62nd Report, 2014 (Session 4): Subordinate Legislation

SP Paper 606 (Web Only)

DPLR/S4/14/R62

62nd 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 Anderson

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 4 November 2014, the Committee agreed to draw the attention of the Parliament to the following instrument—

Public Bodies (Joint Working) (Scotland) Act 2014 (Modifications) Order 2014 [draft];

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

Public Bodies (Joint Working) (Scotland) Act 2014 (Modifications) Order 2014 [draft] (Health and Sport Committee)

4. The purpose of the order is to make supplementary and consequential provision which modifies the Public Bodies (Joint Working) (Scotland) Act 2014 (“the Act”).

5. The order is subject to the affirmative procedure. If approved it will come into force on the day after the day it is made.

6. In considering the instrument, the Committee asked the Scottish Government for an explanation of certain matters. The correspondence is reproduced at the Annex

7. Article 2(6) of the order modifies the Act to give full effect to the integration model set out in section 1(4)(d) of the Act. It does so by inserting two new sub-paragraphs, (i) and (ii), in section 59(d) of the Act. The new text is however inserted immediately after the words “section 1(4)(d)” in section 59(1), rather than on a new line.

8. The Scottish Government considers that section 59(1) as amended would be read so as to include a hyphen after the words “section 1(4)(d)”, with new sub-paragraph (i) beginning on the line below. However, the order does not make express provision to that effect. The Committee notes that normal drafting practice would be to expressly include the hyphen in the text to be inserted, or otherwise to make it clear in the order that the text was to be inserted as a new sub-paragraph rather than as a continuation of the existing paragraph.

9. The Committee considers that the amendment as drafted may cause confusion to the reader, especially given that the text immediately preceding the words to be inserted is a section number, and that the inserted text begins with a paragraph number. The risk is that section 59(1) of the Act as amended by the order is read as “…in section 1(4)(d)(i) in sections 23 to 28…” which does not give effect to the policy intention in making the amendment. Given that it is primary legislation which is being amended, the Committee considers it essential that the effect of the provision is clear.

10. The Committee accordingly draws the instrument to the attention of the Parliament on reporting ground (h) as the form or meaning of the amendment to section 59(d) of the Act made in article 2(6) of the order could be clearer.

11. Article 2(6) inserts the new text immediately after the words “section 1(4)(d)” in section 59(d), rather than inserting it expressly on a new line or as a new sub-paragraph. The Committee considers that the amendment of the primary legislation in this instance may cause confusion to the reader.

NO POINTS RAISED

12. At its meeting on 4 November 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

Land Register of Scotland (Automated Registration) etc. Regulations 2014 [draft].

Finance

Landfill Tax (Scotland) Act 2014 (Commencement No.1) Order 2014 (SSI 2014/277 (C.25));

Land and Buildings Transaction Tax (Scotland) Act 2013 (Commencement No. 1) Order 2014 (SSI 2014/279 (C.27)).

Justice

Act of Sederunt (Commissary Business) (Amendment) 2014 (SSI 2014/265);

United Nations Sanctions (Revocations) Order 2014 (SI 2014/2711).

ANNEX

Public Bodies (Joint Working) (Scotland) Act 2014 (Modifications) Order 2014 [draft]

On 24 October 2014, the Scottish Government was asked:

(1) Section 70(1)(a) of the Public Bodies (Joint Working) (Scotland) Act 2014 (“the Act”) enables supplementary, incidental or consequential provision, as the Scottish Ministers consider appropriate for the purposes of, in consequence of, or for giving full effect to, any provision of the Act. Section 36(1) of the Act provides that the section applies where any “integration authority” (as defined by section 59) proposes to take a significant decision about the arrangements for carrying out the “integration functions” for the area of the authority, and intends the decision to take effect other than by revising its strategic plan under section 37. By section 36(3), an integration authority must (a) seek to have regard to the views of its strategic planning group, and (b) take such action as it thinks fit with a view to securing that the users of the service which is being (or may be) provided are involved in and consulted on the decision.

Article 2(5) of this Order proposes to exclude from the application of those section 36 requirements any integration authority within section 59(d) of the Act. Section 59(d) (before the supplemental amendment which is proposed by article 2(6)) refers to the joint acting of the local authority and health board under the integration model defined in section 1(4)(d).

Please therefore explain how article 2(5) properly makes ancillary provision for the purposes of, in consequence of, or to give full effect to, provision in the Act in accordance with section 70(1)(a) - and in respect of which Act provision/s?

(2) Article 2(6) amends section 59(d) of the Act to insert wording after “1(4)(d)” but this omits reference to the comma after “(d)”. The apparent effect of the insertion is that section 59(d) includes “section 1(4)(d)(i)” (which head (i) does not exist). This also appears to confuse the meaning of the remainder of the insertion made by article 2(6), and a double comma arises after “any other section”.

Would you agree this is an error, and if so would you propose to take corrective action?

The Scottish Government responded as follows:

(1) Article 2(5) makes ancillary provision which is appropriate for giving full effect to section 1(4)(d) of the Act.

The Committee may find it helpful by way of background to note some points of policy relating to the application of section 1(4)(d). This is the only integration model (of the four models set out in section 1(4)) which requires the delegation of functions to more than one body. In order to ensure that this does in fact result in integration, as opposed to fragmentation, of certain health and social care services, it is essential that strategic and significant decisions about these functions are taken jointly. This is achieved by providing (both in the Act as enacted and in the amendments to be made by the Order) that the strategic plan must be prepared jointly by the bodies to whom functions are delegated.

The provisions of the Act, as enacted by Parliament, make clear that where the section 1(4)(d) model is chosen, responsibility for carrying out a delegated function will fall to the body to whom the particular function is delegated. For example, section 25(2) of the Act provides that operational responsibility is held by the person to whom functions are delegated. Where the model mentioned in section 1(4)(d) is used, the health board and local authority will each have separate operational responsibility for carrying out the functions delegated to each of them. The functions will have to be carried out consistently with the jointly prepared strategic plan.

Section 36 provides an alternative means of ensuring public involvement where a significant decision about delivery of services (provided under integration functions) is being made, outwith the preparation of a revised strategic plan. It is implicit in this that a decision under section 36 involves a choice between 1) revising the strategic plan or 2) taking the decision otherwise than by revising the strategic plan.

Section 36 is drafted on the premise that functions are delegated to the same person as is responsible for preparation of the strategic plan. This is inconsistent with the section 1(4)(d) model as in that case the person who prepares the strategic plan (the local authority and Health Board acting jointly) is not the same person as is responsible for carrying out the functions (the local authority or the Health Board).

In the view of the Scottish Government, section 36, if left un-amended, would not have been able to properly apply to the section 1(4)(d) model for the reasons described above. The amendment is required in order to supplement section 1(4)(d) of the Act in order to make the Act work (see Craies on Legislation (10th ed.), para. 3.4.10). It is therefore appropriate to clarify the position of section 36 as regards the model set out in section 1(4)(d), in order to give full effect to that section of the Act as enacted.

(2) The Scottish Government does not consider that a comma has been omitted in error as described in the question. The effect of the amendment is to insert new sub-paragraphs (i) and (ii) of section 59(d) of the 2014 Act after “section 1(4)(d)”. Furthermore, the existing text of section 59(d) after “section 1(4)(d)” will follow on from “in any other section” in the new section 59(d)(ii). The insertion of this new text as new sub-paragraphs (i) and (ii) (rather than a continuation after the words “section 1(4)(d)”) is denoted by the paragraphing of the amendment in article 2(6).

The effect of the amendment to be made by article 2(6) is shown in red text in an attachment which I trust will aid the Committee’s understanding of the effect of the amendment.

The Scottish Government does agree that the existing comma after “section 1(4)(d)” and the new comma inserted after “any other section” in new sub-paragraph (ii) of section 59(d) results in an incorrect double comma after “any other section”. However, the Scottish Government considers that this is a minor typographical error which does not affect the operation of the instrument.

Question 2 attachment:

Meaning of “integration authority”

For the purposes of this Part, the “integration authority” for the area of a local authority is— 

(d) where in pursuance of the integration scheme for the area functions are delegated in accordance with the integration model mentioned in section 1(4)(d)

in sections 23 to 28, 29(4) and (6)(b) and 41(1) and so far as relating to a particular function, the local authority or Health Board to which the function is delegated,

in any other section,, the local authority and the Health Board to which the functions are delegated, acting jointly.”

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

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