24th Report, 2013 (Session 4): Subordinate Legislation

SP Paper 308 (Web Only)

SL/S4/13/R24

24th 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 16 April 2013, the Committee agreed to draw the attention of the Parliament to the following instrument—

National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2013 (SSI 2013/109)

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

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

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2013 (SSI 2013/109) (Health and Sport Committee)

4. The Regulations make changes to the NHS Superannuation Scheme, as set out in the National Health Service Superannuation Scheme (Scotland) Regulations 2011 and the National Health Service Pension Scheme (Scotland) Regulations 2008. The National Health Service (Scotland) (Injury Benefits) Regulations 1998 are also amended.

5. The Regulations are subject to the negative procedure and are due to come into force on 20 May 2013.

6. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced at Appendix 1.

7. The Regulations in part amend the National Health Service Superannuation Scheme (Scotland) Regulations 2011, which were a consolidation of the 1995 Regulations. One of the reasons for making the consolidation was to make the text gender neutral.

8. Regulation 11 of these Regulations substitutes a provision (E7(2)(b)(ii)) of the 2011 Regulations. This specifies a condition for certain purposes, that the members’ employing authority certifies, if employment is terminated by reason of redundancy, that the member is entitled to claim a pension as an alternative to receiving a lump sum payment otherwise payable to “him”. This is an inadvertent use of non-gender neutral drafting.

9. The usual modern drafting practice in Scotland is to avoid using gender-specific pronouns, rather than to refer to both genders, unless there is a reason for referring to “him”, for example.

10. The Scottish Government has undertaken in the attached correspondence to adjust the reference in regulation 11, and a couple of other provisions in the 2011 Regulations which refer to “him”, when the next appropriate opportunity arises. As to the effect of the provision, the Government’s view is that section 6 of the Interpretation Act 1978, which applies to this instrument, means that the use of “him” in regulation 11 will also include “her”. However, section 6 of the 1978 Act only applies “unless the contrary intention appears.” The Committee therefore considered that effect of the rule may not be “clear cut” here where specific reference is made to “him”, but elsewhere in the Regulations there is a gender-neutral stance. Nevertheless, the Committee recognises that the issue will be resolved since the Scottish Government has undertaken to correct the reference.

11. The Committee draws the Regulations to the attention of the Parliament on the general reporting ground. Regulation 11, so far as substituting regulation E7(2)(b)(ii) of the National Health Service Superannuation Scheme (Scotland) Regulations 2011, fails to follow the practice of avoiding the use of gender-specific pronouns unless there is a reason for their use. That was the practice generally adopted in the 2011 Regulations. This departure from that practice creates potential uncertainty as to whether both genders were intended to be covered by individual gender-specific pronouns. It is also contrary to standard modern drafting practice in Scotland.

12. The Committee notes that the Scottish Government has undertaken to amend the reference to “him” in regulation 11 in due course, together with amending a couple of other non-gender neutral references in the principal 2011 Regulations at the same time.

13. In noting this undertaking, the Committee expressed its wish that the amendment be made in early course.

NO POINTS RAISED

14. At its meeting on 16 April 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:

Justice

Act of Sederunt (Fees of Shorthand Writers in the Sheriff Court) (Amendment) 2013 (SSI 2013/112)

Police Service of Scotland (Amendment) Regulations 2013 (SSI 2013/122)

Act of Sederunt (Rules of the Court of Session Amendment No 2) (Fees of Shorthand Writers) 2013 (SSI 2013/111)

Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 2013 (SSI 2013/120)

Local Government and Regeneration

Aberdeen City (Electoral Arrangements) Variation Order 2013 (SSI 2013/115)

APPENDIX 1

National Health Service Superannuation Scheme etc. (Miscellaneous Amendments) (Scotland) Regulations 2013 (SSI 2013/109)

On 3 April 2013, the Scottish Government was asked:

Regulation 11 substitutes regulation E7(2)(b)(ii) of the principal 2011 Regulations. This specifies a condition for certain purposes, that the members’ employing authority certifies, if employment is terminated by reason of redundancy, that the member is entitled to claim a pension as an alternative to receiving a lump sum payment otherwise payable to “him”.

Is this incorrectly framed in non-gender neutral terms, and if so would you propose to amend the provision? (We note that it appears that there are 2 other references to “him” in the principal 2011 Regulations, in regulation F2(6) and Schedule 1, paragraph 10(3)).

The Scottish Government responded as follows:

Section 6(a) (as applied by section 23(1)) of the Interpretation Act 1978 provides that words importing the masculine gender include the feminine. Although it would have been better to say “the member” (rather than “him”), the meaning of the inserted provision is clear. However, we will look to adjust this and the other provisions which refer to “him” (to avoid using this gender-specific pronoun) when the next appropriate opportunity arises.

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