67th Report, 2014 (Session 4): Subordinate Legislation

SP Paper 619 (Web Only)

DPLR/S4/14/R67

67th 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 25 November 2014, the Committee agreed to draw the attention of the Parliament to the following—

Scottish Regulators’ Strategic Code of Practice (SG 2014 236);

Products Containing Meat etc. (Scotland) Regulations 2014 (SSI 2014/289);

Charities Accounts (Scotland) Amendment Regulations 2014 (SSI 2014/295).

2. The Committee’s recommendations in relation to the above draft document and 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: DRAFT DOCUMENT SUBJECT TO APPROVAL

Scottish Regulators’ Strategic Code of Practice (SG 2014 236) (Economy, Energy and Tourism Committee)

4. The code sets out matters to which regulators have to have regard in determining any general policy or principles by reference to which they exercise regulatory functions and when exercising those functions.

5. It is made under section 5 of the Regulatory Reform (Scotland) Act 2014 (“the Act”). The code applies to the regulators listed in schedule 1 to the Act. It is not a Scottish statutory instrument but is subject to the affirmative procedure. The code must be consistent with the regulatory principles set out in section 6(3) of the Act. Before laying a draft of the code before the Parliament for approval the Scottish Ministers must consult representatives of regulators to whom the code applies and such other persons as they consider appropriate. A consultation exercise was held in April 2014.

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

7. The correspondence with the Scottish Government was intended to assist the Committee in evaluating whether the code clearly identifies the regulators to which it applies, and whether the code also clearly identifies the regulatory functions of those regulators to which it applies. Both are required by section 5(3) of the Act. The Committee also considered whether the terms of the code are consistent with application of the code under the statutory framework prescribed by the Parliament in section 5(5) of the Act.

8. The Committee was content with the Scottish Government’s response on the first issue, though it noted that if no revision of the code is to be prepared and issued each time it is applied to a new regulator then the list of affected regulators set out in paragraph 8 of the introduction and overview to the code will become incomplete over time. This could be a potential source of confusion.

9. The Committee was not content with the Scottish Government’s response in relation to the second and third issues. The Committee notes the Scottish Government’s intention stated in paragraph 9 of the introduction and overview to the code is that “The duties to have regard to the Code in determining and applying general policies or principles do not apply to the exercise by a regulator or its staff of any specified regulatory function in individual cases… the Code does not apply directly to the work of that inspector or investigator in carrying out any of these activities in individual cases. Regulator specific standards, guidance or codes of practice are the more appropriate vehicle for that type of detailed operational policy.”1

10. However, the Committee notes that section 5(5)(a) and (b) of the Act provides that a regulator to whom the code applies) must have regard to the code in determining any general policy or principles by reference to which the regulator exercises any regulatory functions to which the code applies and in exercising any such regulatory functions.

11. Given the wording of section 5(5) of the Act the Committee does not consider that the Parliament intended that the code should be restricted in its application only to strategic matters of general policy or principle relating to regulatory functions. The Committee considers that the Parliament intended the code to apply also to the actual exercise of any regulatory functions to which it applies at the practical/operational level.

12. The Committee draws the code of practice to the attention of the Parliament under reporting ground (g).

13. Section 5(5) of the Regulatory Reform (Scotland) Act 2014 places a duty on relevant regulators to have regard to the code in determining general policies or principles relevant to specified regulatory functions and in exercising those specified functions. In light of the statutory requirements the Scottish Ministers intention, expressed in paragraph 9 of the introduction and overview of the code, that the code should not apply to the exercise of regulatory functions in individual cases appears to be an unusual or unexpected use of the power conferred on the Ministers by section 5.

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Products Containing Meat etc. (Scotland) Regulations 2014 (SSI 2014/289) (Health and Sport Committee)

14. These Regulations will replace and revoke the Meat Products (Scotland) Regulations 2004 (“2004 Regulations”). This is to prevent an incompatibility arising between the 2004 Regulations and EU Regulation No 1169/2011 on the provision of food information to consumers (“FIC Regulations”). The FIC Regulations have direct effect in all member states from 13 December 2014.

15. The Regulations come into force timeously on 13 December 2014.

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

17. The Committee asked the Scottish Government why regulation 7 does not apply section 22 of the Food Safety Act 1990 for the purposes of the Regulations. Regulation 7 replicates regulation 9 of the 2004 Regulations in all other respects.

18. The omission of section 22 was accidental. The Scottish Government has undertaken to amend the Regulations at the earliest opportunity, and to inform the relevant bodies of this oversight.

19. The Regulations appear to be defectively drafted in respect of that omission. Section 22 of the 1990 Act creates a defence for those involved in the advertising of prohibited food products. The omission means that the entitlement to that defence is not applied for the purposes of these Regulations. The omission does not implement the intended policy, in that respect.

20. The Scottish Government’s response confirms that their information from local authorities active in this area indicates that no prosecutions have been carried out under the 2004 Regulations, to date.

21. The Committee therefore draws the instrument to the Parliament’s attention on reporting ground (i), as regulation 7 appears to be defectively drafted in a particular respect.

22. The regulation applies various provisions of the Food Safety Act 1990 for the purposes of the Regulations. The Scottish Government intends that section 22 of that Act would also be applied, but reference to that section is omitted. Section 22 specifies certain circumstances which provide a defence for a person who would otherwise commit an offence in terms of the Act consisting of the advertisement for sale of food.

23. The Scottish Government has however undertaken to amend the provision at the earliest opportunity.

Charities Accounts (Scotland) Amendment Regulations 2014 (SSI 2014/295) (Local Government and Regeneration Committee)

24. The purpose of this instrument is to amend the Charities Accounts (Scotland) Regulations 2006 (“the 2006 Regulations”), to update references to various Statements of Recommended Practice in relation to accounting by charities.

25. The instrument comes into force on 1 January 2015.

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

27. The Committee identified certain minor drafting errors, as set out below. The Scottish Government has acknowledged these minor errors, and has undertaken to correct them by amendment in due course.

28. The Committee draws the instrument to the attention of the Parliament on the general reporting ground, as the instrument contains some minor drafting errors, as follows:

(a) Regulation 3(a) and (b) refers to an inaccurate date of issue for the two Statements of Recommended Practice for Accounting and Reporting by Charities – the date of issue should be 16 July 2014.

(b) Regulation 4(a) refers to an inaccurate document name and date of issue – the regulation should refer to the “Statement of Recommended Practice: Accounting for Further and Higher Education” issued on 17 September 2014.

(c) Regulation 4(b) refers to an inaccurate document name and date of issue – the regulation should refer to the “Statement of Recommended Practice for registered social housing providers” issued on 24 September 2014.

29. The Committee notes that the Scottish Government will correct these minor errors by amendment in due course.

NO POINTS RAISED

30. At its meeting on 25 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:

Education and Culture

Looked After Children (Scotland) Amendment Regulations 2014 (SSI 2014/310)

Equal Opportunities

Civil Partnership (Prescribed Bodies) (Scotland) Regulations 2014 (SSI 2014/303);

Same Sex Marriage (Prescribed Bodies) (Scotland) Regulations 2014 (SSI 2014/305);

Marriage and Civil Partnership (Prescribed Forms) (Scotland) Regulations 2014 (SSI 2014/306).

Health and Sport

Public Bodies (Joint Working) (Health Professionals and Social Care Professionals) (Scotland) Regulations 2014 (SSI 2014/307);

Public Bodies (Joint Working) (Membership of Strategic Planning Group) (Scotland) Regulations 2014 (SSI 2014/308).

Infrastructure and Capital Investment

Notice of Potential Liability for Costs (Discharge Notice) (Scotland) Order 2014 (SSI 2014/313).

Justice

Act of Sederunt (Rules of the Court of Session and Sheriff Court Rules Amendment No. 2) (Marriage and Civil Partnership (Scotland) Act 2014) 2014 (SSI 2014/302).

Local Government and Regeneration

Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order 2014 (SSI 2014/300);

Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Amendment (No. 2) Regulations 2014 (SSI 2014/301).

ANNEX A

Scottish Regulators’ Strategic Code of Practice (SG 2014 236)

On 14 November 2014 the Scottish Government was asked:

Section 5(3) of the Regulatory Reform (Scotland) Act 2014 provides that a code of practice issued under that section applies only to such regulators and such regulatory functions as may be specified in the code. (Section 1 of the Act provides a definition of regulatory functions.)

Paragraph 2 of the introduction and overview to the code states “regulatory functions include advice, guidance, licensing, permissions and consent, inspections, monitoring and enforcement.”

Paragraph 8 (legal context) states “this Code will apply to the (devolved) regulatory functions of regulators listed within Schedule 1 of the Act. At the time of publication, this includes; [list of contents of Schedule 1]”

Section 5(5) of the Act provides that a regulator to whom the code applies must have regard to the code in determining any general policy or principles by reference to which the regulator exercises any regulatory functions to which the code applies. It goes on to provide that regard must also be had to the code in exercising any such regulatory functions (i.e. any individual exercise of a function to which the code applies).

Paragraph 9 (legal context) states “the duties to have regard to the Code in determining and applying general policies or principles do not apply to the exercise by a regulator or its staff of any specified regulatory function in individual cases.”

The Scottish Government is asked to respond to the following questions concerning the compatibility of the draft code with the statutory scheme set out in section 5.

  • whether the sections of the document relating to the introduction and overview and implementation and review are intended to form part of the code for the purposes of section 5 and whether this is clear from the terms of the document?
  • whether the code clearly specifies the regulatory functions to which it is to apply given that there is no definitive list of functions by reference to the statutory enactments or other means by which those functions are conferred on the regulator? The statements in paragraph 2 and 9 referred to above are not specific in identifying the functions to which the code refers.
  • to explain why paragraph 9 states that the code does not apply to the exercise of individual regulatory functions given the terms of section 5(5)(b) of the Act.
  • to explain why the code appears to restrict its application to strategic matters when section 5(5) requires it to apply to all regulatory functions to which the code applies.
  • to explain whether the code is intended to apply only to the regulators listed in schedule 1 to the Act at the time of publication of the code or whether it is intended to apply to any subsequently listed without a revision of the code? If the latter is intended can the Scottish Government explain why it considers this is permitted by section 5?
  • Paragraph 14 of the code refers to the devolved and reserved regulatory responsibilities of local authorities. The code recommends “a more consistent, structured and integrated approach be adopted in relation to all the requirements set out above.” Can the Scottish Government explain the intended effect of this provision given that the code can have no application to reserved matters?

The Scottish Government responded as follows:

Question 1

The sections of the document relating to the introduction and overview and implementation and review are intended to form part of the code for the purposes of section 5 and the Scottish Government considers that this is clear. The sections will appear in the code as issued, provided the approval of the Parliament is given to the present draft.

Question 2

The Scottish Government considers that the draft code adequately specifies the regulatory functions to which it is to apply. Given the definition of “regulatory functions” in section 1(5) of the Act, we do not think that there is any need to provide within the code a list of enactments or any other further specification. Other than as indicated in the code, it will apply to any function of a relevant regulator which falls within the definition of “regulatory functions” in section 1(5). The code covers a wide range of regulators and regulatory functions and we do not consider it appropriate to specify the regulatory functions in further detail. We expect, however, that the code will be underpinned by regulators’ own guidance.

Questions 3 and 4

Section 5(5)(b) of the Act requires a regulator to have regard to the code “in exercising any such regulatory functions”. The words “such regulatory functions” must, we think, mean “any regulatory functions to which the code applies”. In terms of section 5(3)(b) of the Act, a code applies only to such regulatory functions as may be specified in the code. The Scottish Government does not consider that the provision made by paragraph 9 is in any way inconsistent with this statutory framework.

Question 5

The code as presently drafted would apply to all the regulators that are at the moment listed in schedule 1 to the Act. It is, however, drafted in such a way that it can without alteration be applied to any other regulator subsequently added to schedule 1. The Scottish Government considers this to be a competent way of proceeding and does not consider that the terms of section 5(3)(a) of the Act require all the mechanics of issuing a revised code to be followed just in order to apply an (unchanged) code to a regulator newly added to schedule 1. Whether it is appropriate for an existing code to apply unchanged to such a new regulator is something which the Scottish Government would consider (in conjunction with the regulator) prior to taking any decision to apply the code in this way by issuing the code to the regulator.

Question 6

Whilst the code can have no application to reserved matters, the Scottish Government sees no problem in the code encouraging regulators (in the exercise of devolved functions to which the code does apply) to act as consistently as possible between devolved and reserved matters.

ANNEX B

Products Containing Meat etc. (Scotland) Regulations 2014 (SSI 2014/289)

On 12 November 2014 the Scottish Government was asked:

“The Products Containing Meat etc. (Scotland) Regulations 2014 replace the Meat Products (Scotland) Regulations 2004. Regulation 7 applies certain provisions of the Food Safety Act 1990 for the purposes of the Regulations. Regulation 9 of the 2004 Regulations has similar effect to regulation 7 but it includes an additional reference to section 22 of the 1990 Act.

a) Please clarify therefore why regulation 7 does not apply section 22 of the 1990 Act for the purpose of the Regulations. Is this a deliberate policy choice, or could there be any omission?

b) If the reference to section 22 is omitted, would the Scottish Government propose to amend the provision? “

The Scottish Government responded as follows:

“We are grateful that this matter has been drawn to our attention. The omission of this reference was not made on purpose and the matter will be rectified in appropriate legislation at the earliest opportunity. Information received to date from local authorities active in this area indicates that no prosecutions have been carried out under the 2004 Regulations. Local authorities and the Crown office will be advised of the situation until the legislation is amended.”

ANNEX C

Charities Accounts (Scotland) Amendment Regulations 2014 (SSI 2014/295)

On 10 November 2014 the Scottish Government was asked:

1. Regulation 3 refers to the Statements of Recommended Practice in relation to the FRSSE and the FRS 102 as being issued by the Charity Commission and OSCR on 22 May 2014. The OSCR website refers to these documents being published on 16 July 2014.

2. Regulation 4 refers to the “Statement of Recommended Practice for Further and Higher Education issued by Universities UK on 26 March 2014.” The Universities UK website refers to this document as the “Statement of recommended practice: Accounting for further and higher education” and gives the date as 17 September 2014.

3. Regulation 4 refers also to the “Statement of Recommended Practice: Accounting for registered social housing providers issued by the National Housing Federation on 22 September 2014.” The NHF website refers to this document as the “Statement of Recommended Practice for registered social housing providers” and gives the date as 24 September 2014. (We note also that the Policy Note refers to this document as the “Statement of Recommended Practice; Accounting by Registered Social Housing Providers issued by the National Housing Federation on 26 September 2014.”)

Given the discrepancies between the descriptions of these documents in the Regulations, and the descriptions given on the relevant websites, does the Scottish Government consider that the Regulations are sufficiently clear in referring to these documents (and no others)? Is there any error, and if so would the Scottish Government propose to take corrective action?

The Scottish Government responded as follows:

Date of issue of documents

The Scottish Government confirms that the Statements of Recommended Practice in relation to the FRSSE and the FRS 102 were issued by OSCR and the Charity Commission on 16th July 2014. In relation to regulation 4, The Scottish Government confirms that the Statement of Recommended Practice was issued by Universities Scotland on 17th September 2014 and the Statement of Recommended Practice was issued by the National Housing Federation on 24th September 2014.

Regrettably, in preparing the regulations, there has been some confusion with the relevant bodies as to what was meant by the date of issue of the relevant statements and whether this referred to the point at which the statements were signed off by the Financial Reporting Council. The Scottish Government unreservedly apologises that the regulations do not contain the correct dates.

Whilst the Scottish Government considers that the explanatory notes which specify the ISBN numbers of these documents, assist in making it clear which documents are being referred to in the Regulations, for the avoidance of doubt, the Scottish Government proposes to take corrective action and to lay an instrument correcting these errors.

Title of documents

The Scottish Government also confirms that the correct names for the documents referred to in regulation 4 are the “Statement of Recommended Practice: Accounting for Further and Higher Education” and the “Statement of Recommended Practice for registered social housing providers” as set out on the relevant websites and not as set out in regulation 4. The Scottish Government apologises that the regulation does not have the correct titles. Although these documents are not frequently re-issued and the explanatory notes specify the ISBN numbers, the Scottish Government also proposes to take corrective action on these matters.

In respect of the policy note, the Scottish Government also confirms that this should refer to the date of issue of 24th September 2014.


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

Footnotes:

1 Scottish Regulators’ Strategic Code of Practice (SG 2014/236) available here: http://www.scotland.gov.uk/Resource/0046/00463796.pdf

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