21st Report, 2013 (Session 4): Subordinate Legislation

SP Paper 293 (Web Only)

SL/S4/13/R21

21st 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 19 March 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Public Services Reform (Functions of the Common Services Agency for the Scottish Health Service) (Scotland) Order 2013 [draft] (SG 2013/12)

CRC Energy Efficiency Scheme Order 2013 [draft]

Scottish Police Authority (Provision of Goods and Services) Order 2013 (SSI 2013/73)

Late Payment of Commercial Debts (Scotland) Regulations 2013 (SSI 2013/77)

Act of Adjournal (Criminal Procedure Rules Amendment) (Miscellaneous) 2013 (SSI 2013/72)

Act of Sederunt (Rules of the Court of Session Amendment) (Protective Expenses Orders in Environmental Appeals and Judicial Reviews) 2013 (SSI 2013/81)

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: DRAFT INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Public Services Reform (Functions of the Common Services Agency for the Scottish Health Service) (Scotland) Order 2013 [draft] (SG 2013/12) (Health and Sport Committee)

4. The Public Services Reform (Functions of the Common Services Agency for the Scottish Health Service) (Scotland) Order 2013 (SG 2013/12) is a consultation draft of an order which the Scottish Ministers propose to make under section 17 of the Public Services Reform (Scotland) Act 2010 (PSR Act).

5. The instrument expands the functions of the Common Services Agency of the Scottish Health Service (CSA). The CSA currently provides goods and services to the NHS and closely related public services. The purpose of the order is to allow the CSA to provide such services to the entire public sector, subject, in some cases, to Government approval. The order also expands the range of goods which the CSA can supply which is currently restricted to goods relating to the health service.

6. Under section 26 of the PSR Act, Ministers must lay a copy of the proposed draft order before the Parliament along with an explanatory document setting out prescribed matters. Scottish Ministers must also have regard to any representations about the proposed draft order made within 60 days of the order being laid. Once the draft order is laid for approval it is subject to the normal affirmative procedure.

7. In considering the draft instrument and its explanatory document the Committee sought clarification of a number of matters from the Scottish Government in writing and in oral evidence. The correspondence is reproduced at Appendix 1. The Committee took oral evidence from Government officials at its meeting on 19 March 2013.

8. The Committee’s interest in the order does not relate to the policy objectives which the Scottish Government seeks to achieve through this order. The Committee’s concern is whether that policy objective may be achieved through this legislative mechanism as opposed to through primary legislation and whether the statutory requirements set down in the PSR Act are complied with. Both the written correspondence and the oral evidence therefore focus on the vires restrictions (specifically section 18(2)(b) (c) and (d)) which apply to orders made under section 17 of the PSR Act). The Committee’s consideration of the restrictions is detailed below. The Committee also conducted its usual technical scrutiny of the terms of the instrument.

9. Section 18(2)(b) of the PSR Act states that the effect of the provision must be proportionate to the policy objective. The Scottish Government explained that the policy objective is twofold. Each purpose is intended to remove an obstacle to efficiency and productivity.

10. First, the order is to clarify the effect of the existing powers of the CSA under section 15 of the National Health Service (Scotland) Act 1978. These powers to supply goods and services to local authorities and certain other bodies are to be treated as functions so that they can be operated properly. Second, the intention is to expand the range of bodies to which the CSA can provide accommodation, goods and services in order to rectify “the current anomalous situation whereby the agency can provide certain goods and services to certain public bodies but not to everybody in the Scottish public sector.”1

18(2)(b) – whether the effect of the provision is proportionate to the policy objective

11. The Scottish Government explained that it had balanced the legislative provision on the one hand and the policy objective on the other. It had chosen not to propose an order which would allow the CSA to provide goods and services to both the public and private sectors with no restrictions as it was deemed that this would be disproportionate to the policy objective.

12. The Scottish Government further explained that, conversely, the order could have been drawn more narrowly than it is currently, but that to do so would have led to difficulties in the policy objective being met.

13. Therefore, the Scottish Government considers that the provision meets the test of proportionality as it is drawn neither too widely nor too narrowly to achieve the stated objective.

14. The Scottish Government asserted that, as the order was enabling rather than mandatory, the test of proportionality was satisfied.

15. The Scottish Government further asserted that any potential impact on the services currently provided by the CSA is not a matter of proportionality but is instead the responsibility of the management of the CSA.

16. In oral evidence John Paterson, from the Scottish Government Legal Directorate, Food, Health and Community Care Division explained the Scottish Government’s opposition to legislating to prevent potential negative effects on the current service provided by the CSA—

“It seemed to us that to try and control the Common Services Agency’s day-to-day use of its staff and resources by legislation would most likely be ineffective. The way to ensure that resources and staff are used effectively is by having good management. The Common Services Agency has demonstrated over the years that it is well managed and provides a good service. It seems to us that the answer lies not in what would necessarily have to be a very clumsy regime for trying to control exactly how resources are used, but rather in ensuring continued good management of the service.”2

17. The Committee remains concerned by the lack of controls put in place to help mitigate against the potential negative impacts of the expansion of the goods and services provided by the CSA. The Committee considers that the Scottish Government has given due consideration to issues of proportionality but considers the issue of potential negative impacts further below.

18(2)(c) – whether the provision as a whole strikes a fair balance between the public interest and the interests of any person adversely affected by it.

18. Section 18(2)(c) of the PSR Act states that any provision made under section 17 must, when taken as a whole, strike a fair balance between the public interest and the interests of any person adversely affected by it.

19. The Scottish Government asserted that the balance required in this test has been met. John Paterson explained that, in relation to this order –

20. “The Government’s view of the public interest is that public services are provided as efficiently as possible and to the highest possible quality. In this case, we see the public interest in improving the quality, cost and efficiency of the services that are provided to the public sector.”3

21. In addressing whether the balance between the public interest and the interests of any person affected by it was struck, the Scottish Government considered the class of persons adversely affected by the order to be primarily commercial contractors who currently provide goods and services to public bodies but who could potentially lose that business if in the future those bodies could obtain those goods and services from the CSA. The Scottish Government argued that in cases such as this, the public interest in the efficient provision of goods and services to the public sector outweighed the potential negative effect on businesses.

22. The Committee was concerned that the expansion of the CSA’s functions proposed by the order could have an adverse effect on the current services provided by the CSA to the NHS. It considers that the order introduces a risk that the quality of current services could be diluted as the number of bodies served by the agency increased or the range of services that the CSA provided increased. To that end the Committee considered that the recipients of NHS services could fall into the class of persons adversely affected by the order. Reassurance was sought that these potential adverse effects had been given consideration by Scottish Ministers when applying the test in section 18(2)(c).

23. John Paterson explained the Scottish Government’s view that the potential adverse effect on the recipients of NHS services—

“…was neither bad enough nor likely enough to warrant it being set out in the explanatory document….The suggestion was made that allowing the Common Services Agency to provide services to bodies outside the health service will have an adverse effect on its provision of services to the health service, and that that, in turn, will have an adverse effect on the provision of healthcare to patients. However, we took a different view almost from the outset.”4

24. The Scottish Government placed reliance for this view on two matters. First, as noted above, the Scottish Government considers that it is very difficult to put in place effective protections against poor management. Second, the Government stressed that the CSA has never directly provided patient care. Its function is to support other bodies to provide such care by carrying out facilities management and other such functions on behalf of those bodies. However, the Committee noted that the CSA does provide certain services which, while not delivered by the CSA directly to patients, could have a significant effect on patients when delivered. In particular the Committee referred to the CSA’s function of providing supplies of human blood for the purposes of carrying out blood transfusion, or material derived from human cells which is provided in the course of its patient services.

25. The Committee also notes that paragraph 3.15 of the explanatory document states that the public interest balance is satisfied “because a change which leads to an overall reduction in the cost of public services without a diminution in quality is, in any event, considered to be in the public interest.” However, as is clear from the Government’s evidence, the order does not require there to be no diminution of quality of service. It does not address this matter at all. There is an aspiration that the current high standards of service delivery will remain, but while the order expands the functions of the CSA to offer the potential for cost efficiency it makes no statement as to the standards which are to continue to be met.

26. The Committee remains concerned that the potential adverse effects of the changes proposed by the order have not been fully addressed by the Scottish Government. The explanatory document does not explore the issue of the services which the CSA delivers for patients (if not directly to patients) or describe how the Government has balanced the interests of patients in deciding on the changes to the CSA’s functions proposed by this order.

27. Whilst the Committee acknowledges that the efficient delivery of public services without a diminution of service levels is in the interest of the public, it notes that the order does not make any provision as to service levels – something which the Government has stated as being integral to the public interest balance it has conducted. If this constituent part of the public interest balance is not to be secured through legislation then the Committee wishes reassurance as to the mechanism through which it can be secured and on which reliance can be placed to ensure that the balance required by section 18(2)(c) is achieved.

28. The Committee therefore recommends that the Scottish Government considers these matters further during the consultation period. The Committee will consider the Government’s response to these issues when it considers any subsequent order laid for approval by the Parliament.

18(2)(d) – whether the provision removes any necessary protection

29. Section 18(2)(d) of the PSR Act states that any provision made under section 17 must not remove any necessary protection. Section 18(3) lists examples of necessary protections, although the list is not exhaustive.

30. The Scottish Government does not consider that any necessary protections are removed by the order. In oral evidence John Paterson stated that—

“We are talking about allowing a public body to provide services to other public bodies. We are not doing anything structural that would create a constitutional difficulty, anything that takes away someone’s right to retain their property or anything like that. My submission is that we are not removing a necessary protection.”5

31. The order contains provisions to expand the number of bodies with which the CSA can share premises. The individual arrangement will not be subject to any legislative control. John Paterson explained that the issue of legislative control had not been addressed in the order due to—

“…the desire to have similar arrangements apply to the use of property as apply to the purchase of goods and materials. In addition…is the fact that it would be extremely clunky to say that Scottish Ministers may specify by order that a body can use particular premises. The Government would have to come back to the Parliament regularly to ask permission to make an order to specify that a particular building must be leased for a particular period.”6

32. The Committee questioned whether the absence of statutory controls on the sharing of premises between the CSA and other public bodies provided sufficient transparency about decisions on where it was appropriate to share premises with other public bodies and the particular bodies that premises would be shared with.

33. Whilst the Committee recognises the need for flexibility it requests that the Government reconsider whether any further protection could be achieved in relation to decisions about accommodation and service sharing. In particular the Committee refers to the provision of services for patients which the CSA provides to the NHS and which link directly to the delivery of healthcare services to patients such as the supply of blood and other human cell products. The Committee notes that the Scottish Government has undertaken to give further consideration to this matter.

34. The Scottish Government has confirmed that new section 15(2B) of the National Health Service (Scotland) Act 1978 proposed by the draft order contains a typographical error which it has undertaken to correct when the draft instrument is laid for approval.

35. The Committee draws the draft instrument to the attention of the Parliament under the general reporting ground. In new section 15(2B) the reference to “(2A)(b)” should be a reference to “(2A)(c)”. The Committee notes that the Scottish Government has agreed to correct this when the draft instrument is laid for approval by the Parliament.

POINTS RAISED: INSTRUMENTS SUBJECT TO AFFIRMATIVE PROCEDURE

CRC Energy Efficiency Scheme Order 2013 [draft] (Rural Affairs, Climate Change and Environment)

36. This Order in Council makes some simplifications to the UK-wide Carbon Reduction Commitment and Energy Efficiency Scheme (“CRC”). The CRC Scheme has prior to this Order been set out in the CRC Energy Efficiency Scheme Order 2010 (“the 2010 Order”). The Scheme is administered in Scotland by the Scottish Environment Protection Agency (SEPA).

37. The Order is subject to the affirmative procedure in the Parliament. It also requires to be approved by resolution of each House of Parliament, the National Assembly for Wales and the Northern Ireland Assembly. If approved, the Order will come into force on the 5th day after it is made.

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

39. Article 12 of the 2010 Order provides that an application for registration as a participant in the first phase of the CRC Scheme must be made on or before 30 September 2010. Paragraph 7 of schedule 9 to this Order substitutes that article 12, to provide that an application for registration under Part 2 of the 2010 Order must be made no later than 2 months before the beginning of the phase on 1 April 2010. Article 96 of this Order continues the 2010 Order in effect only in relation to the first phase (which commenced on 1 April 2010, for a period of 4 years.)

40. The response from the Scottish Government confirms that the provision in paragraph 7 of schedule 9 has no effect. It is not possible to implement it, as from the date when the Order will come into force, it imposes a requirement which the relevant persons have already implemented in 2010. It is confirmed that all participants who required to register for phase 1 of the CRC Scheme have done so.

41. The Committee draws the Order to the attention of the Parliament on the general reporting ground. The provision made by paragraph 7 of schedule 9 has no effect, as it imposes a requirement to submit applications for registration as a participant in the first phase of the CRC Scheme by 1 February 2010, rather than by 30 September 2010.

42. The Scottish Government has confirmed that that provision has no effect. It is impossible to implement with effect from the date when this Order will come into force.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Scottish Police Authority (Provision of Goods and Services) Order 2013 (SSI 2013/73) (Justice Committee)

43. This instrument specifies the types of goods and services which may be supplied by the Scottish Police Authority (“the Authority”) and the Police Service of Scotland (“the Police Service”) under section 87 of the Police and Fire Reform (Scotland) Act 2012 (“the 2012 Act”). It also specifies the types of person to whom those goods and services may be supplied.

44. Section 87 of the 2012 Act, broadly speaking, contains two types of function: the first is a function of the Authority in providing goods and services. The second is a function of the Scottish Ministers, the legislative function of specifying in subordinate legislation the types of goods and services which may be supplied by the Authority, and the persons to whom they may be supplied. In other words, the Scottish Ministers have power to make an order which authorises the Authority to supply types of goods and services which it could not otherwise supply, to persons that it could not otherwise supply.

45. The Order is subject to the negative procedure and comes into force on 1 April 2013.

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

47. It appeared to the Committee that, particularly by reference to the types of persons who were specified for each type of service, the instrument purported to authorise the exercise of the Authority’s functions of supplying goods and services otherwise than in or as regards Scotland. For example, paragraph 1 of Schedule 1 provides that the Authority may provide training services to (a) persons licensed under the Private Security Industry Act 2001 (“the 2001 Act”), an Act which now applies throughout the United Kingdom, and (b) to persons carrying out security service activities which are regulated, licensed or authorised by a public authority established by law otherwise than in the United Kingdom.

48. In their response, the Scottish Ministers helpfully clarify that the Order is to be seen as providing that the goods and services are to be provided within the territory of Scotland or in circumstances where they are as regards Scotland only. However, on its face the instrument is capable of being read more widely than the Ministers intend. The Committee accordingly takes the view that it is necessary to consider whether it is capable of being read sufficiently narrowly so as to give it the limited effect the Ministers intend.

49. The Committee had anticipated that the Scottish Ministers might seek to rely upon section 101 of the Scotland Act 1998 in order to read down the provisions of this instrument, and so it asked not whether section 101 might apply, but how it would apply, in the Ministers’ view.

50. The Scottish Ministers’ response explains their view that the effect of section 101 would be that goods and services could be provided only in or as regards Scotland, but does not explain what narrow reading could be given to the words of Schedule 1 in order to achieve this.

51. The Committee notes that section 101 does not apply in every situation: it provides that a provision which could be read in such a way as to be outside devolved competence is to be read as narrowly as is required for it to be within competence, if such a reading is possible. If it is not possible to read the provision narrowly in such a way as to bring it within competence, then section 101 is of no assistance.

52. On this basis, it appears to the Committee that applying a narrow reading is quite possible in respect of some of the types of person specified in Schedule 1. For instance, paragraph 1 permits training to be provided to persons licensed under the 2001 Act. It is possible to read that provision narrowly as applying only to persons licensed as regards Scotland (or, at best, to any licensed person who comes to Scotland to receive the training). The effect is that paragraph 1, when read sufficiently narrowly to bring it within competence, is much narrower than might appear to be the case at first sight.

53. It is not clear to the Committee that the same might be said in respect of all the types of person who are specified in Schedule 1. At the same time, however, it cannot exclude the possibility that it might be possible to read each of them sufficiently narrowly as to bring them within competence. It observes that the Scottish Ministers could usefully have provided further information in relation to this matter. However, they have not volunteered any view beyond their general position that it is possible (by unspecified means) to read the provisions of Schedule 1 sufficiently narrowly as to bring them within devolved competence. The Committee therefore concludes that the meaning of the order could have been more clearly expressed.

54. The Committee draws the instrument to the attention of the Parliament on reporting ground (h). The form or meaning of the instrument could be clearer. On its face, column 2 of Schedule 1 purports to specify types of person to whom the specified services in column 1 may be supplied. However, those types of person are so widely specified that it is possible to read those provisions as being outside competence. To bring the instrument within devolved competence, the provisions have to be read as narrowly as is required for them to be within competence. The consequence is that the types of person specified in Schedule 1 are very much narrower than would appear to be the case on the face of the instrument, and accordingly its meaning could have been more clearly expressed, particularly as it is the Scottish Ministers’ stated intention that this instrument relate only to the provision of goods and services in or as regards Scotland.

55. The Committee observes that, further to this, the Scottish Ministers have been unable to comment on the practical effect of reading the provisions sufficiently narrowly as to bring them within competence. This arises, at least in part, because no view has been ventured as to the circumstances in which the specified services could be provided to persons who are outwith Scotland in a manner which is “as regards Scotland”.

Late Payment of Commercial Debts (Scotland) Regulations 2013 (SSI 2013/77) (Economy, Energy and Tourism Committee)

56. The purpose of this instrument is to transpose European Directive 2011/7/EU on combatting late payment in commercial transactions. The Directive introduces rights and remedies for businesses suffering late payment by their customers.

57. The regulations are subject to the negative procedure and are due to come into force on 29 March 2013. The regulations implement the Directive by changes to the Late Payment of Commercial Debts (Interest) Act 1998 as it applies to Scotland.

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

59. The Directive requires the remedies which it sets out to be available as a matter of national law in member States from 16 March 2013. In transposing the Directive for Scotland the Scottish Government have failed to meet this requirement. The Committee considers a devolution issue arises in this respect.

60. The Directive allows member States to decide whether or not to exclude the application of the Directive to contracts concluded before 16 March 2013. The regulations go further than permitted as they do not apply the new provisions implementing the Directive to contracts made before 29 March 2013. This appears to be the case because the regulations do not come into force in accordance with the requirements of the Directive but at that later date.

61. The Committee draws the instrument to the attention of the Parliament under ground (f) as it raises a devolution issue.

62. Directive 2011/7/EU requires certain remedies to be available in respect of late payment of debts under commercial contracts. These remedies are available as a matter of EU law from 16 March 2013. However, when implementing this measure for Scotland the Scottish Ministers have not applied the remedies available under the Directive to contracts concluded between 16 March and 28 March 2013 as the Directive requires. The provision made by the regulations therefore does not appear to give full effect to EU law in this respect.

63. It would appear that the decision not to apply the Directive to such contracts was made because the Scottish Ministers have not implemented the Directive on time although that could have been done had the Government elected not to comply with the 28 day rule.

64. These regulations are made under section 2(2) of the European Communities Act 1972 and so the Scottish Ministers can choose whether to adopt the negative or the affirmative procedure but is accountable to the Parliament for that choice. In cases like this where substantive changes to primary legislation are being made (whether by modification as here or by repeal and replacement with stand alone regulations) the Committee considers that the higher level of scrutiny afforded by the affirmative procedure is merited. The Committee therefore explored this issue with the Scottish Government.

65. The Scottish Government has explained that it adopted the negative procedure to avoid further delay to the implementation of the Directive. The Scottish Government wished to adopt as uniform an approach to implementation of the Directive across the United Kingdom as possible. The Scottish Government was unable to lay the regulations before the Parliament until the instrument being prepared by BIS for the rest of the UK had been prepared and received this on 21 February.

66. The Committee accepts that the Scottish Government expedited matters as quickly as possible after 21 February but remains unclear why the original implementation programme did not allow sufficient time following the close of consultation for the affirmative procedure to be adopted if it transpired that primary legislation was going to be substantially amended.

67. The Committee draws the instrument to the attention of the Parliament under the general reporting ground as the Scottish Ministers implementation programme for this Directive adopted the negative procedure to avoid further delay in meeting EU obligations. The Scottish Ministers choice of procedure has also resulted in a reduced level of parliamentary scrutiny being applied than that which the Committee considers appropriate for relatively complex amendments to primary legislation.

POINTS RAISED: INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Act of Adjournal (Criminal Procedure Rules Amendment) (Miscellaneous) 2013 (SSI 2013/72) (Justice Committee)

68. This instrument makes various changes to the criminal procedure rules. The most significant of the changes is to provide new procedural rules for the determination of devolution issues and compatibility issues which arise in criminal proceedings. These are set out as new chapter 40.

69. The other changes are to prescribe a new form of written record of state of preparation (Form 9A.4) and to make provision for television link evidence obtained from elsewhere in the United Kingdom (Form 23A.1-A).

70. The instrument is not subject to any parliamentary procedure and is due to come into force on 22 April 2013.

71. In considering the instrument, the Committee asked the Lord President’s Private Office for clarification of certain points. The correspondence is reproduced in Appendix 5.

72. The Committee draws this instrument to the attention of the Parliament under reporting ground (i) as rule 40.13 appears to be defectively drafted. Rule 40.13 is intended to apply to both compatibility issues and devolution issues. However, the rule limits the description of referrals to which it applies by referring only to the provision under which compatibility issues are referred. The rule therefore inadvertently excludes its application to devolution issues.

73. The Committee draws this instrument to the attention of the Parliament under the general reporting ground as it contains a minor drafting error in form 23A.1-A. Paragraph 6 of the form should be shown as optional as it applies to the form when used in connection with requests under section 273(2) of the Criminal Procedure (Scotland) Act 1995 but not to its use in connection with requests under section 273A(2).

74. The Committee notes that the Lord President’s Private Office has undertaken that these matters will be corrected the next time the criminal procedure rules are amended.

Act of Sederunt (Rules of the Court of Session Amendment) (Protective Expenses Orders in Environmental Appeals and Judicial Reviews) 2013 (SSI 2013/81) (Justice Committee)

75. This instrument inserts a new Chapter (58A) into the Rules of the Court of Session. This sets out a new procedure relating to protective expenses orders in certain statutory appeals and judicial review petitions.

76. The instrument is not subject to any parliamentary procedure and is due to come into force on 25 March 2013.

77. In considering the instrument, the Committee asked the Lord President’s Private Office for clarification of certain points. The correspondence is reproduced in Appendix 6.

78. The new procedure in this instrument will apply (generally speaking) to appeal and judicial review proceedings relating to environmental projects which are subject to the requirements of either the “EIA Directive” or the “Integrated Pollution Prevention and Control Directive”. The “EIA Directive” is defined for these purposes in the new rule of the Court of Session 58A.1(1)(c) (at the top of page 2 of this instrument).

79. The new rule refers to the Directive - Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. It provides that the new Chapter 58A applies to applications for judicial review and appeals which include a challenge to a decision which is subject to the public participation provisions of the EIA Directive.

80. The EIA Directive and the Directives which amend it have been codified by Directive 2011/92/EU of 13 December 2011. This brings it all into one instrument for ease of reading. However, the 2011 Directive is a complete replacement. Its article 14 provides that Directive 85/337/EEC is repealed.

81. The Committee enquired therefore whether the instrument should be amended to include reference to the new 2011 Directive. The response from the Lord President’s Private Office contends that as the new Directive is a codification which does not make new provision, the reference to the 1985 Directive is capable of being interpreted as a reference to the 2011 Directive.

82. The response also confirms however that the Private Office will consider an appropriate amendment of the instrument, and that at the least, the footnote on page 2 which refers to the amendments to the EIA Directive should also include reference to the 2011 Directive.

83. The Committee notes that the view that the reference to the EIA Directive by implication includes reference to the 2011 Directive depends (as explained in the response by the Private Office) on the application of section 12 of the Interpretation and Legislative Reform (Scotland) Act 2010. That section provides that where a Scottish instrument refers to an EU instrument, references will by implication refer to the EU instrument “as amended, extended or applied” by other EU instruments made before the date of the Scottish instrument. That wording does not refer to the situation where an EU instrument is wholly repealed and replaced by another.

84. The Committee considered therefore that there is an error in respect of the omission of reference to the 2011 Directive which is in force, in a provision which is significant within the Act of Sederunt.

85. The Committee draws the instrument to the attention of the Parliament on reporting ground (i). Sub-paragraph 1(1)(c) of the new rule 58A, which is inserted by paragraph 2(2) of this instrument, provides that the new Chapter 58A of the Rules of the Court of Session will apply to applications and appeals which include a challenge to a decision, act or omission which is subject to the public participation provisions of Council Directive 85/337/EEC (“the EIA Directive”).

86. The drafting of that sub-paragraph appears to be defective in respect that the EIA Directive has been repealed by Directive 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment. That is a codifying Directive which has repealed and replaced the EIA Directive.

87. The Lord President’s Private Office has undertaken to consider an amendment to correct this error. The Committee recommends that it would be prudent to amend the text of the new rule, to refer to the Directive which is currently in force.

NO POINTS RAISED

88. At its meeting on 19 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

Teachers’ Superannuation (Scotland) Amendment Regulations 2013 (SSI 2013/71)

Infrastructure and Capital Investment

Tenant Information Packs (Assured Tenancies) (Scotland) Amendment Order 2013 (SSI 2013/90)

Justice

Criminal Legal Aid (Fixed Payments) (Scotland) Amendment Regulations 2013 (SSI 2013/92)

Local Government and Regeneration

Non-Domestic Rates (Enterprise Areas) (Scotland) Amendment Regulations 2013 (SSI 2013/78)

APPENDIX 1

Public Services Reform (Functions of the Common Services Agency for the Scottish Health Service) (Scotland) Order 2013 (SG2013/12) [consultation draft]

On 15 February 2013, the Scottish Government was asked:

The Scottish Government is asked to provide further information as to why the Government considers that the instrument meets the following vires tests set out in section 18 of the Public Services Reform (Scotland) Act 2010:

18(2)(b) – the effect of the provision is proportionate to the policy objective

The Explanatory Document explains the policy objective as improving the Agency’s ability to better leverage its services to support the public sector and removing obstacles to its ability to diversify the provision of its services across the public sector. The Explanatory Document appears to consider that because the measure is merely empowering and not mandatory this addresses the question of whether the objective has been achieved in a proportionate manner.

We consider that providing the Agency with a wide discretion in such matters is not of itself sufficient to demonstrate proportionality. The effect of the proposal on the current legislative objective is also relevant. In this context a proportionate approach is one which achieves the proposed aim with the minimum risk to or interference with the core purpose of the Agency. We consider that in this case the continued effective, efficient provision of high quality support services to the National Health Service in Scotland is the Agency’s core purpose. In short diversification cannot be allowed to harm the Health Service or that will be disproportionate. The Explanatory Document does not explain how the existing services will continue to be maintained. There is no provision in the order which identifies the question of potential conflict between the core NHS duties and the diversified duties to the public sector as a whole or how the Agency is to deal with them. We therefore consider that neither the order nor the Explanatory Document demonstrate that considerations of proportionality have been properly addressed.

Section 18(2)(c) – the provision as a whole strikes a fair balance between the public interest and the interests of any person affected by it

This issue is related to the issue of proportionality above since users of the health service are presumably persons with interests affected by this order. The Explanatory Document indicates that provided the current core services are maintained at an equivalent level of quality this criterion is satisfied by a public interest argument based on cost. Again we note that nothing in the order specifies that the diversification of services is to be limited by reference to absence of detrimental effect on core functions or the functioning of the NHS as a whole. Accordingly it is not clear that the order itself demonstrates a fair balance.

Section 18(2)(d) – does not remove any necessary protection

The current legislative arrangement provides protection by restricting the functions of the Agency in terms of the goods it may provide or the persons to whom it may provide services or with whom it may share accommodation and facilities. These appear to be us to be intended to protect the provision of health services which it is the Agency’s core function to support. The health of persons is specifically identified as a protection for the purposes of section 18(2)(d). As noted above the order does not provide any specific restriction on the manner in which the Agency may pursue its diversification functions so as to secure the continued provision of an effective and quality health service which its core functions support. For example the order would permit the sharing of Agency premises currently occupied for a health service purpose with any public body discharging public functions. While the Ministers may determine which public bodies may share premises there is no control over that arrangement provided for by the order and also a lack of transparency as to the basis on which decisions would be made. The Government is therefore asked to explain why it is not considered necessary to address this issue specifically within the order in order to maintain a necessary protection of the core health service functions.

The Scottish Government is also asked whether new section 15(2B) of the 1978 Act should refer to subsection (2A)(c) rather than (2A)(b) as drafted.

The Scottish Government responded as follows:

(1) Section 18(2)(b) – the effect of the provision is proportionate to the policy objective

The Subordinate Legislation Committee’s legal advisers state—

“The Explanatory Document explains the policy objective as improving the Agency’s ability to better leverage its services to support the public sector and removing obstacles to its ability to diversify the provision of its services across the public sector. The Explanatory Document appears to consider that because the measure is merely empowering and not mandatory this addresses the question of whether the objective has been achieved in a proportionate manner.

We consider that providing the Agency with a wide discretion in such matters is not of itself sufficient to demonstrate proportionality. The effect of the proposal on the current legislative objective is also relevant. In this context a proportionate approach is one which achieves the proposed aim with the minimum risk to or interference with the core purpose of the Agency. We consider that in this case the continued effective, efficient provision of high quality support services to the National Health Service in Scotland is the Agency’s core purpose. In short diversification cannot be allowed to harm the Health Service or that will be disproportionate. The Explanatory Document does not explain how the existing services will continue to be maintained. There is no provision in the order which identifies the question of potential conflict between the core NHS duties and the diversified duties to the public sector as a whole or how the Agency is to deal with them. We therefore consider that neither the order nor the Explanatory Document demonstrate that considerations of proportionality have been properly addressed.”

The Scottish Government considers that, in context, a provision is proportionate to the policy objective if they confer no more power than is necessary to achieve the policy objective pursued. The policy objective pursued is to enable the Common Services Agency to provide a wider range of goods and services to a wider range of bodies than is currently the case. That policy objective could potentially be achieved by enabling the Common Services Agency to provide any service to any person – but such a provision would – in the government’s view – not be proportionate to the objective pursued as it would provide Common Services Agency with the ability to provide services to persons well beyond those envisaged by the policy objective. The Scottish Government agrees that the Common Services Agency should not allow the quality or extent of its services to the Scottish Health Service to be diluted, but considers that this is a task of management of the Common Services Agency, rather than an issue impacting on the proportionality of the Order.

(2) Section 18(2)(c) – the provision as a whole strikes a fair balance between the public interest and the interests of any person adversely affected by it

The Subordinate Legislation Committee’s legal advisers state—

“This issue is related to the issue of proportionality above since users of the health service are presumably persons with interests affected by this order. The Explanatory Document indicates that provided the current core services are maintained at an equivalent level of quality this criterion is satisfied by a public interest argument based on cost. Again we note that nothing in the order specifies that the diversification of services is to be limited by reference to absence of detrimental effect on core functions or the functioning of the NHS as a whole. Accordingly it is not clear that the order itself demonstrates a fair balance.”

The Scottish Government notes that section 18(2)(c) is concerned with ensuring that a fair balance is struck in the competition between “the public interest”, on the one hand, and “any person adversely affected” by the Order, on the other. In the instant case, the public and potential users of the Scottish Health Service are essentially the same group, and have the same interest. This is, as the Explanatory Document relates, that public services (including the health service) should be of high quality and should be provided in such a way as to maximise efficiency and reduce costs without affecting quality.

(3) Section 18(2)(d) – the provision does not remove any necessary protection

The Subordinate Legislation Committee’s legal advisers state—

“The current legislative arrangement provides protection by restricting the functions of the Agency in terms of the goods it may provide or the persons to whom it may provide services or with whom it may share accommodation and facilities. These appear to be us to be intended to protect the provision of health services which it is the Agency’s core function to support. The health of persons is specifically identified as a protection for the purposes of section 18(2)(d). As noted above the order does not provide any specific restriction on the manner in which the Agency may pursue its diversification functions so as to secure the continued provision of an effective and quality health service which its core functions support. For example the order would permit the sharing of Agency premises currently occupied for a health service purpose with any public body discharging public functions. While the Ministers may determine which public bodies may share premises there is no control over that arrangement provided for by the order and also a lack of transparency as to the basis on which decisions would be made. The Government is therefore asked to explain why it is not considered necessary to address this issue specifically within the order in order to maintain a necessary protection of the core health service functions.”

The Scottish Government notes that the current legislative arrangement sets out a range of goods and services which the Common Services Agency may provide, and a range of bodies to whom these may be provided. It is submitted that that arrangement enables the Common Services Agency to provide goods and services to a range of public bodies. It does not afford protection to users of the Scottish Health Service from poor quality healthcare. Ensuring that, within their statutory remit, the Common Services Agency provides a high quality of services to Health Boards and public bodies outside the health service is the responsibility of management. The quality of, for example, IT services is not determined by the range of public bodies to whom that service is provided, but by the quality of the management supporting the delivery of those services. Services provided to a narrow range of health service bodies could be provided at a poor quality, and vice versa.

Separately, the Scottish Government notes that it is the “health and safety of persons” that is specifically identified as an example of a protection in section 18(3). The Scottish Government considers that “health and safety” relates to measures for the prevention of accidents, injury and disease (typically at work or in the context of specific activities (e.g. operating a railway)) as distinct from “health” which relates to the provision of services to promote health and wellbeing.

(4) The Subordinate Legislation Committee’s legal advisers state—

“The Scottish Government is also asked whether new section 15(2B) of the 1978 Act should refer to subsection (2A)(c) rather than (2A)(b) as drafted.”

The Scottish Government is grateful to the Committee’s legal advisers for drawing this erroneous cross reference to its attention and will rectify this error prior to laying the draft Order following consultation.

APPENDIX 2

CRC Energy Efficiency Scheme Order 2013 [draft]

On 7 March 2013, the Scottish Government was asked:

Article 12 of the 2010 Order provides that an application for registration as a participant in the first phase of the CRC Scheme must be made on or before 30 September 2010. Paragraph 7 of schedule 9 to this Order substitutes that article 12, to provide that an application for registration under Part 2 of the 2010 Order must be made no later than 2 months before the beginning of the phase. Article 96 of this Order continues the 2010 Order in effect only in relation to the first phase, which by article 2 of the 2010 Order commenced on 1 April 2010, for 4 years.

(a) Is it agreed that the provision made by paragraph 7 of schedule 9 has no effect, as the provision imposes a requirement to submit applications for registration by a new date of 2 months prior to 1 April 2010, which requirement is not capable of implementation with effect from the commencement of this Order on the 5th date after making?

(b) Is it intended that paragraph 7 should have retrospective effect? If so, could you explain on what basis the provision has been made?

The Scottish Government responded as follows:

(a) All participants who required to register for phase 1 of the 2010 Order have done so, and regulation 96 of the draft Order provides for the 2010 Order to continue to have effect in respect of such participants for that phase.

There will be no further phase 1 applications, so the Scottish Government agrees that article 12 of the 2010 Order as prospectively amended has no effect as regards the first phase of the CRC scheme.

The Scottish Government regrets this oversight, and is grateful for the chance to clarify that it considers it has no legal effect.

(b) The Scottish Government confirms that paragraph 7 of Schedule 9 to the draft Order is not intended to, and does not, have retrospective effect.

APPENDIX 3

Scottish Police Authority (Provision of Goods and Services) Order 2013 (SSI 2013/73)

On 8 March 2013, the Scottish Government was asked:

1. This instrument is made by the Scottish Ministers in exercise of the powers conferred by section 87(1)(b) and (3)(b) of the Police and Fire Reform (Scotland) Act 2012. The making of the instrument on 26 February 2013 accordingly represented the exercise by the Ministers of a function to make subordinate legislation. Schedule 1 specifies certain types of goods and services, and certain types of person to whom each type of goods and services may be supplied. In a number of places, the types of person specified are persons who carry out certain activities and are authorised to do so by a public authority outwith the United Kingdom.

a. The Scottish Government is asked to explain why it is considered to be within devolved competence to specify that certain types of goods and services may be supplied to persons outwith the United Kingdom.

b. To the extent that the Scottish Ministers consider that they may rely upon the modification to section 87 which the UK Government proposes shall prospectively be made by article 13 of the draft Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (“the draft Westminster instrument”) – should that instrument be made – they are asked to explain the basis for that view, particularly given i) that the draft Westminster instrument had not been made by 26 February when they purported to exercise their functions under section 87 and ii) that the draft Westminster instrument was at that point still a draft and might conceivably never be made at all.

2. On the basis that the provisions of Schedule 1 could be read in such a way as to be outside competence, do the Scottish Ministers consider that it is possible to read the provisions of Schedule 1 sufficiently narrowly to bring them within competence, in terms of section 101(2) of the Scotland Act 1998? What effect would the Scottish Ministers consider the instrument to have were it read as narrowly as is required for it to be within competence?

3. Were this instrument to be read as narrowly as is required for it to be within competence in terms of section 101 of the Scotland Act – and supposing that the draft Westminster instrument is made and comes into force on 1 April 2013 – would the Scottish Ministers propose to amend Schedule 1 after that date when their powers under section 87 will have been augmented by the provision in article 13 of the draft Westminster instrument, in order that they may make provision as regards the exercise of the Scottish Police Authority’s functions under section 87 in or as regards places outwith Scotland?

The Scottish Government responded as follows:

It is the view of the Scottish Government that it is within competence to specify goods and services that may be supplied to persons located outwith Scotland, provided that this is done “as regards Scotland” per section 29(2)(a) of the Scotland Act 1998.

The Order can be seen as providing that the goods and services are provided within the territory of Scotland or in circumstances where the goods and services are as regards Scotland. This is within the powers of the Scottish Ministers. To this extent the Scottish Government does not rely upon the modification to section 87 that the UK Government proposes shall be prospectively made by article 13 of the draft Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (“Westminster Order”).

In relation to the second question asked by the Committee, it is the Scottish Government’s view that to the extent that Schedule 1 can be read as including goods, services or persons otherwise than in or as regards Scotland, it falls to be read down in terms of section 101(2) of the Scotland Act 1998, with the result being that goods and services can only be provided in or as regards Scotland. This is the required effect of the instrument.

With regards to the third question of the Committee, the Scottish Government will continue to assess the need to make any amendment post 1 April 2013 in relation to any goods and services which may in future need to be provided otherwise than in or as regards Scotland and would take any further action if required.

APPENDIX 4

Late Payment of Commercial Debts (Scotland) Regulations 2013 (SSI 2013/77)

On 8 March 2013, the Scottish Government was asked:

This instrument is made under section 2(2) of the European Communities Act 1972 and the Scottish Ministers may therefore decide whether to adopt the affirmative or the negative procedure. It is the Committee’s established policy that where an instrument made under this power amends primary legislation it considers that the affirmative procedure should be adopted. The policy note accompanying the instrument explains that the negative procedure was chosen since applying the affirmative procedure would have resulted in the instrument coming into force further beyond the relevant EU implementation date of 16 March 2013 than is the case under the negative procedure. (This instrument comes into force on 29 March 2013.)

Directive 2011/7/EU was published on 23 February 2011 allowing 2 years for its transposition and it seems it would have been clear from the outset that substantive amendments to primary legislation would be required in order for that to be done. The Scottish Government is asked to explain why it could not have adopted an implementation programme which allowed for the adoption of the affirmative procedure for this instrument and which would have transposed the requirements of the Directive within the timetable which the Directive requires.

Article 12.4 of the Directive provides that member States are to decide whether to exclude contracts concluded before 16 March 2013 from the application of the Directive. This instrument excludes contracts concluded before 29 March 2013. In its implementation for the rest of the United Kingdom SI 2013/395 excludes contracts concluded before 16 March 2013 in accordance with the discretion permitted by the Directive. The Scottish Government is asked to explain the basis on which it is permitted to adopt a different approach for Scotland to the rest of the United Kingdom and one which does not appear to conform to the requirements of Article 12.4 of the Directive.

The Scottish Government responded as follows:

The existing law regarding interest on late payment of debts arising under commercial contracts (as set out in the Late Payment of Commercial Debts (Interest) Act 1998 (“the 1998 Act”)) operates on a near identical basis throughout the UK. The law is relatively complex, as are the new provisions in Directive 2011/7/EU which are implemented by SSI 2013/77. Scottish businesses which operate on a cross-border basis are likely to be affected by the 1998 Act both as it applies to Scotland and as it applies to the rest of the UK, since such businesses are likely to be concluding contracts subject to both Scots and English law. Given all these factors, Scottish Government policy is to implement the Directive in a manner as close as possible to that adopted in the rest of the UK. The Scottish Government and the Department for Business, Innovation and Skills accordingly undertook a joint consultation on implementation of the Directive. One of the issues raised in the consultation document was whether the 1998 Act should be repealed and replaced by secondary legislation. It was not therefore clear until analysis of the consultation responses had been undertaken whether implementation in Scotland would involve amendment of the 1998 Act or new free-standing secondary legislation.

Against the background of a policy decision to implement on a uniform basis throughout the UK, it was not feasible for the implementing SSI to be laid before the Parliament until the text of the implementing SI for the rest of the UK was settled. Whilst BIS copied drafts of the SI to the Scottish Government as they were developed, the final form of the SI was radically different from earlier versions. No version similar to the final form was seen by us until 21 February. SSI 2013/77 was then made and laid before the Parliament on 28 February. A commencement date of 29 March was chosen as it was considered that it was preferable to implement slightly after the date set down in the Directive rather than to breach the 28-day rule.

The provision in Article 12.4 of the Directive allowing contracts concluded before 16 March 2013 to be excluded is clearly tied to the implementation date of 16 March in Article 12.1. Given the decision not to implement by 16 March in Scotland, the Scottish Government considered it to be appropriate to exclude from the coverage of SSI 2013/77 any contract concluded before the commencement date for that instrument. We do not consider that proceeding in that way is incompatible with EU law.

APPENDIX 5

Act of Adjournal (Criminal Procedure Rules Amendment) (Miscellaneous) 2013 (SSI 2013/72)

On 8 March 2013, the Lord President’s Private Office was asked:

1. In Form 9A.4 Schedule 2 paragraph 15 (preparation for trial ) are the questions following “in addition” to be answered regardless of whether the answer to the primary question in the paragraph is yes or no? Is this clear given the different approach to the matter in Schedule 1 which specifies the circumstances in which the additional questions are required to be answered?

2. In Form 23A.1-A is paragraph 6 intended to have application to petitions for letters of request under section 273A(2) of the Criminal Procedure (Scotland) Act 1995 seeking to adduce evidence through a live television link in another part of the United Kingdom? Why is this necessary given that it is beyond question that English is an official language of all of the territories within the United Kingdom?

3. Is it clear that new rule 40.13 is to apply to the determination of a devolution issue by the Supreme Court since rule 40.13(1)(b) applies the rule to situations where proceedings determining compatibility issues are remitted to the High Court in accordance with section 288ZB(7) of the 1985 Act but makes no reference to situations where proceedings determining devolution issues are remitted to the High Court.

The Lord President’s Private Office responded as follows:

1. Yes this is clear. The “in addition” questions are answered only if the answer to the first question is no. If the answer to the first question is “yes” then you would not provide the reasons for not being ready for trial and there would not, therefore, be any reason for answering the additional questions (1-7) which are clearly questions relating to issues that are common reason for not being ready for trial. There is a different approach to matter in Schedule 1 as there are two circumstances in which the “in addition” questions are required in that example.

2. Paragraph 6 is particular to applications under section 273(2) of the Act of 1995. As such paragraph 6 should appear in brackets. The Form will be amended when the next Act of Adjournal amending the Criminal Procedure Rules is made or, alternatively, varied by the Clerk of Justiciary under section 305 (4) of the Act of 1995.

3. The mention of section 288ZB (7) was intended to make rule 40.13 complete. As the question illustrates, however, it only highlights that there is no statutory requirement to remit a devolution issue reference from the Supreme Court back to the High Court; though this is what happens in practice. This will be amended when the next Act of Adjournal amending the Criminal Procedure Rules is made.

APPENDIX 6

Act of Sederunt (Rules of the Court of Session Amendment) (Protective Expenses Orders in Environmental Appeals and Judicial Reviews) 2013 (SSI 2013/81)

On 7 March 2013, the Lord President’s Private Office was asked:

The new rule 58A.1 (1)(c) provides that the Chapter will apply to applications and appeals which include a challenge to a decision, act or omission which is subject to the public participation provisions of Council Directive 85/337/EEC (“the EIA Directive”). However, that Directive was repealed by the codifying Directive 2011/92/EU of 13 December 2011. (Section 12 of the Interpretation and Legislative Reform (S) Act 2010 provides that a reference to an EU instrument in a Scottish instrument is a reference to the instrument as “amended, extended or applied” by another EU instrument, but this does not provide for where a Directive is wholly repealed and replaced by another).

In light of that, should rule 58A.1(1)(c) refer to Directive 2011/92/EU, whether in addition to or substitution for, Directive 85/337/EEC? If so, would you propose to amend the provision?

The Lord President’s Private Office responded as follows:

Given that Codification is the process of bringing together a legislative act and all its amendments in a single new act (without changing its substance) and given that Directive 2011/92/EU expressly provides that “Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment has been substantially amended several times. In the interests of clarity and rationality the said Directive should be codified” (i.e. vertical codification), Directive 2011/92/EU is applying the law of Directive 85/337/EEC (as amended) for the purposes of codification and as such the reference to Directive 85/337/EEC is capable of being interpreted, by virtue of Section 12 of the Interpretation and Legislative Reform (S) Act 2010, as a reference to the subsequent codifying Directive 2011/92/EU.

That being said, we recognise that a reference to 2011/92/EU would have been helpful and should, at the very least, have featured as footnote. We will consider an appropriate amendment in due course.


Footnotes:

1 Scottish Parliament Subordinate Legislation Committee Official report, 19 March 2013, Col 829

2 Scottish Parliament Subordinate Legislation Committee. Official Report, 19 March 2013, Col 832

3 Scottish Parliament Subordinate Legislation Committee. Official Report, 19 March 2013, Col 833

4 Scottish Parliament Subordinate Legislation Committee. Official Report, 19 March 2013, Col 834

5 Scottish Parliament Subordinate Legislation Committee. Official Report, 19 March 2013, Col 836

6 Scottish Parliament Subordinate Legislation Committee. Official Report, 19 March 2013, Col 838

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