that the Green Deal operates as far as practicable on the same basis in Scotland and in England and Wales, the Scottish Government is asked:

a. Why there does not appear to have been a co-ordinated approach taken to the making of the two instruments so that the procedural requirements for scrutiny could properly be observed in both the UK and the Scottish Parliament or, if that were not possible, so that the Scottish Ministers could have made these Regulations at the same time as, or very shortly after, the Secretary of State made the equivalent instrument for England and Wales; and

b. Why, when that instrument was made on 9 January, the Scottish Ministers were not in a position to make these Regulations until 22 January, some 13 days later?

The Scottish Government responded as follows:

1. The Scottish Government recognises that section 11(2) of the Energy Act 2011 provides that section 11(6) applies if one or more of the conditions set out in sections 11(3) to (5) is met. It does not, however, agree that the coming into force of the Energy Performance of Buildings (England and Wales) etc. (Amendment) Regulations 2013 would be sufficient to enable the powers available under section 11(6) to be exercised so as to enable the Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) (Amendment) Regulations 2013 to be made on 27 January 2013.

It is considered that section 11 envisages that the power under section 11(6) to make regulations to require information to be updated rests upon there already being provision made by regulations under section 10(3) for the inclusion in a document of the information which is to be updated.

Section 11(6) of the Energy Act 2011 (as amended by Energy Act 2011 (Amendment) (Energy Performance of Buildings) Regulations 2012) provides-

“(6) The framework regulations may make provision as to the circumstances in which—

(a) data from which a document of a description falling within subsection (3) or (4) may be produced, or

(b) a document of a description falling within subsection (5), is required to be updated or further updated in accordance with the provision made by the Secretary of State in the regulations.”

The condition contained in section 11(5) (the third condition) is not of immediate relevance as the Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) Regulations 2012 specify documents falling within section 11(3) and (4). Regulation 42(2) of those Regulations (read together with the definitions of “the 2007 Regulations”, “the 2008 Regulations”, “disclosure document”, “energy performance certificate”, “Energy Performance Regulations” and “recommendations report” in regulation 2(1)) provide that the document specified for the purposes of section 8(4)(b) of the Energy Act 2011 is—

(a) for a property in England and Wales, the energy performance certificate within the meaning of the Energy Performance of Buildings (England and Wales) Regulations 2012 (at the time of the passage of the Energy Act 2011 these were the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007);

(b) for a property in Scotland, the energy performance certificate and the recommendations report within the meaning of the Energy Performance of Buildings (Scotland) Regulations 2008.

It is considered that the first condition contained in section 11(3) is intended to relate to the position in England and Wales and the second condition contained in section 11(4) is intended to relate to the position in Scotland. Section 11(3)(a) refers to Regulations which apply only to England and Wales and section 11(4)(a) refers to Regulations which apply only to Scotland. Similarly section 11(3)(a) and (4)(b) refer respectively to amendments made by regulations made by the Secretary of State under section 9(3) and by the Scottish Ministers under section 10(3). Section 9 extends only to England and Wales and section 10 extends only to Scotland.

In terms of section 11(4)(b) the third condition, which relates to Scotland, is only met where the Scottish Ministers have made regulations under section 10(3) to amend the Energy Performance of Buildings (Scotland) Regulations 2008 to require the energy performance certificate and recommendations report (“the disclosure document”) to contain information in connection with the green deal (“green deal information”). Regulations under section 11(6) may provide when the green deal information required to produce a disclosure document is to be updated or further updated. The structure of section 11 envisages that regulations will already have been made to require green deal information to be included in a disclosure document.

It is considered that the intention is that the powers to make regulations under section 11(6) which extend to Scotland is not properly exercisable until the disclosure document which applies in Scotland is required to contain green deal information. As the green deal extends GB wide and the Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) (Amendment) Regulations 2013 accordingly extend to Scotland it is considered that it would not be sufficient if only the condition which related to England and Wales had been met.

2. The Scottish Government considers that a co-ordinated approach has been taken in the drafting and laying of these amendment regulations. Continuous dialogue has taken place between Scottish Government officials and those in the UK Department for Energy and Climate Change (DECC) over recent months.

It became clear in late 2012 that final text would not be available from the UK policy lead until early in 2013. This has resulted in compressed laying timetables for both the UK and Scottish Governments and breach of the respective 21 day and 28 day period between laying of regulations under negative resolution and coming into force date.

The Energy Performance of Buildings (Scotland) Amendment Regulations 2013 is made solely for the purpose of enabling use of the Scottish energy performance certificate and recommendations report as the vehicle for disclosure of information relating to the green deal status. The information which must be disclosed in such circumstances is the same in England, Wales and Scotland and it was therefore essential that, in making regulations, the requirements for the production, validity and disclosure of this information and the data requirements introduced by Schedule 2 of these Regulations functioned in the same way as those in England & Wales.

Confirmation of the final text of The Energy Performance of Buildings (England and Wales) etc. (Amendment) Regulations 2013 was received in the evening of Wednesday 9 January 2013, following signature by the UK Minister.

As the final instrument contained changes from previous drafts, officials from the Building Standards Division sought information from DECC on Friday 11 January whilst amendments were made to previous drafts of the Regulations. Clarifications were received from DECC late on Monday 14 January. The Regulations were finalised, checked and styled and arrangements made for signature by the Minister. This occurred six working days (including the date of signature) after receipt of final information from UK officials.

On notification of final text from the UK Government, officials sought to expedite proceedings whilst still allowing sufficient time for analysis of the implications of applying similar provisions within differing legislative frameworks.

Breach of Laying Requirements: Letter to the Presiding Officer

The above instrument amends The Energy Performance of Buildings (Scotland) Regulations 2008 (“the 2008 Regulations”). It was made by the Scottish Ministers on 22 January 2013 under section 2(2) of the European Communities Act 1972 and sections 10 and 75 of the Energy Act 2011. It has been laid before the Scottish Parliament under the negative procedure on 23 January 2013 and will come into force on 27 January 2013.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has not been complied with. In accordance with section 31(3) of that Act, this letter explains why

The Green Deal is an initiative to remove the barrier of up-front costs to the installation of the more expensive energy efficiency measures and whole-property (domestic and non-domestic) approaches needed to meet climate change targets and promote green jobs. DECC expect the overall number of jobs in the insulation industry to increase significantly under the Green Deal and ECO, rising on DECC estimates from 27,000 in 2007/8, to between 39,000–60,000 by 2015. This will be an important contribution in our transition to a Low Carbon Scotland and could present huge opportunities for Scottish industry.

The laying requirements have not been complied with due to the need to ensure that the Green Deal will operate in essentially the same manner on a GB wide basis and that the legislation underpinning the Green Deal will be in force both on a GB wide basis on the same date, namely 28 January 2013. This is the date on which The Green Deal Framework (Disclosure, Acknowledgement, Redress etc.) Regulations 2012 (SI 2012/2079) (“the Framework Regulations”) are to come fully into force.

The Secretary of State is to make a further set of amendments to the Framework Regulations. These, The Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) (Amendment) Regulations 2013 are subject to the affirmative procedure and were laid in draft before the UK Parliament in early December 2012.

Those draft regulations include provision made under section 11(6) of the Energy Act 2011 relating to circumstances in which green deal information must be updated. It is considered that due to the wording of section 11(3) and (4) those amending regulations cannot be made until amendments to both 2008 Regulations and the Energy Performance of Building (England and Wales) Regulations 2012 (SI 2012/3118) have come into force. Section 11(4)(b) makes it a pre-condition of the exercise of the power in section 11(6) that the 2008 Regulations have been amended by regulations made under section 10(3) to require information to be contained in a document required to be produced under the 2008 Regulations (i.e. the energy performance certificate and related recommendations report). The amendments to the Framework Regulations need to be in force on 28 January 2013 to coincide with the date on which the Framework Regulations themselves come fully into force.

The commencement provision in the draft Green Deal Framework (Disclosure, Acknowledgment, Redress etc.) (Amendment) Regulations 2013 (regulation 1) provides for the regulations to come into force the day after the day on which they are made. Subject to Parliamentary approval of the draft amending regulations, those Regulations could be made on 27 January and will come into force the following day. The amendments to the 2008 Regulations therefore need to be in force on or before 27 January in order to allow those Regulations to be made and the changes to be made to the manner in which the Green Deal is to operate as the point when the Framework Regulations come fully into force in England, Scotland and Wales on 28 January 2013.

In order to ensure that the green deal information specified was essentially the same on a GB wide basis, it was considered necessary to delay making of Energy Performance of Buildings (Scotland) Amendment Regulations 2013 until the Secretary of State had made the Energy Performance of Buildings (England and Wales) etc. (Amendment) Regulations 2013 (SI 2013/10). Those Regulations were made on 9 January and laid before the UK Parliament on 11 January.

The legislative context to the making of the Amendment Regulations is set out more fully below.

Under section 8(4)(b) of the Energy Act 2011 a green deal provider must if required to do so by the framework regulations secure that a document of a description specified in the framework regulations is produced. Regulation 42(1) of the Framework Regulations requires a green deal provider to take that action provided in section 8(4)(b). Regulation 42(2) of the Framework Regulations (read with the relevant definitions in regulation 2(1)) provides that the document specified for the purposes of section 8(4)(b) of the Energy Act is in Scotland the energy performance certificate and recommendations report produced under the 2008 Regulations. These documents are together referred to as the “disclosure document”.

Where this is the case section 10 of the Energy Act 2011 enables the Scottish Ministers to make regulations amending the 2008 Regulations in connection with the production of such a disclosure document and in particular to require the document to contain information in connection with a green deal plan and improvements installed under the plan. Section 9 of the Energy Act 2011 confers an equivalent power on the Secretary of State to amend the Energy Performance Regulations for England and Wales. At the time of the passage of the Energy Act 2011 these were the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 (SI 2007/991). The 2007 Regulations have since been replaced by the Energy Performance of Buildings (England and Wales) Regulations 2012 (SI 2012/3118).

The result is that the power to make regulations for Scotland to specify the green deal information to be included in a disclosure document is conferred on the Scottish Ministers while the equivalent power to make regulations for England and Wales is conferred on the Secretary of State.

The Green Deal is a GB wide scheme under the Energy Act 2011 and it is considered to be highly desirable that it operates as far as practicable on the same basis both north and south of the border. It is therefore considered important that the green deal information to be included in a disclosure document should be essentially the same in Scotland as it is in England and Wales. In order to ensure that this was the case the Scottish Ministers have held off making regulations under section 10 of the Energy Act 2011 under the Secretary of State has made regulations under section 9.

The Secretary of State has now made the Energy Performance of Buildings (England and Wales) etc. (Amendment) Regulations 2013 under (among other powers) section 9 of the Energy Act 2011. These Regulations require the energy performance certificate produced under the 2012 Regulations for a green deal property (which is the disclosure document for England and Wales) to include information known as green deal information. The green deal information is set out in the new Schedule A1 to be introduced by those Regulations into the 2012 Regulations.

The Energy Performance of Building (Scotland) Amendment Regulations 2012 require the recommendations report produced under the 2008 Regulations for a green deal property to include the same green deal information. This information is set out in the new Schedule 2 to be introduced by these Regulations. The information is the same but the new Schedule 2 does not include information regarding the energy performance certificate required by paragraphs 2 and 3 of Schedule A1 as in Scotland the information will be contained in the recommendations report rather than the energy performance certificate.

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