15th Report, 2014 (Session 4): Subordinate Legislation

SP Paper 474 (Web Only)

DPLR/S4/14/R15

15th Report, 2014 (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:

Richard Baker
Nigel Don (Convener)
Mike MacKenzie
Margaret McCulloch
Stuart McMillan (Deputy Convener)
John Scott
Stewart Stevenson

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 February 2014, the Committee agreed to draw the attention of the Parliament to the following instrument—

Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2014 (SSI 2014/26)

2. The Committee’s recommendations in relation to that 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

Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2014 (SSI 2014/26) (Justice Committee)

4. This instrument amends the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (“the 2011 rules”) in order to establish a prison visiting committee for the new prison at Grampian and to dis-establish the existing prison visiting committees for HMP Aberdeen and HMP Peterhead.

5. The Rules are subject to the negative procedure and will come into force on 3 March 2014.

6. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points relating to the application of rule 146 and 153 of the 2011 rules. The correspondence is reproduced at the Annex.

7. The correspondence sets out the Scottish Government’s view on how the members of the visiting committees for HMP Aberdeen and HMP Peterhead will be removed from office once the instrument takes effect on 3 March 2014.

8. In this context the Committee notes that the instrument makes no saving provision for the visiting committees for Aberdeen and Peterhead beyond the date of closure of the prisons. Such a period would permit those committees to complete any ongoing investigations or to report on their activities under rule 153 for the period from 1 April 2013 to their abolition. The Committee notes that in relation to previous prison closures such a period has been allowed for such purposes by way of transitional and saving provision.

9. The Committee takes a keen interest in ensuring that transitional and saving provision is made where that is appropriate. The Committee accepts that it is not aware of whether there are any ongoing complaints or other administrative matters which require to be dealt with and that questions about how any such matters should be handled raise questions of policy.

10. The Committee therefore draws to the attention of the Justice committee that no saving or transitional provision is made for the visiting committees for Aberdeen and Peterhead prisons which are being wound up to allow them to complete any investigations into complaints which are ongoing notwithstanding the closure of those prisons and to report for the period 1 April 2013 to their abolition.

11. The Committee also agreed to write to the Justice committee and the Scottish Government drawing to their attention that similarly no saving or transitional provision is made in the proposed draft order abolishing visiting committees and replacing them with lay prison monitors (the Public Services Reform (Prison Visiting Committees)(Scotland) Order 2014).

12. The instrument is subject to the negative procedure and therefore is subject to the 28 day rule in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (“ILRA”). This instrument does not observe the rule. As required by section 31(3) of ILRA the Scottish Prison Service has provided an explanation for this as follows:

“The member of staff who was tasked to prepare the SSI misread instructions from SPS operational colleagues regarding the opening of the new prison, HMP & YOI Grampian. It had been their understanding that although the new prison would open on 3 March 2014, it would not be operational until April 2014. Further that there would be no prisoners located in the Prison until April and hence no requirements for a visiting committee until this time. However, while reviewing the paperwork to begin the preparations for the SSI, it was noted that a small number of prisoners will be relocated to HMO & YOI Grampian on the day it opens, 3 March 2014. Although HMP & YOI Grampian will become fully operational by April 2014, it will become operational in March 2014.”

13. The Committee accepts that having found itself in the position outlined in the explanation, as a matter of practical expediency, the Scottish Government had little alternative but to proceed to make the instrument without observing the requirements of the 28 day rule. The reason why the Scottish Government found itself in this position appears to the Committee to have resulted from a failure in communication and planning within the Scottish Prison Service. The Committee considers that this is completely unsatisfactory and could have been avoided.

14. The Committee draws the instrument to the attention of the Parliament under reporting ground (j). The requirements of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 have not been complied with as fewer than 28 sitting days have been allowed between the instrument being laid before the Parliament and the date on which it comes into force.

15. The Committee finds that a failure in communication and planning within the Scottish Prison Service is the reason for non-compliance with the 28 day rule. The Committee finds this to be completely unsatisfactory and reports to the Parliament accordingly.

NO POINTS RAISED

16. At its meeting on 18 February 2014, 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

Protection of Vulnerable Groups (Scotland) Act 2007 (Miscellaneous Provisions) Amendment Order 2014 (SSI 2014/33).

Health and Sport

Social Care (Self-directed Support) (Scotland) Act 2013 (Commencement, Transitional and Saving Provisions) Order 2014 (SSI 2014/32 (C.2)).

Justice

Lands Tribunal for Scotland Amendment (Fees) Rules 2014 (SSI 2014/24);

Act of Sederunt (Messengers-at-Arms and Sheriff Officers Rules) (Amendment) 2014 (SSI 2014/29);

Prisons (Interference with Wireless Telegraphy) Act 2012 (Commencement) (Scotland) Order 2014 (SSI 2014/34 (C.3)).

Local Government and Regeneration

Local Government Pension Scheme (Miscellaneous Amendments) (Scotland) Regulations 2014 (SSI 2014/23);

Non-Domestic Rate (Scotland) Order 2014 (SSI 2014/28);

Non-Domestic Rates (Levying) (Scotland) Regulations 2014 (SSI 2014/30).

ANNEX

Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2014 (SSI 2014/26)

On 6 February 2014, the Scottish Government was asked:

Rule 146(1) of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 requires that a visiting committee must be constituted in accordance with the remainder of that rule for each prison specified in column 1 of Schedule 2 to those regulations. Rule 146(2) and columns 2 and 3 of that Schedule identify by whom the membership of that committee is to be appointed by allocating responsibility to local authorities. Rule 146(4) determines by when the local authorities must make those appointments. Rule 146(5) sets out when persons appointed under rule 146(4) take office. Rule 146(6) specifies when members of visiting committees cease to hold office as read with rule 146(7).

The purpose of the instrument appears to be to dis-establish the visiting committees for HMP Aberdeen and HMP Peterhead with effect from 3 March 2014 and to establish a visiting committee for HMP Grampian with effect from that date.

1. The instrument modifies Schedule 2 to the principal regulations. The effect of article 2(b) is to require a visiting committee to be constituted for HMP Grampian in accordance with rule 146. A question arises as to whether this instrument goes far enough to establish a visiting committee for HMP Grampian since rule 146(4) does not appear to make provision for the establishment of a new visiting committee other than immediately after a council election. Rule 146(4)(a) deals with that scenario. By contrast rule 146 (4)(b) deals with circumstances where the requisite number of members were not elected in accordance with (4)(a), (4)(c) deals with vacancies as a result of committee members ceasing to hold office and (4)(d) deals with “any other vacancy” occurring. The question is whether “vacancies” have occurred for the purposes of rule 146(4)(d) by virtue of the modification made to Schedule 2 or not. It would appear to require a strained construction to be placed on rule 146(4)(d) were it intended to include the creation of a completely new visiting committee as “vacancies occurring in that committee”. In particular the operation of (4) is material to determining under (5) the date on which functions will vest in the members of the new visiting committee. It is suggested that the current circumstances are not provided for by the drafting of rule 146 and that specific provision is required to achieve that legal effect. I am aware that this was the approach taken in SSI 2012/26. Nevertheless, on a proper construction of rule 146 I consider that this question requires to be addressed.

2. The effect of the removal of references to HMP Aberdeen and HMP Peterhead from Schedule 2 will be to disapply the duty imposed by rule 146(1) to constitute a visiting committee for those prisons. It is submitted that this is a different legal effect to the desired effect of dis-establishing the visiting committees that were established under this rule. It would appear that rule 146(6)(7) does not achieve this effect either. Is separate provision to this effect not required?

3. The Scottish Government is also asked whether its policy is that rule 153 will apply to the proposed visiting committee for HMP Grampian for the period up to 31 March 2014. If not, is a transitional provision not required to disapply this rule?

The Scottish Government responded as follows:

1. The purpose of the Amendments Rules is to dis-establish the visiting committees (VCs) for HMP Aberdeen and HMP Peterhead and to establish a VC for HM Grampian. The Amendment Rules remove the entries for HMP Aberdeen and HMP Peterhead from the table in Schedule 2 and add an entry for HMP Grampian to that table. The Scottish Government’s position is that this is sufficient to provide for the dis-establishment of the VCs for HMP Aberdeen and HMP Peterhead and that it is also sufficient for the establishment of a VC for HMP Grampian.

Section 8 of the Prisons (Scotland) Act 1989 provides that rules made under section 39 of the Act must provide for the constitution of VCs appointed in accordance with those rules. This obligation is given effect to by rule 146 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (“the Prison Rules”). Rule 146(1) of the Prison Rules provides that a VC must be constituted (in accordance with rule 146) for each prison listed in the table in Schedule 2 to the Prison Rules. Accordingly, the addition of HMP Grampian to the table in Schedule 2 provides that a VC must be established for HMP Grampian.

Rule 146(2) of the Prison Rules makes provision for the appointment of VC members by local authorities. The number of VC members to be appointed by each council, and the number of VC members appointed by each council who must not be members of that council are all specified in the table in Schedule 2. The addition of HMP Grampian to the table in Schedule 2 means that the members of that VC must be appointed by the councils specified in that entry and in line with the numbers specified in that entry.

As the Committee have rightly pointed out, rule 146(4) is key to the appointment of members of a new VC such as HMP Grampian. It is clear from paragraph (1) of rule 146 that a VC must be appointed and the nature of the VC’s membership is made clear by paragraph 2 of that rule. Paragraph (4) of rule 146 provides how the appointment of the VC members should take place.

Paragraph (4)(a) provides that members must be appointed at a meeting of the council held no later than 2 months after the council elections. The members of the VC for HMP Grampian cannot be appointed through this process as there have been no recent council elections held by the relevant councils. Paragraph (4)(c) does not apply here as it caters for the situation where a VC member resigns, has their membership terminated or ceases to be a member of the relevant council.

Paragraph (4)(b) provides that the member or members of a VC to be appointed by a council in terms of paragraph (2) must be appointed—

“if for any reason the requisite number of members of a visiting committee is not appointed at the proper time in terms of sub-paragraph (a), at a meeting of the council held as soon as possible after that time;”

The Scottish Government’s position is that, as the requisite number of members of HMP Grampian cannot be appointed at a meeting held within 2 months of the council elections in terms of paragraph (4)(a), they must be appointed under paragraph (4)(b) at a meeting of the council held as soon as possible thereafter.

Once the Amendment Rules come into force, there will be an obligation to constitute a VC for HMP Grampian (rule 146(1)) and the obligation to appoint members to that VC will fall on the relevant councils specified in Schedule 2 to the Prison Rules (rule 146(2)). The relevant councils will therefore require to convene a meeting in accordance with rule 146(4)(b) in order to appoint the requisite number of members. The members of the VC for HMP Grampian will consequently take office on the day following their appointment in accordance with rule 146(5)(b).

2. Rule 146(1) of the Prison Rules creates an obligation to constitute VCs for the prisons specified in Schedule 2 and this obligation is carried out by local authorities appointing VC members under rule 146(2) and Schedule 2. The removal of a prison from Schedule 2 removes the obligation to constitute a VC for that prison and the obligation to appoint members to that VC. However, there is no provision in the Prison Rules for the discontinuance of a VC by the Scottish Ministers or for the automatic termination of the appointment of VC members on the discontinuance of the committee.

The Scottish Government’s position is that a VC will be formally discontinued once the necessary amendments have been made to Schedule 2 to the Prison Rules and the members of the relevant VC have been removed from office. Rule 146(7) makes provision for the cessation of the term of office of VC members. Rule 146(7)(b) provides that a member of a VC ceases to hold office if the council who appointed that member terminates the member’s appointment on one of four specific grounds. Rule 146(7)(b)(ii) provides that a council can terminate the appointment of a member on being satisfied that the member is, for any reason (other than a failure to perform his or her duties), incapable of carrying out his or her duties.

The VCs for HMP Aberdeen and HMP Peterhead will have no continuing duties as both of those prisons have now been closed and are to be formally discontinued as prisons once the Discontinuance of Aberdeen and Peterhead Prisons (Scotland) Order 2014 comes into force. The members of the VCs for Aberdeen and Peterhead are therefore incapable of carrying out their duties and it will be open for the relevant councils to terminate the appointment of the members of the VCs for HMP Aberdeen and HMP Peterhead under rule 146(7)(b)(ii). The termination of the membership of the VCs for HMP Aberdeen and HMP Peterhead by the relevant councils will be the final step in discontinuing the VCs.

Aberdeen City Council and Aberdeenshire Council are currently tasked with appointing the members of the VCs for HMP Aberdeen and HMP Peterhead and on the coming into force of the Amendment Rules, those councils will be obliged to appoint some of the members of the VC for HMP Grampian. From discussions between Aberdeen City Council, Aberdeenshire Council and SPS, those councils intend to appoint most of the HMP Aberdeen and HMP Peterhead VC members to the VC for HMP Grampian. It will fall to those councils to firstly terminate the appointment of the HMP Aberdeen and HMP Peterhead VC members under rule 146(7)(b)(ii) before appointing those individuals to the VC for HMP Grampian under rule 146(2).

Accordingly, it is not considered necessary to provide for the termination of the appointment of the members of the VCs for HMP Aberdeen and HMP Peterhead as that can be attended to as part of the appointment process for the VC for HMP Grampian.

3. The Scottish Government does not propose to disapply the obligations in rule 153 to the VC for HMP Grampian and the VC for HMP Grampian will be required to report in accordance with that rule. It is acknowledged that any such report will only encompass a few weeks and will not be as detailed as would otherwise be the case. However the Scottish Ministers have the power, in terms of rule 149(1) to require the VC to inquire into and report upon any matter in connection with the prison. The VC also have ongoing duties to report to the Scottish Ministers in terms of rule 149(2) and (3). Even though the initial report under rule 153 may be necessarily limited, there are opportunities for more detailed reporting later in the year.

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