SP Paper 661 (Web Only)
DPLR/S4/15/R8
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:
Nigel Don (Convener)
John Mason (Deputy Convener)
Margaret McCulloch
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 27 January 2015, the Committee agreed to draw the attention of the Parliament to the following instruments—
Scottish Landfill Tax (Administration) Regulations 2015 (SSI 2015/3);
Tweed Regulation Amendment Order 2015 (SSI 2015/11).
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
Scottish Landfill Tax (Administration) Regulations 2015 (SSI 2015/3). (Finance Committee)
4. The purpose of this instrument is to make provision for the administration of the Scottish landfill tax which will apply (from 1 April 2015) to disposals of waste material to landfill.
5. The Regulations make provision in relation to various administrative matters, covering the registration of landfill operators, rules for tax returns and payments, tax credits, and rules for determining the weight of waste for tax purposes.
6. Part 1 of the Regulations (which deals with commencement and interpretation) and Part 2 (which deals with notification and changes in particulars) will come into force on 16 February 2015. The remainder of the instrument will come into force on 1 April 2015.
7. In considering the instrument, the Committee asked the Scottish Government for an explanation of certain matters. The correspondence is reproduced at Annex A.
8. Regulation 24(1) of the instrument discusses the situation in which an individual who has claimed a tax credit in relation to a bad debt which has been written off (referred to as a claimant) subsequently receives the payment which had been written off. In this situation, the claimant must repay the relevant proportion of the tax credit to Revenue Scotland.
9. Regulation 24(2)(a) specifies that where the claimant fails to comply with the requirements of regulation 22, the claimant shall repay to Revenue Scotland the amount of the claim to which the failure to comply relates. Regulation 22 requires a claimant to make a record of any claim and specifies the information that the record must contain.
10. Regulation 24(2)(b)(i) specifies that where the claimant, in relation to the documents mentioned in regulation 22, fails to comply with section 99(1) of the Revenue Scotland and Tax Powers Act 2014, then the claimant shall repay to Revenue Scotland the amount of the claim to which the failure to comply relates. Section 99(1) provides that where an amount of tax has been repaid to a person incorrectly then that amount may be assessed and recovered as if it were unpaid tax.
11. As drafted, the regulation does not appear to make clear what obligation is intended to be imposed on individuals in relation to the documents mentioned in regulation 22, nor how that obligation might be satisfied.
12. The Committee therefore considers that the meaning of this regulation could be clearer in respect that the regulation should further specify what obligation must be complied with in relation to the documents mentioned in regulation 22.
13. Regulation 36(2) of the instrument provides that the weighing of landfill material shall be carried out at the same time as a disposal, and that for this purpose the requirements of section 26 of the Landfill Tax (Scotland) Act 2014 (as regards the time at which a disposal is treated as made) shall be disregarded.
14. Section 26 has been repealed by paragraph 10(8) of Schedule 4 to the Revenue Scotland and Tax Powers Act 2014. The reference to section 26 is therefore redundant.
15. The Committee considers that the redundant reference to section 26 would not appear to have any effect on the operation of, or to relate to the substance or the policy behind, the instrument. However, the Committee considers that the reference to section 26 is a failure to follow proper drafting practice.
16. Regulation 11(7) of the instrument refers to section 74 of the Revenue Scotland and Tax Powers Act 2014 (in relation to the taxpayer’s right to amend a return) and to sections 100 to 103 of that Act (in relation to defences by Revenue Scotland of unjustified enrichment).
17. The sections referred to do not relate to the matters specified, and the correct references are to section 83 and to sections 109 to 112.
18. The Committee considers that regulation 11(7) does not have any operative effect and does not appear to impose any obligations, nor confer any powers, either on individuals or on the tax authority. However, the Committee considers that there are drafting errors as the references to section 74 and to sections 100 to 103 are incorrect.
19. The Scottish Government has undertaken to amend the incorrect references in regulation 11(7) before the regulation comes into force on 1 April 2015. However, the Committee notes that the Scottish Government has made no such commitment to amend the incorrect reference in regulation 36(2) as discussed above. The Committee considers that it would be appropriate for the Scottish Government to amend that reference at the same time as amending the incorrect references in regulation 11(7).
20. The Committee draws the attention of Parliament to the Regulations on reporting ground (h) as the meaning of regulation 24(2)(b)(i) could be clearer. Regulation 24(2)(b)(i) specifies that where a claimant, in relation to the documents mentioned in regulation 22 (Records required to be kept), fails to comply with section 99(1) of the Revenue Scotland and Tax Powers Act 2014, then the claimant shall repay to Revenue Scotland the amount of the claim to which the failure to comply relates. The Committee considers that the meaning of this regulation could be clearer, in respect that the regulation should further specify what obligation must be complied with in relation to the documents mentioned in regulation 22.
21. The Committee draws the attention of the Parliament to the Regulations on the general reporting ground on two separate points, as follows:
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Regulation 36(2) provides that the weighing of landfill material shall be carried out at the same time as a disposal, and that for this purpose the requirements of section 26 of the Landfill Tax (Scotland) Act 2014 (as regards the time at which a disposal is treated as made) shall be disregarded. Section 26 has been repealed by paragraph 10(8) of Schedule 4 to the Revenue Scotland and Tax Powers Act 2014. The reference to section 26 is therefore redundant and is a failure to follow proper drafting practice.
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Regulation 11(7) refers to section 74 of the Revenue Scotland and Tax Powers Act 2014 (in relation to the taxpayer’s right to amend a return) and to sections 100 to 103 of that Act (in relation to defences by Revenue Scotland of unjustified enrichment). There are drafting errors as these references are incorrect. The references should to be to section 83 and to sections 109 to 112. The Committee notes however, that the Scottish Government has undertaken to amend the incorrect references in Regulation 11(7) before the Regulations come into force on 1 April 2015.
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In noting that commitment, the Committee recommends that the Scottish Government also amends the incorrect reference in regulation 36(2) prior to the instrument coming into force on 1 April 2015.
Tweed Regulation Amendment Order 2015 (SSI 2015/11) (Rural Affairs, Climate Change and Environment Committee)
22. The purpose of the instrument is to extend the annual close time for salmon fishing in the River Tweed to 31 March and to make provision in relation to the retention of salmon caught by rod and line during the period from 1 February to 31 March. It is an offence to fish for salmon during the annual close time, subject to specified exceptions for rod and line fishing.
23. The Order comes into force on 31 January.
24. The Scottish Government has provided a letter to the Presiding Officer, to explain the failure to comply with the “28 day rule”, as set out in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (“ILRA”). The correspondence is reproduced at Annex B.
25. The Scottish Government explains in its letter that the breach of the 28 day rule is in this case attributable to an initial failure to comply with the pre-laying consultation requirements in paragraph 9 of Schedule 2 to the Scotland Act 1998 (River Tweed) Order 2006, which contains the enabling powers under which the Order is made. This error meant that there was a need to re-circulate notice of the proposals contained in the Order in three newspapers circulating in the Tweed district.
26. This further consultation impacted the timetable for laying the instrument before the Parliament, with effect that it was laid on 20 January and will come into force on 31 January. There are accordingly 11 days for the Parliament to scrutinise the Order and for the public to take notice of the Order before it comes into force. The Committee considers the breach of the 28 day rule in these circumstances to be unsatisfactory given the significance of the Order, which creates a new criminal offence in respect of retention of salmon caught by rod and line during specified periods within the annual close time, and extends the annual close time to 31 March.
27. The Committee draws this instrument to the attention of the Parliament under reporting ground (j). The instrument fails to comply with the requirements of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (“ILRA”). The instrument was laid before the Parliament on 20 January 2015 and will come into force on 31 January 2015. The instrument does not respect the requirement that at least 28 days should elapse between the laying of an instrument which is subject to the negative procedure and the coming into force of that instrument.
28. The Committee finds the failure to comply with section 28 to be unsatisfactory in the circumstances of this instrument, as the instrument creates one new criminal offence and modifies the application of another.
NO POINTS RAISED
29. At its meeting on 27 January 2015, the Committee considered the following instruments. The Committee determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:
Justice
Courts Reform (Scotland) Act 2014 (Commencement No. 1) Order 2015 (SSI 2015/12 (C.2)).
Local Government and Regeneration
Local Government Finance (Scotland) Order 2015 [draft];
Local Governance (Scotland) Act 2004 (Remuneration and Severance Payments) Amendment Regulations 2015 (SSI 2015/7);
Disabled Persons (Badges for Motor Vehicles) (Scotland) Amendment Regulations 2015 (SSI 2015/9).
Disabled Persons’ Parking Badges (Scotland) Act 2014 (Commencement) Order 2015 (SSI 2015/8 (C.1)).
ANNEX A
Scottish Landfill Tax (Administration) Regulations 2015 (SSI 2015/3)
On 16 January 2015, the Scottish Government was asked:
1. The preamble cites section 32 of the Act (Records: registrable persons) as one of the enabling powers under which the regulations are made. Section 32 does not appear to have been commenced either for the purpose of making subordinate legislation or generally. We note also that section 32 is repealed by paragraph 10(13) of Schedule 4 to the RSTP Act (although this provision is not yet in force). In light of this, could you please explain the basis upon which it is considered competent to exercise the power in section 32?
2. Part 8 (Landfill invoices) sets out the requirements for the contents of a landfill invoice. Please confirm which of the enabling powers cited the Scottish Government considers enables the provision in Part 8 to be made.
3. Regulation 36(2) provides that the weighing of material shall be carried out at the same time as a disposal, and that for this purpose the requirements of section 26 of the Act (as regards the time at which a disposal is treated as made) shall be disregarded. Section 26 has been repealed by paragraph 10(8) of Schedule 4 to the RSTP Act. In light of this, could you please explain why the reference to section 26 is considered appropriate.
4. Regulation 11(7) refers to section 74 of the RSTP Act (in relation to the taxpayer’s right to amend a return) and to sections 100 to 103 of that Act (in relation to defences by Revenue Scotland of unjustified enrichment). The sections referred to do not appear to relate to these matters, and the correct references would appear to be to section 83 and to sections 109 to 112. Could there be an error, and if so would the Scottish Government propose to take any corrective action?
5. Regulation 24(2)(b) refers to the situation where, in relation to the documents mentioned in regulation 22, the claimant fails to comply with either section 99(1) of the RSTP Act, or any obligation arising under section 111(4)(a) of that Act. Section 99(1) does not appear to impose any compliance obligations on a claimant. Could there be an error, and if so would the Scottish Government propose to take any corrective action?
The Scottish Government responded as follows:
On point one, the Scottish Government relies on section 4 of the Interpretation and Legislative Reform (Scotland) Act 2010. Section 32 will be repealed on 1st April 2015 at which point replacement provisions in the Revenue Scotland and Tax Powers Act 2014 will come into force. The Commencement Order will contain provisions enabling those parts of these regulations made under the repealed section to remain in force.
On point two, the Scottish Government relies on section 74(9) of the Revenue Scotland and Tax Powers Act 2014, which is in force. It is not cited but would be covered by “all other powers”.
On point three, the Scottish Government accept that section 26 has been repealed and hence the reference to it in regulation 36(2) is redundant. Given that it has been repealed and the reader is being asked to disregard it, the Scottish Government considers the provisions does no harm and would be read out of the text.
On point four, the Scottish Government accepts that the reference to sections 74, 100 to 103 of the Revenue Scotland and Tax Powers Act 2014 should be to sections 83, 109 to 112 of that Act and undertakes to amend the numbering before regulation 36 comes into force on 1st April 2015.
On point five, the Scottish Government considers that implicit in an assessment on a taxpayer, to repay to Revenue Scotland a repayment of tax by Revenue Scotland that ought not to have been made, is the imposition of an obligation on the taxpayer. That is the only way it could be read if read against the whole of that Act.
ANNEX B
Tweed Regulation Amendment Order 2015 (SSI 2015/11)
Breach of laying requirements: letter to the Presiding Officer
The Tweed Regulation Amendment Order 2015, SSI 2015/11, was made by the Scottish Ministers under articles 36 and 54 of the Scotland Act 1998 (River Tweed) Order 2006 (“the 2006 Order”) on 19 January 2015. It is being laid before the Scottish Parliament today, 20 January 2015 and comes into force on 31st January 2015.
Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) has not been complied with. To meet the requirements of section 31(3) that Act, this letter explains why.
The Order prescribes the annual close time for the Tweed District and adjusts the periods within the annual close time when it is permitted to fish for, or take, salmon by rod and line as well as prohibiting the retention of salmon during that extended prescribed period in the spring. These measures follow an application by the Tweed Commissioners. The Order also follows the Conservation of Salmon (Annual Close Time and Catch and Release) (Scotland) Regulations 2014 (SSI 2014/327) which came into force on 9th January and make parallel provision adjusting the close times, the permitted periods for rod and line fishing and introducing a catch and release scheme during the spring season.
Schedule 2, paragraph 9 of the 2006 Order requires that, before making the Order, the Scottish Ministers must direct that notice of the general effect of the proposals shall be given by advertising in a newspaper circulating in the district. Regrettably this specific legislative requirement in relation to the Tweed would not have been clear to the reader when the measures were first advertised in three national newspapers on 9 October 2014, and as a consequence the proposals were advertised on 19 December 2014 in three newspapers circulating in the Tweed District to ensure that there was no potential confusion about the geographical extent of the measures.
Schedule 2, paragraph 9 of the 2006 Order requires that a period of 28 days is allowed from the publication of the proposals for representations or objections to be made. That period finished on 15 January 2015. While there were no responses to that process, two were received as part of the original consultation in November. I can confirm that we have been in regular contact with the River Tweed Commission about these measures and the progress of this instrument.
As the Order requires to come into effect on 31st January 2015 in time for the start of the fishing season in the Tweed District, section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has not been complied with. I apologise for this matter which is due entirely to our wish to ensure that the requirements of the consultation process have been fully complied with.
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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