18th Report, 2015 (Session 4): Subordinate Legislation

SP Paper 695 (Web Only)

Contents

Remit and membership

Introduction

Points raised: instruments subject to negative procedure

Local Government Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/87) (Local Government and Regeneration)

Reservoirs (Scotland) Regulations 2015 (SSI 2015/90) (Rural Affairs, Climate Change and Environment)

National Health Service Pension Scheme (Scotland) Regulations 2015 (SSI 2015/94)(Health and Sport)

National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (SSI 2015/95)(Health and Sport)

National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/96) (Health and Sport)

Teachers’ Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/97) (Education and Culture)

Teachers’ Superannuation (Scotland) Amendment Regulations 2015 (SSI 2015/98) (Education and Culture)

Food (Scotland) Act 2015 (Consequential and Transitional Provisions) Order 2015 (SSI 2015/100)(Health and Sport)

Points raised: instruments not subject to any Parliamentary procedure

Food (Scotland) Act 2015 (Commencement) Order 2015 (SSI 2015/99 (C.19))(Health and Sport)

No points raised

Annexe A

Annexe B

Annexe C

Annexe D

Annexe E

Annexe F

Annexe G

Annexe H

Annexe I

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

Subordinate Legislation

Introduction

1. At its meeting on 17 March 2015, the Committee agreed to draw the attention of the Parliament to the following instruments—

Local Government Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/87);

Reservoirs (Scotland) Regulations 2015 (SSI 2015/90);

National Health Service Pension Scheme (Scotland) Regulations 2015 (SSI 2015/94);

National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (SSI 2015/95);

National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/96);

Teachers’ Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/97);

Teachers’ Superannuation (Scotland) Amendment Regulations 2015 (SSI 2015/98);

Food (Scotland) Act 2015 (Consequential and Transitional Provisions) Order 2015 (SSI 2015/100);

Food (Scotland) Act 2015 (Commencement) Order 2015 (SSI 2015/99 (C.19)).

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

Local Government Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/87) (Local Government and Regeneration)

4. This instrument amends the Local Government Pension Scheme (Scotland) Regulations 2014 (“the Main Regulations”) and the Local Government Pension Scheme (Transitional Provisions and Savings) (Scotland) Regulations 2014 (“the Transitional Regulations”). It will come into force on 1 April 2015.

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

6. The correspondence has identified that there are nine drafting errors in this instrument, together with a large number of minor points. Two of the errors appear to the Committee to be points of defective drafting and two matters relate to drafting clarity, while the other errors are more minor errors which the Committee reports under the general reporting ground. There are also minor points which the Committee will notify informally to the Scottish Government.

7. The following errors appear to the Committee to be defective drafting-

a. There is an incorrect reference to “employer” in regulation 15. This should in fact be a reference to “employee”.

b. The text which forms regulation 21(b) should instead form a sub-section of regulation 20 – this text has been inserted into the wrong regulation.

8. The following errors appear to the Committee to relate to drafting clarity-

a. In regulation 22(b), and elsewhere in the Regulations, reference is made to the “Transitional Provisions and Savings Regulations 2014”. This term is not defined.

b. Regulation 53(1)(b) refers to “…a Club transfer payment (under the rules of the Public Sector Transfer Club)”. The term “Public Sector Transfer Club” is not defined.

9. The following errors appear to the Committee to fall to be reported under the general ground-

a. Regulation 9(c) refers in error to “reserve forces leave”. The reference should be to “reserve forces service leave”.

b. In regulation 13(c), in new regulation 22(6A) and (6B), the word “within” should be added to the end of the last line of the first paragraph of (6A) and (6B) and deleted from the start of (6A)(a) and (6B)(a).

c. In regulation 44, the newly inserted regulation should be numbered 102 rather than 45.

d. In regulation 45(a)(ii), the newly inserted sub-paragraph should be numbered (f) rather than (c).

e. In regulation 47(b), the reference to “paragraph 9(a)” should in fact be a reference to “paragraph 9(b)”.

10. The Committee draws the Regulations to the attention of the Parliament on reporting grounds (h), (i) and on the general ground.

11. The drafting of the instrument appears to be defective in that there are 2 errors which the Scottish Government has acknowledged to be errors and which, in the Committee’s view, may impede the intended operation of the instrument or fail to give effect to the policy intention (ground (i)).

12. There are 2 further provisions the meaning of which could be clearer (ground (h)).

13. There are a further 5 drafting errors which on balance the Committee considers do not impede delivery of the policy intentions, but which fall to be reported under the general ground.

14. The Committee notes that the Scottish Government has indicated that the errors will be corrected by an amending instrument, to be made after 1 April 2015, but having retrospective effect from that date.

Reservoirs (Scotland) Regulations 2015 (SSI 2015/90) (Rural Affairs, Climate Change and Environment)

15. This instrument provides further detail in relation to the reservoir inspection and management regime to be established under the Reservoirs (Scotland) Act 2011.

16. It provides definitions of various terms used in the Act and provides information about the registration of reservoirs and the appointment of persons to the panels of engineers established by the Scottish Ministers under the Act.

17. The Regulations come into force on 1 April 2015.

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

19. The Committee has previously expressed the view that secondary legislation should not duplicate existing requirements of primary legislation as this may cause confusion and be detrimental to overall clarity of the regime. The Scottish Government accepts that there is some repetition of existing requirements in regulation 10(1) and has agreed to remove it.

20. The Committee questions whether regulation 17 clearly identifies the persons responsible for payment of the cessation fee and new manager fee provided for in that regulation. It appears that “the reservoir manager” is taken to be the former manager in respect of the cessation fee and the incoming manager in respect of the new manager fee. The Committee follows the reasoning set out in the Government’s response but considers that provisions imposing charges should be as clear as possible.

21. The Committee notes that there is typographical error in regulation 8 which the Government acknowledges and will correct.

22. The Committee draws the instrument to the attention of the Parliament:

(a) under reporting ground (h) as the meaning of regulations 10 and 17 could be clearer; and

(b) under the general ground as there is a drafting error in regulation 8.

23. Regulation 10 specifies the period of appointment of engineers as additional information that must be set out in the controlled reservoirs register. However section 9(2)(f) of the Reservoirs (Scotland) Act 2011 already requires this information to be included in the register.

24. The Committee considers that it is important that the person on whom any statutory charge is to be imposed is clearly identified. Regulation 17(2) could more clearly distinguish the liability of the former manager for payment of the cessation fee from the liability of the new manager for payment of the new manager fee.

25. Regulation 8 is intended to specify the structures which are road and railway embankments. However the expression “roads and railway embankments” is used in error.

26. The Committee notes that the Government has agreed to address the matters reported in relation to regulations 8 and 10 at the next opportunity. The Committee asks the Government to consider clarifying the drafting of regulation 17(2) at the same time.

National Health Service Pension Scheme (Scotland) Regulations 2015 (SSI 2015/94) (Health and Sport) 

27. This instrument implements reforms to the NHS pension scheme required under the Public Service Pensions Act 2013 (“the 2013 Act”), and establishes a new pension scheme for health service workers in Scotland from 1 April 2015.

28. It forms part of a group of 3 instruments that together implement reforms to pension scheme arrangements for health service workers. The other two linked instruments are: the National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 and the National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015.

29. The main features of the new scheme are (as outlined in the Policy Note):

  • Accrual based on Career Average Revalued Earnings (“CARE”) Scheme at a rate of 1/54th of member’s pensionable earnings

  • Revaluation of pension at the rate of CPI plus 1.5% for active members and at the rate of CPI for deferred members

  • A scheme normal pension age the same as the individual’s state pension age

  • A clear governance structure

  • Valuations and a cost cap will be set in line with Treasury Directions

  • Employee contributions agreed in partnership but must provide an average yield of 9.8% of pensionable pay

  • Options available to purchase additional pension and to buy out the reduction on pension which would occur if member wishes to retire at age 65

  • Actuarial enhancement to pensions taken later

  • Death in service lump sum and ill health provisions

  • Survivor pensions

  • Availability of partial retirement

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

31. The correspondence has identified that there are a large number of drafting errors (and also minor points) in this instrument. Some of the errors appear to the Committee to be points of defective drafting, one matter relates to drafting clarity, other errors are more minor errors which the Committee reports under the general reporting ground. There are also minor points which the Committee will notify informally to the Scottish Government.

32. The following errors appear to the Committee to be defective drafting. This is a summary of the provisions:

(a) There is an omission to provide for a requirement which is imposed by section 5(4) of the Public Service Pensions Act 2013. Neither paragraph (3) or (5) of Schedule 1 to the instrument provide (as section 5(4) requires) that the scheme manager is required to be satisfied that a person to be appointed as a member of the Pension Board does not have a conflict of interest.

(b) A definition of “the contracting-out requirements” is omitted from Schedule 13. A definition appears to be necessary to give that expression its required meaning for the purposes of paragraph 6(2)(a) of Schedule 3 (trivial commutation lump sum).

(c) In paragraph 16(9) of Schedule 3, the reference to paragraph 1 of Schedule 22 to the 2013 Act is an error. The Scottish Government has confirmed that it was intended to refer to the Finance Act 2013.

(d) The Regulations omit a suitable definition of “GMS practice”, which expression is used in various places in the instrument.

(e) The Regulations omit a suitable definition of an “HBPMS practice”, which expression is also used in various places.

(f) Regulation 27(5) refers to an “ophthalmic practitioner”. Regulation 31(5) and the table in regulation 32 refer to an “ophthalmic medical practitioner”. Regulation 152 includes a definition of an “ophthalmic provider”. It was intended that these references refer to the same category of practitioner.

(g) The table in regulation 32, Column 1, refers to a “GOS contract”, which expression is not defined by the instrument. It was intended to include a suitable definition, referring to a contract for general ophthalmic services, in Schedule 13.

33. The Committee considers that the meaning of the instrument could also be clearer in one respect. The Scottish Government has acknowledged that confusion results from having two different definitions of “medical practitioner” for the purposes of the Regulations. This expression is used in many places in the instrument. It could be made clearer as to when the definitions provided in section 152 and in Schedule 13, respectively, apply.

34. The Committee has also identified the following errors. It considers these to be more minor drafting errors, which are reported under the general reporting ground. Again this is a summary of the provisions:

(a) In paragraph 16(5)(a) of Schedule 3, the reference to paragraph 17 (of the Schedule) is an error.

(b) The expression defined in Schedule 13 should be amended to “Section 17C Agreement provider” from “Section 17 Agreement provider”.

(c) There is a patent discrepancy in the definition of a further expression. Part 3 of Schedule 5 provides that (inter alia) a “locum medical practitioner” is a “medical practitioner” for the purposes of the Regulations. However Schedule 13 defines a “locum practitioner”. “Locum medical practitioner” is also used in paragraph 4(a) of Schedule 5.

(d) In Schedule 13, the definition of “practitioner” refers to regulation 25(7) but patently this should refer to regulation 27(5).

(e) Again in Schedule 13, there is a patent error as the defined term “Section 17 Agreement” should refer to “Section 17C Agreement”.

(f) In paragraph 15 of Schedule 7, the reference to regulation 44(6) (to define “buy-out period”) is an error – it should refer to 44(4).

(g) In paragraph 25(1)(b) of Schedule 7, the Scottish Government has confirmed that “ceases to be payable” should have been replaced by “is abated to zero under”.

35. The Committee therefore draws the Regulations to the attention of the Parliament on the Committee’s reporting grounds (h), (i) and on the general ground.

36. The drafting of the instrument appears to be defective in that there are 7 errors which the Scottish Government has acknowledged to be errors and which, in the Committee’s view, may impede the intended operation of the instrument or fail to give effect to the policy intention (ground (i)).

37. There is one further provision the meaning of which could be clearer (ground (h)).

38. There are a further 7 drafting errors which on balance the Committee considers do not impede delivery of the policy intentions, but which fall to be reported under the general ground.

39. The Committee notes that the Scottish Government has indicated that the errors will be corrected by an amending instrument, to be made after 1 April, but having retrospective effect from that date.

40. The Committee considers that while the Scottish Government has explained in its response the limited timing available for the drafting and completion of these Regulations, it is very unsatisfactory for the instrument to have been laid before the Parliament containing the number of errors identified above. In particular several of the errors relate to discrepancies in defined expressions, the omission of definitions, or omitted or patently incorrect wording, which it appears should have been picked up by the Scottish Government quality control process and internal checking of the provisions.

National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (SSI 2015/95) (Health and Sport) 

41. The Regulations introduce transitional arrangements for members of the NHS Superannuation Scheme Scotland, as a consequence of the changes introduced by the Public Service Pensions Act 2013 (“the 2013 Act”). The effects of the transitional arrangements are complex and highly technical. The Regulations also make necessary amendments to the National Health Service Superannuation Scheme (Scotland) Regulations 2011 and the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013, which contain the 1995 and 2008 Sections of the NHS Scheme.

42. The Regulations make provision in 4 broad areas. First, to implement protections permitting members close to normal pension age to remain in the old scheme. Second, for members without such protection, to provide a smooth transfer between old and new schemes such that the qualifying service, notices and earnings under the old scheme have effect for the corresponding purposes of the new scheme. Third, to implement measures that protect the value and functionality of pension benefits a member has built up in the old scheme, before moving to the new scheme. Fourth, to ensure that where appropriate, the rules and entitlements of the new scheme apply in relation to old scheme benefits when certain events occur – for instance when a member dies in service or claims ill-health retirement benefits.

43. The Regulations come into force on 1 April 2015.

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

45. The Committee has identified a minor drafting error in the Regulations which the Scottish Government has undertaken to correct, as follows.

46. The Committee draws the Regulations to the attention of the Parliament on the general ground, as they contain the following minor drafting error which the Scottish Government has undertaken to address by way of an amending instrument, as and when the Regulations are subsequently amended for another purpose.

47. Regulation 38(1) refers to “transitional member” in 2 places, rather than “transition member” which is the expression defined in regulation 2.

National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/96) (Health and Sport) 

48. The Regulations contain miscellaneous amendments of—

  • the National Health Service Superannuation Scheme (Scotland) Regulations 2011,
  • the National Health Service Superannuation Scheme (Scotland) (2008 Section) Regulations 2013
  • the National Health Service (Scotland) (Injury Benefits) Regulations 1998
  • the National Health Service Superannuation Scheme (Scotland) (Additional Voluntary Contributions) Regulations 1998 and
  • the National Health Service (Compensation for Premature Retirement) (Scotland) Regulations 2003.

49. The Regulations include provisions that are consequential on changes in the law relating to same sex marriage in Scotland, which took effect in December 2014.

50. Parts 2 and 3 of the instrument make various similar amendments in respect of both the 2011 Regulations and the 2013 Regulations, above. The changes dealing with similar issues in Parts 2 and 3—

  • introduce new definitions relevant to those Regulations;
  • amend the regulations specifying what constitutes pensionable pay and pensionable earnings;
  • amend the provisions relating to the rate of contributions payable for the scheme year 2015-2016;
  • amend the regulations in respect of contributions payable by employers;
  • amend provisions relating to transfers;
  • insert new provisions dealing with a member’s right to transfer a preserved or deferred pension to the 2015 Scheme.

51. The Regulations come into force on 1 April 2015. However, various provisions have effect from earlier dates, as set out in regulation 1(3) to (8). By virtue of the powers in the Superannuation Act 1972, the Regulations have required the consent of the Treasury.

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

53. The Committee has identified two drafting errors in the Regulations which appear to the Committee to be defective drafting, and which the Scottish Government has undertaken to correct, as follows.

54. The Committee draws the Regulations to the attention of the Parliament on the reporting ground (i), as the drafting appears to be defective in two places:

55. First, in regulation 25(a) there is an error as the provision should have substituted “for the scheme year 2015-16” in place of “for the scheme year 2014-2015” instead of inserting the former words, in regulation 2.C..2 of the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013.

56. Second, regulation 25(c) omits regulation 2.C.2(3) and (4) of those principal 2013 Regulations. There is an error as this has retained regulation 2.C.2(5), which refers to the determination of pay bands and contribution rates by the Scottish Ministers in respect of each scheme year in accordance with the omitted provision in regulation 2.C.2(4). Regulation 2.C.2(5) provides that before determining those bands or rates, the Scottish Ministers must consider the advice of the scheme actuary.

57. The Committee notes that the Scottish Government has undertaken to correct those errors by means of an instrument that would further amend the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013. The instrument would be made after 1 April, but would have retrospective effect from that date.

Teachers’ Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/97) (Education and Culture)

58. This instrument partially implements reforms to the Scottish Teachers’ Pension Scheme and makes amendments to provide greater clarity. Details of the reforms are set out in the policy note.

59. The Regulations come into force on 1 April 2015.

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

61. The correspondence identifies a straightforward typographical cross-referencing error which the Government has agreed to correct.

62. The Committee draws the instrument to the attention of the Parliament on the general reporting ground as it contains the following minor drafting error which the Scottish Government acknowledges and has undertaken to correct.

63. In the amendment made by regulation 32(a) of this instrument the reference to “if sub-paragraph (1) or (2) applies” should read “if sub-paragraph (1A) or (1B) applies”.

Teachers’ Superannuation (Scotland) Amendment Regulations 2015 (SSI 2015/98) (Education and Culture) 

64. This instrument amends the Teachers’ Superannuation (Scotland) Regulations 2005 to reflect the introduction of same sex marriage in Scotland from 16 December 2014 and to make consequential changes arising from the introduction of the new Teachers Career Average revalued Earnings scheme as from 1 April 2015.

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

66. The correspondence identifies three minor drafting errors which the Government has agreed to correct.

67. The Committee draws the instrument to the attention of the Parliament under the general reporting ground as it contains the following 3 minor drafting errors which the Scottish Government has undertaken to address by way of an amending instrument:

68. In the amendment made by regulation 5 the inserted text should read “regulations G6, G12, G17 or G23” instead of “regulations G6, G12, G17 and G23”;

69. The amendment made by regulation 11(b) should substitute a reference to “regulation G9, G14, G21 or G24” not “regulation G8(2), G13(2), G20(2) or G24(3)”;

70. New regulation G24 inserted by regulation 13 should cross refer to Part 3 of Schedule 12 and not Part 2 of that Schedule.

Food (Scotland) Act 2015 (Consequential and Transitional Provisions) Order 2015 (SSI 2015/100) (Health and Sport) 

71. The purpose of this instrument is to make consequential and transitional provision in anticipation of the coming into force of the remaining provisions of the Food (Scotland) Act 2015 (“the 2015 Act”), on 1 April 2015.

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

73. Article 2 of the Order read with paragraph 8 of the Schedule directs an amendment to the definition of “the Agency” in regulation 2(1) of the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002. The amendment should, however, be to the definition of “the Food Standards Agency” in that regulation. Furthermore, when the amendment as instructed is made to the definition of “the Food Standards Agency”, the provision reads as follows: ““The Food Standards Scotland” means “The Food Standards Scotland as established under section 1 of the Food Standards Act 1999””. This amendment does not make sense, as Food Standards Scotland is established under the 2015 Act and not the 1999 Act. The Committee considers that these errors render defective the drafting of article 2 of the Order when read with paragraph 8 to the Schedule, and encourages the Scottish Government to bring forward a corrective amendment in early course, rather than in the event that the Order falls to be amended for another reason in the future.

74. Three further errors have been identified with this instrument. Firstly, article 1(3) defines the terms “the Act”, “the 1999 Act”, “the 2015 Act” and “the Agency”, however none of those terms are used further in the instrument. Secondly, article 2 substitutes the words “Food Standards Scotland” for “Food Standards Agency” in each of the amended regulations set out in the Schedule. The amendments should replace the words “the Food Standards Agency” in order that the amended regulations read sensibly. Finally, paragraph 26 of the Schedule to the Order, when read in accordance with article 2, provides that regulation 16(2)(a)(ii) of the Transmissible Spongiform Encephelopathies (Scotland) Regulations 2010 is to be amended. No regulation 16(2)(a)(ii) of the 2010 regulations exists, however, and it appears that the reference is a superfluous duplication of the later amendment to paragraph 16(2)(a)(ii) of the same regulations.

75. The Committee considers that these further errors fall to be reported under the general ground as drafting errors. The Scottish Government does not propose to take any corrective action in respect of these further errors.

76. The Committee accordingly draws the instrument to the Parliament’s attention under reporting ground (i) as it appears to be defectively drafted in the following respect:

77. Article 2 when read with Paragraph 8 of the Schedule directs an amendment to the definition of “the Agency” in regulation 2(1) of the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2002. It appears that the amendment should however be to the definition of “the Food Standards Agency”. It further appears that to substitute the term “Food Standards Scotland” for “Food Standards Agency” within that definition renders it insensible. This is because “the Food Standards Agency” is defined as “the Food Standards Agency as established under section 1 of the Food Standards Act 1999”. The definition does not work with the substituted words “Food Standards Scotland”, as the latter body is established under the Food (Scotland) Act 2015.

78. The Committee draws instrument to the Parliament’s attention under the general reporting ground as follows:

i. Article 2 defines the terms “the Act”, “the 2015 Act”, “the 1999 Act” and “the Agency”. None of those terms are used further in the Order and are therefore superfluous.

ii. Article 2 provides that the regulations specified in the Schedule are amended by substituting “Food Standards Scotland” for “Food Standards Agency”. The reference to “Food Standards Agency” should be to “the Food Standards Agency”, in order that the amended regulations read sensibly.

iii. Paragraph 26 of the Schedule, read in accordance with Article 2, directs an amendment to regulation 16(2)(a)(ii) of the Transmissible Spongiform Encephalopathies (Scotland) Regulations 2010, however no such regulation exists. It appears that the reference is a duplication of the later reference to paragraph 16(2)(a)(ii) of Schedule 7 to the 2010 Regulations, and is therefore otiose.

Points raised: instruments not subject to any Parliamentary procedure

Food (Scotland) Act 2015 (Commencement) Order 2015 (SSI 2015/99 (C.19)) (Health and Sport)

79. The purpose of this Order is to appoint a day for the commencement of the Food (Scotland) Act 2015 (“the 2015 Act”), so far as that Act is not already in force. The Order comes into force on 1 April 2015.

80. In considering the instrument, the Committee asked the Scottish Government for an explanation of the matter referred to below. The correspondence is reproduced at Annexe I.

81. Article 2 to the Order appoints “1st April” as the date for the coming into force of the 2015 Act, so far as not already in force, however no year is specified. The policy intention appears to be to specify “1st April 2015”, and the Scottish Government has undertaken to issue a correction slip to correct this omission on printed copies of the instrument.

82. The Committee considers that this error renders defective the drafting of this commencement Order. The Committee observes that the 2015 Act contains provisions which authorise the imposition of administrative sanctions upon individuals, including fixed penalty notices and compliance notices. The Committee considers that in light of the significance of these provisions, which are commenced by the Order, the omission of the year in Article 2 ought to be corrected as a matter of law and not by way of a correction slip. The Committee does not consider the use of a correction slip to be appropriate in these circumstances.

83. The Committee draws the instrument to the attention of the Parliament under reporting ground (i) as it is defectively drafted. Article 2 specifies “1st April” as the date on which the Food (Scotland) Act 2015 will come into force, so far as it is not already in force, however it does not include a year. In specifying an incomplete date the instrument fails to fully achieve its policy objective.

84. The Committee finds it highly unsatisfactory that the Scottish Government has proposed to amend this error by issuing a correction slip and calls on the Scottish Government to lay a further instrument to correct the error as a matter of law before the intended commencement date of 1 April 2015.

No points raised 

85. At its meeting on 17 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:

Education and Culture

Children and Young People (Scotland) Act 2014 (Commencement No. 8 and Saving Provision) Order 2015 (SSI 2015/104 (C.20)).

Health and Sport

National Health Service (Clinical Negligence and Other Risks Indemnity Scheme) (Scotland) Amendment Regulations 2015 (SSI 2015/102).

Rural Affairs, Climate Change and Environment

Scottish Marine Regions Order 2015 [draft];

Alien and Locally Absent Species in Aquaculture (Scotland) Regulations 2015 (SSI 2015/103).

Annexe A

Local Government Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/87)

On 6 March 2015, the Scottish Government was asked:

1. Regulation 9(c) refers to “reserve forces leave” which does not appear to be a defined term either in the Regulations or in the Main Regulations. Could there be an error, in that this should be a reference to “reserve forces service leave”? If so, is any corrective action proposed?

2. In regulation 13(c), in new regulation 22(6A) and (6B), there appears to be an error in that the word “within” should be added to the end of the last line of the first paragraph of (6A) and (6B) and deleted from the start of (6A)(a) and (6B)(a). If it is agreed that this is an error, would any corrective action be proposed?

3. In regulation 15, it appears that the reference to “employer” should in fact be a reference to “employee”. Could there be an error and if so is any corrective action proposed?

4. It appears that the text which forms regulation 21(b) should instead form a sub-section of regulation 20 above. Could there be an error and if so is any corrective action proposed?

5. In regulation 22(b), and elsewhere in the Regulations, reference is made to the “Transitional Provisions and Savings Regulations 2014”. This does not appear to be a defined term either in the Regulations or in the Main Regulations. Can the Scottish Government confirm where this term is defined?

6. In regulation 44, it appears that the newly inserted regulation should be numbered 102 rather than 45. Could there be an error and if so is any corrective action proposed?

7. In regulation 45(a)(ii), it appears that the newly inserted sub-paragraph should be numbered (f) rather than (c). Could there be an error and if so is any corrective action proposed?

8. In regulation 47(b) it appears that the reference to “paragraph 9(a)” should in fact be a reference to “paragraph 9(b)”. Could there be an error and if so is any corrective action proposed?

9. Regulation 53(1)(b) (at sub-paragraph (c) to new paragraph (3A)) refers to “…a Club transfer payment (under the rules of the Public Sector Transfer Club)”. The term “Public Sector Transfer Club” does not appear to be defined in the Regulations or in the Main Regulations. Can the Scottish Government confirm where this term is defined?

The Scottish Government responded as follows:

The Scottish Government is grateful to the Committee for bringing these points to its attention. On questions 1 to 4 and 6 to 8, we accept that there are drafting errors as identified. On question 5, a definition requires to be added to the Main Regulations.

As regards question 9, “the Public Service Transfer Club” is a widely understood term in the public sector pensions field. It means the transfer arrangements framework run by the Cabinet Office governing member schemes of the Club. However, it is agreed that a definition would be of assistance to the reader.

The Scottish Government will address all the points by way of a further instrument, made after 1st April but having retrospective effect from that date.

Annexe B 

Reservoirs (Scotland) Regulations 2015 (SSI 2015/90)

On 4 March 2015, the Scottish Government was asked:

1. Regulation 8 makes provision as to what constitutes the structures referred to in section 2(2)(f) of the Reservoirs (Scotland) Act 2011. These are “road and railway embankments” – ie “road embankments” and “railway embankments”. However, regulation 8(1) and (2) refers to “roads and railway embankments”. The use of the term “roads” in place of “road” may be a typographical error but its effect appears to be to alter the meaning of the expression to “roads” and “railway embankments”. Does the Scottish Government consider that this affects the clarity with which the regulations make provision about what road and railway embankments comprise and is any corrective action proposed?

2. Regulation 10 appears to be made under the power in section 9(3)(a) of the 2011 Act to “require further information or documents specified to be contained in” the controlled reservoirs register. Regulation 10(1) and (2) provides that the register must contain information about the period of appointment of any construction engineer, inspecting engineer, other qualified engineer or supervising engineer appointed in relation to the reservoir. However, section 9(2)(f) of the Act already requires that period to be set out in the register. As this is not further information on what basis is it considered competent to specify this requirement in the regulations?

3. Regulation 17 makes provision about the charging by SEPA and payment of cessation fees and new manager fees as defined. Regulation 17(2) states that “the reservoir manager must pay a cessation fee or a new manager fee”. Is this provision intended to provide that the person who has ceased to be the manager pays a cessation fee and the new manager also pays a new management fee? If so is this clear from the terminology used without indicating that “the reservoir manager” is a different person in each scenario as for example was done in regulation 18(2) by the reference to “as the case may be”. Further given that the Act provides that the person serving notice under section15(1) has ceased to be a reservoir manager is the use of the expression “the reservoir manager” to describe that person sufficiently clear to impose the obligation on the correct person? Does the Scottish Government intend to clarify this?

The Scottish Government responded as follows:

1. The reference in regulation 8 to “roads” was intended to be in the singular but the typographical mistake does not alter the effect of the provision. This is because paragraph (1) applies to roads and railway embankments “which are designed to drain water through the embankment”. It is considered to be sufficiently clear, in this context and the purpose of the provision read with section 2(2)(f) of the 2011 Act, that the references to ‘roads and railway embankments’ are references either to roads embankments or to railway embankments. However, the Government will change the plural to the singular at the next suitable opportunity.

2. It is accepted that it was not necessary for regulation 10(1) to include the words in brackets. However, it is considered to be competent to include the supplementary words “(and the period of any such appointment)” for the purpose of making it clear to the reader that the business address of the person appointed is to be included in addition to the period of the appointment (which is already required to be included by virtue of section 9(2)(f) of the Act). Incidental provision is permissible in terms of section 114(2) of the 2011 Act. In this case, given that section 9(2)(f) already requires the period of appointment to be included, it is considered that the words in brackets must be interpreted as serving no other purpose.

This can be contrasted with regulation 10(2), where the words in brackets do not duplicate the effect of section 9(2)(f). This is because they relate to periods of appointment of engineers appointed under the Reservoirs Act 1975 (as opposed to under the Reservoirs (Scotland) Act 2011). In this case, therefore, it is considered that the words “(and the period of any such appointment)” must be interpreted as requiring the period of these appointments to be included in the register (as this information is not otherwise required by section 9(2)(f)).

However, the Government will seek to amend regulation 10(1) to clarify matters at the next suitable opportunity.

3. Regulation 17(2) is intended to provide that the person who has ceased to be the manager pays the cessation fee and, separately, that the new manager pays the new manager fee. In the Government’s view it is clear that regulation 17(2) (read with regulation 17(1) and the relevant definitions in regulation 1(2)) has the effect of providing that where a fee is charged to a reservoir manager in relation to a notice given by that manager under section 15(1) or (2) of the Act, then that manager (i.e. the person on whom the charge is imposed, being the person who gave the notice in question) must pay that fee to SEPA. In particular, it is considered that “the reservoir manager” in regulation 17(2) can only reasonably be interpreted to mean the reservoir manager who was charged the particular fee in question. Whilst it might have been clearer to include the words “as the case may be”, it is not thought that these are essential.

Regulation 17(1)(a) provides that SEPA may charge the “reservoir manager” of a controlled reservoir a fee in relation to a notice given by that manager under section 15(1) of the Act. Although the duty to give notice under section 15(1) of the Act is imposed on a person who has ceased to be a reservoir manager (as defined), it is considered to be sufficiently clear that “reservoir manager” in the context of regulation 17(1)(a) must refer to the person who gave the notice under that section (since no other reasonable interpretation is possible).

Annexe C 

National Health Service Pension Scheme (Scotland) Regulations 2015 (SSI 2015/94)

On 4 March 2015, the Scottish Government was asked:

1. Section 5(4) of the Public Service Pensions Act 2013 (“the Act”) provides that the regulations must include provision- (a) requiring the scheme manager (i) to be satisfied that a person to be appointed as a member of the board does not have a conflict of interest, and (ii) to be satisfied from time to time that none of the members of the board has a conflict of interest.

Subparagraph (1) of paragraph (5) of Schedule 1 of the Regulations provides for that requirement in section 5(4)(a)(ii). However, neither paragraph (3) or (5) of Schedule 1 provide that the scheme manager is required to be satisfied that a person to be appointed as a member of the Pension Board does not have a conflict of interest. (We note that in contrast, in relation to the similar requirement in section 7(4)(a)(i) of the Act in connection with appointment of members of the Scheme Advisory Board, paragraph 1(3) of Schedule 2 provides that the Ministers cannot appoint a person to be a member unless satisfied that the person does not have a conflict.)

Is it agreed therefore that there is an omission to provide for the requirement imposed by section 5(4)?

2. Paragraph 6(2)(a) of Schedule 3 (trivial commutation lump sum) refers to “the contracting-out requirements” as a condition of payment. It appears that that expression is not defined in Schedule 13, or in the enabling 2013 Act.

Is it agreed that a definition of “the contracting-out requirements” is omitted in Schedule 13 (or for the purposes of that provision) and is necessary to give the expression meaning within that paragraph 6(2)(a)?

3. In paragraph 16(5)(a) of Schedule 3, is it agreed that the reference to paragraph 17 (of the schedule) is an error, as paragraph 17 relates to prohibition on unauthorised payments, not the provision for written notice to the scheme manager which is referred to? Which provision is intended to be referred to?

4. In paragraph 16(9) of Schedule 3, is it agreed that the reference to paragraph 1 of Schedule 22 to the 2013 Act is an error? Which provision is intended to be referred to?

5. Part 2 of Schedule 5 (membership gateways) provides that the following are medical contractors for the purposes of the Regulations – a “GMS practice”, a “HBPMS practice”, a “Section 17C Agreement provider” and an “OOH provider”.

While an OOH provider is defined by the Regulations, they do not appear to provide definitions for those other expressions/persons. Schedule 13 defines instead a “GMS contract” a “HBPMS contractor”, and a “Section 17 Agreement provider”.

(a) Is it agreed therefore that the Regulations omit the appropriate definitions for a “GMS practice” and a “HBPMS practice”, and what is the effect of this omission considered to be?

(b) Is it agreed that the expression defined in Schedule 13 should be amended to a “Section 17C Agreement provider” (which expression, and also “GMS practice” are also used in various other places in the Regulations)?

6. Part 3 of Schedule 5 provides that the following are “medical practitioners” for the purposes of the Regulations: a “medical practitioner”, a “locum medical practitioner” and a non-GP provider. However, the Regulations do not appear to define a “locum medical practitioner”: Schedule 13 defines a “locum practitioner”.

Further, a “medical practitioner” (which expression used in various places in the Regulations) is defined in two different ways. It is defined in the general provision in section 152, but also defined differently in Schedule 13, as per paragraph 4 of Schedule 5 (which definition itself includes “medical practitioner”). While it seems (for example) that the reference in paragraph 4(a) of Schedule 5 is intended to refer to the definition in section 152, this is not specified. We also note that paragraph 6(5) of Schedule 10 states that a “medical practitioner” may be an employed person within Groups A or B in regulation 27(1), though “medical practitioner” is included in Group D there.

Accordingly—

(a) please explain given the apparent absence of definition how the meaning of “locum medical practitioner” as used in paragraph 4(a) of Schedule 5 (as a criteria for eligibility to join the scheme) is properly to be ascertained? Could the meaning be made clearer by amending the definition in Part 3, Schedule 5 to “locum practitioner”?

(b) Is it agreed that confusion results from having two different definitions of “medical practitioner” for the purposes of the Regulations, and that it could be made clearer as to when the definition in section 152 or the definition in schedule 13, respectively, apply? In particular, could this be made clearer where the expression is used in paragraph 4 of Schedule 5, and in paragraph 6 of Schedule 10?

7 (a). Further, regulation 27(1) (in the Table) and (5) refer to where member (M) is a “medical practitioner” (determination of pensionable earnings). As above this expression is defined twice in the Regulations. If the definition in Schedule 13 is taken- being the 3 types of practitioner listed in paragraph 4 of Schedule 5 - this appears to result in duplication within regulation 27(1) and (5), as Column 1 Group D in the Table also includes a “non-GP provider” separately (who is within the Schedule 13 definition of “medical practitioner”).

Further regulation 27(5) adds a definition of “practitioner” for the purposes of the reference to “practitioner income” in the Table. This also seems to result in duplication, as “practitioner” includes a “medical practitioner” which as defined by Schedule 13 includes a “locum practitioner”- but who is also included separately in regulation 27(5)(a)(iii).

Is it agreed that there is an error in respect of those apparent duplications, or could again the meaning of the provisions be made clearer by amending the definitions of “medical practitioner” appropriately?

7(b). As above paragraph (5) of regulation 27 defines a “practitioner” for the purposes of paragraph (1) as a fully registered medical practitioner, ophthalmic practitioner, or locum practitioner; or a dental practitioner. However Member Group D in the table in paragraph (1) (although the pensionable earnings which apply for that Group is “practitioner” income) specifies a medical practitioner, dental practitioner, or a non-GP provider.

Is that discrepancy between the persons listed in the Group D and in paragraph (5) as “practitioners” an error, or please explain why it is appropriate.

7(c). Regulation 27(5) refers to an “ophthalmic practitioner”. Regulation 31(5) and the table in regulation 32 refers to an “ophthalmic medical practitioner”.

(i) Is there an error, or is it intended to refer to different types of practitioner?

(ii) Is it agreed that these expressions should be defined within Schedule 13, or otherwise how is the meaning of the persons intended to be covered to be arrived at?

(iii) Are these practitioners different from an “ophthalmic provider” which is defined in regulation 152?

8. (a) Is it agreed that in schedule 13, there is an error in the definition of “practitioner” as it refers to regulation 25(7) but the definition is in 27(5)?

(b) Is it agreed that in Schedule 13, apart from the reference to “Section 17 Agreement provider” mentioned above, there is an error as the defined term “Section 17 Agreement” should be amended to “Section 17C Agreement”?

9. Similarly, regulation 19(g) contains restrictions on membership if the person is employed by a “GMS practice”. Is it agreed that the Regulations should be amended to add a definition of this expression?

10. For the purposes of Part 7 (transfers), regulation 131 defines “club scheme”, “club transfer”, and “club transfer value”. These expressions are not defined in Schedule 13. However these terms are also used within Part 2 of Schedule 7 (introduced by regulation 24), in paragraphs 12 to 14 of that Schedule.

Is it agreed therefore that a definition of these expressions is omitted for the purposes of that Part 2 (introduced by regulation 24), and this may be done by adding the appropriate definition of the expressions in Schedule 13?

11. In paragraph 15 of Schedule 7, is it agreed that the reference to regulation 44(6) (to define “buy-out period) is an error, as there is no paragraph (6). Should this refer to paragraph (4) of the regulation?

12. In paragraph 25(1)(b) of Schedule 7, is it agreed that wording is omitted between “payable” and “regulation”. What words are omitted?

13. Paragraph 27(2) of Schedule 7 refers to a “pension debit member”. Is it agreed that a definition of this expression is omitted for the purposes of the Regulations, should be added to Schedule 13, and appears to be needed to give the expression meaning?

(In contrast “pension credit member” is defined in Schedule 13).

14. The only reference to Schedule 9 (determination of pensionable earnings for the purposes of setting a contribution rate) within the regulations appears to be in regulation 30(3). This only applies paragraph 2 of the Schedule- unlike other regulations which apply the whole of the other Schedules. (Paragraphs 3 to 5 of Schedule 9 contain further rules to determine appropriate contribution rates).

Is this agreed to be an error, and the regulations should by some means apply the whole of Schedule 9?

15. In the table in regulation 32, Column 1, is there an error as a “GOS contract” is not defined – should it refer to a “GMS contract”?

16. Regulation 37(3) and (4) refer to columns 1 and 2 of “the Table”. This may imply the Table in regulation 27(1) as the provisions apply to members in Group D in regulation 27(1), but on the other hand regulation 37(10) and (11) refer to the Table in regulation 31(9).

Could the provision be made clearer by specifying which regulation is referred to in respect of the Table mentioned in regulation 37(3) and (4)?

17. Regulation 94(4) provides that a member ceases to be entitled to an Upper Tier IHP and is treated as being entitled to a Lower Tier IHP if….(b) after the “initial period” M’s employment- (i) is NHS employment; and (ii) is not excluded employment, or (c) after the initial period, M’s employment is NHS employment.

Are (b) and (c) mutually incompatible provisions? (b) provides 2 conditions to qualify for Lower Tier IHP, one of which is NHS employment. (c) provides that NHS employment alone will qualify. Otherwise, please explain why the provision is workable.

18. Would the Scottish Government propose to take corrective action on the points raised above, and if so when would the action be taken? Please provide an explanation where no such action is proposed.

The Scottish Government responded as follows:

The Scottish Government is very grateful to the Committee for the careful scrutiny which has obviously been given to this lengthy instrument. Responses to the Committee’s queries are below, but it may also assist if we provide some brief information on the process followed in drawing up the instrument.

In terms of the Public Service Pensions Act 2013, the Scottish Ministers require to put in place Regulations setting up a new pension scheme for health service workers in Scotland with effect from 1st April 2015 (they are similarly required to set up new schemes for 4 other groups of public service workers in Scotland). The Regulations require the consent of the Treasury and, in line with standard practice in place since 1999, the Scottish Government drew up the Regulations by adapting an equivalent instrument being made for the rest of Great Britain. In this instance, a final draft of the equivalent instrument was provided to us only on 2nd February, that instrument then being made on 5th February under the title of the National Health Service Pension Scheme Regulations 2015 (S.I. 2015/94) (referred to below as “the E/W Regs.”). The Scottish Regulations were signed by the Cabinet Secretary on 25th February, being the last possible day for doing this and still achieving compliance with the 28-day rule following subsequent signature by the Treasury. Since the Department of Health were unable to provide details of where there were changes in their 170-page instrument as compared to their draft used for consultation purposes, we required to work throughout February in trying to identify all such changes and incorporate them within the version of the Scottish Regulations which had been put out to consultation.

1. It is agreed that there is an omission and that paragraph 1 of Schedule 1 should have included a sub-paragraph equivalent to paragraph 1(3) of Schedule 1 to the E/W Regs.

2. A definition of “the contracting-out requirements” should have been included in the Regulations. There is similarly no definition within the E/W Regs. and we will investigate with the Department of Health what the definition should be.

3. The words “in accordance with paragraph 17” should have been deleted from this paragraph.

4. The reference should have been to the Finance Act 2013.

5(a). It is agreed that definitions of these terms should have been included, although there is not in the context in which the terms are used any possibility of these being interpreted other than as intended.

5(b). The Schedule 13 definition should have been one of “Section 17C Agreement provider”.

6(a). Whilst it would have been clearer had Part 3 of Schedule 5 referred simply to “locum practitioner”, the drafting follows the E/W Regs. and is not thought capable of causing any problems in practice.

6(b). The confusion arises due to our not having picked up a late change in Schedule 15 to the E/W Regs. by which the “medical practitioner” definition was altered so as to direct the reader to the equivalent of regulation 152 in the Scottish Regulations.

7(a). We think that the meaning of the provisions would have been clearer had the “medical practitioner” definition in Schedule 13 been altered in line with what is stated at answer 6(b) above.

7(b). Whilst the terms of regulation 27(5) are not ideal (and the provision may not in fact add anything of use), we do not consider that the failure to specifically mention ophthalmic practitioners within Group D in regulation 27(1) is problematical. Relevant ophthalmic practitioners fall within the category of “a medical practitioner”.

7(c). The references to “an ophthalmic practitioner” (regulation 27(5)), “ophthalmic medical practitioner” (regulations 31(5) and 32(6)) and “ophthalmic provider” (regulation 152(6) and (9)) are all intended to cover the same type of practitioner. The drafting follows the approach in the E/W Regs., but amendments will be required.

8(a). The reference should have been to regulation 27(5).

8(b). The defined term should have been “Section 17C Agreement”.

9. Reference is made to answer 5(a) above.

10. Part 2 of Schedule 7 deals with entries in an active member’s pension account when a particular event happens. In that context, there is not thought to be any need to apply the definitions from provisions elsewhere in the Regulations which provide substantively as to that event.

11. The error here flows from a similar error in the E/W Regs. The correct reference should have been one to regulation 44(4).

12. In paragraph 25(1)(b) of Schedule 7, the words “ceases to be payable” should have been replaced by “is abated to zero under”.

13. The E/W Regs. carry no definition of “pension debit member”. We do not consider that the absence of such a definition could ever lead to any difficulty in identifying the member being referred to in a particular situation.

14. It is not thought that the absence within the main body of the Regulations of any specific reference to other paragraphs of Schedule 9 could lead to any difficulties in those paragraphs having their intended application.

15. The reference to a “GOS contract” is correct, but a definition of this term referring to a contract for general ophthalmic services should have been included within Schedule 13.

16. We do not think that the references to “the Table” in regulation 37(3) and (4) can in context be read as references to anything other than the Table in regulation 27(1).

17. Whilst there is overlap between sub-paragraphs (b) and (c) of regulation 94(4), this is not thought to be problematical in any way. The separate categories are needed because of the reference to paragraph (4)(c) within regulation 94(5)(a).

18. The Scottish Government will address the points above in an amending instrument (to be made after 1st April, but with retrospective effect from that date).

Annexe D 

National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (SSI 2015/95)

On 9 March 2015, the Scottish Government was asked:

1. The Regulations are partly made under section 10 of the Superannuation Act 1972. Section 12(2) of the Act provides that any regulations under section 10 may be framed to apply in relation to the pensions which are being paid, or may become payable under the regulations to or in respect of persons who, having served in a qualifying employment or office, have ceased so to serve (whether or not they have subsequently recommenced any such service) or died before the regulations come into operation; or to require or authorise payment of pensions to or in respect of such persons.

By section 12(4), no provision is to be made by regulations by virtue of subsection (2) above, unless any person, who is placed in a worse position than he or she would have been in if the provision had not applied in relation to pension paid or payable by the regulations, is by the regulations given an opportunity to elect that the provision shall not so apply in relation to the pension.

Given the complexity of the transitional and consequential provisions in these Regulations, and that it is not explained in the explanatory or policy notes, please explain why these Regulations do not require to make provision for that right of election in accordance with section 12(2) and (4). (We note that the related instrument, the National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015, contains such a provision in regulation 67.)

2. Regulation 38(1) appears to contain an error, as it refers to “transitional member” in 2 places, rather than “transition member” which is the expression defined in regulation 2. Given that this is a defined expression in the instrument, would the Scottish Government propose to take corrective action?

The Scottish Government responded as follows:

1. These Regulations are principally empowered by the provisions of the Public Service Pensions Act 2013 which are cited in the preamble. The powers under the Superannuation Act 1972 were also cited in the preamble in light of doubt as to whether the powers from the 2013 Act were adequate to cover all the provisions within Schedule 2 to the Regulations. No provision allowing election in terms of section 12(4) of the 1972 Act was included, as it is the view of the Scottish Government that the Regulations include no provision of the sort described in section 12(2).

2. It is confirmed that the references should have been to “transition member”. We do not consider that this minor inconsistency is capable of giving rise to any problems in practice but, if these Regulations are subsequently amended for any other purpose, the opportunity will be taken then to correct them with retrospective effect.

Annexe E 

National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/96)

On 6 March 2015, the Scottish Government was asked:

1. (a) In relation to regulation 25(a), would you agree there is an error as the insertion made in regulation 2.C.2 of the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013 appears to result in this provision—

“Where paragraph (2) of regulation 2.C.3 applies , a member’s contribution rate for the scheme year 2015-16 for the scheme year 2014-2105 is the percentage specified in column 2 of the following table……”?

2. Regulation 25(c) omits regulation 2.C.2(3) and (4) of those principal 2013 Regulations. Is there an error, as this retains regulation 2.C.2(5) which provides that “before determining those pensionable pay bands or contribution percentage rates, the Scottish Ministers must consider the advice of the scheme actuary”; and so which provision refers to the determination of bands and rates by the Scottish Ministers in respect of each scheme year in accordance with regulation 2.C.2(4)?

(We acknowledge that regulation 2.C.2 has been variously amended- please explain if this has misunderstood its terms).

3. If you agree these are errors, would the Scottish Government propose to take corrective action?

The Scottish Government responded as follows:

The Scottish Government agrees that there are errors in this instrument as identified above and would intend to correct these by way of an instrument which amends the National Health Service Superannuation Scheme (2008 Section) (Scotland) Regulations 2013 (to be made after 1st April, but with retrospective effect from that date).

Annexe F 

Teachers’ Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/97)

On 5 March 2015, the Scottish Government was asked:

Regulation 32 amends paragraph 9 of Schedule 3 to SSI 2014/292. It seems that it is intended that a person is to be a tapered protection member of an existing scheme on the scheme closing date if either sub-paragraph (1A) or (1B) applies. If that is the case does the Scottish Government agree that paragraph 32(a) should have inserted “if sub-paragraph (1A) or (1B) applies” and not “if sub-paragraph (1) or (2) applies”? Does the Scottish Government intend to take corrective action?

The Scottish Government responded as follows:

The Scottish Government agrees that the text should read as indicated above and will correct this error by way of an amending instrument (to be made after 1st April, but with retrospective effect from that date).

Annexe G 

Teachers’ Superannuation (Scotland) Amendment Regulations 2015 (SSI 2015/98)

On 6 March 2015, the Scottish Government was asked:

1. In the text to be inserted by regulation 5 should “and” be “or” – similar to the amendment made by regulation 7?

2. Should the amendment made by regulation 11(b) refer to the same regulations as in the amendment made by regulation 11(a)? Both parts of regulation E30 appear to refer to acceptance of transfer value whereas the regulations referred to in (b) refer to reckonable service.

3. In new regulation G24(3) inserted by regulation 13 should the reference to “Part 2 of Schedule 12” be a reference to “Part 3 of Schedule 12”?

4. In paragraph 13(3) of new Schedule 12 any sum representing interest in the transfer value is not to be taken into account. But in paragraph 14(3) any sum representing interest included in the transfer value is to be taken into account. Is this correct?

The Scottish Government responded as follows:

Question 1

We do not consider that the use of “and” in the text being inserted by regulation 5 (rather than “or”) is capable of leading to any difficulties in practice. It is, however, confirmed that “or” would have been preferable.

Question 2

We agree that the text being inserted by paragraphs (a) and (b) of regulation 11 should in both cases have listed the provisions which are in fact listed only in paragraph (a).

Question 3

It is confirmed that the reference should have been to “Part 3 of Schedule 12”.

Question 4

We can confirm that the wording in paragraphs 13(3) and 14(3) is correct.

We are grateful to the Committee for bringing these points to our attention and will deal with points 1 to 3 by way of an amending instrument (to be made after 1st April, but with retrospective effect from that date).

Annexe H 

Food (Scotland) Act 2015 (Consequential and Transitional Provisions) Order 2015 (SSI 2015/100)

On 4 March 2015, the Scottish Government was asked:

1. Article 1 provides two different definitions of the Food (Scotland) Act 2015: “the Act” and “the 2015 Act” however neither defined term appears to be used in the instrument. Are these definitions agreed to be superfluous?

2. Similarly, Article 1 defines “the 1999 Act” as the Food Standards Act 1999, however the term does not then appear to be used in the instrument. Is this definition agreed to be superfluous?

3. “the Agency” is defined in Article 1 as “the Food Standards Agency”, however the instrument continues to use the full term “the Food Standards Agency” both in the definition of “Agency document” in Article 1 and in Article 4. Is it agreed that these Articles should instead use the defined term “the Agency”?

4. Article 2 provides that the regulations specified in the Schedule are amended by substituting “Food Standards Scotland” for “Food Standards Agency”. It appears that the reference to “Food Standards Agency” should, however, be to “the Food Standards Agency” in order that the amendments read correctly. Is it agreed that this is an error?

5. Paragraph 8 of the Schedule refers to the definition of “the Agency” in regulation 2(1) of the Genetically Modified Organisms (Deliberate Release) (Scotland) Regulations 2000. Regulation 2(1) does not define that term, however, defining instead the term “the Food Standards Agency”. Is it agreed that there is an error? If the intended amendment is to the definition of “the Food Standards Agency”, what effect does this have on the remainder of the definition, which refers to the Food Standards Agency being established under section 1 of the Food Standards Act 1999?

6. Paragraph 26 of the Schedule refers to regulation 16(2)(a)(ii) of the Transmissible Spongiform Encephalopathies (Scotland) Regulations 2010, however regulation 16 does not appear to contain a paragraph (2)(a)(ii) or a reference to the Food Standards Agency. It appears that the reference could be a duplication of the later reference to paragraph 16(2)(a)(ii) of Schedule 7 to the same regulations, and therefore unnecessary. Is it agreed that there is an error?

The Scottish Government responded as follows:

1. We are grateful that the matters above have been drawn to our attention. We agree that the definitions of “the Act” and “the 2015 Act” are superfluous but do not consider that this affects the validity of the Order.

2. We agree that the definition of “the 1999 Act” is superfluous but do not consider that this will affect the validity of the Order.

3. We agree that the definition of “the Agency” in Article 1 is superfluous but do not consider that this affects the validity of the Order. .

4. We agree that the word “the” appearing before words “Food Standards Agency” has been omitted but consider that the meaning of the Article 2 and subsequent references in the Order are in no doubt.

5. We agree the reference to the “Agency” and the definition in Regulation 2 is incorrect. However, we do not think that the validity of the Order is affected. In the event that the Order falls to be amended, an amendment will be made to take account of the matters raised in your query.

6. We agree that the reference to regulation 16(2)(ii) of the Transmissible Spongiform Encephalopathies (Scotland) Regulations 2010 is an error, but do not consider that the validity of the Order is affected. In the event that the Order falls to be amended, an amendment will be make to take account of this matter.

Annexe I 

Food (Scotland) Act 2015 (Commencement) Order 2015 (SSI 2015/99 (C.19))

On 4 March 2015, the Scottish Government was asked:

Article 2 refers to “1st April” as the day appointed for the coming into force of the Food (Scotland) Act 2015 so far as not already in force, however no year is specified. Is it the Scottish Government’s intention to specify “1st April 2015” as the appointed day and, if so, what is the effect of the omission of “2015” considered to be? Is any corrective action proposed?

The Scottish Government responded as follows:

We are grateful that this matter has been drawn to our attention. The year has clearly been omitted in error. We consider it to be clear that the reference in article 2 to 1st April is a reference to 1st April 2015 and there is no risk of confusion here. For that reason we intend to rectify by way of correction slip and a correction slip is appropriate.


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