18th Report, 2013 (Session 4): Subordinate Legislation

SP Paper 279 (Web Only)

SL/S4/13/R18

18th 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 12 March 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Police Service of Scotland (Performance) Regulations 2013(SSI 2013/61)

Police Appeals Tribunals (Scotland) Rules 2013 (SSI 2013/63)

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

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

Public Transport Users’ Committee for Scotland (Removal of Functions) Order 2013 (SSI 2013/79)

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

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

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Police Service of Scotland (Performance) Regulations 2013 (SSI 2013/61) (Justice Committee)

6. This instrument specifies the procedures which will apply to the handling of unsatisfactory performance by constables of the Police Service of Scotland.

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

8. In considering the instrument, the Committee raised one matter with the Scottish Government. The correspondence is reproduced in Appendix 1.

9. Section 52 of the Police and Fire Reform (Scotland) Act 2012 requires the Scottish Ministers to make regulations which establish procedures for dealing with a constable whose standard of behaviour or performance is unsatisfactory. The detailed procedures set out in the instrument apply to regular constables below the rank of assistant chief constable, so long as they have completed their probationary period.

10. Concerns about a constable’s performance may result in an inefficiency hearing. Where an inefficiency hearing considers that the constable’s performance has been unsatisfactory, the chairing constable may require that constable’s resignation, order a demotion in rank, or issue a written warning. The constable may appeal to the chief constable against a determination that his or her performance has been unsatisfactory, or against the disposal ordered by the inefficiency hearing. Regulation 21 sets out the procedure to be followed for that appeal, and regulation 22 makes provision about how the chief constable is to determine the appeal.

11. The Committee draws the instrument to the attention of the Parliament on reporting ground (i) as it appears to be defectively drafted in the following respect.

12. Regulation 21 provides that, where the chief constable considers it necessary for the purpose of determining an appeal, he or she may fix an appeal hearing for the purpose of affording the opportunity of making oral representations to (a) the appellant and (b) the chairing constable. In certain circumstances, therefore, the chairing constable may elect to make oral representations where an appeal hearing has been fixed.

13. Regulation 22(1), however, provides that the chief constable must determine the appeal on the basis of the things listed at paragraphs (a) to (e). While regulation 22(1)(d) specifies as one of those things any representations made by the appellant at the appeal hearing, no provision is made in respect of representations made by the chairing constable. The Scottish Ministers accept that, as a result, the chief constable cannot take into account the chairing constable’s representations, although the chairing constable has a right, in terms of regulation 21(1) to make them.

14. The effect of these two regulations is that the chief constable is to afford the opportunity of making oral representations to both the appellant and the chairing constable, but may only take into account those of the appellant in reaching a decision. The Committee accordingly reports that regulations 21 and 22 appear to be defectively drafted.

15. The Committee notes that the Scottish Ministers have advised that they will amend regulation 22(1) to permit the representations of the chairing constable to be taken into account.

Police Appeals Tribunals (Scotland) Rules 2013 (SSI 2013/63) (Justice Committee)

16. This instrument makes provision about the procedure before a police appeals tribunal in relation to appeals under section 56 of the Police and Fire Reform (Scotland) Act 2012 (“the 2012 Act”).

17. This instrument is subject to the negative procedure, and comes into force on 1 April 2013.

18. In considering the instrument, the Committee asked the Scottish Government for an explanation as to the powers relied upon in making part of the instrument. The correspondence is reproduced in Appendix 2.

19. Section 56 of the 2012 Act permits a constable to appeal to a police appeals tribunal against any decision to dismiss that constable, or to impose a demotion in rank. Schedule 3 to the 2012 Act makes provision about the constitution and membership of police appeals tribunals. In particular, paragraph 1(1) provides: “[a] police appeals tribunal is to consist of three members, one of whom is to be appointed to chair the tribunal.”

20. Paragraph 4 of schedule 3 enables the Scottish Ministers to make rules about the procedure to be followed on appeal to a police appeals tribunal. This instrument accordingly sets out in some detail the procedural rules which are to be followed, and the procedure specified is broadly similar to other statutory tribunals of a similar nature.

21. Schedule 3 makes no provision about what is to happen should one of those members be absent when an appeal comes before a tribunal for a hearing. However, rule 15(6) of this instrument provides that, if one member (other than the chairing member) is absent, the appeal may nevertheless be heard by the remaining members if the parties consent. Rule 15(6) goes on to deem the tribunal properly constituted in those circumstances.

22. From the Scottish Ministers’ response, it appears that they consider section 125(1)(b) of the 2012 Act, in conjunction with paragraph 4 of schedule 3, to provide the necessary powers for the making of that provision. Paragraph 4 of schedule 3 is the general power to make rules about procedure for police appeals tribunals. Section 125(1)(b) provides that any rule-making power of the Ministers includes power to make, among other things, such supplementary provision as they consider appropriate.

23. The Committee observes that there is no precise definition as to what constitutes a supplementary power. However, it notes the courts have interpreted it as meaning something which is required to supplement the provisions of the instrument or its parent Act in order to make it work, and it views this as constraining the manner in which supplementary powers may be used. The Committee does not consider that they can be used to make provision which is contrary to provision found elsewhere in the Act. If it is intended that the Scottish Ministers should be able to make provision which derogates from the provisions to be found on the face of an Act, then the Committee would expect to see an express power in the Act enabling the Ministers to make that provision.

24. The Committee considers that it is less than clear whether providing for police appeals tribunals to be differently constituted in certain circumstances can properly be said to be filling in the details of the 2012 Act. It appears to the Committee that the Act is capable of operating absent the provisions of rule 15(6) – albeit it may not work exactly as the Scottish Ministers would wish it to.

25. In the Committee’s view, the Parliament in enacting schedule 3 of the 2012 Act has, among other things, prescribed the composition of police appeals tribunals. It has not seen fit to confer an express power upon the Scottish Ministers enabling them to vary that composition, although such powers do exist for similar tribunals. The separate power to make supplementary provision found in section 126 of the Act does permit the terms of the Act to be modified for the purpose of giving full effect to the Act. That power is subject to the affirmative procedure.

26. If the Scottish Ministers consider that it is necessary to make alternative provision about the constitution of police appeals tribunals to that found in paragraph 1(1) of schedule 3, it appears to the Committee that it would have been preferable had this been addressed through a modification of that provision. Addressing it by way of supplementary provision within these Rules therefore appears to represent an unusual or unexpected use of the supplementary power in section 125(1)(b) of the 2012 Act.

27. The Committee draws the instrument to the attention of the Parliament on reporting ground (g). Paragraph 1(1) of schedule 3 to the Police and Fire Reform (Scotland) Act 2012 provides that a police appeals tribunal is to consist of three members, one of whom is to be appointed to chair the tribunal. Rule 15(6) of this instrument purports to enable the tribunal to conduct a hearing while differently constituted (in the absence of a member other than the chair) in certain circumstances.

28. The Scottish Ministers consider that this provision is a supplementary provision and that it has been made in terms of the power conferred by section 125(1)(b) of that Act. It appears to the Committee that it would have been preferable had matters concerning the constitution of police appeals tribunals been addressed through a modification of the provision contained in paragraph 1(1) of schedule 3. It accordingly considers that this represents an unusual or unexpected use of the powers conferred in section 125 of the Police and Fire Reform (Scotland) Act 2012.

INSTRUMENTS REFERRED TO LEAD COMMITTEE FOR CONSIDERATION

Public Transport Users’ Committee for Scotland (Removal of Functions) Order 2013 (SSI 2013/79) (Infrastructure and Capital Investment Committee)

29. This Order removes all functions conferred upon the Public Transport Users’ Committee for Scotland by section 42(1) and (2) of the Transport (Scotland) Act 2005 and by article 4 of the Public Transport User’s Committee for Scotland Order 2006.

30. The instrument is subject to the negative procedure and it comes into force on 1 April 2013.

31. The Public Transport Users’ Committee for Scotland and its sub-committee presently have statutory functions as regards appeals against decisions on complaints made by bus operators, and as regards the manner in which those complaints have been handled respectively. As such, there may be a number of on-going complaints and appeals which are in progress when the article 4 functions are removed on 1 April 2013.

32. The Committee observes that, unusually, this instrument makes no transitional or saving provision in respect of any pending appeals or complaints. As the statutory function will be removed on 1 April, it appears that the Public Transport Users’ Committee for Scotland and its sub-committee will have no power to continue to deal with them. The Committee notes, however, that it is a policy matter for the Scottish Ministers to determine what should happen to on-going appeals and complaints when the functions are removed.

33. The Committee refers the practical effect of this instrument to the lead Committee. No provision is made in this instrument as regards complaints which are on-going when those functions are removed, with the apparent result that the Public Transport Users’ Committee for Scotland will no longer be able to deal with those complaints despite the fact that they have not been completed. The lead Committee may wish to consider whether it considers this to be appropriate.

NO POINTS RAISED

34. At its meeting on 12 March 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

Individual Learning Account (Scotland) Amendment Regulations 2013(SSI 2013/75)

Education (Fees, Awards and Student Support) (Miscellaneous Amendments) (Scotland) Regulations 2013 (SSI 2013/80)

Health and Sport

National Health Service (Superannuation Scheme and Pension Scheme) (Scotland) Amendment Regulations 2013 (SSI 2013/70)

Food (Miscellaneous Amendment and Revocation) (Scotland) Regulations 2013 (SSI 2013/83)

Food Safety (Sampling and Qualifications) (Scotland) Regulations 2013 (SSI 2013/84)

Sale of Tobacco (Display of Tobacco Products and Prices etc.) (Scotland) Regulations 2013 (SSI 2013/85)

Infrastructure and Capital Investment

Road Traffic (Permitted Parking Area and Special Parking Area) (East Renfrewshire Council) Designation Order 2013 (SSI 2013/67)

Road Traffic (Parking Adjudicators) (East Renfrewshire Council) Regulations 2013 (SSI 2013/68)

Parking Attendants (Wearing of Uniforms) (East Renfrewshire Council Parking Area) Regulations 2013 (SSI 2013/69)

Private Rented Housing (Scotland) Act 2011 (Commencement No. 6 and Savings Provisions) Order 2013 (SSI 2013/82 (C.6))

Justice

Police Service of Scotland (Temporary Service) Regulations 2013 (SSI 2013/76)

Police Federation (Scotland) Regulations 2013 (SSI 2013/86)

Rural Affairs, Climate Change and Environment

Financial Assistance for Environmental Purposes (Scotland) Order 2013 (SSI 2013/74)

Welfare Reform

Welfare Reform (Consequential Amendments) (Scotland) (No. 2) Regulations 2013 [draft]

Welfare Reform (Consequential Amendments) (Scotland) Regulations 2013 (SSI 2013/65)

Council Tax (Information-sharing in relation to Council Tax Reduction) (Scotland) Regulations 2013 (SSI 2013/87)

APPENDIX 1

Police Service of Scotland (Performance) Regulations 2013 (SSI 2013/61)

On 1 March 2013, the Scottish Government was asked:

Regulation 21(1) enables the chief constable, where it is considered necessary, to fix an appeal hearing “…for the purpose of affording the opportunity of making oral representations to— (a) the appellant; and (b) the chairing constable.” Regulation 22(1) provides that the chief constable must determine the appeal on the basis of the information specified in sub-paragraphs (a) to (e) of regulation 22(1). In particular, regulation 22(1)(d) obliges the chief constable to determine the appeal on the basis of “any representations made by the constable at the appeal hearing”. There is no provision, however, obliging the chief constable to determine the appeal on the basis of any representations made by the chairing constable at the appeal hearing. The Scottish Government is accordingly asked:

(a) Does it agree that, at an appeal hearing under regulation 21(1), the appellant and the chairing constable are both entitled to make oral representations to the chief constable?

(b) Does it agree that regulation 22(1) specifies the only matters which the chief constable may take into account in determining an appeal – and, if not, why does it take a different view?

(c) Does it accordingly follow that the chief constable may not take into account the oral representations made by the chairing constable in terms of regulation 21(1), and if so does this represent the Scottish Ministers’ policy intention?

(d) What does the Scottish Government consider to be the consequences of this position, particularly in relation to the procedural fairness of any determination of the appeal by the chief constable where oral representations have been made by both the appellant and the chairing constable?

The Scottish Government responded as follows:

We thank the Committee for raising the questions above and adopt the same numbering in response.

(a) An appeal hearing may be fixed for the purpose of affording an opportunity to make representations to the appellant and the chairing constable where that is necessary for the determination of the appeal. This does not mean that where an appeal hearing is fixed both the appellant and chairing constable acquire a right to make oral representations. Rather, the chief constable may afford a right to make representations to such of them as is necessary for the determination of the appeal. In practice it is difficult to envisage an appeal hearing taking place in the presence of the chairing constable only, but rather less difficult to envisage it taking place in the presence of the appellant only.

(b) We agree that regulation 22(1) specifies the only matters the chief constable may take into account when determining the appeal.

(c) We agree that it follows that the chief constable may not take into account oral representations (if any) made by the chairing constable at an appeal hearing. We note that this reflects the position as set out in regulation 21 of the Police (Efficiency) (Scotland) Regulations 1996. The Committee will be aware that the Scottish Ministers’ policy is to replicate, so far as possible within a single Service structure, the policy encapsulated in the existing regulations made under section 26 of the Police (Scotland) Act 1967. In doing so, in this case, it is apparent that an anomaly in the process established by the 1996 Regulations has been carried forward into the current instrument.

The Committee will be aware that the Scottish Government wrote on 4 March undertaking to bring forward regulations to amend the Police Service of Scotland Regulations and the Police Service of Scotland (Special Constables) Regulations. We intend to take the opportunity to use that instrument to amend regulation 22 of the Police Service of Scotland (Performance) Regulations to permit the chief constable to consider any representations made by the chairing constable at an appeal hearing.

(d) That notwithstanding, we do not consider that any procedural unfairness arises from the process established by the Regulations. While the chairing constable may be afforded an opportunity to make oral representations, those representations are made in the knowledge that they are not, in themselves, to be taken into account in the determination of the appeal. It is therefore clear before the process commences that these representations are not by themselves relevant considerations in the determination of the appeal.

No prejudice is suffered by either the chairing constable or the appellant by virtue of this approach. The chairing constable has no right or interest at stake in the proceedings and the appellant is entitled to put his or her own case orally and in writing and have both considered and tested against the chairing constable’s original determination (which must also be taken into account in the determination of the appeal).

APPENDIX 2

Police Appeals Tribunals (Scotland) Rules 2013 (SSI 2013/63)

On 1 March 2013, the Scottish Government was asked:

Paragraph 1(1) of schedule 3 to the Police and Fire Reform (Scotland) Act 2013 provides that a police appeals tribunal is to consist of three members. Rule 15(6) provides that, if one member of the tribunal (other than the chairing member) is absent after the commencement of the hearing, the appeal may be heard by the remaining members (if the parties consent). What power has been relied upon to make provision to this effect? If the power relied upon is the general power to make rules about procedure on appeal to a police appeals tribunal in paragraph 3 of schedule 3, the Scottish Government is asked to explain why this is considered to be sufficiently broad to permit provision of this nature which derogates from the provisions of paragraph 1(1). We observe that while similar provision may have been made in respect of other statutory tribunals (e.g. the Parole Board), the examples of which we are aware are made in virtue of a specific enabling power (e.g. section 20(4)(a) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of the Parole Board).

The Scottish Government responded as follows:

The Scottish Government thanks the Committee for raising this point. Section 125(1) of, and paragraph 4 of schedule 3 to, the Police and Fire Reform (Scotland) Act 2012 (“the 2012 Act”) are relied upon to make the supplementary provision in rule 15(6) and those powers are cited in the preamble to the instrument. Paragraph 1 of schedule 3 to the 2012 Act sets out the requirements for initial constitution of a police appeals tribunal. That is unaltered by the provision in rule 15(6). Rather, rule 15(6) deals with the circumstance of a tribunal constituted in compliance with paragraph 1 of schedule 3 which later becomes absent a member. Rule 15(6) makes supplementary procedural provision so that, if parties agree, the proceedings may continue. We therefore consider there is vires for the provision and that all of the relevant powers have been cited in the preamble.

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