16th Report, 2013 (Session 4): Subordinate Legislation

 

SP Paper 273 (Web Only)

SL/S4/13/R16

16th 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 26 February 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Police Service of Scotland Regulations 2013 (SSI 2013/35)

Non-Domestic Rating (Unoccupied Property) (Scotland) Amendment Regulations 2013 (SSI 2013/37)

Police Service of Scotland (Special Constables) Regulations 2013 (SSI 2013/43)

2. The Committee’s recommendations in relation to the 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

Police Service of Scotland Regulations 2013 (SSI 2013/35) (Justice Committee)

4. These Regulations make provision about the terms and conditions under which constables of the Police Service of Scotland will serve, as from 1 April 2013 when the Police and Fire Reform (Scotland) Act 2012 (“the 2012 Act”) comes into force. This includes provision about qualifications for appointment, restrictions on constables’ private lives, probation and retirement, record-keeping and the taking of fingerprints and samples. The Regulations also regulate periods of duty, pay, holidays, allowances and expenses, the reckoning of service (including in other forces and the effect of service in the Armed Forces) and entitlement to uniform and equipment.

5. The Regulations are subject to the negative procedure, and are to come into force on 1 April 2013.

6. In considering the instrument, the Committee raised certain matters with the Scottish Government. The correspondence is reproduced in Appendix 1.

7. Regulation 2(1) states that “qualifying diploma” and “qualifying examination” are to have the same meaning as in the Police Service of Scotland (Promotion) Regulations 2013 (“the Promotion Regulations”). On consideration of the Promotion Regulations, it is apparent that “qualifying diploma” is defined in regulation 2(1). There is, however, no definition of “qualifying examination”. There are, instead, definitions of “qualifying examination A (elementary)”, “qualifying examination A (advanced)”, “qualifying examination B” and “qualifying examination C”.

8. In their response, the Scottish Ministers argue that the reference in regulation 2(1) of this instrument is intended to direct the reader towards the Promotion Regulations “…in order to see all the different types of qualifying examination.” This is not what regulation 2(1) says. It says that “qualifying examination” has the meaning that it has in the Promotion Regulations. There is no such meaning, as the Promotion Regulations do not contain an umbrella definition which draws together the four different types of qualifying examination.

9. In the Committee’s view, the Scottish Ministers’ intentions could have been more clearly expressed. While it is possible, on a generous interpretation, to arrive at the position they aim for, it is not instantly apparent on a reading of this instrument with the Promotion Regulations that this is what is intended. Accordingly, the Committee considers that the definition of “qualifying examination” in regulation 2(1) could be clearer.

10. A constable – or an individual applying for appointment as a constable – may not have business interests without the consent of the chief constable or the Scottish Police Authority, depending on that person’s rank. Regulation 5(6) provides that those business interests include certain business interests of that person’s family members (so that, again, the consent of the chief constable or the Authority is required for that business interest to be acquired or continued). Regulation 5(7)(a) defines the term “member of that individual’s or constable’s family”. The definition includes, among others, “dependants” of the individual or constable.

11. It appeared to the Committee that the meaning of “dependant” was unclear, particularly given the extensive manner in which “member of that individual’s or constable’s family” has otherwise been defined. The Scottish Ministers advise that it is deliberately not defined because they intend it to have its ordinary meaning of being any person who depends on another (the individual or constable) for maintenance. They wish the whole of regulation 5 to be construed broadly. The Committee observes that there is a risk that it will be unclear to individuals and constables precisely whose business interests they are required to disclose.

12. On balance, however, the Committee is persuaded that this is properly a policy matter rather than a lack of clarity – it is the policy intention that this term be left relatively openly-defined in order that regulation 5 may be applied in a broad manner. As to whether that approach is appropriate in all the circumstances, given the proper nature of regulation 5, the Committee, while not formally reporting this matter, draws it to the attention of the lead Committee.

13. Regulation 7 relates to the appointment of chief constables and deputy chief constables for fixed terms. Paragraph (4) lists the circumstances in which such an appointment might terminate other than at the end of the fixed term. However, it is drafted so that it refers to a term of appointment coming to an end “…on promotion, dismissal, the conclusion of disciplinary proceedings and regulation 10”. Plainly, these circumstances are intended to be alternatives as the Scottish Ministers concede. The use of “and”, however, suggests that they are cumulative.

14. The Scottish Ministers accept that this is an error. They argue that the intention is clear, and that there is no need to correct it as any other interpretation would be a “logical absurdity”. However, the Committee observes that regulation 7(4) is concerned with the early termination of an appointment to a particular office. It accordingly considers that the error should be corrected to minimise the risk of challenge, and recommends that the Scottish Ministers correct it at the first possible opportunity.

15. Regulation 24(1)(a) makes reference to short-term or long-term incapacity benefit to which a constable is entitled under the Social Security (Incapacity for Work) Act 1994 (“the 1994 Act”). However, that Act in itself confers no entitlement to any such benefit. The statutory basis for that benefit is in section 30A of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”), which happens to have been inserted by the 1994 Act.

16. The Scottish Ministers concede that it would have been preferable to refer directly to the 1992 Act. They argue, however, that the erroneous reference to the 1994 Act featured in the Police (Scotland) Regulations 2004, and apparently no uncertainty has arisen to draw the matter to the Ministers’ attention. That may well be the case. However, the Committee considers that this is not a good reason for perpetuating an admitted error. Accordingly, it notes the Ministers’ commitment to consider amending this reference at the next possible opportunity to make its meaning clearer, and recommends that they do so.

17. Regulation 32(2)(a) relates to “certified overseas service”, and the different ways in which it might be established, as constables are entitled to reckon certified overseas service for the purposes of pay. It provides that, if other conditions are met, service as a member of a police force of a territory or country outside the United Kingdom, being a colony, protectorate or protected state within the meaning of the British Nationality Act 1948 (“the 1948 Act”) or a dependent territory within the meaning of the British Nationality Act 1981 (“the 1981 Act”) may be certified overseas service.

18. The terms “colony”, “protectorate” and “protected state” were originally defined in sections 30 and 32 of the British Nationality Act 1948 (“the 1948 Act”. However, the majority of that Act was repealed on 1 January 1983 by the 1981 Act. This included the definitions mentioned above. The 1948 Act remains in force to a very limited extent. The defined terms therefore have no meaning under the 1948 Act as it is currently in force. The Committee considers that attempting to define those terms by reference to the 1948 Act when the relevant provisions of that Act have been repealed is a drafting error, as the reference does not impart any meaning to the terms.

19. The reference to “a dependent territory within the meaning of the British Nationality Act 1981” is, in the Committee’s view, more significant. When the 1981 Act came into force, the dependent territories were listed in Schedule 6. Those territories had formerly been colonies under the 1948 Act. They include such places as Bermuda, the Falkland Islands, Gibraltar and St. Helena. However, the 1981 Act has been amended by the British Overseas Territories Act 2002 (“the 2002 Act”) and it appears from section 1(2) of that Act that “dependent territories” are now to be known as “British overseas territories”. Schedule 6 has also been modified so that its title is “British Overseas Territories”. The definition of “dependent territory” was repealed in section 50 of the 1981 Act at the same time. As before, the term “dependent territory” has no meaning in consequence of the way in which it has been defined.

20. It accordingly appears to the Committee that the reference to “dependent territory” should instead be to “British overseas territory”, standing the modifications of the 1981 Act by the 2002 Act. The Committee considers that the consequences of this error are more significant than the consequences of the erroneous definitions of colony, protectorate and protected state, because it appears that this error has the effect of excluding all service with one of the police forces in the British overseas territories as from 26 February 2002, despite the fact that all that took place on that date, with the coming into force of the 2002 Act, was a change in the name applicable to the territories listed in Schedule 6 to the 1981 Act.

21. The Committee observes that, as well as excluding from reckonable service any service after 20 February 2002, it is also doubtful whether service with a police force in a dependent territory may properly be reckoned, as that term is again defined by reference to an enactment where the equivalent definition has been repealed. The Committee accordingly considers that, as the use of the term “dependent territory” and its definition by reference to the 1981 Act appears to exclude service with a police force in a British overseas territory (which will have an ongoing effect), this provision appears to be defectively drafted.

22. Paragraph 20 of Schedule 3 contains revocations of subordinate legislation which is being replaced by this instrument. The Scottish Ministers concede that, in that provision, they intended to revoke regulation 13(7) and (8) of the Scottish Crime and Drug Enforcement Agency (Scotland) Regulations 2011. However, the number 13 was omitted and so the instrument instead purports to revoke (the non-existent) regulation 12(7) and (8). The Ministers accept that this is an error. They indicate that the whole of that instrument will be revoked on 1 April 2013 in any case, and so say that there is no legal effect arising from it. However, they undertake to revoke the incorrect references to regulation 12(7) and (8) at the next available opportunity.

23. The Committee considers this to be a drafting error. It notes the commitment to revoke the erroneous references at the next available opportunity. As with the other identified drafting errors, it recommends that the Scottish Ministers do so at the first possible opportunity.

24. More generally, the Committee understands that a number of instruments have still to be laid under the 2012 Act. It considers that this might provide an opportunity to address these matters in early course, and considers that any such opportunities should be taken.

25. The Committee draws the instrument to the attention of the Parliament on reporting ground (i). Regulation 32(2)(a) makes reference to “a dependent territory within the meaning of the British Nationality Act 1981”. That definition in section 50(1) of the British Nationality Act 1981 was repealed by the British Overseas Territories Act 2002 on 26 February 2002. Prior to that repeal, the territories in Schedule 6 were dependent territories. Those territories became known as British overseas territories upon that date. It accordingly appears that regulation 32(2)(a) fails to take account of the modifications made to the British Nationality Act 1981 by the British Overseas Territories Act 2002, and to the extent that it relies upon the repealed definition of “dependent territory” instead of its replacement “British overseas territory”, is defectively drafted.

26. The Committee draws the instrument to the attention of the Parliament on reporting ground (h) in respect of the following matters. In regulation 2(1), the definition of “qualifying examination” by cross-reference to the Police Service of Scotland (Promotion) Regulations 2013 could be clearer. Those Regulations do not contain such a definition, but instead contain four related definitions of “qualifying examination A (elementary)”, “qualifying examination A (advanced)”, “qualifying examination B” and “qualifying examination C”. The Scottish Ministers contend that the reference in this instrument is intended to refer to all of those qualifying examinations. The Committee considers that this could have been more clearly expressed.

27. The Committee draws the instrument to the attention of the Parliament on the general reporting ground in respect of the following drafting errors set out in paragraphs 28 to 31.

28. Regulation 7(4) specifies the different circumstances in which the fixed term appointment of the chief constable or a deputy chief constable might be terminated early. However, it makes provision about a term of appointment coming to an end “…on promotion, dismissal, the conclusion of disciplinary proceedings and regulation 10” [emphasis added]. The ordinary effect of the word “and” would be to make these circumstances cumulative rather than alternative, which produces an absurd result.

29. Regulation 24(1)(a) makes reference to entitlement to incapacity benefit under the Social Security (Incapacity for Work) Act 1994, when entitlement to that benefit properly arises under section 30A of the Social Security Contributions and Benefits Act 1992.

30. In Schedule 3, paragraph 20 purports to revoke regulation 12(7) and (8) of the Scottish Crime and Drug Enforcement Agency (Scotland) Regulations 2011. However, there are no such paragraphs in regulation 12 and it appears that the Scottish Ministers instead intended to revoke regulation 13(7) and (8).

31. Regulation 32(2)(a) makes reference to “a colony, protectorate or protected state within the meaning of the British Nationality Act 1948”. However, those terms are no longer defined by that Act (and nor have they been since their repeal on 1 January 1983). It accordingly appears that the terms, having no meaning in the British Nationality Act 1948 as it is presently in force, can therefore have no meaning in this instrument.

32. The Committee recommends that the errors mentioned in paragraphs 28 to 30 be corrected at the first available opportunity.

33. The Committee additionally refers the practical effect of regulation 5 of this instrument to the lead Committee. Although this is not a formal reporting matter, the lead Committee may wish to consider it further for the reasons set out in paragraphs 10 to 12 above.

Non-Domestic Rating (Unoccupied Property) (Scotland) Amendment Regulations 2013 (SSI 2013/37) (Local Government and Regeneration Committee)

34. The Regulations reform the non-domestic rate which is levied on unoccupied properties, and introduce 2 new incentives. The first supports the occupation of certain long term empty properties, and the second assists developers of new properties which are empty when entered on to the valuation roll.

35. The Regulations are subject to the negative procedure. They come into force on 1 April 2013.

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

37. Regulation 6 of the Regulations provides for a rating relief available to certain properties. Certain conditions must be met for this relief to apply, including that the previous use was as office or shop premises, or that that is the current use (if there has been no previous occupancy.)

38. The question raised by the Committee was directed at clarifying whether the requirement for shop or office use (for the relief to apply) is intended to relate to the rating unit in question, or the building of which the rating unit may form a part. (The rating unit in terms of the Regulations is the “lands and heritages”.)

39. The requirements for sole or main use for shop or office purposes are set out in 2 places in the Regulations. Regulation 3 defines “use as office premises” and “use as shop premises”. The new regulation 4(1)(b) of the 1994 Regulations contains the requirement that “the lands and heritages were [or are] in use as office premises or in use as shop premises”.

40. Specifically, the Committee’s question was directed at one possible scenario – where the rating unit forms part of a building, eg. a floor in a building. The Government’s response has supplied a detailed analysis of the policy intentions, and the interpretation which is taken of regulation 3 and the new regulation 4(1)(b).

41. The response confirms the intended policy where the rating unit is part of a building. “On the specific query, qualification for relief depends on the sole or principal use of the lands and heritages (i.e. the rating unit). That use must take place in a building. However, where a building is split into several rating units (i.e. several lands and heritages) the office use or shop use need not be the sole use (or even the principal use) of the building itself. “Where the building is split into different rating units, it will be the use of the part of the building that is relevant for the rating unit.”

42. Having regard to that confirmation, the Committee considers that the meaning of the new regulation 4(1)(b) could be clearer when read with the definitions in regulation 3. On a plain reading of 4(1)(b), it is required that either the lands and heritages were “in use as office premises” or “in use as shop premises”, or they are “in use as office premises” or “in use as shop premises” (where there was no previous occupation). That accords with the policy intention that the sole or main use of the lands and heritages requires to be shop or office use.

43. However, “in use as office premises” and “in use as shop premises” are terms defined by regulation 3, and they have the meanings stated there. Those meanings do not provide that the sole or main use as shop or office requires to be in the rating unit. The definitions provide that the sole or principal use of the lands and heritages takes place there in a building or part of a building that is used wholly or mainly for the office or shop purposes. The building or part building within which a rating unit is situated requires by that definition to be used as a shop or office.

44. The Committee considers accordingly that the definitions in regulation 3 could have made clearer that the qualification for rating relief depends on the sole or principal use of the lands and heritages as a shop or office, rather than of the building of which the lands and heritages form part.

45. The Committee draws the Regulations to the attention of the Parliament on reporting ground (h), as the meaning of the instrument could be clearer in one respect. Regulation 6 (inserting a new regulation 4 of the Non-Domestic Rating (Unoccupied Property) (Scotland) Regulations 1994) makes provision for rating relief to be available to lands and heritages (rating units) which meet certain conditions. The conditions include in the new regulation 4(1)(b) that the lands and heritages either (when last previously occupied) were in use as office premises or in use as shop premises, or where the lands and heritages have never previously been occupied, they are in such use.

46. Where lands and heritages form part of a building, it is intended that the requirement for sole or principal use as a shop or office relates to those lands and heritages, and not to the building of which they form a part. The meaning of the definitions of “use as office premises” and “use as shop premises” in regulation 3 could more clearly provide for that intention.

47. The Committee also sought clarification of which enabling power is being relied on to make the new paragraph (2) of regulation 4 of the 1994 Regulations, as inserted by regulation 6. That paragraph provides that the rate relief is granted only to the extent that it can be provided as lawful state aid under EU law. (That is, compatibly with Article 107(1) of the Treaty on the Functioning of the EU, which sets out the required criteria for lawful state aid.)

48. The enabling power which is cited in the preamble of the instrument to make regulation 6 is section 24B(3) of the Local Government (Scotland) Act 1966. This power is in terms limited to prescribing the class of lands and heritages which are to continue to be treated as unoccupied.

49. The Committee does not agree with the Scottish Government’s view that section 24B(3) of the 1966 Act implies a power which enables the express restriction in relation to state aids, as set out in regulation 6 of these Regulations.

50. The Scottish Government’s written response makes a second contention which the Committee prefers. Section 2(2) of the European Communities Act 1972 enables the state aid provision to be made, as that subsection enables provisions in implement of the requirements of the EU Treaties. Reliance on section 2(2) to make the provision has been omitted from the preamble.

51. The Committee accepts that that omission does not affect the validity of the instrument, given the reference to other available enabling powers in the preamble. The failure to cite section 2(2) in the preamble is considered by the Committee to be a failure to follow the proper drafting practice.

52. The Committee draws the Regulations to the attention of the Parliament on the general reporting ground, as the preamble of the instrument does not follow proper drafting practice. The new regulation 4(2) of the Non-Domestic Rating (Unoccupied Property) (Scotland) Regulations 1994, inserted by regulation 6, is made in reliance on the powers contained in section 2(2) of the European Communities Act 1972, but mention of that subsection is omitted from the preamble.

Police Service of Scotland (Special Constables) Regulations 2013 (SSI 2013/43) (Justice Committee)

53. These Regulations make provision about the terms and conditions under which special constables of the Police Service of Scotland will serve, as from 1 April 2013 when the Police and Fire Reform (Scotland) Act 2012 comes into force. This includes provision about qualifications for appointment, restrictions on constables’ private lives, retirement, record-keeping and the taking of fingerprints and samples. The Regulations also regulate periods of duty, misconduct, allowances, periodic payments and expenses, and entitlement to uniform and equipment.

54. The Regulations are subject to the negative procedure and come into force on 1 April 2013.

55. In considering the instrument, the Committee raised certain matters with the Scottish Government. The Correspondence is reproduced in Appendix 3.

56. Regulation 4 of this instrument makes similar provision to regulation 5 of the Police Service of Scotland Regulations 2013, with the effect that special constables may not have business interests without the consent of the chief constable. As before, business interests include the business interests of family members and the definition of family member is identical, including the reference to “dependant”.

57. It appeared to the Committee that the meaning of “dependant” was unclear, particularly given the extensive manner in which “member of that individual’s or special constable’s family” has otherwise been defined. The Scottish Ministers advise that it is deliberately not defined because they intend it to have its ordinary meaning of being any person who depends on another (the individual or special constable) for maintenance. They wish the whole of regulation 4 to be construed broadly. The Committee observes that there is a risk that it will be unclear to individuals and special constables precisely whose business interests they are required to disclose.

58. On balance, however, the Committee is persuaded that this is properly a policy matter rather than a lack of clarity – it is the policy intention that this term be left relatively openly-defined in order that regulation 4 may be applied in a broad manner. As to whether that approach is appropriate in all the circumstances, given the proper nature of regulation 4, the Committee, while not formally reporting this matter, draws it to the attention of the lead Committee.

59. Regulation 7(2) specifies the contents of a special constable’s personal record. At regulation 7(2)(h), reference is made to recording that constable’s performance in any qualifying examination. No definition is provided of this term, and the Police Service of Scotland (Promotion) Regulations 2013, which otherwise deal with qualifying diplomas and examinations, do not apply to special constables.

60. The Scottish Ministers advise that this provision has its origins in the Police (Special Constables) (Scotland) Regulations 2008 (“the 2008 Regulations”). They point out that, in a similar fashion, the Police (Promotion) (Scotland) Regulations 1996 did not apply to special constables and so there appears to be no explanation for its presence in the 2008 Regulations. Accordingly to the Ministers, it appears in this instrument purely for consistency with the 2008 Regulations, at the behest of stakeholders who did not wish to see substantive changes made. Now that the erroneous reference has been pointed out, however, the Ministers have undertaken to adjust the provision at the next appropriate opportunity to remove uncertainty.

61. It appears to the Committee that it is undesirable simply to repeat provisions from an earlier instrument without having ascertained what, if any, effect they have. The Committee considers that this is a drafting error, and notes the Scottish Ministers’ commitment to remedy the matter at the next appropriate opportunity.

62. Regulation 17(2) makes provision about the disposals which are available where the misconduct officer makes a finding of misconduct against a special constable. There are a number of alternatives, including (a) dismissal and (b) requirement to resign from the Police Service, either forthwith or at such date as is specified in the decision, as an alternative to dismissal. These provisions are described as alternatives.

63. These disposals are equally available in respect of a regular constable who is disciplined in terms of the Police (Conduct) (Scotland) Regulations 1996. However, regulation 18(3) of that instrument goes on to provide that, where a constable is required to resign but fails to do so, he is deemed to have been dismissed instead. No such provision is to be found in this instrument.

64. It accordingly appeared to the Committee that there was a potential lacuna in respect of a special constable who was required to resign but refused to do so. The Scottish Ministers do not agree with this interpretation. They take the view that that a special constable has no choice but to comply with the requirement to resign. They say that his or her service “effectively ends” on the date specified in the decision letter. The Committee observes that, if that were correct, it would apply with equal force to regular constables. Further, it is difficult to see how a requirement to resign and a dismissal can truly be alternative if they are considered to have the same effect.

65. In the Committee’s view, it is at least questionable whether this instrument adequately provides for the Scottish Ministers’ intended policy where a special constable refuses to resign. Were the instrument to fail to deliver the Ministers’ intended objectives, then that would be a matter which is properly within the Committee’s remit. However, the Ministers consider that this is properly a matter of policy. In light of that view, the Committee simply refers this matter to the lead Committee in order that it may further consider whether it thinks the provisions of regulation 17 adequately provide for the removal of a special constable who refuses to resign in accordance with a requirement under regulation 17(2)(b).

66. The Committee draws the instrument to the attention of the Parliament on the general reporting ground in respect of the following drafting error. Regulation 7(2)(h) provides for the inclusion in a special constable’s personal record a record of whether the special constable passed or failed to pass any qualifying examination at which the special constable was a candidate. As neither the Police (Promotion) (Scotland) Regulations 1996 nor the Police Service of Scotland (Promotion) Regulations 2013 apply to special constables, this appears to be included in error. The Committee notes the Scottish Ministers’ undertaking to adjust the provision at the next appropriate opportunity.

67. The Committee additionally refers the practical effect of regulations 4 and 17 of this instrument to the lead Committee for the reasons set out above. Although these are not formal reporting matters, the lead Committee may wish to consider them further.

NO POINTS RAISED

68. At its meeting on 26 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:

Health and Sport

Personal Injuries (NHS Charges) (Amounts) (Scotland) Amendment Regulations 2013 (SSI 2013/53)

Infrastructure and Capital Investment

National Bus Travel Concession Scheme for Older and Disabled Persons (Scotland) Amendment Order 2013 [draft]

Justice

Police and Fire Reform (Scotland) Act 2012 (Supplementary, Transitional, Transitory and Saving Provisions) Order 2013 [draft]

Police and Fire Reform (Scotland) Act 2012 (Commencement No. 3 and Transitory Provision) Order 2013 (SSI 2013/47 (C.4)

Police and Fire Reform (Scotland) Act 2012 (Commencement No. 4, Transitory and Transitional Provisions) Order 2013 (SSI 2013/51 (C.5)

Welfare Reform

Council Tax Reduction (Scotland) Amendment Regulations 2013 (SSI 2013/48)

Council Tax Reduction (State Pension Credit) (Scotland) Amendment Regulations 2013 (SSI 2013/49)

APPENDIX 1

Police Service of Scotland Regulations 2013 (SSI 2013/35)

On 15 February 2013, the Scottish Government was asked:

1. Regulation 2(1) defines “the Conduct Regulations” as the Police Service of Scotland (Conduct) Regulations 2013 and the Police Service of Scotland (Senior Officers) (Conduct) Regulations 2013. That definition is then used in regulation 11(3)(c). Regulation 11(3)(d) makes reference to the Police Service of Scotland (Performance) Regulations 2013. Regulation 15 makes reference to the Police Federation (Scotland) Regulations 2013. It does not appear that any of these Regulations have as yet been made or laid before the Parliament, making it difficult for the Committee properly to scrutinise the effect of regulations 11 and 15. The Scottish Government is asked:

a. Why it was not possible to arrange the packaging of instruments that form part of the Police and Fire Reform (Scotland) Act 2012 implementation programme so that the Regulations mentioned above could have been made contemporaneously with this instrument?

b. Whether drafts of those Regulations could have been made available to the Committee to assist in its scrutiny of this instrument, all in terms of the undertaking given by the Minister for Parliamentary Business to the Committee in Session 3, which undertaking we understand to have been ratified by the present Minister for Parliamentary Business in his letter to the Convener dated 13 February 2013.

2. In regulation 2(1), “qualifying examination” is defined as having the same meaning as in the Police Service of Scotland (Promotion) Regulations 2013. However, that instrument does not contain a definition of “qualifying examination”, instead having four related definitions of “qualifying examination A (elementary)”, “qualifying examination A (advanced)”, “qualifying examination B” and “qualifying examination C”. The Scottish Government is accordingly asked whether it proposes to correct this definition, and if not what meaning the term “qualifying examination” has when used in this instrument, for example in regulation 11(2)(h)(i).

3. In regulation 5(7), the term “dependant” is used without being defined. No power has been taken to determine the meaning of the term (as is the case, say, in regulation 25(10)). The Scottish Government is asked to explain the meaning of “dependant” in context and to explain why this is considered sufficiently clear in the absence of definition, particularly as regulation 5 places certain restrictions on the business activities of individuals and constables which may be capable of interfering with their Convention rights.

4. In regulation 7(4), reference is made to a term of appointment coming to an end on “…promotion, dismissal, the conclusion of disciplinary proceedings and regulation 10.” [emphasis added] The Scottish Government is asked whether these are properly supposed to be alternative events which would bring a term of appointment to an end. If that is the case, the Scottish Government is asked whether this is sufficiently clear, given that the use of the word “and” suggests that the specified events are cumulative rather than alternative.

5. In regulation 24(1)(a), reference is made to “…incapacity benefit to which the constable is entitled under the Social Security (Incapacity for Work) Act 1994”. However, that Act merely inserts a new section 30A which makes provision for incapacity benefit into the Social Security Contributions and Benefits Act 1992, rather than itself making substantive provision for the benefit. Does the Scottish Government agree that incapacity benefit is accordingly payable in terms of section 30A of the Social Security Contributions and Benefits Act 1992, rather than the Social Security (Incapacity for Work) Act 1994, and does it propose to correct this reference?

6. Regulation 31 makes provision for reckoning of service, which by virtue of regulation 31(1)(b) includes service in the other police forces mentioned in the definition of “police force” in regulation 2(1). However, the Police (Scotland) Regulations 2004 also made provision in regulation 43A for service as a police member of the Scottish Crime and Drug Enforcement Agency. It does not appear that the definition of “police force” in regulation 2(1) is sufficiently broad to include service with the SCDEA, and so any such service would appear to be excluded from the reckoning of service under regulation 31. The Scottish Government is asked whether the apparent exclusion of that service from reckonable service is intentional and, if it is not, how it proposes to remedy the matter.

7. In regulation 32(2)(a), reference is made to “a colony, protectorate or protected state within the meaning of the British Nationality Act 1948”. However, the relevant provisions of that Act which defined those terms (sections 30 and 32) were repealed without any apparent saving on 1 January 1983 by section 52(8) of and Schedule 9 to the British Nationality Act 1981. Given that those terms accordingly appear to have no meaning in terms of the British Nationality Act 1948, so far as it remains in force, the Scottish Government is asked to explain what “colony”, “protectorate” and “protected state” mean for the purposes of this provision.

8. Similarly, in regulation 32(2)(a) reference is also made to “a dependent territory within the meaning of the British Nationality Act 1981”. The definition of “dependent territory” in section 50 of that Act was repealed by section 7 of and paragraph 1 of Schedule 2 to the British Overseas Territories Act 2002. It appears, from section 1(2) of the 2002 Act, that “dependent territories” are now referred to as British Overseas territories (with a consequent modfication of Schedule 6 to the 1981 Act). While section 1(2) would have glossed the reference to “dependent territory” in the Police (Scotland) Regulations 1976 to that effect, it does not appear that the gloss will apply to these Regulations given that they post-date the coming into force of the 2002 Act. The Scottish Government is accordingly asked to explain what “dependent territory” means for the purposes of this provision, and whether it intends to correct this apparent error.

9. Schedule 3 purports to revoke regulations 11, 12(4), (7) and (8) and 33 of, and paragraph 4 of Schedule 2 to, the Scottish Crime and Drug Enforcement Agency (Scotland) Regulations 2011. However, regulation 12 does not appear to have (or ever have had) a paragraph (7) or (8). The Scottish Government is asked to clarify what should be revoked by the references to paragraphs (7) and (8) and, if the references are in error, how it intends to correct them.

The Scottish Government responded as follows:

1a. Officials from the Scottish Government met the Clerks to the Subordinate Legislation Committee and the Justice Committee on 7 February 2013 to discuss the laying plan and packages of instruments to be laid and their running order. This was mentioned in the letter from the Minister for Parliamentary Business to the Convenor of the Committee dated 13 February 2013. We are not aware of any concern about the content of the packages arising out of that meeting but we did discuss the difficulty of striking a balance between laying packages of a manageable size for Parliament while permitting an overview.

The nature of the workforce package of instruments is such that they are all interwoven and contain dependencies on other aspects of implementation. Had we tried to lay all those that cross-reference each other in one package, that package would have involved more than twice as many instruments and would have had to be laid on 28 February, leaving Parliament with just the minimum 28 days to scrutinise a significantly larger number of instruments and might have resulted in Parliamentary criticism about time and resource for scrutiny. We felt it would be better instead for Parliament to have the opportunity to scrutinise in longer time a smaller package of instruments, on related subject-matter, with only general cross-references to names of instruments.

1b. The undertaking given by the Minister for Parliamentary Business was that, where possible, instruments would be laid in groups which do not refer to instruments that have not yet been laid. It was not possible on this occasion to do so because stakeholders required to be consulted on the instruments and some involved more discussion with stakeholders than others. In one case a workforce instrument cross-referenced in the instant package has changed significantly since consultation and sharing it would have been at best unhelpful and at worst misleading. The other instruments in question were still in the process of being drafted when the instant package was laid. Had it been possible to share drafts then we would have provided copies of them.

2. “qualifying examination” is a term defined for the purposes of regulation 11(2)(h)(i). That provision relates to the content of a constable’s personal record. A constable of the Police Service is most likely at 1 April 2013 to have come from a previous police force maintained under the Police (Scotland) Act 1967. Such a constable may have lengthy service and have sat various forms of qualifying examination. The wording in head (i) refers to “… pass any qualifying examination…” [emphasis added] and that is to make it clear that there may be more than one type of examination. Reference in regulation 2(1) is therefore made to direct the reader towards the Police Service of Scotland (Promotion) Regulations 2013 (“Promotion Regulations”) in order to see all of the different types of qualifying examination. Qualifying examination in the context of regulation 11(2)(h)(i) therefore means any of the qualifying examinations referred to in the Promotion Regulations. The Scottish Government considers the meaning sufficiently clear to the reader and does not regard the definition as requiring correction.

3. To some extent this question raises a policy matter so hope the following explanation helpful. The term “dependant” in regulation 5(7) is not defined because it is intended to take its ordinary English language meaning: a person who depends on another for maintenance (per OED). Regulation 5 is about disclosure of interests and it is helpful that the term be construed broadly in this context. By contrast, regulation 25(10) is about entitlement to leave and therefore a determination power has been taken in order that “dependant” may be circumscribed in more detail if considered necessary to provide clarity for constables and, separately, to ensure that entitlements created in employment law for employees may be appropriately applied.

4. We are grateful to the Committee for pointing out the inadvertent error in regulation 7(4). Regulation 7(4) provides that the things mentioned are without prejudice to paragraph (3). The events listed are plainly alternative as it would not be possible for an appointment to come to an end on promotion and dismissal and other disciplinary proceedings and retirement. We are therefore of the view that the intention of the provision is clear because to apply any interpretation to the conjunction other than that of in the alternative would be to create a logical absurdity in what is essentially a list.

5. Regulation 24(1)(a) provides for the deduction from a constable’s pay of any short-term or long-term incapacity benefit to which the constable is entitled. In order to assist the reader as to what incapacity benefit is, the provision refers to the Act which created it, albeit by insertion into the 1992 Act. We acknowledge that it would have been better to refer to the 1992 Act directly or use the words “by virtue of” instead of “under” but note the statutory reference performs an essentially adjectival function directing the reader to where meaning can be found for the term “short-term or long-term incapacity benefit”. We note that the reference in regulation 24(1)(a) has been in the Police (Scotland) Regulations since 2004 but has not given rise to any uncertainty of effect such as to merit the Government being asked to adjust the reference. We will, however, give thought as to whether to amend this reference at the next available opportunity to make its meaning clearer.

6. The exclusion of reference to reckonable service with the SCDEA is intentional and a policy matter. The provision in regulation 43A of the Police (Scotland) Regulations 2004 operates in relation to service in relation to an appointment made under paragraph 7(2)(c) of schedule 2 to the Police, Public Order and Criminal Justice (Scotland) Act 2006. Head (c) is concerned with those individuals appointed as constables of the SCDEA. No constables of the SCDEA were ever appointed as all SCDEA officers are on secondment from other police forces. As such they accrue reckonable service by virtue of remaining constables of their home police forces. It would therefore be incorrect to make provision for past reckonable service in relation to a category of individual who never existed and that is why no such provision is carried forward to the new Police Service.

7 & 8. The references in regulation 32(2)(a) to types of service are to historic types of service in places which, conceivably, a constable transferred to the Police Service on 1 April 2013 may have served many years ago. The passage of time has rendered this category very small indeed and within a few years there will be no-one left who can fall within it. However, we do not have data to confirm that there is no constable who benefits from this provision so we felt it appropriate to make some provision for this type of service. At the time when those types of service were served the service was with colonies, protectorates or protected states within the meaning of those Acts at that time and we are of the view that the only way to refer to service in the past is by reference to what it was in the past. Those terms obviously have no meaning now but as the context of the regulation is about past service we are of the view that the references to the Acts and terms there can only meaningfully be read as historic descriptors of service, e.g. the reference to the Secretary of State’s past certification; to attempt to describe it with contemporary terminology would only serve to misdescribe the service that was actually performed. We are, however, content to consider removal of the provision once confirmation is forthcoming that no constable of the Police Service has any such past service.

9. We are grateful to the Committee for identifying this error. The revocations are intended to remove from the statute book subordinate legislation which has made amendment to the Police (Scotland) Regulations 2004 and which is, in consequence of those Regulations’ revocation, to be spent. The intention was to revoke regulation 13(7) and (8) of S.S.I. 2011/61 and we apologise for this error. As the regulations purport to revoke a provision that does not exist there is no legal effect arising from this error and on 1 April 2013 the whole of S.S.I. 2011/61 will in any event be revoked by virtue of the repeal of the provisions it was made under in the Police, Public Order and Criminal Justice (Scotland) Act 2006. In order to remove any remaining confusion for the reader we undertake to revoke the reference to regulations 12(7) and (8) at the next available opportunity.

APPENDIX 2

Non-Domestic Rating (Unoccupied Property) (Scotland) Amendment Regulations 2013 (SSI 2013/37)

On 14 February 2013, the Scottish Government was asked:

1. Which enabling power is being relied on to make the new regulation 4(2) of the 1994 Regulations inserted by regulation 6 (which specifies that the rate relief is granted only to the extent compatible with Article 107(1) of the Treaty on the Functioning of the EU), given that the power in section 24B(3) is limited to prescribing the class of lands and heritages which are to continue to be treated as unoccupied? Why is the provision within the power relied on?

2. The Policy Note explains that the rates relief conferred by regulation 6 is intended to apply if the property was last previously occupied as a shop or office, or where there has been no previous use, where the use is as a shop or office. (Other conditions apply).

Regulation 4(1)(b) of the 1994 Regulations (inserted by regulation 6) requires that the lands and heritages to be treated as unoccupied were or are “in use as office premises” or “in use as shop premises” (as the case may be). Regulation 3 defines those terms. The meaning is “the sole or principal use of the lands and heritages takes place there in a building or part of a building that is used wholly or mainly for the” office or shop purposes, as the case may be. That requirement of whole or main use for office or shop purposes relates to a building or part building in which the lands and heritages are situated, and “the sole or principal use of the lands and heritages” must take place in such building or part.

Please explain therefore-

a. The intended meaning and effect of the new regulation 4(1)(b) read with the definitions in regulation 3,

b. Specifically, whether it is intended that the requirement for whole or main use for office or shop purposes relates to the building or part in which the rateable lands and heritages (the rating unit in question) are situated, or the lands and heritages themselves. Could this be clearer?

The Scottish Government responded as follows:

1. The power used to make regulation 4(2)

Section 24B of the Local Government (Scotland) Act 1966 allows Ministers to prescribe a class of lands and heritages that are to be treated as unoccupied, despite being in fact occupied. The result is that the class gains the rates relief that being treated as unoccupied attracts.

Rates relief can only be granted to the extent that European Union law permits such relief, and any provision would be outside devolved competence so far as it was incompatible with EU law (in terms of section 29(2)(d) of the Scotland Act 1998).

The Scottish Government considers it appropriate to make clear on the face of the legislation that the class of lands and heritages that qualify for relief is limited to those for which the relief can be compatibly granted. It considers it implicit that the power to prescribe a class includes the ability to provide that it is subject to limitations imposed by EU law. In any event, this instrument is also made in reliance of “all other powers enabling [the Scottish Ministers] to do so” and section 2(2) of the European Communities Act 1972 would allow regulation 4(2) to be made. Reference is made to Vibixa Ltd v Komori UK Ltd and Ors [2006] EWCA Civ 536.

2. The meaning of regulation 4(1)(b)

The meaning of regulation 4 is perhaps made more difficult to follow because rating legislation traditionally uses the term “lands and heritages” to describe the unit of property that is entered on the valuation roll.

For shops and offices, this could in practice be a part of a building, with the building being used by several different businesses that have separate entries on the valuation roll. It could be a single building with no additional land that is used by a single business. Or it could be a piece of land that includes a building used as a shop or office, with other parts of the land being used in other ways (an example might be a golf course with a shop).

The definitions of “use as office premises” and “use as shop premises” therefore use the concept of “sole or principal use”, and also that that use must take place in a building. That prevents arguments that, for example, an open air market stall is a shop. Assessors are familiar with the assessment of sole or principal use. The definitions of office use and shop use in the Regulations then refer to activities that are based on definitions in other legislation to describe what those uses are.

Regulation 4(1)(b) provides that in determining whether lands and heritages qualify to be treated as unoccupied, despite being occupied, regard is to be had to the last use when they were previously occupied. Where there was no previous occupation, the regard is to be had to the current use. If in either case the relevant use is as office premises or as shop premises, within the definitions of those, then the relief that the regulations enable will be available.

On the specific query, qualification for relief depends on the sole or principal use of the lands and heritages (i.e. the rating unit). That use must take place in a building. However, where a building is split into several rating units (i.e. several lands and heritages) the office use or shop use need not be the sole use (or even the principal use) of the building itself.

To return to the three scenarios explained above, the way the test applies to a single building with a single business is straightforward. Where the building is split into different rating units, it will be the use of the part of the building that is relevant for the rating unit. In the third instance, the determining factor will be the sole or principal use. For example, a supermarket with an open air car park may be solely used as a supermarket, despite the lands and heritages being only partly a building. In the golf course example, the test will be whether the golf course or the shop is the principal use.

The Scottish Government considers it clear that the principal use element of the qualification relates to the lands and heritages, not the building. However, that principal use must take place within a building.

The Policy Note attempts to explain in simpler language the more complex position outlined above. Policy Notes have that advantage; the legislation itself must achieve a high level of precision as to how to ascertain when a use does, and does not, qualify for a tax relief. The legislation aims to give definitions and a test that can be applied to particular circumstances to determine whether or not the relief can apply.

APPENDIX 3

Police Service of Scotland (Special Constables) Regulations 2013 (SSI 2013/43)

On 15 February 2013, the Scottish Government was asked:

1. Regulation 2(1) defines “the deputy chief constable” as the deputy chief constable designated under regulation 4 of the Police Service of Scotland (Conduct) Regulations 2013. That definition is then used throughout Part 4 of the instrument. Additionally, paragraph 8 of the Policy Note indicates that the meaning of misconduct is to mirror that for regular constables in the Police Service of Scotland (Conduct) Regulations 2013. It does not appear that any of these Regulations have as yet been made or laid before the Parliament, making it difficult for the Committee properly to scrutinise the effect of Part 4 and in particular whether it delivers the stated policy intention. The Scottish Government is asked:

a. Why it was not possible to arrange the packaging of instruments that form part of the Police and Fire Reform (Scotland) Act 2012 implementation programme so that the Regulations mentioned above could have been made contemporaneously with this instrument?

b. Whether a draft of those Regulations could have been made available to the Committee to assist in its scrutiny of this instrument, all in terms of the undertaking given by the Minister for Parliamentary Business to the Committee in Session 3, which undertaking we understand to have been ratified by the present Minister for Parliamentary Business in his letter to the Convener dated 13 February 2013.

2. In regulation 4(4)(b), the term “dependant” is used without being defined. No power has been taken to determine the meaning of the term (as is the case, say, in regulation 25(10) of the Police Service of Scotland Regulations 2013, which provision has no direct equivalent in this instrument). The Scottish Government is asked to explain the meaning of “dependant” in context and to explain why this is considered sufficiently clear in the absence of definition, particularly as regulation 5 places certain restrictions on the business activities of individuals and special constables which may be capable of interfering with their Convention rights.

3. In regulation 7(1)(h), the term “qualifying examination” is used without being defined. The Scottish Government is asked to explain what the term means in this context, particularly as the Police Service of Scotland (Promotion) Regulations 2013, which provides for recognition of the former qualifying examinations, does not apply to special constables in terms of regulation 2(1).

4. Regulation 17(2)(b) provides that one of the disposals following a finding of misconduct is that a special constable may be required to resign from the Police Service, either forthwith or on a specified date, as an alternative to dismissal. The Scottish Government is asked to explain what steps may be taken should a special constable fail to resign as required, given that no provision appears to be made for this situation in contrast with the position under regulation 18(3) of the Police (Conduct) (Scotland) Regulations 1996 (applicable to regular constables) whereby the effect of failure to comply is dismissal.

The Scottish Government responded as follows:

1a. Officials from the Scottish Government met the Clerks to the Subordinate Legislation Committee and the Justice Committee on 7 February 2013 to discuss the laying plan and packages of instruments to be laid and their running order. This was mentioned in the letter from the Minister for Parliamentary Business to the Convenor of the Committee dated 13 February 2013. We are not aware of any concern about the content of the packages arising out of that meeting but we did discuss the difficulty of striking a balance between laying packages of a manageable size for Parliament while permitting an overview.

The nature of the workforce package of instruments is such that they are all interwoven and contain dependencies on other aspects of implementation. Had we tried to lay all those that cross-reference each other in one package, that package would have involved more than twice as many instruments and would have had to be laid on 28 February, leaving Parliament with just the minimum 28 days to scrutinise a significantly larger number of instruments and might have resulted in Parliamentary criticism about time and resource for scrutiny. We felt it would be better instead for Parliament to have the opportunity to scrutinise in longer time a smaller package of instruments, on related subject-matter, with only general cross-references to names of instruments.

We note that there is only one cross-reference in these Regulations: to the definition of deputy chief constable. That cross-reference is simply to point to which of the deputy chief constables has been designated. It does not have significant impact on the Regulations as it is a device for identifying the individual deputy chief constable who will exercise the functions under the Regulations. Separately, as regards the Policy Note aspect, the Committee will observe that misconduct is clearly defined in these Regulations without cross-reference to any other Regulations (see regulation 11 and Schedule 2). The Policy Note was simply intended to draw to the reader’s attention that conduct constituting misconduct on the part of a special constable is no different to that applicable to a regular constable.

1b. The undertaking given by the Minister for Parliamentary Business was that, where possible, instruments would be laid in groups which do not refer to instruments that have not yet been laid. It was not possible on this occasion to do so because stakeholders required to be consulted on the other instrument. The other instrument in question was still in the process of being drafted when the instant package was laid. Had it been possible to share a draft then we would have provided a copy of it.

2. To some extent this question raises a policy matter so hope the following explanation helpful. The term “dependant” in regulation 4(4)(b) is not defined because it is intended to take its ordinary English language meaning: a person who depends on another for maintenance (per OED). Regulation 4 is about disclosure of interests and it is helpful that the term be construed broadly in this context. By contrast, regulation 25(10) of the Police Service of Scotland Regulations 2013 is about entitlement to leave and therefore a determination power has been taken there in order that “dependant” may be circumscribed in more detail to provide clarity for constables and, separately, to ensure that entitlements created in employment law for employees may be appropriately applied.

3. Regulation 7(2)(h) relates to the content of a constable’s personal record. In light of the Committee raising this issue we have looked further into the history of promotion of special constables. In line with stakeholder requests not to make substantive changes to the policy contained in workforce instruments, this provision was drafted to be consistent with that contained in the Police (Special Constables) Regulations 2008. We note that in 2008 the Police (Promotion) (Scotland) Regulations 1996 did not apply to special constables and there appears to be no explanation for the existence of the provision in the 2008 Regulations. Notwithstanding that, the inclusion of the provision creates no harm as it is simply of no effect. However, in order to remove uncertainty as to the meaning of the provision, we undertake to adjust the provision at the next appropriate opportunity and are grateful to the Committee for raising this point.

4. This question raises a policy matter and we hope the following explanation is helpful to the Committee. The different nature of special constables, who are volunteers, means that their conduct procedures are not simply a copy of those which apply to regular constables as different policy considerations apply. The current procedures were introduced to allow transparency around the termination of a special constable’s service, and to introduce a right to a review of decisions taken. It is important to note that regulation 17(2)(b) is a requirement for a special constable to resign; it is not simply a request, it must be complied with. The decision notice will specify the date on which the resignation must take effect and the special constable’s service effectively ends on that date. At that time, the special constable will be required to return their uniform and equipment and would not be permitted to return to duty.

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