28th Report, 2014 (Session 4): Subordinate Legislation

SP Paper 509 (Web Only)

DPLR/S4/14/R28

28th 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 22 April 2014, the Committee agreed to draw the attention of the Parliament to the following instruments—

Assigned Colleges (Scotland) Order 2014 (SSI 2014/80);

Act of Sederunt (Fitness for Judicial Office Tribunal Rules) 2014 (SSI 2014/99).

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

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

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Assigned Colleges (Scotland) Order 2014 (SSI 2014/80) (Education and Culture Committee)

4. This Order assigns the boards of management of 3 colleges of further education to the Regional Board for Glasgow Colleges, which is established on 1 May 2014 (under section 7B of, and schedule 2A to, the Further and Higher Education (Scotland) Act 2005). The 3 colleges are City of Glasgow College, Glasgow Clyde College and Glasgow Kelvin College.

5. Each college of further education remains assigned notwithstanding any change of name of the college. Article 3 of the Order also makes a transitional provision in relation to any student of the 3 colleges who is appointed on or before 31 August 2014 as a member of the Regional Board for Glasgow Colleges. A provision in schedule 2B to that 2005 Act, under which such a student’s term of office would have otherwise ceased on 31 August 2014, is not to apply. Such a student is to hold office until 31 August 2015.

6. The Order comes into force on 1 August 2014.

7. In considering the instrument, the Committee asked the Scottish Government as to one matter. The correspondence is reproduced at the Annex.

8. The Committee notes that the transitional provision in article 3 concerns the rights of any students of the 3 colleges which are assigned to the Regional Board for Glasgow Colleges, who are appointed on or before 31August 2014 as a member of the Regional Board. Their term of office will cease at 31 August 2015, instead of 31 August 2014. The Committee considers that the terms of such a transitional provision ought to be as clear as possible.

9. The Committee therefore draws the Order to the attention of the Parliament on the Committee’s reporting ground (h). The meaning of the transitional provision in article 3 could be clearer, in respect that it would have been clearer to have referred to schedule 2B to the Further and Higher Education (Scotland) Act 2005 rather than just schedule 2B “to 2005 Act”.

10. In particular it would have been clearer in this instance to have referred to the short title of the Act rather than abbreviating it, given that there is only one reference to the Act within the operative provisions of the Order.

POINTS RAISED: INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Act of Sederunt (Fitness for Judicial Office Tribunal Rules) 2014 (SSI 2014/99) (Justice Committee)

11. This instrument makes provision for the procedure to be followed by a tribunal constituted under section 12A(1) of the Sheriff Courts (Scotland) Act 1971 (“the 1971 Act”) or section 35(1) of the Judiciary and Courts (Scotland) Act 2008 (“the 2008 Act”) to investigate and report on a judicial office holder’s fitness for office.

12. The instrument is laid before the Parliament under section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. It is not subject to any further Parliamentary procedure, and it comes into force on 20 May 2014.

13. Rule 2 of the instrument contains two patent cross-referencing errors. In particular, the definition of “presenting officer” refers to rule 9(1) as the rule by virtue of which a presenting officer is appointed, when the correct reference should be to rule 8(1). Similarly, the definition of “investigating officer” in rule 2 refers to rule 5(1) as the rule by virtue of which such an officer is appointed, when the correct reference should be to rule 4(1).

14. Rule 8 also contains two further patent errors. Both rules 8(1) and 8(6) refer to the “presiding officer” when the correct references should be to “presenting officer”. The Committee considers that these errors are apt to cause confusion to the reader and that, taken together, they render the drafting of the instrument defective.

15. The Committee also considers that the meaning of rule 6(2)(a) of the instrument could be clearer. Rule 6(2)(a)(ii) refers to the date on which the tribunal notifies the judicial office holder that it has determined an application under rule 5(1). Rule 5(1) provides that the judicial office holder may apply to the tribunal for further specification of the information contained in the statement of reasons which the investigating officer submits to the tribunal in accordance with rule 4(6) where he or she considers, having investigated the tribunal case, that further procedure is required.

16. Where the tribunal considers an application under rule 5(1) and determines that it should be refused, it must notify the judicial office holder in writing of its decision. The rules make no provision, however, for the tribunal to notify the judicial office holder in cases where it has granted an application under rule 5(1); instead they require the tribunal to direct the investigating officer to provide the further specification requested. It is accordingly not clear what the date referred to in rule 6(2)(a)(ii) is in circumstances where the tribunal has granted an application under rule 5(1). The Committee considers that clarity as to the relevant date is important because it constitutes the beginning of the 28 day period within which the judicial office holder may lodge a written response to the investigating officer’s recommendation and statement of reasons by virtue of rule 6(1).

17. The Committee therefore draws the instrument to the Parliament’s attention under reporting ground (i) as it is defectively drafted in the following respects:

a) In rule 2, “presenting officer” is defined as the person appointed under rule 9(1), when the correct reference should be to rule 8(1);

b) In rule 2, “investigating officer” is defined as the person appointed under rule 5(1), when the correct reference should be to rule 4(1); and

c) Rules 8(1) and 8(6) refer to the “presiding officer” when the correct references should be to the “presenting officer”.

18. The Committee also draws the instrument to the Parliament’s attention under reporting ground (h) as the meaning of rule 6(2)(a) could be clearer. Rule 6(2)(a)(ii) refers to the date on which the tribunal notifies the judicial office holder that it has determined an application under rule 5(1). Under rule 5(4), where the tribunal refuses an application under rule 5(1), it must notify the judicial office holder of that decision. There is, however, no provision for the tribunal to notify the judicial office holder in circumstances where it has granted an application under rule 5(1). It is accordingly not clear what the relevant date for the purposes of rule 6(2)(a)(ii) is in circumstances where the tribunal has made a determination to grant an application under rule 5(1).

19. The Committee notes, however, that the Lord President’s Private Office has laid a corrective instrument which rectifies the errors identified at paragraph 1 above, clarifies the meaning of rule 6(2)(a) and addresses the minor points identified at the Annex. The corrective instrument revokes the present instrument prior to its coming into force.

NO POINTS RAISED

20. At its meeting on 22 April 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:

Economy, Energy and Tourism

Electronic Documents (Scotland) Regulations 2014 (SSI 2014/83)

Education and Culture

Post-16 Education (Scotland) Act 2013 (Commencement No. 4 and Transitory Provisions) Order 2014 (SSI 2014/79 (C.6)).

Health and Sport

Glasgow Commonwealth Games Act 2008 (Duration of Urgent Traffic Regulation Measures) Order 2014 (SSI 2014/92);

Infrastructure and Capital Investment

Road Traffic (Permitted Parking Area and Special Parking Area) (Argyll and Bute Council) Designation Order 2014 (SSI 2014/84);

Parking Attendants (Wearing of Uniforms) (Argyll and Bute Council Parking Area) Regulations 2014 (SSI 2014/85);

Road Traffic (Parking Adjudicators) (Argyll and Bute Council) Regulations 2014 (SSI 2014/86).

Justice

Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 2014 (SSI 2014/95);

Act of Sederunt (Fitness for Judicial Office Tribunal Rules) (No. 2) 2014 (SSI 2014/102).

Rural Affairs, Climate Change and Environment

Single Use Carrier Bags Charge (Scotland) Regulations 2014 [draft].

Referendum (Scotland) Bill

Scottish Independence Referendum (Chief Counting Officer and Counting Officer Charges and Expenses) Order 2014 (SSI 2014/101).

ANNEX

Assigned Colleges (Scotland) Order 2014 (SSI 2014/80)

On 26 March 2014, the Scottish Government was asked:

The transitional provision in article 3 provides that it has effect in relation to the appointment of any student as a member of the Regional Board for Glasgow Colleges under paragraphs 3(2)(e) and 4 of schedule 2B “to 2005 Act”…..Could this be clearer, given that:

(i) “the 2005 Act” is defined only in the footnotes and the explanatory note to the Order which are not part of the operative provisions, and;

(ii) while section 24 of the Interpretation and Legislative Reform (Scotland) Act 2010 provides that a word or expression used in a Scottish instrument has the same meaning as it has in the Act of the Scottish Parliament by virtue of which the instrument is made, as cited in its preamble this Order is made by virtue of powers contained in the Further and Higher Education (Scotland) Act 2005, which Act does not use the expression “2005 Act”?

The Scottish Government responded as follows:

The Government agrees that the transitional provision in article 2 could have been clearer if it had referred to schedule 2B to the Further and Higher Education (Scotland) Act 2005, rather than just to schedule 2B “to 2005 Act”. However, in the context of a very short order which deals only with three colleges being assigned to the Regional Board for Glasgow Colleges and in which footnote (c) to article 2 of the Order makes clear how that Regional Board is established, the Government considers that the meaning of article 3 is sufficiently clear. The 2005 Act is defined both in the footnotes and in the Explanatory Note, and although they are not part of the operative provisions, the meaning of the “2005 Act” will be clear to a reader, particularly in the context of this Order which is made using the powers in section 7C(1) and 34(2) of the Further and Higher Education (Scotland) Act 2005. In addition, the footnote to article 3 specifically states that schedule 2B is inserted into the 2005 Act (as defined in the footnotes) by section 11(2) of the Post-16 Education (Scotland) Act 2013 and explains when paragraphs 3(2)(e) and 4 of schedule 2B (as referred to in article 3 of the Order) will come into force. There can therefore be no doubt that it is schedule 2B to the Further and Higher Education (Scotland) Act 2005 which is referred to in article 3.


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites.

Back to top

This website is using cookies.
We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we’ll assume that you are happy to receive all cookies on this website.