54th Report, 2015 (Session 4): Subordinate Legislation

SP Paper 800 (Web)

Contents

Report

Introduction
Points raised: Instrument subject to negative procedure

Tuberculosis in Specified Animals (Scotland) Order 2015 (SSI 2015/327) (Rural Affairs, Climate Change and Environment)
Legal Aid (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/337) (Justice)

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)
Richard Baker
John Scott
Stewart Stevenson

Subordinate Legislation

Introduction

1. At its meeting on 29 September 2015, the Committee agreed to draw the attention of the Parliament to the following instruments—

Tuberculosis in Specified Animals (Scotland) Order 2015 (SSI 2015/327);

Legal Aid (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/337).

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: Instrument subject to negative procedure

Tuberculosis in Specified Animals (Scotland) Order 2015 (SSI 2015/327) (Rural Affairs, Climate Change and Environment)

4. This Order confers powers on the Scottish Ministers in relation to tuberculosis in deer, goats, pigs, sheep, alpacas, guanacos, llamas and vicuñas. It also consolidates some previous Orders relating to tuberculosis (TB) in deer.

5. The objectives are to address the lack of bespoke statutory powers for non-bovine species, to introduce a proportionate regime of controls specifically covering those animals, and to provide a framework of compensation values at a fair and reasonable level for those animals that are subsequently removed for slaughter as TB reactors.

6. The Order makes provision for the notification of disease in those animals, and in the carcases of wild deer, where they are affected or suspected of being affected with TB. It also sets out identification requirements for these animals and provides for a veterinary inquiry, skin and blood testing and the taking of samples to be carried out as required, to establish whether disease is present. The Scottish Ministers may serve notices for purposes of disease control. This includes restriction notices relating to animal movements, isolation and the handling of milk from these animals, and notices requiring biosecurity measures to be taken against the spread of infection, to control any potential spread of TB within a herd or flock.

7. Where TB reactors are identified, a notice of intended slaughter under section 32 of the Animal Health Act 1981 will be served. Where animals are slaughtered, compensation values are set out in the Schedule to the Order.

8. Owners who have had their animals tested privately are required to report any positive or inconclusive results to Scottish Ministers, in order to ensure the appropriate action can be taken to control the potential spread of disease. There is also a prohibition on vaccination or treatment of animals for TB without the written consent of Scottish Ministers. At present consent would be unlikely, as there are currently no drugs licensed in the UK for treatment of TB in animals. Therapeutic treatment for bovine TB could also interfere with the detection of infected animals.

9. The Order is subject to the negative procedure. It comes into force on 9 October 2015.

10. The Committee wrote to the Scottish Government to query whether they agreed that there was a drafting error, to clarify what error had been made, and whether the Scottish Government would amend the error. The correspondence is reproduced at Annexe A.

11. The Committee draws the Order to the attention of the Parliament on the general reporting ground, in respect of a minor drafting error. Article 2(1) contains an otiose definition of “authorised veterinary inspector”. The Order refers in various places only to “a veterinary inspector”.

12. The Committee notes and accepts that the Scottish Government has undertaken to remove the otiose definition, by an amendment in due course.

Legal Aid (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/337) (Justice)

13. This instrument amends existing legal aid rules to accommodate various changes to the Scottish courts system, introduced by the Courts Reform (Scotland) Act 2014 (“the 2014 Act”), which came into force on 22 September 2015.

14. The instrument is subject to the negative procedure and came into force on 22 September 2015.

15. This instrument fails 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 17 September and came into force on 22 September. The requirement to leave a minimum of 28 days between laying and coming into force has therefore not been complied with.

16. The Scottish Government has provided a letter to the Presiding Officer, to explain the failure to comply with the “28 day rule”. The correspondence is reproduced at Annexe B. The Scottish Government explains that the amendments to legal aid provision are required to be in force as at 22 September 2015, when various provisions of the Courts Reform (Scotland) Act 2014 come into force. The amendments seek to ensure that legal aid provision will operate effectively in respect of, amongst other things, the new Sheriff Appeal Court established by that Act.

17. In terms of the late laying of this instrument, the Committee notes that the Scottish Government had proposed to make amendments to existing legal aid provision via an affirmative instrument, which was laid before the Parliament in draft on 9 June and was considered by the Committee at its meeting on 23 June. That draft instrument was withdrawn on 17 September following concerns raised by the Justice Committee at its meetings on 8 and 15 September. The instrument before the Committee was laid before the Parliament on 17 September, and makes substantially the same amendments as those proposed in the earlier draft affirmative instrument, but with specific changes to those proposed amendments which seek to address concerns raised by the Justice Committee.

18. The Committee draws the instrument to the Parliament’s attention 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 17 September and came into force on 22 September. The requirement to leave a minimum of 28 days between laying and coming into force has therefore not been complied with.

19. The Committee accepts the Scottish Government's explanation as to why the amendments to legal aid provision made by the instrument require to be in force as at 22 September, when various provisions of the Courts Reform (Scotland) Act 2014 come into force.

No points raised

20. At its meeting on 29 September 2015, the Committee considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Infrastructure and Capital Investment

Private Rented Housing Panel (Landlord Applications) (Scotland) Regulations 2015 [draft].

Justice

Criminal Justice and Licensing (Scotland) Act 2010 (Supplementary Provision) Order 2015 [draft];

Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 13) and the Courts Reform (Scotland) Act 2014 (Commencement No. 4) Order 2015 (SSI 2015/336).

Rural Affairs, Climate Change and Environment

Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 [draft].

Annexe A

Tuberculosis in Specified Animals (Scotland) Order 2015 (SSI 2015/327)

On 15 September 2015, the Scottish Government was asked:

Article 2(1) includes a definition of an “authorised veterinary inspector”, meaning a veterinary inspector authorised by the Scottish Ministers to receive information about affected or suspected animals, or the carcases of such animals. It appears however that the Order within several provisions confers functions on, or places duties on, a “veterinary inspector” (simply), and does not appear to use the defined term.

(1) Is this agreed to be an error, and if so please confirm what provision is intended?

(2) Would the Scottish Government therefore propose to lay an amendment to correct this?

The Scottish Government responded as follows:

The definition of an “authorised veterinary inspector” in article 2(1) is otiose and should have been omitted. There are no references to, or functions conferred on, authorised veterinary inspectors in the Order and, accordingly, the unnecessary inclusion of the definition does not affect the application of the Order.

In relation to the function of receiving information about affected or suspected animals, or the carcases of such animals, the notification obligations that apply where a specified animal or the carcase of a wild deer is known to be, or is suspected to be, infected with tuberculosis, are set out in articles 4 and 5 and require notification to the Scottish Ministers.

There are functions conferred on a “veterinary inspector” and that correctly reflects the policy intention. In those cases the meaning of “veterinary inspector” is to be construed in accordance with section 89(1) of the Animal Health Act 1981.

The Scottish Government undertakes to remove the otiose definition of “authorised veterinary inspector” at the next available legislative opportunity.

Annexe B

Legal Aid (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/337)

Breach of laying requirements: letter to the Presiding Officer

The Legal Aid (Miscellaneous Amendments) (Scotland) Regulations, SSI 2015/337 (“the present Regulations”) were made by the Scottish Ministers under sections 33(2), (3) and (3A) and 36(2)(c) of the Legal Aid (Scotland) Act 1986 today. They are being laid before the Scottish Parliament today, 17 September 2015, and come into force on 22 September 2015.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) has not been complied with. To meet the requirements of section 31(3) of that Act, this letter explains why.

A number of provisions of the Courts Reform (Scotland) Act 2014 (asp 18) (“the 2014 Act”) will come into force on 22 September 2015 (by virtue of the Courts Reform (Scotland) Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order (S.S.I. 2015/247)). These include section 89, which introduces a new permission stage for judicial review and section 118, which transfers jurisdiction in summary criminal appeals and certain bail appeals from the High Court to the Sheriff Appeal Court.

These changes necessitate changes in legal aid provision. The Scottish Government had proposed to make such changes via an instrument which included provision under section 9 of the Legal Aid (Scotland) Act 1986 (and which was therefore subject to affirmative procedure by virtue of section 37(1) of that Act). This instrument, the draft Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) Regulations 2015 (“the draft Regulations”), was considered by the Justice Committee on 8 and 15 September.

Concern was voiced that the draft Regulations failed to ensure access to justice in the Sheriff Appeal Court, on the basis (among other things) that they would require the prior approval of the Scottish Legal Aid Board (“SLAB”) for counsel to be employed in that court, and that solicitor advocates would be paid for appeals to the Sheriff Appeal Court at the same rate as other solicitors rather than at the rate which they presently receive for conducting equivalent appeals in the High Court. At the meeting on 15 September, the Committee voted not to recommend that the draft Regulations be approved. I wrote to the Chamber Clerk today to inform the Parliament of the Scottish Government’s intention to withdraw the draft Regulations.

Making no specific provision about the Sheriff Appeal Court would leave significant uncertainty in how legal aid would operate in the new court

The present Regulations therefore make provision in the same terms as the previous Regulations subject to three differences(1) they do not require the Scottish Legal Aid Board’s approval for the employment of counsel in the Sheriff Appeal Court; (2) they provide for solicitor advocates to be paid for work in that court on the same basis as counsel; and (3) they omit the draft Regulations’ amendment to the Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003 (the inclusion of which would have required the present Regulations to be subject to the affirmative procedure).

Changes (1) and (2) address concerns raised by the Justice Committee in its consideration of the earlier draft Regulations. In order to introduce appropriate legal aid provision which meets these concerns and which coincides with the commencement of the relevant provisions of the 2014 Act on 22 September and ensure that the Court can operate properly it has been necessary to lay the present Regulations in breach of the requirement in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

The Minister is writing separately to the Justice Committee to explain the course of action that has been taken.


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