33rd Report, 2014 (Session 4): Subordinate Legislation

SP Paper 522 (Web Only)

DPLR/S4/14/R33

33rd 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 13 May 2014, the Committee agreed to draw the attention of the Parliament to the following instruments—

Firefighters’ Compensation Scheme (Scotland) Amendment Order 2014 (SSI 2014/109);

Firefighters’ Pension Scheme (Scotland) Amendment (No. 2) Order 2014 (SSI 2014/110);

Children’s Hearings (Scotland) Act 2011 (Modification of Subordinate Legislation) Order 2014 (SSI 2014/112).

2. The Committee’s recommendations in relation to the above 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

Firefighters’ Compensation Scheme (Scotland) Amendment Order 2014 (SSI 2014/109) (Justice Committee)

4. The Order makes a series of technical amendments to Schedule 1 to the Firefighters’ Compensation Scheme (Scotland) Order 2006, which sets out the compensation scheme for firefighters and their dependants in Scotland.

5. The amendments made to rule 2 of the Compensation Scheme remove the right of a retained firefighter who was employed as such before 6 April 2006 to an injury award calculated as though he or she were a wholetime firefighter, as from the date of commencement of the Order.

6. The amendments are consequential on changes to the pension arrangements for retained firefighters made by the Firefighters’ Pension Scheme (Scotland) Amendment (No. 2) Order 2014 (SSI 2014/110)..

7. The Order comes into force on 23 May 2014.

8. In considering the instrument, the Committee asked the Scottish Government as to certain matters. The correspondence is reproduced at Annex A.

9. The Order contains a drafting error, as follows:

10. The Committee draws the Order to the attention of the Parliament on the general reporting ground, as it contains a minor drafting error. The word “his” was included in paragraph 11(c) of the Schedule in error. The word should have been omitted, as otherwise the Order is drafted in gender neutral terms.

11. The Committee notes that the Scottish Government has undertaken to amend the provision when the Firefighters’ Compensation Scheme (Scotland) Order 2006 is next amended for other purposes.

Firefighters’ Pension Scheme (Scotland) Amendment (No. 2) Order 2014 (SSI 2014/110) (Justice Committee)

12. The purpose of this instrument is to amend the Firefighters’ Pension Scheme (Scotland) Order 2007 (“the 2007 Order”) so as to enable retained firefighters to obtain the same pension benefits as regular full time firefighters.

13. The Order comes into force on 23 May 2014.

14. In considering the instrument, the Committee asked the Scottish Government as to certain matters. The correspondence is reproduced at Annex B.

15. Paragraph 1(a)(iv) of the schedule to the Order inserts a definition of the term “initial date” into rule 2(1) of Part 1 of schedule 1 to the 2007 Order. The initial date is defined as 1 April 2014. Paragraph 10 of the schedule to the Order then inserts a new rule 5A into Part 11 of schedule 1 to the 2007 Order. Rule 5A(4) provides that within two months of the initial date, the Scottish Fire and Rescue Service shall use all reasonable endeavours to notify eligible employees and former employees of the service who may be entitled to join the Scheme that they may be so entitled.

16. The Scottish Government has explained that the policy intention is to give the Scottish Fire and Rescue Service two months from the date of commencement of this Order to comply with the duty in the new rule 5A(4) of Part 11. The Committee therefore considers that paragraph 1(a)(iv) is defectively drafted, as it frustrates the intended policy, given that the Order does not come into force until 23 May 2014. The duty imposed by the new rule 5A(4) does not take effect until that date.

17. The Order also contains a number of more minor drafting errors, detailed in the Committee’s recommendations below. The Scottish Government has accepted that the instrument contains drafting errors and proposes to lay a corrective instrument, to take effect prior to the date of commencement of this instrument, which will rectify the error identified with paragraph 1(a)(iv) of the Order as well as the other errors listed below

18. The Committee accordingly draws the instrument to the attention of the Parliament under reporting ground (i) as paragraph 1(a)(iv) of the schedule is defectively drafted. That paragraph inserts a definition of the term “initial date” into rule 2(1) of Part 1 of schedule 1 to the Firefighters’ Pension Scheme (Scotland) Order 2007.

19. The “initial date” is defined as 1 April 2014. The Order then inserts a new rule 5A into Part 11 of schedule 1 to the 2007 Order. Rule 5A(4) provides that within two months of the initial date, the Scottish Fire and Rescue Service shall use all reasonable endeavours to notify eligible employees and former employees of the service who may be entitled to join the Scheme that they may be so entitled. The Scottish Government has explained that the policy intention is to give the Scottish Fire and Rescue Service two months from the date of commencement of this Order to comply with this duty. The definition of “initial date” as 1 April 2014 therefore renders paragraph 1(a)(iv) of the schedule to the Order defective, as the Order does not come into force until 23 May 2014.

20. The Committee also draws the instrument to the attention of the Parliament under the general reporting ground, as it contains the following, more minor, drafting errors:

  • Paragraph 10 of the schedule to the Order inserts a new rule 6A into Part 11 of schedule 1 to the 2007 Order. Rule 6A(2)(a), (4), (5) and (6) contain references which are not gender neutral. Similar references appear in the new rule 6B(7) as inserted into Part 11 of schedule 1 to the 2007 Order and in the new rule 18(5) and 18(6)(b) as inserted by paragraph 11 of the Order into Part 12 of schedule 1 to the 2007 Order

  • The references to “Part 14” in paragraph 12 of the schedule to the Order should be to “Part 13”

  • Paragraph 1(a)(vii) of the schedule to the Order is superfluous and should be omitted

  • The Order fails to revoke the definition of “the Scheme Actuary” which is intended to be replaced by a definition of “Scheme Actuary” inserted into rule 2 of Part 1 of schedule 1 to the 2007 Order by 1(a)(xi) of the schedule to this Order

  • The reference to “rule 5(13)” in the new rule 11A in Part 12 of schedule 1 to the 2007 Order should be to “rule 5A(13) of Part 11”

21. The Committee notes that the Scottish Government has agreed to lay an amending instrument which will correct the errors identified with the present instrument prior to its commencement on 23 May 2014.

Children’s Hearings (Scotland) Act 2011 (Modification of Subordinate Legislation) Order 2014 (SSI 2014/112) (Education and Culture)

22. This Order makes amendments to two other instruments, consequential on, or ancillary to, the Children’s Hearings (Scotland) Act 2011. It comes into force on 2 June 2014.

23. In considering the instrument, the Committee asked the Scottish Government as to certain matters. The correspondence is reproduced at Annex C.

24. The Order contains a drafting error, as follows. The Committee notes in that respect that the amendment which has already been made in Schedule 1 to the Children’s Hearings (Scotland) Act 2011 (Modification of Subordinate Legislation) Order 2013 (SSI 2013/147), while having different text, appears already to have achieved the effect proposed by paragraph 2(3) of the Schedule to this Order

25. The Committee therefore draws the instrument to the attention of the Parliament under the general reporting ground.

26. The instrument contains a drafting error in paragraph 2(3) of the Schedule, which provides for the substitution of text in paragraph 6 of Schedule 4 to the Looked After Children (Scotland) Regulations 2009. The text has already been substituted by virtue of paragraph 11 (16)(b) of Schedule 1 to the Children’s Hearings (Scotland) Act 2011 (Modification of Subordinate Legislation) Order 2013 (SSI 2013/147).

27. The Committee notes the Scottish Government considers that, given that duplication of provision, paragraph 2(3) of the Schedule has no practical effect. The Scottish Government has also indicated that, in light of that, it has no plans to rectify this error by laying an amendment. The Committee considers however that paragraph 2(3) is a superfluous and confusing provision, and so the error should be rectified if an opportunity arises to amend this Order for other purposes.

NO POINTS RAISED

28. At its meeting on 13 May 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:

Equal Opportunities

Marriage and Civil Partnership (Scotland) Act 2014 (Commencement No. 1) Order 2014 (SSI 2014/121 (C.8)).

Health and Sport

Health Care and Associated Professions (Indemnity Arrangements) Order 2014 [draft];

National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Scotland) Amendment Regulations 2014 (SSI 2014/115);

Victims and Witnesses (Scotland) Act 2014 (Commencement No. 1) Order 2014 (SSI 2014/117 (C.7));

Justice

Firemen’s Pension Scheme (Amendment No. 2) (Scotland) Order 2014 (SSI 2014/108)

ANNEX A

Firefighters’ Compensation Scheme (Scotland) Amendment Order 2014 (SSI 2014/109)

On 2 May 2014, the Scottish Government was asked:

The Firefighters’ Compensation Scheme (Scotland) Order 2006 and this amending Order are drafted in gender neutral terms, for example within the formula specified in paragraph 10(c) of the schedule to this Order.

Would you agree that the reference to “his relevant service” within the formula in paragraph 11 (c) of the schedule (the last line of this Order), used to calculate an award on the death of a retained firefighter, is an error? If so what is the effect, and would you propose to amend it?

The Scottish Government responded as follows:

We can confirm that the word “his” was included in paragraph 11(c) of the Schedule to this Order in error. Given the terms of sections 6 and 23 of the Interpretation Act 1978, this error has no legal effect but the word will be deleted when SSI 2006/338 is next amended for other purposes.

ANNEX B

Firefighters’ Pension Scheme (Scotland) Amendment (No. 2) Order 2014 (SSI 2014/110)

On 2 May 2014, the Scottish Government was asked:

1. Paragraph 10 of the Schedule to the Order inserts a new rule 6A into Part 11 of Schedule 1 to the Firefighters’ Pension Scheme (Scotland) Order 2007 (“Election to purchase service during the limited period). Rule 6A(2)(a), 6A(4), 6A(5) and 6A(6) contain references which are not gender neutral. Similar references appear in the new Rule 6B(7) as inserted into Part 11 of the Schedule to the 2007 Order (“Election to purchase service during the limited period: supplemental provision”) and in the new Rule 18(5) and 18(7)(b) as inserted by paragraph 11 of the Order into Part 12 of the Schedule to the 2007 Order. Does the Scottish Government agree that these references are errors in that they are drafted in non-gender neutral terms? If so, does the Scottish Government propose to take any corrective action?

2. Paragraph 12 of the Schedule to the Order is headed “Amendment of Part 14 (payment of awards)”. The first line of that paragraph then begins “In Part 14”. Does the Scottish Government agree that these references to Part 14 should be references to Part 13?

3. Paragraph 1(a)(vii) of the Schedule to the Order inserts additional wording into the definition of “opt in” in rule 2 (interpretation) of Part 1 of the Schedule to the 2007 Order. There does not, however, appear to be a definition of “opt in” in rule 2 of that Part of the Schedule (looking at the most up to date version). Can the Scottish Government clarify where that definition is to be found for the purposes of the provision made in paragraph 1(a)(vii)?

4. Paragraph 1(a)(iv) of the Schedule to the Order inserts a definition of “initial date” into rule 2 of Part 1 of Schedule 1 to the 2007 Order. The initial date is defined to mean 1st April 2014. The Order also inserts a new rule 5A into Part 11 of the Schedule to the 2007 Order. Rule 5A(4) provides that within 2 months of the initial date, the authority shall use reasonable endeavours to notify all those existing employees and former employees who may be entitled to join the Scheme as a special member that they may be so entitled. Can the Scottish Government explain how the authority may comply with this duty within the allotted timescale of two months from 1st April 2014 (i.e. the “initial date”), having regard to the fact that this instrument will only come into force on 23rd May 2014?

5. Paragraph 1(a)(xi) of the Schedule to the Order inserts a definition of “Scheme Actuary” into rule 2 (interpretation) of Part 1 of the Schedule to the 2007 Order. There would appear to already be a definition of “the Scheme Actuary” in rule 2 of Part 1 of the Schedule (looking at the most up to date version). Is the definition as inserted by paragraph 1(a)(xi) of the Order intended to replace the current definition?

6. The Order inserts a new rule 11A (Transfer of accrued rights under the 1992 Scheme to special membership of this scheme) into Part 12 of the Schedule to the 2007 Order. Rule 11A(3) provides that where an application made under paragraph (1) of that rule is not made at the time specified in paragraph (2), it shall be made during the period of one year beginning with the day on which the authority gave the applicant the notice required by rule 5(13). Can the Scottish Government clarify the meaning of “rule 5(13)” for the purposes of this paragraph? Is it intended to refer to rule 5A(13) of Part 11 of the 2007 Order, or to some other rule?

The Scottish Government responded as follows:

1. We agree that these references are errors (it is presumed that the reference to “18(7)(b)” in question 1 should in fact be to “18(6)(b)”).

2. We agree that these references should be to Part 13.

3. There is no definition of “opt in” in rule 2 of Part 1 of Schedule 1 to the 2007 Order. The text which this Order mistakenly purports to insert in a definition of this phrase was incorrectly lifted from the equivalent English instrument (S.I. 2014/445) and is not in fact required for the purposes of the 2007 Order.

4. We accept that a period of two months from the commencement date of this Order should have been given to the Scottish Fire and Rescue Service to allow it to complete the task set out in rule 5A(4) of Part 11 of Schedule 1 to the 2007 Order.

5. The definition of “Scheme Actuary” is intended to replace the current definition in the 2007 Order.

6. New rule 11A in Part 12 of Schedule 1 to the 2007 Order should have referred to “rule 5A(13) of Part 11” rather than “rule 5(13)”.

We are grateful to the Committee for pointing out these errors and we intend to make shortly an amending instrument, correcting matters appropriately with effect from 23rd May.

ANNEX C

Children’s Hearings (Scotland) Act 2011 (Modification of Subordinate Legislation) Order 2014 (SSI 2014/112)

On 1 May 2014, the Scottish Government was asked:

In relation to this instrument, does the Scottish Government accept that paragraph 2(3) of the Schedule to this Order, which provides for deletion (and substitution) of specified text in paragraph 6 of Schedule 4 to the Looked After Children (Scotland) Regulations 2009, contains an error, the relevant text having already been replaced by virtue of Schedule 1, paragraph 11(16)(b) of the Children’s Hearings (Scotland) Act 2011 (Modification of Subordinate Legislation) Order 2013 (SSI 2013/147)? If so, what does the Scottish Government consider to be the effect of that error, and what action does it propose taking to rectify it?

The Scottish Government responded as follows:

It is accepted that paragraph 2(3) of the Schedule to the Order, which provides for deletion (and substitution) of specified text in paragraph 6 of Schedule 4 to the Looked After Children (Scotland) Regulations 2009, contains an error, the relevant text specified in that sub-paragraph having already been removed and replaced by different text by virtue of Schedule 1, paragraph 11(16)(b) of SSI 2013/147.

It is submitted that the error means that the provision in paragraph 2(3) is of no practical effect because it removes text that no longer exists and purports to insert new text in its place. The amendment proposed in this Order has already been achieved in effect by the amendment made in 2013. As the error is minor in nature, the amendment made by this Order has no practical effect and as the amendment made in 2013 already achieves the desired effect there are no plans to rectify it by amending the Order.


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