38th Report, 2015 (Session 4): Subordinate Legislation

SP Paper 760 (Web Only)

Contents

Introduction 

Points raised: instruments subject to negative procedure

Common Agricultural Policy (Direct Payments etc.) (Scotland) Amendment Regulations 2015 (SSI 2015/215). (Rural Affairs, Climate Change and Environment)

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

Subordinate Legislation

Introduction 

1. At its meeting on 24 March 2015, the Committee agreed to draw the attention of the Parliament to the following instrument—

Common Agricultural Policy (Direct Payments etc.) (Scotland) Amendment Regulations 2015 (SSI 2015/215).

2. The Committee’s recommendation in relation to the above instrument is 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

Common Agricultural Policy (Direct Payments etc.) (Scotland) Amendment Regulations 2015 (SSI 2015/215). (Rural Affairs, Climate Change and Environment)

4. This instrument relates to a new direct payments system for farmers, as a result of Common Agricultural Policy (CAP) reform, which replaced the Single Payment Scheme from 1 January 2015. Certain decisions about how the direct payments regime will be implemented have already been given effect through the Common Agricultural Policy (Direct Payments etc.) (Scotland) Regulations 2015 (SSI 2015/58). The instrument amends those Regulations, and also amends the Common Agricultural Policy (Cross-Compliance) (Scotland) Regulations 2014. It also in part implements provision in a Commission Implementing Regulation (EU/2015/747), to exercise derogations in respect of the deadline for relevant applications by farmers for this calendar year 2015. This relates to the final date of submission of the single application, aid applications or payment claims; and the final date for applications for the allocation of payment entitlements, or the increase of the value of payment entitlements. The deadline is adjusted from 15 May 2015 to 15 June 2015.

5. The Regulations are subject to the negative procedure and were laid before Parliament on 28 May 2015 before coming into force on 1 June 2015. 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. The correspondence (which also relates to SSI 2015/142) is reproduced at Annexe A.

6. In considering the instrument, the Committee asked the Scottish Government to provide further information in relation to the breach of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. The breach does not affect the validity of the instrument. The correspondence is reproduced at Annexe B.

7. The Committee accepts the explanation provided in the correspondence as to the various procedures which the Scottish Government required to implement, between the publication of the Commission Implementing Regulation (EU/2015/747) on 12 May 2015, and the date of making (signing) this instrument on Tuesday, 26 May 2015.

8. The Committee also sought an explanation as to why it was necessary to lay the Regulations on Thursday 28 May, having been signed on the 26th (given that the “28 day rule” in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 was breached). The Scottish Government has acknowledged that it would have been an advantage for the instrument to have been laid expeditiously after signing, and this will be kept in mind for any unavoidable breaches of the “28 day rule”. The reason for taking 2 working days in this instance was the demands on the Scottish Government’s SSI Unit and the National Archives around the high volume of instruments laid in one particular week. Expedited laying/registration forthwith after the signing of the instrument was not considered.

9. The Committee accordingly draws this instrument to the attention of the Parliament on reporting ground (j), as there has been a failure to observe the requirements of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. The instrument was laid before the Parliament on 28 May 2015 and regulations 1 to 3 came into force on 1 June 2015, meaning that the requirement to leave a minimum of 28 days between laying and coming into force has not been complied with.

10. The Committee further agreed to write to the Scottish Government indicating that where the “28 day rule” is breached, it will be expected that wherever possible an instrument is laid before the Parliament expeditiously after it is made.

No points raised 

11. At its meeting on 16 June 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:

Delegated Powers and Law Reform

  • Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 (Commencement) Order 2015 (SSI 2015/242 (C.33)).

Education and Culture

  • Public Records (Scotland) Act 2011 (Authorities) Amendment Order 2015 [draft];

  • Education (Student Support) (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/212);

  • Scheduled Monument Consent Procedure (Scotland) Regulations 2015 (SSI 2015/229);

  • Town and Country Planning (Appeals) (Scotland) Amendment Regulations 2015 (SSI 2015/233);

  • Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2015 (SSI 2015/235);

  • Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) (Scotland) Amendment Regulations 2015 (SSI 2015/236);

  • Town and Country Planning (Historic Environment Scotland) Amendment Regulations 2015 (SSI 2015/237);

  • Historic Environment Scotland (First Planning Period) Order 2015 (SSI 2015/238);

  • Historic Environment Scotland Act 2014 (Saving, Transitional and Consequential Provisions) Order 2015 (SSI 2015/239);

  • Planning (Listed Buildings and Conservation Areas) (Urgent Works to Crown Land) (Scotland) Regulations 2015 (SSI 2015/240);

  • Listed Buildings (Notification and Publication) (Scotland) Regulations 2015 (SSI 2015/241).

Justice

  • Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment (No. 3) Regulations 2015 [draft];

  • All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015 (SSI 2015/213);

  • Vulnerable Witnesses (Scotland) Act 2004 (Commencement No. 8) Order 2015 (SSI 2015/244 (C.34)).

Annexe A 

Breach of laying requirements: letter to Presiding Officer

The above Instrument wasmadeby the Scottish Ministers under section 2(2) of the

European CommunitiesAct 1972on 26 May 2015. It isbeing laid before the Scottish

Parliament on 28 May 2015 and certain of its provisions will come into force on 1 June 2015, namely regulations2 and 3.

Section 28(2) of theInterpretation and Legislative Reform (Scotland) Act 2010 has not been complied with in respect of these two provisions. In accordance with section 31(3) of that Act, this letter explainswhy.

The amendments to theCommon Agricultural Policy (Direct Paymentsetc.) (Scotland) Regulations 2015(S.S.I. 2015/58) (the principal Regulations) madeby regulations 2and 3of this Instrument arerequired to make provision for the exercise of derogations in respect of deadlines for relevant applications under the Common Agricultural Policy (CAP) applicable to calendar year 2015, in accordancewith Articles 1 and 3of Commission Implementing Regulation (EU) 20151747 derogating from Implementing Regulation (EU) No 80912014 (OJL 119,12.5.2015, p. 21) (the Commission Implementing Regulation).

Regulation 6 of the principal Regulations statesthat the final datefor submission of a single application,aid application, or payment claim for aid or support under the CAP to the Scottish Ministers is15th May in each calendar year. Regulation 9 of theprincipal Regulations also sets 15May in each calendaryear as thefinal dateof submission ofapplications for theallocation of payment entitlements under the CAP.

Articles 1 and 3of the Commission Implementing Regulation permit Member States to fix new deadlinesin respect of thesetwo aspects of theCAP in relation to 2015. The new CAP isextremely complex and Member States havehad some difficulty in their practical implementation of payment schemes and ruraldevelopment schemesunder it. In recognition of that fact, it was considered appropriate to offer applicants more to time to submit applications for support or aid, or for allocation of or increase in value of payment entitlements under the CAP. Articles 1 and 3 permit Member States to fix new deadlines up to and including the 15 June. The Instrument accordingly amends the two deadlines from 15 May to 15 June, for 2015 only. The deadlines for subsequent calendar years remain 15 May.

The Instrument could not be made until the Commission Implementing Regulation came into force on 12 May 2015. Given that the Commission Implementing Regulation only came into force on that date, it was not possible to bring this Instrument into force before 15 May 2015, however, for transparency and in order to provide legal certainty for farmers, land managers and agents, this Instrument amends the deadlines and comes into force as soon as reasonably possible after 15 May: that is 1 June 2015. Land managers, farmers and agents have all administratively been made aware of the extensions to the deadlines through revised guidance, giving prominence to the change on the Scottish Government CAP website, and liaison with representative farming bodies.

I very much regret that it has not been possible to meet the 28-day laying rule. The remainder of the provisions in the Instrument will come into force on 27th June, respecting the 28-day period.

Annexe B 

Common Agricultural Policy (Direct Payments etc.) (Scotland) Amendment Regulations 2015 (SSI 2015/215)

On 4 June 2015, the Scottish Government was asked:

In relation to the breach of section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 and the contents of the letter from the Rural Payments and Inspections Division to the Presiding Officer of 26 May, could you provide this further information to assist the Committee:

(1) The letter explains that the instrument could not be made until the Commission Implementing Regulation 2015/747 was published and came into force on 12 May 2015. The instrument was made on Tuesday 26 May and laid on Thursday 28 May. What process was required to be taken to arrange the completion and laying of the instrument between the 12th and the 28th, and why (given the breach of section 28(2)) was it necessary to lay the instrument 2 working days after making?

(2) The letter explains that a commencement date of 1 June 2015 was chosen so that the Regulations have come into force as soon as reasonably possible after the original deadline date for applications for support/aid of 15 May 2015. Please clarify why it was appropriate to choose the precise date of 1 June (given the breach of section 28(2)).

The Scottish Government responded as follows:

(1) The potential for changes to deadlines within the CAP framework as provided for in Commission Implementing Regulation 2015/747 were brought to Member States’ attention with very little time to react. The first mention of a change was from Commissioner Hogan on 19 March in general terms only and it was not until April before a draft Regulation was shared with the Member States. As noted, that Regulation was published on 12 May. Once it was published, the final terms of the Regulation revealed Member States had flexibility as to which deadlines, if any, were altered and to what extent, if at all. Consequently, there were a number of choices for Scottish Ministers to consider. In the period in question, therefore, there were decisions to be finalised through engagement with key stakeholders on what those final deadlines should be.

A further issue that had a bearing on the amending instrument was that the Scottish Government were engaged in on-going discussions with Defra legal advisers on the impact of their proposed amendment to two of their CAP instruments (S.I. 3259/2014 and S.I. 3263/2014). That amending instrument, as well as amending the relevant deadlines in respect of England, also makes provision in respect of businesses farming in more than one UK administration, in response to the fact that some parts of the UK have opted to alter the relevant deadlines and other parts have decided not to. That instrument - which came into force before laid – was only laid on the 18 March. It was pertinent to be involved in these discussions to ensure the Scottish Government were in agreement as to how the provisions in that instrument would work in respect of Scotland. Equally, appropriate checking procedures had to be gone through in respect of the Scottish Government’s own instrument thereafter.

By the stage the Scottish Government had certainty on these matters, the substantive amendments to the Common Agricultural Policy (Direct Payments etc.) (Scotland) Regulations in respect of voluntary coupled support were sufficiently well advanced and the decision taken to progress all the amendments together in one instrument.

That decision was taken on the basis of several factors:

(a) given the above, the Scottish Government were not going to be able to bring the instrument into force on or before 15 May;

(b) the potential for, and final decision on, the change of deadline was highly publicised by the Rural Payments and Inspections Division of the Scottish Government; and

(c) no farmers will suffer any prejudice by the fact the amendments have not come into force before 15 May (that is because even where a farmer had already submitted his application before 15 May, the Commission Implementing Regulation extends the deadline for amendments to be made to that application to 15 June).

In respect of exceptionally making and laying on the same day, given the demands on the SSI Unit and National Archives around the high volume of instruments that week we did not consider expedited registration in this case, however on reflection this would have been an advantage and we will keep this in mind for any unavoidable breaches of the 28 day rule.

(2) Given the above, an instrument could have at most been laid and brought into force a few days before 28 May and 1 June respectively. Given that having the instrument in force by 15 May was not a possibility (and amendments were, therefore, for transparency and to tidy up what would otherwise be an erroneous provision), it seemed prudent to at least allow a few days between laying and coming into force dates.


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