38th report 2013 (Session 4): Subordinate Legislation

SP Paper 366 (Web Only)

DPLR/S4/13/R38

38th Report, 2013 (Session 4)

Subordinate Legislation

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the 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;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and

(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule.

Membership:

Christian Allard
Nigel Don (Convener)
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 18 June 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

National Library of Scotland Act 2012 (Consequential Modifications) Order 2013 (SSI 2013/169)

European Union (Amendments in respect of the Accession of Croatia) (Scotland) Regulations 2013 (SSI 2013/177)

James Watt College (Transfer and Closure) (Scotland) Order 2013 (SSI 2013/181)

Sea Fishing (Illegal, Unreported and Unregulated Fishing) (Scotland) Order 2013 (SSI 2013/189)

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

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

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

National Library of Scotland Act 2012 (Consequential Modifications) Order 2013 (SSI 2013/169) (Education and Culture Committee)

4. This Order amends, for similar purposes, a number of statutory instruments.

5. It does so to take account of the National Library of Scotland Act 2012 having resulted in a change to the name of the governing body, from “The Trustees of the National Library of Scotland” to the “National Library of Scotland”.

6. The instrument is due to come into force on 28 June 2013.

7. In considering the instrument, the Committee asked the Scottish Government for clarification on the drafting of the instrument. The correspondence is reproduced at Annex 1. The Scottish Government accepts that the instrument contains a drafting error which it proposes to address by correction slip.

8. The Committee draws this instrument to the attention of the Parliament under the general reporting ground as it contains a drafting error.

9. In making changes to certain requirements which are set out within the Scottish Statutory Instruments Regulations 2011, those requirements are erroneously referred to as being contained within regulation 11(1)(b) of those Regulations when in fact they are set out at regulation 11(2)(b).

10. While the error is fairly minor, it does arise within the operative part of what is a short instrument.

European Union (Amendments in respect of the Accession of Croatia) (Scotland) Regulations 2013 (SSI 2013/177) (European and External Relations Committee)

11. These regulations make consequential amendments to legislation to give effect to the accession of the Republic Croatia to the European Union which is to have effect from 1 July 2013.

12. In particular regulations 2 and 3 implement the requirements of Council Directive 77/249/EEC and Directive 98/5/EC which facilitate the exercise by lawyers of freedom to provide services and to practise the profession of lawyer within the European Union. The Schedule to the instrument also makes consequential changes to references in legislation to the European Economic Area.

13. The regulations will come into force on 1 July 2013.

14. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced at Annex 2.

15. Paragraph 11 of the Schedule to the regulations amends the St Mary’s Music School (Aided Places) (Scotland) Regulations 2001. The Scottish Government agrees that further amendments to the 2001 regulations are required as a result of the removal of the definition of “EEA Agreement”.

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

17. In the amendments made to the St Mary’s Music School (Aided Places)(Scotland) Regulations 2001 the definition of “European Economic Area” in paragraph 1(1) of the Schedule to the regulations and the reference to the “EEA Agreement” in paragraph 3(2) of that Schedule should also have been amended to reflect the removal of that definition.

18. The Committee notes that the Scottish Government has given a commitment to correct these errors when the 2001 Regulations are next amended which is currently scheduled for March/April 2014.

James Watt College (Transfer and Closure) (Scotland) Order 2013 (SSI 2013/181)(Education and Culture Committee)

19. This instrument provides for the closure of James Watt College and the transfer of the property, rights, liabilities and obligations of the Board of Management of that College to the Boards of Management of Ayr College and Clydebank College.

20. The order is due to come into force on 1 August 2013.

21. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced at Annex 3.

22. The Committee asked for an explanation of article 3(3) of the order. Article 3(1) and (2) of the order transfers all property rights and liabilities in specified campuses of James Watt College to Ayr College and Clydebank College respectively. Article 3(3) of the order transfers any remaining property rights and liabilities to Ayr College and Clydebank College jointly and severally. While the Committee understands the basis on which liabilities can be transferred jointly and severally it was not clear to the Committee what was intended by the “joint and several” transfer of property. The Committee understands the concepts of joint property or common property but is not clear which, if either, of these approaches the Government intended. The Committee therefore asked the Scottish Government for an explanation.

23. The Committee is not any clearer from the Government’s response as to the basis on which the property which article 3(3) purports to transfer will be held by the two colleges. The Government indicates that over time the recipient colleges may use their own powers to make arrangements among themselves as to how the property is to be held. However, the Committee considers it unsatisfactory that the basis on which the property is originally transferred to the colleges is unclear.

24. The Committee draws this instrument to the attention of the Parliament under reporting ground (h) on the basis that the meaning of article 3(3) could be clearer, so far as the provision which it makes for the transfer and vesting in the Ayr Board and the Clydebank Board “jointly and severally” of certain property and rights.

25. It is unclear what is meant by the term “joint and several” in the context of the intended application of it to interest in property and to other rights. It is difficult, therefore, to predict what effect, if any, this might have on the operation of the instrument, although it seems possible that it may affect operation so far as the provision in question is concerned.

Sea Fishing (Illegal, Unreported and Unregulated Fishing) (Scotland) Order 2013 (SSI 2013/189) (Rural Affairs, Climate Change and Environment Committee)

26. This instrument implements Council Regulation 1005/2008 and Commission Regulation 1010/2009 which together establish a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (IUU).

27. It provides for enforcement controls, powers of fisheries officers and for contravention of specified provisions of the EU requirements to be prosecuted as offences.

28. The order will come into force on 29 June 2013.

29. In considering the instrument, the Committee asked the Scottish Government for clarification of the extent provision in this instrument which does not follow the normal drafting practice for regulation of sea fishing. The correspondence is reproduced at Annex 4. The Scottish Government accepts this and, although it considers a court would give the provision the intended construction, proposes to amend this at the next opportunity.

30. The Committee draws this instrument to the attention of the Parliament under reporting ground (h) as the meaning of the extent provision in article 1(2) could be clearer. The provision contains two contradictory statements: that the order is to extend to Scotland and the Scottish zone only; and insofar as it extends beyond these areas it is to do so only as a matter of Scots law. Normal practice would indicate specifically that the first statement was qualified by the second.

31. The Committee notes that the Government has agreed to clarify the drafting in a future instrument.

NO POINTS RAISED

32. At its meeting on 18 June 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

Adam Smith College, Fife (Transfer and Closure) Order 2013 (SSI 2013/179)

Children’s Hearings (Scotland) Act 2011 (Commencement No. 9) Order 2013 (SSI 2013/195 (C.14))

Local Government and Regeneration

Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2013 [draft]

ANNEX 1

National Library of Scotland Act 2012 (Consequential Modifications) Order 2013 (SSI 2013/169)

On 6 June 2013, the Scottish Government was asked:

Article 4(b) amends the Scottish Statutory Instruments Regulations 2011 (“the 2011 Regulations”) so far as they relate to printing and publishing requirements for draft instruments. The requirements being amended are set out within regulation 11(2)(b) of the 2011 Regulations, but are introduced in this instrument as being contained within regulation 11(1)(b).

What is considered to be the effect of this erroneous reference to regulation 11(1)(b), rather than 11(2)(b), so far as the application of these amendments are concerned?

The Scottish Government responded as follows:

The Scottish Government regrets the minor typographical error in article 4(b) of the National Library of Scotland Act 2012 (Consequential Modifications) Order 2013. The Government observes that the error is patent and considers that the intended policy position and legal effect is clear; accordingly the Government considers that the point can be addressed by way of a correction slip.

ANNEX 2

European Union (Amendments in respect of the Accession of Croatia) (Scotland) Regulations 2013 (SSI 2013/177)

On 6 June 2013, the Scottish Government was asked:

Roads (Scotland) Act 1984

What is the effect on the references to EEA State in paragraphs 7(1A) and 13(1A) of Schedule 1 to the Act of restricting the effect of the definition of EEA State inserted by these Regulations to section 20B?

The St Mary’s Music School (Aided Places) (Scotland) Regulations 2001

What is the effect of omitting the definition of EEA Agreement when that expression is:

(a) referred to in paragraph 3 of Schedule 1; and

(b) an integral part of the definition of European Economic Area?

Does the Scottish Government propose to take steps to address these matters?

The Scottish Government responded as follows:

Amendments to the Roads (Scotland) Act 1984

Paragraphs 7(1A)(c) and 13(1A)(c) of Schedule 1 to the Roads (Scotland) Act 1984 both make reference to the term “EEA State” which, following the amendments made to section 20B(8) by paragraph 1 of the Schedule to the Regulations, is defined solely in relation to section 20B.

Paragraphs 7(1A)(c) and 13(1A)(c) of Schedule 1 to the 1984 Act both refer to section 20B and both provisions are parasitic on the application of that section. In view of this context, the Scottish Government considers that the definition of “EEA State” in section 20B necessarily extends to those provisions in Schedule 1.

The Scottish Government does not, therefore, propose to take any further steps in relation to this matter.

Amendments to the St Mary’s Music School (Aided Places) (Scotland) Regulations 2001

The Scottish Government is grateful to the Delegated Powers and Law Reform Committee for drawing its attention to this matter.

The Scottish Government agrees that, following the removal of the definition of “EEA Agreement” from paragraph 1 of Schedule 1 to the principal regulations, the definition of “European Economic Area” in paragraph 1(1) of that Schedule and the reference to the “EEA Agreement” in paragraph 3(2) of that Schedule should also have been amended.

The Scottish Government considers that there is still a working definition of “European Economic Area” which is the area of the EEA States. The additional wording “and includes those States at any time before the EEA Agreement came into force in relation to them” does not have any material effect in relation to the operation of the Regulations and, in any event, there is little doubt as to what the term “EEA Agreement” refers.

Similarly, the reference to “EEA Agreement” in paragraph 3(2) of Schedule 1 to the principal Regulations has no material effect in relation to the operation of the Regulations. Its use, in the context, is simply descriptive of the application of the Council Regulation (EEC) No. 1612/68 and does not affect the actual application of the Council Regulation.

The Scottish Government will take the opportunity to correct these matters when the principal Regulations are next amended. The next amending instrument is scheduled to be made in March/April 2014.

ANNEX 3

James Watt College (Transfer and Closure)(Scotland)Order 2013 (SSI 2013/181)

On 6 June 2013, the Scottish Government was asked:

Under article 3(3) there is transferred to and vested in the Ayr Board and the Clydebank Board “jointly and severally” all property, rights, liabilities and obligations so far as these have not transferred either to the Ayr Board or to the Clydebank Board under articles 3(1) and (2) in regard to the respective campuses referred to in those paragraphs.

Please explain how property and rights (as distinct from liabilities and obligations) are to be transferred to those Boards on a “joint and several” basis. What is meant by that term in the context of the intended application of it to interest in property and to other rights?

The Scottish Government responded as follows:

It is recognised that there will be some property and rights that are not directly referable to one or other of the particular campuses of James Watt College. In accordance with a previous example of the property of a college being split between two recipient bodies, any property and rights falling within that category is transferred on a joint and several basis.

It is expected that property and rights transferred under article 3(3) would include things like credit balances in bank accounts and rights in relation to contracts (such as contracts for the provision of services to James Watt College). It is further expected that, over time, the recipient colleges may, using their own powers (subject to any consents that may be required), make arrangements to further transfer those property and rights between themselves so that they are no longer held on a joint and several basis. However that would be a matter for the recipient colleges to consider in due course.

ANNEX 4

Sea Fishing (Illegal, Unreported and Unregulated fishing) (Scotland) Order 2013 (SSI 2013/189)

On 6 June 2013, the Scottish Government was asked:

The Scottish Government is asked whether the extent provision contained in article 1(2) is sufficiently clear.

It contains two contrary statements which are both stated to apply and without direction as to how they are to be reconciled. The first is that the instrument extends to Scotland and the Scottish zone only. The second is “insofar as” it extends elsewhere it does so only as a matter of Scots law. Read together these appear irreconcilable.

Normal practice appears to be to make the first statement subject to the second statement. This indicates that both are to be understood against the background of the powers in the enabling Act which extend to the whole of British fishery limits and which transferred to the Scottish Ministers subject to the limitations imposed by section 53 of the Scotland Act 1998 and SI 1999/1748.

The Scottish Government responded as follows:

The normal practice in relation to extent is as stated by the Committee’s legal adviser although the formulation used in article 1(2) of SSI 2013/189 has been used before without comment by the Committee (see, for example, SSI 2007/39 and 2011/70). The intention was to follow the normal practice which makes the first statement expressly (rather than impliedly) subject to the second statement and it is acknowledged that article 1(2) inadvertently omitted words that do so. We think that a court would, nevertheless, be likely to construe article 1(2) in the same way as other sea fishery instruments which use the express words and therefore read the first statement as subject to the second. Sections 29(2)(a) and 101 of the Scotland Act 1998 would, in any event, be to the effect that the Order does not have effect beyond Scotland and the Scottish zone other than as a matter of Scots law.

The Scottish Government expects shortly after the summer recess to make another statutory instrument under the same powers and would propose to take that opportunity to clarify the drafting of article 1(2).

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