17th Report, 2015 (Session 4): Subordinate Legislation

SP Paper 684 (Web Only)

Contents

Introduction
Points raised: instruments not subject to any parliamentary procedure
No points raised
Annexe A
Annexe B

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

 

Introduction

1. At its meeting on 10 March 2015, the Committee agreed to draw the attention of the Parliament to the following instruments—

Reservoirs (Scotland) Act 2011 (Commencement No. 3 and Transitional Provisions) Order 2015 (SSI 2015/63 (C.13));

Pollution Prevention and Control Act 1999 (Commencement No. 3) (Scotland) Order 2015 (SSI 2015/74 (C.16));

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 not subject to any parliamentary procedure

Reservoirs (Scotland) Act 2011 (Commencement No. 3 and Transitional Provisions) Order 2015 (SSI 2015/63 (C.13));(Rural Affairs, Climate Change and Environment Committee)

4. The Order brings into force on 1 April 2015 several provisions of the Reservoirs (Scotland) Act 2011 (“the 2011 Act”) as listed in the Schedule, for all purposes unless otherwise specified.

5. In particular it brings into force on that date a requirement for each reservoir which is, immediately before 1 April 2015, registered (as a “large raised reservoir”) pursuant to section 2(2) of the Reservoirs Act 1975 to also be separately registered with SEPA as a “controlled reservoir” under the 2011 Act, by 1 October 2015. Reservoir managers will need to register these reservoirs by that date.

6. The Order, which comes into force on 1 April, also contains other technical transitional provisions- further details are set out in the Policy Note with the instrument.

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. The Committee explored in the correspondence the clarity of the instrument in commencing section 110(6) of the 2011 Act (specifically), with effect from 1 April. The Schedule commences that provision without limit of purpose.

9. Section 110(6) provides that the powers conferred by section 91 (whether those specified in that section or the ancillary powers referred to in section 93(1) or (2)) are exercisable in relation to Crown land only with the consent of the “appropriate authority”. The appropriate authority is defined in section 110(7)(b), and depends upon who owns the land.

10. However, the Schedule to the Order also commences (specifically) sections 91(1) and (2)(a) and (l), and 93(2) to (5) of the 2011 Act. Section 91(2)(a) and (l) define two specific purposes for which persons authorised by SEPA are entitled to enter certain land. Section 93(1) specifies an ancillary power of entry, where entry under section 91 is for the purpose stated in subsection (2)(k) on emergency measures.

11. The Scottish Government has confirmed in its response that the intention (with effect from 1 April) is not to commence (or confer), in relation to Crown land, powers of entry exercisable by SEPA for a purpose specified in paragraphs (b) to (k) of section 91(2), nor to commence (or confer) the power of entry mentioned in section 93(1). The Government does intend to commence with effect from that date in relation to Crown land the powers of entry for a purpose specified in section 91(1) and (2)(a) and (l), and section 93(2) (so far as it applies where an entry is made for any such purpose).

12. The issue which the Committee has considered is whether section 110(6) should have been commenced for limited purposes. (Column 3 of the Schedule to the Order in places provides for where a section of the Act is commenced for a limited purpose.) The Scottish Government contends that, while section 110(6) could have been commenced for limited purposes, the commencement without limit has the desired effect. It is contended that since section 110(6) has effect only in relation to “powers conferred by section 91”, the provision in 110(6) “is already self-limiting (in effect)”. It is also contended that, had section 110(6) been commenced for limited purposes at this stage, it would have needed to be commenced for other purposes in due course, and this would not make matters any simpler to the reader.

13. The Committee has not agreed with the Scottish Government’s analysis, standing the terms section 110(6). In particular, section 110(6) expressly refers to the powers conferred by section 91 “(whether those specified in that section or the ancillary powers referred to in section 93(1) or (2))” The Committee has considered that the Scottish Government’s intentions for how section 110(6) is to be commenced at this point in regard to Crown land (in relation to the restricted purposes as set out in section 91(1) and (2)(a) and (l) and section 93(2) of the Act) could have been made clearer by providing in Column (3) of the Schedule for those restricted purposes. The Government has acknowledged in the correspondence that this could have been a possible approach to the drafting.

14. The Committee therefore draws the instrument to the attention of the Parliament on the reporting ground (h), as the meaning could be clearer in respect of how section 110(6) of the Reservoirs (Scotland) Act 2011 is commenced, with effect from 1 April 2015.

15. The Scottish Government does not intend with effect from that date to commence, in relation to Crown land, the powers of entry exercisable by SEPA for a purpose specified in paragraphs (b) to (k) of section 91(2), nor to commence the power of entry mentioned in section 93(1). The Government does intend to commence with effect from that date in relation to Crown land the powers of entry for a purpose specified in section 91(1) and (2)(a) and (l), and section 93(2) (so far as it applies where entry is taken for any such purpose).

16. The Schedule to the Order could have more clearly expressed those intentions, by making provision in column (3) that section 110(6) of the 2011 Act is commenced for those restricted purposes specified in section 91(1) and (2)(a) and (l), and section 93(2) (so far as it applies where entry is taken for any such purpose). This would be clearer, given that section 110(6) expressly refers to all the “powers conferred by section 91 (whether those specified in that section or the ancillary powers referred to in section 93(1) or (2))” - but not all those powers are commenced by this Order.

Pollution Prevention and Control Act 1999 (Commencement No. 3) (Scotland) Order 2015 (SSI 2015/74 (C.16)); (Rural Affairs, Climate Change and Environment Committee)

17. The Order partially commences on 1 April 2015 Schedules 2 and 3 to the Pollution Prevention and Control Act 1999 (“the 1999 Act”). The Order extends to Scotland only.

18. Paragraphs 13 and 15 of Schedule 2 are commenced, which introduce amendments to the Merchant Shipping Act 1995 and the Environment Act 1995.

19. Schedule 3 is commenced in so far as it relates to the repeals set out in Article 2(2) of the Order. Various repeals are commenced to the Environmental Protection Act 1990, the Water Consolidation (Consequential Provisions) Act 1991, the Clean Air Act 1993, the Radioactive Substances Act 1993, the Merchant Shipping Act 1995 and the Environment Act 1995.

20. The instrument comes into force on 1 April 2015.

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

22. Sub-paragraph (g)(i) to (iii) of Article 2(2) of the instrument commences the repeal of certain sections of the Environment Act 1995, as set out in schedule 3 to the Pollution Prevention and Control Act 1999. Sub-paragraphs (h) to (l) of Article 2(2) also commence the repeal of certain sections, by reference to schedule 3 of the 1999 Act, but do not make clear to which Act or Acts the specified sections belong.

23. The Scottish Government has confirmed that the sections referred to in sub-paragraphs (h) to (l) are sections of the Environment Act 1995. These sub-paragraphs are in fact intended to run on from sub-paragraph (g)(i) to (iii), and should be numbered (g)(iv) to (viii).

24. The Committee considers that this error has led to a lack of clarity on the face of the instrument, since it is not immediately clear to what Act or Acts the sections specified in sub-paragraphs (h) to (l) belong. It is only when the sub-paragraphs are read in conjunction with schedule 3 to the 1999 Act that it becomes evident that the sections in question are sections of the Environment Act 1995. As such, the Committee considers that it is important in the interests of clarity that this error is corrected as a matter of law through the laying of a further instrument.

25. The Committee draws the instrument to the attention of the Parliament on reporting ground (h), as the form and meaning of sub-paragraphs (h) to (l) of Article 2(2) could be clearer.

26. Sub-paragraph (g)(i) to (iii) of Article 2(2) commences the repeal of certain sections of the Environment Act 1995. Sub-paragraphs (h) to (l) of Article 2(2) also commence the repeal of certain sections but do not make clear to which Act or Acts the specified sections belong.

27. It is intended that sub-paragraphs (h) to (l) should commence the repeal of further sections of the Environment Act 1995, running on from sub-paragraph (g)(i) to (iii). Sub-paragraphs (h) to (l) are therefore incorrectly numbered, and should be numbered (g)(iv) to (viii).

28. The Committee calls on the Scottish Government to correct this error by laying a further instrument.

No points raised

NO POINTS RAISED

29. At its meeting on 10 March 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:

Economy, Energy and Tourism

Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/80);

Education and Culture

Support and Assistance of Young People Leaving Care (Scotland) Amendment Regulations 2015 (SSI 2015/62);

Post-16 Education (Scotland) Act 2013 (Commencement No. 6) Order 2015 (SSI 2015/82 (C.18));

Health and Sport

Public Bodies (Joint Working) (Scotland) Act 2015 (Consequential Modifications and Saving) Order 2015 [draft];

Personal Injuries (NHS Charges) (Amounts) (Scotland) Amendment Regulations 2015 (SSI 2015/81);

National Health Service (Optical Charges and Payments) (Scotland) Amendment Regulations 2015 (SSI 2015/86);

Public Bodies (Joint Working) (Integration Joint Board Establishment) (Scotland) Order 2015 (SSI 2015/88);

National Health Service (Cross-Border Health Care) (Scotland) Amendment Regulations 2015 (SSI 2015/91);

Professional Standards Authority for Health and Social Care (Fees) Regulations 2015 (SI 2015/400).

Infrastructure and Capital Investment

Provision of Water and Sewerage Services (Reasonable Cost) (Scotland) Regulations 2015 (SSI 2015/79);

Scottish Road Works Register (Prescribed Fees) Regulations 2015 (SSI 2015/89);

Justice

Courts Reform (Scotland) Act 2014 (Commencement No. 2, Transitional and Saving Provisions) Order 2015 (SSI 2015/77 (C.17));

Act of Adjournal (Criminal Procedure Rules Amendment) (Reporting Restrictions) 2015 (SSI 2015/84);

Act of Sederunt (Rules of the Court of Session and Sheriff Court Rules Amendment No. 3) (Reporting Restrictions) 2015 (SSI 2015/85).

Parliament

Local Government Finance (Scotland) Amendment Order 2015 [draft];

Rural Affairs, Climate Change and Environment

Reservoirs (Panels of Reservoir Engineers: Sections under which Members may be Appointed) (Scotland) Order 2015 (SSI 2015/92);

Waste (Recyclate Quality) (Scotland) Regulations 2015 (SSI 2015/101).

Annexe A

Reservoirs (Scotland) Act 2011 (Commencement No. 3 and Transitional Provisions) Order 2015 (SSI 2015/63 (C.13))

On 23 February 2015, the Scottish Government was asked:

The schedule to the Order commences section 110(6) of the 2011 Act on 1 April 2015, without limitation of purpose. That subsection provides that the powers conferred by section 91 (whether those specified in that section or the ancillary powers referred to in section 93(1) or (2)) are exercisable in relation to Crown land only with the consent of the “appropriate authority”.

However, the schedule also commences (specifically) sections 91(1) and (2)(a) and (l), and 93(2) to (5) of the 2011 Act. Section 91(2)(a) and (l) define two specific purposes for which persons authorised by SEPA are entitled to enter certain land. Section 93(1) specifies an ancillary power of entry, where entry under section 91 is for the purpose stated in subsection (2)(k) on emergency measures. So the commencement of section 110(6) appears to commence certain powers of entry (conferred by sections 91(2)(b) to (k) and 93(1)) which are exercisable in relation to Crown land, but sections 91(2)(b) to (k) and 93(1) are not commenced by this order.

(a) Please clarify whether the Scottish Government intends (with effect from 1 April 2015) to commence, in relation to Crown land, all the powers conferred by section 91 and the ancillary powers referred to in section 93(1) and (2), or only those powers conferred by sections 91(1) and (2)(a) and (l), and 93(2)?

(b) Is there an error in respect that as the order commences sections 91(1) and (2)(a) and (l), and 93(2) to (5) specifically, section 110(6) ought not to have been commenced without limitation of purpose?

(c) If there is an error, would the Scottish Government propose to correct it by amendment? If the provision is considered to be appropriate, please explain.

The Scottish Government responded as follows:

The Government intends to commence sections 91(1) and (2)(a) and (l) and 93(2) to (5) on 1 April 2015 (including in so far as they may be exercised in relation to Crown land).

Although section 110(6) will be commenced for all purposes, the Government does not consider that this will have the effect of commencing (or conferring), in relation to Crown land, powers of entry for a purpose specified in paragraphs (b) to (k) of section 91(2). Nor does the Government consider that commencing section 110(6) (without limitation of purpose) will have the effect of also commencing (or conferring) the power in section 93(1).

Rather, it is considered that section 110(6) will, at this stage, have effect only in relation to powers of entry conferred for a purpose specified in paragraph (a) or (l) of section 91(2) (and section 93(2) in so far as it applies where an entry is made for any such purpose). So, if an authorised person wishes to exercise a power of entry in relation to Crown land for a purpose specified in paragraph (a) or (l) of section 91(2), the effect of section 110(6) will be to require the prior consent of the ‘appropriate authority’ (as defined in section 110(7)).

Given that paragraphs (b) to (k) of section 91(2) are not being commenced at this stage, no powers of entry will be conferred for any of the purposes specified in those paragraphs (“other purposes”). Since section 110(6) has effect only in relation to “powers conferred by section 91”, this provision is already self-limiting (in effect). So, at this stage, it will have effect only in relation to powers of entry conferred for a purpose specified in paragraph (a) or (l) of section 91(2). When powers of entry are conferred for other purposes, section 110(6) also have effect if such powers are exercised for other purposes in relation to Crown land.

Section 93(1) is considered relevant only where an entry made for the purpose specified in section 91(2)(k). Since section 91(2)(k) is not being commenced at this stage, it was not thought to be appropriate to commence section 93(1) (as it would have no effect on its own).

Accordingly, the Government does not consider that the commencement of section 110(6) without limitation of purpose is an error. Whilst section 110(6) could have been commenced for limited purposes, it was not thought to be necessary on this occasion. Indeed, had section 110(6) been commenced for limited purposes, it would have needed to be commenced for other purposes in due course. This would not appear to make matters any simpler to the reader. The Government does not therefore propose any amendments.

Annexe B

Pollution Prevention and Control Act 1999 (Commencement No. 3) (Scotland) Order 2015 (SSI 2015/74 (C.16))

On 26 February 2015, the Scottish Government was asked:

Sub-paragraphs (h) to (l) of Article 2(2) specify certain sections to be repealed, but do not make clear what Act or Acts are being referred to. It appears that the sections referred to in sub-paragraphs (h) to (l) are sections of the Environment Act 1995, as set out in Schedule 3 of the 1999 Act, and that sub-paragraphs (h) to (l) are intended to run on from points (i) to (iii) of sub-paragraph (g), which introduces repeals to the Environment Act.

Is there an error in the formatting of Article 2(2), and should sub-paragraphs (h) to (l) be numbered (g)(iv) to (viii) instead? If so, is any corrective action proposed?

The Scottish Government responded as follows:

The Scottish Government agrees that there is an error in the formatting of article 2(2) and that sub-paragraphs (h) to (l) should be numbered (g)(iv) to (viii). Unfortunately, this formatting error crept in inadvertently in the very final stages of the instrument being prepared.

The Order commences repeals in Schedule 3 to the 1999 Act and in that context is required to be read in conjunction with Schedule 3. The effect of article 2(2)(h) to (l) is that Schedule 3 to the 1999 Act is commenced insofar as it repeals provisions specified in sub-paragraphs (h) to (l). References to those provisions only appear in Schedule 3 under the entry that relates to the Environment Act 1995, and as such there does not appear to be any risk that the error could lead to a wrong interpretation as to the legal effect of the Order. The error is an unfortunate formatting error rather than requiring a more substantive textual amendment. In this context, while the error is regrettable, the Scottish Government feels the Order is sufficiently clear as to its intended effect and propose to correct the error by way of correction slip.

We are very grateful to the Committee for bringing this to our attention.


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