60th Report, 2015 (Session 4): The work of the Delegated Powers and Law Reform Committee in 2014-15

SP Paper 810 (Web)

Contents

Remit
Report
Introduction
Executive Summary
Instruments considered by the Committee in 2014-15

What are Scottish Statutory Instruments?
What does the Committee do with SSIs?
How many instruments were considered by the Committee in 2014-15?

What are the different types of procedures attached to instruments?

How many of these instruments did the Committee report on this year?
How many Scottish Government instruments did the Committee report this year?

Under which of the Committee’s grounds were the instruments reported?
Which committees received the most instruments reported upon this year?

Lord President’s Private Office

How many of the instruments laid by the LPPO did the Committee report this year?

Scottish statutory instruments - General

Commitments: Scottish Government and Lord President’s Private Office
Withdrawal and revocation of instruments
Minor points
Consolidation
Motions to Annul
Pensions instruments
Public Services Reform (Scotland) Act 2010 (Part 2 Extension) Order 2015
EU Opt-in instruments

Other business

Bills

Community Empowerment (Scotland) Bill
Legal Writings (Counterparts and Delivery) (Scotland) Bill

Legislative Consent Memorandums (LCMs)
Public Body Consent Memorandums (PBCMs)

Conclusions
Annex A
Annex B
Annex C
Annex D
Annex E

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

The work of the Delegated Powers and Law Reform Committee in 2014-15

Introduction

1. This report reflects on the work of the Delegated Powers and Law Reform Committee in 2014-15 (11 May 2014 – 10 May 2015).

2. The Delegated Powers and Law Reform Committee’s remit encompasses a number of different roles. One is its scrutiny of Scottish Statutory Instruments (SSIs).

3. With that in mind, the primary focus of this report is around the Committee’s scrutiny of SSIs.

4. In particular the report serves to provide, through the perspective of the Committee’s scrutiny, a review of the quality of the instruments laid by the Scottish Government.

5. In so doing, the Committee seeks to hold the Scottish Government to account and encourage continuous improvement in the quality of instruments laid.

6. The Committee’s role in scrutinising instruments is of considerable importance in improving the quality of legislation, particularly in its efforts to increase the accessibility of the law for the user. One means by which it does this is by seeking to ensure that legislation is as accurate and up to date as possible. The Committee considers this annual report to be a key part of this process.

7. The report is not, however, limited to the consideration of instruments laid by the Scottish Government and the report also reflects on the instruments laid by the Lord President’s Private Office in 2014-15.

8. The report also considers other aspects of the Committee’s work, particularly its scrutiny of primary legislation, and highlights issues that have arisen in relation to that work.

9. The report forms part of an annual reporting process which was introduced following a recommendation of the Committee in its 14th report of 2007, Inquiry into the Regulatory Framework in Scotland (SP Paper 751)1, published in Session 2 of the Parliament.

Executive Summary

10. The report covers the work undertaken by the Delegated Powers and Law Reform Committee in 2014-15.

11. The report primarily focuses on the Committee’s consideration of instruments and delegated powers within bills.

12. The report also serves as a review of the performance of the Scottish Government and the Lord President’s Private Office (LPPO) in relation to these matters and highlights a number of issues.

Instruments

13. The number of times instruments have been reported by the Committee this year has increased.

14. This increase should be seen in the context of a busy year in terms of the volume of instruments laid. The Committee also recognises that in general this session there has been a steady improvement in the quality of the instruments laid by the Scottish Government.

15. While in percentage terms, the number of instruments reported has only increased by 1% from 2013-14 the number of instruments reported on multiple grounds has increased significantly. In 2013-14, 44 instruments were reported and there were 46 reports on individual grounds. This year 64 instruments were reported, however, instruments were reported under specific grounds 94 times. 19 instruments were reported under multiple grounds, accounting for 52% of reports.

16. 32 of the 94 reports (34%) related to instruments providing for new public service pension schemes emanating from the Public Service Pensions Act 2013, a UK Parliament Act. A significant proportion of the reports on the pensions instruments concerned the making of patent errors.

17. Another feature of instruments laid by the Scottish Government this year was the significant proportion of them that were withdrawni. These withdrawals by the Scottish Government were largely undertaken prior to the consideration of the instrument by the Committee in response to issues raised by the Committee’s legal advisers. Had these instruments not been withdrawn then the number of reports would have been higher still.

18. It would appear to the Committee that both the patent errors and the number of instruments withdrawn suggest concerns about the Scottish Government’s quality assurance processes. The Committee has written to the Scottish Government suggesting that improvements could be made to those quality assurance processes.

19. The Committee appreciates that the Scottish Government recognises that improvements need to be made in the standard of instruments laid and welcomes that efforts are being made by the Scottish Government to improve quality assurance processes.

20. The quality of the instruments laid by the LPPO was welcomed. 19 instruments were laid and only one was reported. This represents an improvement on 2013-14 which in itself was an improvement on 2012-13.

21. The Committee encourages the LPPO to maintain these high standards.

Bills

22. The Committee is particularly pleased to note that 77% of its recommendations in relation to bills were accepted this year.

23. Not only does this highlight the influence and effectiveness of the Committee in the legislative process, but it also highlights the good working relationship with the Scottish Government and its willingness to listen and respond to the Committee’s concerns. This was evident in the consideration of the Community Empowerment (Scotland) Bill.

24. However, in its consideration of the Bill the Committee found it unsatisfactory that the Parliament was being invited to agree to confer wide-ranging powers upon the Scottish Ministers in the absence of sufficient justification as to how these powers were to be exercised and why they were framed in this way. The Committee also found it concerning that the thinking behind the powers appeared in some cases to be at an embryonic stage.

25. The Committee also undertook scrutiny of the first Scottish Law Commission bill this year, the Legal Writings (Counterparts and Delivery) (Scotland) Bill. The Committee was able to undertake effective scrutiny of the Bill and this new process for the consideration of Scottish Law Commission inspired bills was welcomed universally by stakeholders. The Bill was passed and received Royal Assent on 1 April 2015.

Instruments considered by the Committee in 2014-15

26. This section of the report examines the instruments laid in 2014-15 which were considered by the Committee.

27. In the following video the Convener of the Committee, Nigel Don MSP, provides an introduction to instruments:
https://www.youtube.com/watch?t=10&v=WECIIdzHM58

What are Scottish Statutory Instruments?

  • SSIs are a form of law made by the Scottish Ministers (or other responsible authority such as the Lord President) exercising powers granted by the Scottish Parliament.

  • SSIs have the same legal status as primary legislation (Acts) but the process for making this form of law or amending it is generally quicker and consequently (more often than not) involves less scrutiny by the Parliament.

  • SSIs are usually in the form of regulations, orders, rules or schemes. They generally set out technical details or administrative matters necessary for primary legislation to operate, but can include any subject matter ranging from criminal penalties, licensing schemes, implementing EU obligations, prescribing application forms, to providing procedural rules.

  • The content of SSIs is, however, limited by the terms of the primary legislation which authorises their use – referred to as the enabling power or parent Act – and by the general rules on the legislative competence of the Scottish Parliament set out in the Scotland Act 1998.

What does the Committee do with SSIs? 
  • The role of the DPLR Committee is to consider instruments from a technical perspective.

  • Specifically, the DPLR Committee:

  • scrutinises SSIs on behalf of the Parliament to ensure that proposed laws are within the powers the Parliament has delegated to Ministers in the parent Act – a law which is not within the enabling powers is invalid and has no legal effect;

  • checks the quality of each SSI to ensure that it is accurate, achieves the intended policy and the drafting is clear to the end user.

  • through exchange of correspondence and its reports encourages and polices corrective action by the Scottish Government and other rule making authorities.

How many instruments were considered by the Committee in 2014-15? 

28. In the 2014-15 parliamentary year, a total of 353 instruments laid before the Parliament were considered by the Committee. Of these, 334 instruments were laid by the Scottish Government and 19 instruments were laid by the LPPO.

29. The 334 SSIs laid by the Scottish Government can be broken down as follows—

  • 2 draft documents subject to approval;

  • 2 provisional affirmative instruments;

  • 97 affirmative instruments;

  • 168 negative instruments;

  • 65 laid no-procedure instruments.

30. The 19 SSIs laid by the LPPO can be broken down as follows—

  • 1 negative instrument

  • 18 laid no-procedure instrument

What are the different types of procedures attached to instruments? 

There are three main types of procedure:

  • Affirmative – this procedure is attached to instruments relating to significant matters and provides for a greater level of scrutiny than the other two main procedures. Before an affirmative instrument can be made and brought into force it must be approved by the Parliament.

  • Negative – this is the most common procedure attached to instruments laid before the Parliament. It is generally attached to instruments relating to matters of less significance than those subject to affirmative procedure. While the Parliament does not need to approve negative instruments before they can come into force, the Parliament can annul a negative instrument.

  • Laid no-procedure – these are instruments subject to the lowest level of scrutiny. These instruments are laid before the Parliament for technical scrutiny and neither require approval nor can they be annulled.

 
How many of these instruments did the Committee report on this year? 

31. Under paragraph (a) of Rule 6.11 of Standing Orders, the Committee may report an SSI to the Parliament on one or more of a range of technical and legal grounds. These grounds are set out in Rule 10.3.1 of the Standing Ordersii and are as follows—

  • Ground (a)(charges on or payments to the Scottish Consolidated Fund, and payments to local and public authorities) – draws to the Parliament’s attention instruments imposing payments to local or public authorities in return for any licence, consent or services, or requiring payment to or a charge on the Scottish Consolidated Fund.

  • Ground (b) (made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts) – draws to the Parliament’s attention where the Scottish Ministers have exercised the power in such a way that it is excluded from challenge in the courts.

  • Ground (c) (where the instrument has retrospective effect where the parent statute confers no express authority so to provide) – this may raise questions on the validity of an instrument, but does not necessarily do so. This ground may raise serious issues which ought to be drawn to the Parliament’s attention before it takes a view on the disposal of the instrument.

  • Ground (d)(unjustifiable delay in publication or laying) – raises an issue of parliamentary process that may affect public awareness of the effect of the instrument and hinder that awareness where there is an unjustifiable delay in the instrument being available in the public domain.

  • Ground (e) (doubt as to whether the instrument is intra vires) – raises questions on the validity of an instrument, or provisions in it, because it appears to exceed the power conferred.

  • Ground (f) (raises a devolution issue) – raises questions on the validity of an instrument, or provisions in it, because the instrument appears to conflict with the devolution settlement.

  • Ground (g) (unusual or unexpected use of powers) – raises issues on the proper exercise or use of the powers conferred that may on occasion affect the operation of the instrument, or may raise questions of propriety and transparency.

  • Ground (h) (clarity of form or meaning) – raises issues on the clarity of the instrument, which may on occasion affect the operation of the instrument, or delivery of the intended policy.

  • Ground (i) (defective drafting) – raises serious issues of the efficacy of the drafting that may on occasion impede or prevent the delivery of the intended policy.

  • Ground (j) (non-compliance with laying requirements) – draws attention to any non-compliance with the laying requirements set out in section 28(2), 30(2) or 31 of the Interpretation and Legislative Reform (Scotland) Act 2010 (“the 2010 Act”) and evaluates the reasons given for doing so from the Committee’s perspective.

  • The general reporting ground is a residual ground for reporting any other issues not impinging on the substance or policy of the instrument, including minor drafting errors which do not affect the proper operation of the instrument, failures to follow proper drafting practice or legislative process.

Reporting grounds: significant 

32. The Committee considers some reporting grounds to be of more significance than others. It has particular concerns where an instrument is reported under one of the following grounds—

  • ground (e) – doubt as to whether it is intra vires;

  • ground (f) – raises a devolution issue; and

  • ground (i) – drafting appears to be defective.

33. These are referred to throughout this report as the significant reporting grounds. The Committee considers every report under one of these grounds to be a serious matter as these raise fundamental legal questions and so there is the potential for the validity or effectiveness of the instrument to be questioned.

34. The Committee recognises that points raised on these grounds will often be subject to a difference of opinion. However, raising questions on these grounds offers the opportunity for public debate on these points which is an important part of the scrutiny process. This in turn allows for more robust legislation.

Reporting grounds: other 

35. While emphasising the importance of the significant reporting grounds, the Committee cannot lose sight of the other grounds. For example, even minor drafting errors can have an adverse impact on the efficacy of the instrument. This, amongst other things, can make it difficult to determine what the intention of the instrument is. Also, although not as significant in terms of the fundamental legal issues that the significant grounds raise, in terms of the overarching objective of ensuring the accessibility of legislation to the end user, the Committee regards the scrutiny of these grounds to be just as relevant.

36. The other grounds are as follows—

  • ground (c) - (where the instrument has retrospective effect where the parent statute confers no express authority so to provide);

  • ground (d) - (unjustifiable delay in publication or laying);

  • ground (h) - (clarity of form or meaning); and

  • the general reporting ground (which includes minor drafting errors and failures to follow proper drafting practice).

37. The Committee may have serious concerns where an instrument is drawn to the attention of the Parliament on any of these other grounds. For example, concerns which are raised on ground (h) (clarity of form or meaning) could attract a varying level of concern. Such concerns may be seen as relatively minor if the defects do not affect the operation of the instrument, however, where an instrument is reported under this ground for one more than one reason it may be difficult to determine what the SSI originally set out to do.

38. In addition, where an instrument is reported on a combination of these other grounds or more than once on the same ground, this may cause the Committee to question whether overall the instrument is fit for purpose or whether it should be amended or replaced. Any concerns that the Committee has in relation to particular SSIs are therefore highlighted on a case-by-case basis. This report provides an analysis of instruments reported on these grounds and the Committee will continue to pursue these points robustly.

Reporting grounds: advisory 

39. The Committee also notes that some of the reporting grounds need not indicate issues with regard to validity or clarity but provide a means of drawing matters to the attention of the lead committee and the Parliament for consideration as part of their related scrutiny of the overall policy and effect of the instrument. For the purposes of this report the Committee refers to these grounds as advisory in nature.

40. The matters the Committee raises under these grounds do not concern questions of competency, validity or accuracy. Rather they are matters that the Committee considers the Parliament should be aware of in exercising its general supervisory role and considering whether to allow the legislation to proceed. Often they relate to policy matters (such as the imposition of significant charges) and so are matters which the lead committees should have regard to when considering the instruments. As such, instruments which engage these grounds are drawn to the lead committee’s attention to inform its consideration of instruments.

41. The Committee considers the following grounds to be advisory in nature—

  • ground (a) – (charges on or payments to the Scottish Consolidated Fund);

  • ground (b) – (made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts);

  • ground (g) – (unusual or unexpected use of the powers conferred by the parent statute); and

  • ground (j) – (non-compliance with laying requirements), where it is satisfied with the reasons given for non-compliance.

42. The Delegated Powers and Law Reform Committee’s primary role is to consider the technical drafting of instruments, as well as their accuracy and their legal competence. In its scrutiny of instruments, the Committee will highlight to the lead committee where other circumstances exist which are of greater concern to the lead committee. To reflect this, the numbers of times instruments have been drawn to the Parliament’s attention on these advisory grounds have been removed from the figures (although the overall figures are recorded for the purpose of completeness). The only exception to this is where an instrument has been drawn to the Parliament’s attention on ground (j) (non-compliance with laying requirements) and the Committee has not been satisfied with the reasons given as this does have an impact on the accessibility of legislation.

43. After the Delegated Powers and Law Reform Committee has considered an instrument from a technical perspective, the subject Committee within whose remit the instrument falls then has an opportunity to consider the instrument from a policy perspective.

44. The following infographic explains the process by which an instrument is taken through the Parliament.

How many Scottish Government instruments did the Committee report this year? 

45. The majority of the instruments laid before the Parliament are laid by the Scottish Government.

46. Table 1 below sets out the number of instruments laid by the Scottish Government in 2014-15 and the percentage of those that were reported by the Committee. The table also provides the equivalent figure for the two previous years by way of comparison.

Table 1: Instruments laid by the Scottish Government over the last 3 reporting years reported on by the Delegated Powers and Law Reform Committee 

 

2014-15

 

2013-14

2012-13

Total SSIs

 

Total drawn to the Parliament’s attention

%

Total SSIs

Total drawn to the Parliament’s attention

%

Total SSIs

Total drawn to the Parliament’s attention

%

 

Total

 

 

334

 

56 (64)

 

17% (19)

 

237

 

38 (44)

 

16% (18.5)

 

262

 

46 (62)

 

18% (24)

47. It is interesting to note that the number of instruments laid has significantly increased from last year and indeed is the highest number of instruments laid since the last year of the last session 2010-11 when 422 instruments were laid2.

48. The chart below sets out the number of instruments considered by the Committee in each year of this session.

Chart showing the overall number of SSIs considered in each parliamentary year in Session 4 (this includes instruments laid by the LPPO)

49. In the last Parliamentary session (2007-2011) the number of instruments considered by the Committee each year never dropped below 330, rising to 422 in the final year of the session.

50. This session, however, the figures were significantly lower until this reporting year. The figure this year represents an increase of 41% on the number of instruments laid in 2013-14.

51. The Committee appreciates that the numbers of instruments being laid are likely to increase as the session comes toward its end. Equally, the Committee appreciates that this year there were a number of significant implementation packages (groups of instruments laid together implementing primary legislation) not least those in relation to tax and pensions.

52. Nonetheless an increase of 41% in the number of instruments laid is significant.

53. From past experience the Committee considers that the figures for the last year of the session are likely to be the highest at any point in the session. However, in recognising that the Committee would be concerned if there were to be an increase next year in the number of instruments laid comparable to the increase between 2013-14 and 2014-15.

54. The Committee would be particularly concerned if this large number of instruments is not laid in a managed way, making it more challenging for the Committee to scrutinise effectively all instruments laid before the Parliament.

In noting the probability of a continued increase in the number of instruments laid next year, the Committee recognises the Minister for Parliamentary Business’ efforts to manage the programme of instruments and encourages him in his efforts. It is critical that this Committee and Parliament more generally is afforded a proper opportunity to scrutinise instruments and this is only possible where instruments are laid in a managed way and where Parliament in not overwhelmed by the numbers of instruments being laid.

55. There has also been an increase in the number and percentage of instruments reported this year as compared with last year. 18 more instruments were reported last year than in 2013-14, and in numerical terms 2014-15 represents a session high point in terms of number of instruments reported. At the same time, given the increase in the number of instruments laid, the percentage of instruments reported in 2014-15 is only 1% more than in 2013-14 and represents a reduction on the percentage of instruments reported as compared with every other year of the session aside from last year.

56. It should be noted, however, that the percentage of instruments reported could have been higher had the Scottish Government not withdrawn a number of instruments where concerns had been raised by the Committee’s legal advisers, but prior to them being considered by the Committee. This issue is explored in greater detail later in the report.

57. It should also be noted that while the number of instruments reported might not have gone up, the number of reports has increased and this is explored later in the report.

This session there has been a steady improvement in the quality of the instruments being laid by the Scottish Government with reporting figures decreasing year on year. To that extent, the Committee is disappointed that there has been an increase in the number of instruments reported both in numerical and percentage terms.

The Committee encourages the Scottish Government to endeavour to improve the quality of the instruments it lays and, while appreciating the challenges associated with the last year of the session, would welcome reduction in the number of instruments and percentage of instruments reported in the last year of the session.

Under which of the Committee’s grounds were the instruments reported? 

58. As discussed earlier in the report, instruments are reported by the Committee under one of eleven grounds as set out in rule 10.3 of Standing Orders.

59. Table 2 below breaks down the instruments reported into the grounds under which they were reported and provides the equivalent information for the two previous reporting periods.

Table 2: Instruments reported on broken down by ground: Scottish Government instruments laid over the last 3 reporting years 

 

Ground

2014-15

2013-14

2012-13

No.

% of all SSIs laid (334)

No.

% of all SSIs laid (237)

No.

% of all SSIs laid (262)

Significant

(e) doubt as to whether the instrument is intra vires

0

0

2

<1%

3

1%

(f) raises a devolution issue

0

0

0

0

2

1%

(i) drafting appears to be defective

18

5%

4

1.5%

20

8%

Other

(c) retrospective effect where the parent statute confers no express authority so to provide

0

0

0

0

0

0

(d) unjustifiable delay in the publication or the laying of it before parliament

2

<1%

2

<1%

0

0

(h) form or meaning could be clearer

20

6%

16

7%

17

6.5%

General ground (e.g. failures to follow proper drafting practice or legislative process)

34

10%

15

6.5%

23

9%

Advisory

(a) charge on the Scottish Consolidated Fund

0

0

0

0

0

0

(b) made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts

0

0

0

0

0

0

(g) unusual or unexpected use of the powers conferred by the parent statute

1

<1%

1

<1%

3

1%

(j) failure to comply with laying requirements

12 (19)

3.5% (6%)

6 (5)

2.5% (2%)

2 (13)

1% (5%)

60. In examining the above table the most notable point is the number of reports under each of the grounds as against the number of instruments reported.

61. 64 instruments were reported under at least one of the grounds. Table 2, however, indicates that instruments were reported under one of the grounds 94 times. (This includes the instruments reported under ground (j) where the Committee was satisfied with the reasons given for non-compliance with the laying requirements.) This indicates that several instruments have been reported under multiple grounds.

62. This means that a significant proportion of those instruments reported were reported under more than one ground. Specifically, 19 instruments were reported more than once. These 19 instruments accounted for 49 of the reports equating to 52% of the instruments reported. The Teachers’ Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217) in itself accounted for five reports.

63. This contrasts with the experience in 2013-14 when 44 instruments were reported upon and there were just 46 reports.

64. Clearly, while there may not have been a significant increase in the overall percentage of instruments reported, there has been a very significant increase in the number of reports.

The Committee is disappointed in the number of reports this session. The number of instruments reported might not suggest deterioration in standards this session, but the number of overall reports raises concerns for the Committee.

The Committee is concerned by the number of times instruments have been reported under multiple grounds this session.

29% of the instruments reported account for 52% of the reports. This suggests that a number of these instruments are not meeting the expected standards.

It is the Committee’s impression that in these instances, in particular, the quality control processes applied have been insufficient. The Committee expects to see an improvement in this regard and encourages efforts to improve quality control processes.

The Committee would find it highly unsatisfactory if it were required to report again so many instruments under multiple grounds.

Significant reporting grounds 

65. In terms of the significant reporting grounds, it is notable that the number of reports for defective drafting (ground (i)) is measurably greater than it was in 2013-14. In 2013-14 only 1.5% of the instruments laid were reported for defective drafting, however, the number this year has increased by 3.5%. In numerical terms there has been an increase of 14 from 2013-14.

66. It is interesting to note that 50% of the instruments reported under this ground related to the package of instruments implementing the new pension schemes. This point is explored further later in the report.

67. At the same time, at 5% of the instruments laid, the percentage of instruments reported for defective drafting is still lower than the figure for 2012-13 and lower than at any point in the last session.

Defective drafting represents a serious concern about an instrument and the Committee is disappointed that the reduction in the percentage of instruments reported from last year has not been maintained. The Committee encourages the Scottish Government to seek to reduce the number of instruments reported for defective drafting.

The Committee notes that 50% of the instruments reported for defective drafting related to pension schemes and hopes that lessons have been learned from this experience.

Other reporting grounds 

68. With regard to the other reporting grounds, there is a perceptible increase in the number of reports under the general reporting ground. The number of instruments reported under this ground has more than doubled from last year, equating to a 3.5% increase in reports under the general reporting ground.

69. Many of the reports under the general reporting ground concerned drafting errors. Instruments relating to the implementation of new pension schemes contained a significant number of drafting errors and this is underscored by the fact that 30% of the instruments reported under this ground concern pension scheme instruments.

The Committee recognises that, as far as the pension scheme instruments are concerned, there were time pressures associated with their laying outwith the control of the Scottish Government which perhaps limited the time for checking, resulting in a higher level in errors.

Nonetheless this increase in the number of reports under the general reporting ground and the associated increase in the number of drafting errors is concerning to the Committee and suggests that improvements could be made to the Scottish Government’s quality assurance processes for instruments.

The impact of such errors can have a significant effect on the efficacy of an instrument. It is very important to the Committee that instruments are correct and the users of the legislation are able to correctly interpret them.

70. The Committee also notes that the number of instruments reported for insufficient clarity under reporting ground (h) is consistent with the numbers reported in the last two years.

The Committee welcomes that the figures for reports under ground (h) have not increased. However, the accessibility of instruments for the end user continues to be a matter of great interest for the Committee and accordingly the Committee calls on the Scottish Government to re-double its efforts to ensure that instruments are drafted in a clear and accessible manner.

Advisory grounds 

71. The most notable feature of the advisory grounds is the significant number of instruments reported for failing to meet the laying requirements.

72. Laying requirements are those requirements set out under the Interpretation and Legislative Reform Act 2010. In terms of negative instruments this means that instruments must be laid as soon as they are made and in any event at least 28 days before they come into force.

73. Insofar as laid no-procedure instruments are concerned, it means laying as soon as practicable after making and in any event before the legislation comes into force.

74. Where the Scottish Government breaches any of these laying requirements they are obliged to write to the Presiding Officer to explain why the conditions have been breached.

75. Of specific interest and concern to the Committee is the number of instruments failing to meet the laying requirements and with which the Committee is not content with the reason given for that failure as set out in the letter to the Presiding Officer.

76. In previous years, the Committee found itself in most instances accepting of the Scottish Government’s reasoning for failing to meet laying requirements. This year, however, the Committee was not satisfied with the reasons given for breaching laying requirements in 63% of the instances.

77. Almost half of these instances related to the package of instruments implementing the new pensions schemes.

Laying requirements are in place to ensure that the Parliament has sufficient opportunity to consider instruments before they come into force and to ensure that the public has an opportunity to consider and understand an instrument before it comes into force. There are circumstances where breaching these laying requirements is unavoidable, but this year there has been a disappointingly high number of instruments where in the Committee’s view the justifications for such breaches have not been satisfactory.

The Committee invites the Scottish Government to reflect on these figures and to put in place processes to ensure that wherever possible breaches of laying requirements are not necessary.

Where such breaches are unavoidable, the Committee invites the Scottish Government to reflect as to how these are communicated to the Parliament.

Which committees received the most instruments reported upon this year? 

78. Table 3 below sets out the number of instruments considered by each of the lead committees in the last three reporting years. It also details the number and percentage of those instruments that have been reported.

Table 3: Instruments laid by the Scottish Government over the last 3 reporting years reported on by the DPLRC, broken down by lead committee

 

Lead Committee

2014-15

2013-14

2012-13

Total SSIs

Total reported

%

Total SSIs

Total reported

%

Total SSIs

Total reported

%

Rural Affairs, Climate Change and Environment

 

50

 

7 (9)

 

14% (18%)

 

48

 

9 (12)

 

19% (25%)

 

52

 

11 (16)

 

21% (31%)

Health and Sport

63

16

25.5%

46

9

19.5%

27

3 (5)

11% (19%)

Justice

54

9 (12)

16.5% (22%)

40

5 (8)

12.5% (20%)

64

15 (21)

23% (33%)

Local Government and Regeneration

24

6 (8)

25% (33%)

22

1

4.5%

28

7

25%

Education and Culture

41

6

14.5%

41

11

27%

24

2 (3)

8% (12%)

Infrastructure and Capital Investment

14

0

0

19

1

5%

43

3 (4)

7% (9%)

Economy, Energy and Tourism

24

3 (4)

12.5% (17%)

7

0

0

8

2 (3)

25% (37.5%)

Finance

44

5

11%

2

0

0

3

0

0

Equal Opportunities

13

3

23%

0

0

0

0

0

0

Welfare Reform

4

0

0

5

1

20%

9

2

22%

SPPA

0

0

0

1

0

0

1

1

100%

Referendum (S)

0

0

0

2

0

0

1

0

0

Devolution (Further Powers)

1

1

100%

N/A

 

N/A

 

N/A

 

N/A

 

N/A

 

N/A

European and External Relations

0

0

0

2

1

50%

0

0

0

Parliament

2

0

0

2

0

0

2

0

0

79. In general the experience has been that the first six committees in this table (the Rural Affairs, Climate Change and Environment Committee, Health and Sport Committee, Justice Committee, Local Government and Regeneration Committee, Education and Culture Committee, and Infrastructure and Capital Investment Committee) have been referred the most instruments.

80. The percentage of instruments referred to each of these six committees which have been reported over the last three years is set out below.

81. This year the Finance Committee and the Economy, Energy and Tourism Committee appear in the six Committees referred the most instruments and the Infrastructure and Capital Investment Committee drops out of this list. This is attributable to the significant number of tax instruments referred to the Finance Committee and the number of bankruptcy related instruments referred to the Economy, Energy and Tourism Committee rather than a significant reduction in the number of instruments referred to the Infrastructure and Capital Investment Committee.

Health and Sport Committee 

82. The Health and Sport Committee was referred the most instruments of any committee. It was also the committee with the highest proportion of the instruments referred to it reported. 25.5% of the instruments considered by the Committee were reported. This was an increase of 6% from last year. It is also 8% higher than the overall figure for instruments reported.

83. There is no one reason for this number of reports, rather the reports are drawn from various different instruments covering different packages of instruments. There are, however, a number of reports for instruments pertaining to NHS pensions schemes and also instruments concerning the implementation of the Public Bodies (Joint Working) (Scotland) Act 2014.

Local Government and Regeneration Committee 

84. The number of instruments referred to the Local Government and Regeneration (LGR) Committee which were reported is also disappointingly high. Although the Committee was referred roughly the same number of instruments as last year there was a 20.5% increase in the percentage of instruments reported. Moreover, incorporating the instruments reported for breaching laying requirement, but where the DPLR Committee was satisfied with the justification for the breach, then 33% of the instruments referred to the Committee were reported.

85. It should be noted that two years ago 25% of the instruments referred to the LGR Committee were reported, so it is not the first time this session that the quality of the instruments referred to this Committee has been disappointing.

86. Again, a significant proportion of this increase can be attributed to the package of instruments providing for local government pension schemes.

Rural Affairs, Climate Change and Environment Committee and Education and Culture Committee 

87. While disappointingly there has been an increase in the percentage of instruments referred to these committees, there has been a welcome reduction in the percentage of instruments referred to the Rural Affairs, Climate Change and Environment (RACCE) Committee and the Education and Culture Committee which were reported.

88. There was a 5% reduction in the percentage of instruments referred to the RACCE Committee being reported. Last year’s figure was in itself a reduction of 2% on the figures for 2012-13, so it is particularly pleasing to the Committee that this improvement has been maintained.

89. More significantly, however, there was a 12.5% decrease in the percentage of instruments referred to the Education and Culture Committee that were reported. Last year 27% of the 41 instruments referred to that Committee were reported. This year the Committee was again referred 41 instruments, but 14.5% were reported.

90. While welcoming this improvement in relation to the instruments referred to the Education and Culture Committee, it should be noted that this figure is still higher than the figure for 2012-13 and the Committee would hope that there could be a further improvement next year.

Overall the picture is one of a mixed performance. Seven committees have been referred a higher number of instruments which have been reported while five committees have been referred fewer instruments that have been reported. The overall picture generally reflects trends mentioned elsewhere in the report, with an increased number of reports and the poor quality of the instruments, providing for the new pension schemes, impacting on certain committees

Lord President’s Private Office 

91. Before reflecting upon the instruments laid by the Lord President’s Private Office (LPPO) this year, it may be helpful to firstly explain the role of the LPPO and why these instruments are considered separately in this report.

92. Acts of sederunt and acts of adjournal are instruments laid by the LPPO on behalf of the Court of Session and High Court of Justiciary as the responsible authority and are subject to the same scrutiny by the DPLR Committee as any other SSI.

93. Acts of sederunt are used primarily to regulate civil procedure in the Court of Session and Sheriff Courts in Scotland while acts of adjournal are concerned with regulating criminal procedure.

94. The Lord President is head of the judiciary in Scotland and accordingly it is the office of the Lord President that lays instruments concerning court rules.

95. As these instruments are laid separately from those laid by the Scottish Government, this part of the report provides a separate analysis of these figures.

How many of the instruments laid by the LPPO did the Committee report this year? 

96. The majority of the instruments laid before the Parliament are laid by the Scottish Government, but the LPPO continues to present a small number of instruments for scrutiny each year.

97. Table three below sets out the number of instruments laid by the LPPO in 2014-15 and the percentage of those that were reported by the Committee. The table also provides the equivalent figure for the two previous years by way of comparison.

Table 4: Instruments laid by the Lord President’s Private Office over the last 3 reporting years reported on by the DPLR Committee 

 

2014-15

 

2013-14

2012-13

Total SSIs

 

Total drawn to the Parliament’s attention

%

Total SSIs

Total drawn to the Parliament’s attention

%

Total SSIs

Total drawn to the Parliament’s attention

%

 

Total

 

 

19

 

1

 

5%

 

22

 

4

 

18%

 

22

 

8

 

36%

98. Table 4 demonstrates the continued improvement in the quality of instruments laid by the LPPO. This year although 5% of instruments were reported this equates to only one instrument being reported.

99. There has been a significant improvement in the quality of the instruments laid by the LPPO since 2012-13. In that year, as the table notes, 36% of the instruments laid by the LPPO were reported, meaning that there has been a reduction of 31% in the number of instruments being reported.

100. The follow graph illustrates the considerable improvements made by the LPPO.

101. In reflecting on the disappointment expressed by the Committee in the standard of instruments laid by the LPPO in previous years, it is particularly gratifying to the Committee to see such a marked improvement in the quality of the instruments the LPPO has laid.

102. This year’s significant improvement follows on from an equally significant improvement between 2012-13 and 2013-14. The Committee is very pleased to see this level of improvement sustained.

The Committee welcomes the significant improvements the LPPO has made over the last two years in the quality of the instruments it has laid. The Committee recognises that efforts have been made to improve the standards of instrument laid both in terms of drafting and in terms of quality assurance processes. It would appear that these improvements have been effective and the Committee congratulates the LPPO on these improvements.

Given these improved processes the Committee is hopeful that the improvements made over the last two years can be sustained.

103. The following table breaks down the grounds under which LPPO instruments were reported over the course of the last three reporting years and again reflects the welcome improvement in the quality of instruments laid by the LPPO.

Table 5: Instruments reported on broken down by ground: LPPO instruments laid over the last 3 reporting years

Ground

2014-15

2013-14

2012-13

No.

% of all SSIs laid (19)

No.

% of all SSIs laid (22)

No.

% of all SSIs laid (22)

Significant

(e) doubt as to whether the instrument is intra vires

0

0

1

4.5%

1

4.5%

(f) raises a devolution issue

0

0

0

0

0

0

(i) drafting appears to be defective

1

5%

1

4.5%

3

13.5%

Other

(c) retrospective effect where the parent statute confers no express authority so to provide

0

0

0

0

0

0

(d) unjustifiable delay in the publication or the laying of it before parliament

0

0

0

0

0

0

(h) form or meaning could be clearer

0

0

2

9%

2

9%

General ground (e.g. failures to follow proper drafting practice or legislative process)

1

5%

2

9%

4

18%

Advisory

(a) charge on the Scottish Consolidated Fund

0

0

0

0

0

0

(b) made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts

0

0

0

0

0

0

(g) unusual or unexpected use of the powers conferred by the parent statute

0

0

0

0

0

0

(j) failure to comply with laying requirements

0

0

0

0

0

0

Scottish statutory instruments - General

Commitments: Scottish Government and Lord President’s Private Office

104. In responding to concerns raised by the DPLR Committee about instruments the Scottish Government and LPPO often make commitments to remedy at a later date errors noted by the Committee.

105. It is important that these commitments are met to ensure that the legislation is correct and clear.

106. The Committee keeps account of these commitments and seeks to ensure that they are met.

107. The Scottish Government has confirmed that of the 35 instruments identified for correction/amendment during the reporting year, 18 of these commitments to correct/amend have been met. These are listed in ANNEX B.

108. This means that seventeen commitments given during this reporting period remain outstanding. This represents just under half of all the commitments given and it is disappointing that so many remain outstanding.

109. It is also almost three times the number of commitments left outstanding at the end of the last reporting year when only six of the 14 commitments given remained outstanding.

110. The disparity in the number of commitments made between this reporting year and the last reporting year also highlights the increased error rate inherent in the need to lay correcting instruments.

111. Not only has there been an increase in the number of commitments outstanding at the end of the reporting year, but there remain seven commitments to be met from previous years.

112. Combining these two figures, there are now 24 commitments outstanding. This is 13 more than the figure at the end of 2013-14.

113. The following graph illustrates how the number of commitments outstanding has continued to rise over the last three years.

114. Details of all the outstanding commitments can be found in ANNEX B.

115. The Lord President’s Private Office has one commitment outstanding.

The Committee is disappointed in the number of commitments outstanding from the Scottish Government. As the table illustrates the number of commitments has multiplied by four since 2012-13.

In making the commitment to make such a correction or amendment to an instrument there is a recognition on the part of the Scottish Government that there would be a benefit to the law and the user of that law in the law being corrected and clarified. Given the recognition of the value of making a change, it is disappointing to the Committee that changes are not being made promptly.

The Committee urges the Scottish Government to act promptly to reduce significantly the number of outstanding commitments. The Committee would be highly dissatisfied if it were to see a graph next year in relation to outstanding commitments continuing in an upward trajectory.

Withdrawal and revocation of instruments 

116. One feature of the reporting year was the number of instruments which were withdrawn and re-laid by the Scottish Government.

117. The following instruments/documents were withdrawn and subsequently re-laid during the reporting period—

  • Registers of Scotland (Fees) Order 2014 [draft];

  • Provision of Early Learning and Childcare (Specified Children) (Scotland) Order 2014 [draft];

  • Legal Profession and Legal Aid (Scotland) Act 2007 (Membership of the Scottish Legal Complaints Commission) Amendment Order 2014 [draft];

  • Bankruptcy (Money Advice and Deduction from Income etc.) (Scotland) Regulations 2014 [draft];

  • Debt Arrangement Scheme (Scotland) Amendment Regulations 2014 [draft];

  • Public Bodies (Joint Working) (Prescribed Health Board Functions) (Scotland) Regulations 2014 [draft];

  • Public Bodies (Joint Working) (Prescribed Local Authority Functions etc.) (Scotland) Regulations 2014 [draft];

  • Public Services Reform (Inspection and Monitoring of Prisons) (Scotland) Order 2014 [draft];

  • European Protection Order (Scotland) Regulations 2014 [draft];

  • Regulation of Investigatory Powers (Covert Human Intelligence Sources – Code of Practice) (Scotland) Order 2015 [draft];

  • Regulation of Investigatory Powers (Covert Surveillance and Property Interference – Code of Practice) (Scotland) Order 2015 [draft];

  • Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2015 [draft];

  • Single Use Carrier Bags Charge (Fixed Penalty Notices and Amendment) (Scotland) Regulations 2015 [draft];

  • General Medical Council (Fitness to Practise and Overarching Objective) and the Professional Standards Authority for Health and Social Care (References to Court) Order 2015 [draft];

  • Associated Professions (Knowledge of English) Order 2015 [draft];

  • Health and Care Professions (Public Health Specialists and Miscellaneous Amendments) Order 2015 [draft];

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

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

  • Scottish Regulators’ Strategic Code of Practice (SG/2014/236).

118. In addition, the following negative SSIs were revoked and later replaced by amending instruments:

  • Teachers' Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217);

  • Charities Accounts (Scotland) Amendment Regulations 2014 (SSI 2014/295).

119. In total therefore, 21 instruments were either withdrawn or revoked. This is a considerable increase on the number for the past two years as the following graph illustrates.

120. As the graph illustrates, there has been a four-fold increase in the number of instruments withdrawn or revoked as compared with last year.

121. For the most part these instruments have been withdrawn or revoked following questions raised by the Committee’s legal advisers, but before they are considered by the Committee.

122. As such, these instruments, while they may contain errors, are not reported by the Committee and therefore not included in the overall number of reported numbers.

Nonetheless, it is the Committee’s view that they raise concerns about the quality of drafting standards by the Scottish Government. The Committee welcomes the fact that errors are remedied before the instruments have come into force, but at the same time instruments containing these errors should not have been laid before the Parliament.

It is the Committee’s view that the high numbers of withdrawals and revocations point to deficiencies in the Scottish Government’s quality assurance processes.

The Committee appreciates that efforts are being made to improve these processes and encourages the Scottish Government in that regard with a view to improving the quality of the instruments laid before the Parliament and avoiding a repetition of this high number of withdrawals and revocations.

In addition to the Committee’s concerns about quality assurance processes, the Committee also recognises that there is a financial cost associated with re-laying instruments. The Committee encourages the Scottish Government to avoid incurring such costs.

Minor points 

123. During its scrutiny of instruments in 2014-15, the Committee identified a total of 114 instruments on which minor points were raised (generally typographical or referencing errors). This can be broken down into 104 instruments laid by the Scottish Government and 10 instruments laid by the LPPO.

124. Almost a third of instruments laid by the Scottish Government contained minor points. This represents an increase on last year and a return to the position in 2012-13.

125. Over half of the instruments laid by the LPPO over the course of this reporting year contained minor points. This is consistent with the position for last year.

While the Committee accepts that minor points such as these do not affect the validity of instruments, it urges both the Scottish Government and the LPPO to take steps to ensure that the number of these types of errors decreases.

Consolidation 

126. The Committee’s overarching objective is to ensure the accessibility of legislation to the general public. As part of this objective, the Committee continued to pursue the issue of consolidation of instruments which have been amended a number of times or to the extent that it was difficult to discern what was the current law.

127. While in principle the Committee would like to see as many instruments as possible be consolidated, it recognises that consolidation can be a very resource intensive exercise both from the perspective of the Parliament as well as the Scottish Government. Therefore the Committee has agreed to target its efforts. In particular, the Committee has only sought an explanation from the Government where there appears to be merit in consolidation being brought forward for the purposes of accessibility.

128. One instrument was identified by the Committee as meriting consolidation and this is listed in ANNEX C.

129. The following chart highlights the number of consolidating instruments laid by the Scottish Government in each of the last three years.

The Committee welcomes the three consolidating instruments brought forward by the Scottish Government of its own accord which are listed in ANNEX D.

At the same time, the Committee notes that the number of consolidating instruments this year is sharply down on the figures for the past two years.

While recognising the resource implications of consolidation, the Committee urges the Scottish Government to maintain its commitment to consolidation.

The Committee encourages the Scottish Government to pursue consolidation where possible and the Committee will continue to pursue the issue of consolidation more generally.

Motions to Annul 

130. A motion to annul the following instrument was lodged during the reporting period—

  • Town and Country Planning (General Permitted Development) (Scotland) Amendment (No. 2) Order (SSI 2014/300)

131. The motion to annul was, with the agreement of the Local Government and Regeneration Committee, withdrawn at its meeting on 7 January 2015.

Pensions instruments 

132. As noted throughout the report many of the Committee’s concerns have related to instruments providing for new pensions schemes.

133. These instruments provided for new public service pension schemes emanating from the Public Service Pensions Act 2013, a UK Parliament Act.

134. The Committee was concerned by the poor quality of the instruments making provision for these new pension schemes.

135. 32 of the 94 reports by the Committee this year related to pensions instruments equating to 34% of all the reports made by the Committee.

136. 50% of the instruments reported under one of the significant grounds was in relation to a pensions instrument.

137. The Teachers’ Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217) was itself reported under five separate grounds.

138. A significant proportion of the reports related to patent errors that should have been identified before laying.

139. The Committee found it highly unsatisfactory that instruments containing such a significant number of errors were laid before the Parliament. Several of the errors related to discrepancies in defined expressions, the omission of definitions, or omitted or patently incorrect wording, which it appeared should have been picked up by the Scottish Government quality control process and internal checking of the provisions.

140. The Committee was disappointed that it found itself and its legal advisers effectively performing this quality control function.

141. Given concerns expressed in previous Committee reports about the quality of instruments associated with implementation packages, it is also disappointing that another implementation package has not been of a sufficient standard.

142. In oral evidence to the Committee last year, the Minister for Parliamentary Business committed to effect an improvement in how packages of instruments are planned for and laid as well as an improvement in the quality of the instruments themselves.

143. In its report last year the Committee recognised that it would be considering a number of implementation packages in the course of the reporting year and that it would therefore be in a position to assess whether improvements had been made in the quality of the implementation packages.

144. It is disappointing to note therefore that an improvement has not been affected in relation to this package of instruments.

Mindful of the experience of the pensions instruments, the Committee invites the Scottish Government to again reflect on its quality control processes.

The Committee recognises that there were time pressures associated with the delivery of these instruments that reduced the time available for internal checking. Specifically, the Committee is aware that the Scottish Government is reliant on the UK Government to make provision for these pension schemes before the Scottish Government can draft its instruments.

The Committee encourages the Scottish Government to make further efforts to improve awareness within the UK Government of the timescales to which the Parliament is working to avoid a similar situation arising.

That said, recognising the Scottish Government’s previous commitments as regards the quality of instruments contained within the implementation packages, the Committee is disappointed that no improvement has been affected in their quality this year and encourages the Scottish Government to make such improvements.

Public Services Reform (Scotland) Act 2010 (Part 2 Extension) Order 2015 

145. As part of its scrutiny of instruments, the Committee seeks to ensure that any requirements associated with the laying of the instrument or prior to the laying of the instrument have been met. One feature of this aspect of consideration is establishing whether consultation has been undertaken.

146. It is normal practice for instruments to be consulted upon and the Committee would expect to see a considered justification for not doing so.

147. The Public Services Reform (Scotland) Act 201 (Part 3 Extension) Order 2015 extended the effect of Part 2 of the Public Services Reform (Scotland) Act 2010 (“the 2010 Act”) and its associated schedules for a period of five years from the date on which the instrument was made. If the order had not been made before 1 August 2015 Part 2 of the 2010 Act would have ceased to have had effect from that date.

148. In considering this draft order the Committee noted that, when the Bill for the 2010 Act was being scrutinised by the Parliament, the principle of whether or not such powers should be delegated to subordinate legislation attracted considerable debate. The rationale for this requirement to renew the powers appears to the Committee to be to provide the Parliament with the opportunity to review the use of the powers to date and whether the case had been made out for their renewal for a further five year period.

149. The policy note accompanying the draft instrument noted that no consultation had been undertaken on it, but offered no reasoned justification for not having done so.

150. In the absence of a statutory requirement for consultation (as in this case) the Committee appreciated that the decision on whether to consult is for the Scottish Government. The Committee reflected on the Scottish Government Consultation Good Practice Guidance which indicates that the decision as to whether to consult will be “informed by the history of the policy area, the issue under consultation, the existence of any Parliamentary/EU obligations to consult and the stage of the policy/legislative process”.

151. In the absence of a considered justification for the lack of a consultation on the draft instrument and given the policy history behind it, the Committee asked the Scottish Government to explain why no consultation had been undertaken.

152. The Scottish Government’s response maintained that a public consultation was neither needed nor would it have been beneficial. Furthermore, it contended that it is for the Parliament to decide whether the Part should remain in force and that stakeholders were unlikely to have any particular views on the issue of continuation. Finally, the response noted that individual orders taken forward under Part 2 have been subject to public consultation.

153. The Committee expressed concern that the Government took the view that it is unlikely that stakeholders would have any particular views on the matter. The Committee considers that the views of stakeholders (or the absence of views) should be established through the consultation process rather than assumptions made in the absence of an opportunity for comment.

154. More generally, the Committee expressed concern that this was part of a revised approach to consultation on the part of the Scottish Government.

155. The Scottish Government sought to reassure the Committee that this was not the case—

I should like to reassure the Committee that the Scottish Government has not revised its approach to consultation. We continue to believe that consultation is an important aspect of Scottish Government working methods and should be carried out on proposals for legislation except on rare occasions like this.3

It would be of great concern to the Committee if the likelihood of receiving responses was a determining factor in whether or not to undertake consultation.(cont)

The Committee urges the Scottish Government to ensure that undertaking consultation on instruments continues to be normal practice; that instances where consultation is not undertaken are rare; and a considered justification is offered for the absence of consultation in those instances.

EU Opt-in instruments 

156. On 1 December 2014 the UK opted out of the pre-Lisbon Treaty criminal law acquis (known as the 3rd Pillar), as provided for by Lisbon Treaty transitional arrangements, and on the same day opted back into a group of thirty five measures, including the Framework Decisions mentioned above.

157. To opt back into the measures covered in these particular Framework Decisions it was incumbent upon the Scottish Government to lay an Order and a set of Regulations before the Parliament.

158. The Scottish Government did not have the power to make the instruments until 1 December. The Government therefore laid the instruments and brought them into force on 1 December (so avoiding any breach of EU obligations). As negative instruments, there was then 40 days for the Parliament to scrutinise them.

159. In order to enable scrutiny before the instruments came into force, however, the Scottish Government shared drafts of the instruments and the Committee took evidence from Scottish Government officials.

160. This was an unprecedented approach, but one that worked well and highlighted where the Committee and the Scottish Government can work effectively together to ensure that there is an opportunity for scrutiny whilst in this instance avoiding any breach of EU obligations.

Other business

Bills

161. A considerable proportion of the Committee’s time is devoted to the consideration of delegated powers provisions in any public or private Bills introduced in the Parliament. Over the reporting period, the Committee has considered and reported on the following 14 Bills at Stage 1:

  • Historic Environment Scotland Bill;
  • Food (Scotland) Bill;
  • Welfare Funds (Scotland) Bill;
  • Mental Health (Scotland) Bill;
  • Community Empowerment (Scotland) Bill;
  • Prisoners (Control of Release) (Scotland) Bill;
  • Budget (Scotland) (No.4) Bill;
  • Air Weapons and Licensing (Scotland) Bill;
  • Assisted Suicide (Scotland) Bill;
  • Human Trafficking and Exploitation (Scotland) Bill;
  • British Sign Language (Scotland) Bill;
  • Scottish Elections (Reduction of Voting Age) Bill;
  • Carers (Scotland) Bill;
  • Apologies (Scotland) Bill.

162. The Committee also considered and reported on the following seven Bills as amended at Stage 2:

  • Housing (Scotland) Bill;
  • Buildings (Recovery of Expenses) (Scotland) Bill;
  • Revenue Scotland and Tax Powers Bill;
  • Courts Reform (Scotland) Bill;
  • Historic Environment Scotland Bill;
  • Food (Scotland) Bill;
  • Welfare Funds (Scotland) Bill.

163. Under Rule 6.11.1(b), (c) and (d) of Standing Orders, the DPLR Committee is charged with considering and reporting on delegated powers contained in Bills or other proposed legislation. This part of the Committee's remit states that the Committee will consider and report on—

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation; and

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation.

164. Subordinate legislation is made generally by Scottish statutory instrument. The most common forms are Regulations, Orders, Rules and Rules of Court. Bills may also contain other forms of delegated powers, such as those which grant power, usually to Ministers, to do something by direction or determination or in codes of practice, guidance and so on. In framing these powers, the Government will have considered the form which seems to it most appropriate and the degree of Parliamentary control, if any, that it thinks appropriate to the power.

165. The DPLR Committee’s scrutiny extends to Government Bills, committee Bills, members' Bills and consolidation Bills and certain Legislative Consent Memoranda (LCMs).

166. In examining a bill the DPLR Committee will —

  • consider whether the right balance in the Bill overall has been struck between primary legislation and subordinate powers;
  • consider whether a grant of a delegated power is appropriate. This includes expressing a view on whether the power is so substantial that it should only be exercised in primary legislation;
  • consider whether subordinate powers are properly drafted and whether the correct form has been chosen, whether their scope matches the purpose envisaged or whether they are too wide or extensive (it should be borne in mind that an undertaking from one Government to use a power in a particular way does not bind another Government);
  • pay special attention to what at Westminster are called “Henry VIII powers” - provisions in a Bill enabling primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny;
  • consider what form of parliamentary procedure is appropriate and, in particular, whether the proposed power calls, for example, for the affirmative rather than the negative resolution procedure;
  • consider provisions in a Bill which give power to do something purely administratively, for example by direction or guidance. This may involve considering whether the power should be exercised simply administratively or whether it seems sufficiently legislative in character to justify recasting it as a subordinate power and, if so, whether it should be subject to any Parliamentary procedure;
  • consider other ancillary questions, such as whether consultation should be a pre-condition of exercise of the power and if so, the nature of that consultation, whether the application of the instrument once it is in force should be accompanied by a Code of Conduct or Practice, and whether administrative directions or guidance, for example, should be published.

167. The DPLR Committee itself has no power to amend Bills, although it may lodge amendments itself or make recommendations to the lead committee which may result in that committee lodging amendments or the Scottish Government doing so. Under rule 9.6.3 of Standing Orders, lead committees must take into account any views submitted by any other committee and as such the views of the DPLR Committee must be taken into account.

Committee consideration of Bills during the last 3 years of Session 4

168. As the above graph illustrates, the number of Bills considered by the Committee has fluctuated over the course of the session. The number of bills considered after Stage 2v represents a session low while the number of bills considered at Stage 1, although not a session low, is still three fewer than last year.

169. While the number of bills considered by the Committee has remained relatively consistent for the last three years, the Committee expects to consider an increased number of bills in the last year of the session.

Recommendations by the Committee to amend Bills 

170. In its scrutiny of bills, the Committee regularly makes recommendations for bills to be amended.

171. One way to look at the impact of the Committee is to explore these recommendations and see whether these were accepted by the member in charge of the bill. This section covers bills which were passed by Parliament during 2014-15 to be able to see which recommendations were accepted.

172. Looking at those bills which were passed by the Parliament during the reporting period, the Committee made in total 23 recommendations for amendments to those bills.

 

Stage 1

 

After Stage 2

 

Total

No. recommendations

18

4

22

No. recommendations accepted fully or partly

15

2

17

% recommendations accepted fully of partly

83% 50% 77%

173. The majority of recommendations (18) were made at Stage 1, with only four recommendations to amend bills made after Stage 2.

174. In total 77% of recommendations made by the Committee to amend bills were accepted in full or in part. Seven of those recommendations were partly accepted.

175. Although the numbers are relatively small it appears that more recommendations were accepted at Stage 1 (83%) than after Stage 2 (2 out 4 recommendations)

176. The most frequent recommendations concerned: narrowing the scope of delegated powers; requiring consultation and/or publication; and recommending that delegated powers are subject to the affirmative procedure.

Almost all of these recommendations relate to bills introduced by the Scottish Government. The Committee welcomes the Scottish Government’s willingness to work with the Committee and to respond positively to its recommendations.

Community Empowerment (Scotland) Bill 

177. One particular bill considered by the Committee in this reporting year on which the Committee offers specific reflections is the Community Empowerment (Scotland) Bill.

178. The Bill made wide-ranging provision in relation to various types of community bodies and their rights.

179. Many of the Bill’s key provisions were to be provided for in secondary legislation and accordingly the Committee took a keen interest in the Bill throughout its passage through the Parliament.

180. The Committee expressed considerable concern about the Bill as introduced and, while the Committee welcomed the amendments made to the Bill at Stage 2 responding to these concerns, the Committee remains concerned about the approach taken at Stage 1 and hopes lessons can be learned from this experience.

181. At Stage 1 the Committee wrote to the Scottish Government asking questions before taking oral evidence from officials. This was followed by further correspondence with the Scottish Government. It was not, however, until a response was received to the Committee’s Stage 1 report that the Committee obtained the information and concessions it was seeking.

182. The reasons advanced in the Delegated Powers Memorandum (DPM) for taking many powers in the Bill were not sufficiently detailed so as to enable the Committee to reach a view on whether those powers were acceptable in principle. With regard to several powers, the necessary information was only obtained following both written and oral evidence and in some cases further correspondence still was required.

183. This is particularly disappointing to the Committee given the Committee’s previous concerns expressed about DPMs and the Minister for Parliamentary Business’ commitment to improve the quality of DPMs.

184. The quality of some of the written answers provided by the Scottish Government in response to the Committee’s questions was inadequate, requiring the Committee to explore a number of issues further with Scottish Government officials in oral evidence.

185. The Committee was concerned that some of the explanation offered for taking powers did not extend beyond intimating a need to retain flexibility within the Bill. The Committee considers such explanations to be inadequate, particularly given the significance of the powers. The Committee further found it concerning that the thinking behind some of the powers appeared still to be at an embryonic stage.

186. More generally, the Committee found it unsatisfactory that the Parliament was being asked to confer certain wide-ranging powers on the Scottish Ministers in circumstances where the Scottish Government had not informed the Parliament in sufficient detail of its plans for using those powers or of the reasons for taking a particular approach to the framing of certain powers. The Committee considers that there is a clear need for delegated powers to be fully explained, their terms appropriately framed and their scope clearly delineated.

Overall, the Committee found the process around Stage 1 scrutiny of the Bill highly unsatisfactory. The Committee hopes that lessons can be learned by the Scottish Government from this experience. In particular, the Parliament should not be invited to approve powers which are being taken without any justification offered and particularly where such justification is not offered because the reasoning for taking the power is still being developed.

The Committee also hopes that the experience may encourage an improvement in the quality of DPMs provided.

Legal Writings (Counterparts and Delivery) (Scotland) Bill 

187. This year the Committee considered the first Scottish Law Commission Bill to be introduced in the Parliament, the Legal Writings (Counterparts and Delivery) (Scotland) Bill.

188. The Bill is the first Scottish Law Commission Bill (SLC Bill) to be considered by the Committee following changes to Standing Orders in June 2013 which altered the Committee’s remit, allowing it to take the lead role in scrutinising certain SLC Bills.

189. The changes were made in order to increase the implementation rate of SLC reports. This followed recommendations made by the Standards, Procedures and Public Appointments Committee (SPPA Committee) in its report on the matter4 which was published on 18 April 2013.

190. As a result of the changes, SLC Bills may be referred to the Committee where they meet the conditions of Standing Orders Rule 9.17A and the associated criteria as determined by the Presiding Officer. The Presiding Officer determined under Rule 9.17A.1(b) that a Scottish Law Commission Bill is a Bill within the legislative competence of the Scottish Parliament—

(a) where there is a wide degree of consensus amongst key stakeholders about the need for reform and the approach recommended;
(b) which does not relate directly to criminal law reform;
(c) which does not have significant financial implications;
(d) which does not have significant European Convention on Human Rights (ECHR) implications; and
(e) where the Scottish Government is not planning wider work in that particular subject area.5

191. In the following video the Committee Convener explains the value of the Scottish Law Commission Bill process and explains why the Committee was supportive of the Legal Writings (Counterparts and Delivery) (Scotland) Bill. https://www.youtube.com/watch?v=Z-KQ8O1zzek

192. The Committee considered the Bill at Stages 1 and 2. At Stage 1 the Committee took evidence from a variety of stakeholders within the legal and business communities, reporting to the Parliament and recommending that the general principles be agreed to.

193. The Bill itself and the scrutiny applied to it was well received.

It is worth noting that, without the new process for consideration of Scottish Law Commission Bills, these changes to Scots law may have taken years to implement.

It is important that the Parliament strives to keep Scots law up to date and fit for purpose. Scottish Law Commission reports recommend ways of achieving this goal by suggesting improvements and updates to the law. However, for various reasons, the implementation rate of Scottish Law Commission reports has until recently been very low.

This process is therefore very welcome and the Committee looks forward to considering further SLC Bills in due course.

Legislative Consent Memorandums (LCMs) 

194. The Committee also considered four LCMs. LCMs are prepared in relation to UK Parliament Bills which seek to change the law or alter Scottish Ministers’ or the Scottish Parliament’s powers in relation to devolved matters. The four LCMs considered by the Committee were on:

  • Small Business, Enterprise and Employment Bill;
  • Criminal Justice and Courts Bill;
  • Modern Slavery Bill;
  • Serious Crime Bill.

195. The Committee also considered three Supplementary Legislative Consent Memorandums on:

  • Deregulation Bill;
  • Small Business, Enterprise and Employment Bill;
  • Serious Crime Bill.

Public Body Consent Memorandums (PBCMs) 

196. PBCMs relate to draft orders made under sections 1 to 5 of the Public Bodies Act 2011 which would fall within the Scottish Parliament’s legislative competence. This mechanism was created to make provision for orders being brought forward under the Act which related to cross-border matters and so which would require the consent of the Scottish Parliament before proceeding further.

197. Four PBCMs were considered by the Committee in 2014-15. The Committee considers the orders under the same grounds as instruments laid before the Parliament. In doing so, it determined that it did not need to draw the attention of the Parliament to the following order on any of those grounds:

  • Public Bodies (Abolition of Food from Britain) Order 2014 [draft];
  • Public Bodies (Abolition of the Home Grown Timber Advisory Committee) Order 2015 [draft];
  • Public Bodies (Abolition of the Advisory Committee on Pesticides) Order 2015 [draft].

Conclusions 

198. In reflecting on the year in its entirety, the Committee’s overall impression is that from a Scottish Government perspective at least the report’s findings are less positive than the previous year.

199. There has been a notable increase in the number of reports on instruments this year. Some of that increase can be attributed to the poor quality of the instruments implementing the new pension schemes and, while there may be some mitigating circumstances in relation to these instruments, there are still questions that arise in relation to efficacy of the quality control processes applied.

200. The increase is not just attributable to the pensions instruments. When combining the number of instruments reported with the number of instruments withdrawn on the basis of concerns identified by the Committee’s legal advisers, there are clearly concerns about the quality control processes being applied more generally.

201. The Committee notes that the number of instruments laid this year represents a sizable increase on the figure from the previous year. Previous experience would suggest that in the last year of a session the number of instruments laid is higher than at any other point in the session and with that in mind the importance of effective quality control processes is magnified.

202. The Committee appreciates that the Scottish Government is endeavouring to improve these quality control processes and encourages the Scottish Government’s efforts in that regard.

203. As far as primary legislation is concerned, the report reflects the Committee’s concerns about the approach taken in relation to the Community Empowerment (Scotland) Bill. This is not an approach that the Committee would want to see repeated and it is an experience that the Committee hopes the Scottish Government will reflect upon.

204. The Committee undertook productive and effective scrutiny of the Legal Writings (Counterparts and Delivery) (Scotland) Bill and found the new process for Scottish Law Commission inspired bills to be successful.

205. The Committee also welcomes the positive working relationship with the Scottish Government that has resulted in 77% of its recommendations in relation to bills being accepted and responded to.

206. The quality of the instruments laid by the LPPO has been high with only one report in the course of the year. This reflects a significant improvement and appears to point to an improvement in drafting and quality assurance processes. The Committee encourages the LPPO to maintain this improvement.

Annex A

REPORTING GROUNDS: 11 MAY 2014 TO 10 MAY 2015

(a) Charge on the Scottish Consolidated Fund

  • None

(b) Made in pursuance of any enactment containing specific provisions excluding it from challenge in the courts

  • None

(c) retrospective effect where the parent statute confers no express authority so to provide

  • None

(d) unjustifiable delay in the publication or the laying of it before Parliament

  • National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/154) Health and Sport
  • Teachers’ Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217) Education and Culture

(e) doubt as to whether it is intra vires

  • None

(f) raises a devolution issue

  • None

(g) unusual or unexpected use of the powers conferred by the parent statute

  • Scottish Regulators’ Strategic Code of Practice (SG/2014/236) Economy, Energy and Tourism

(h) meaning could be clearer

  • Town and Country Planning (Control of Advertisements) (Scotland) Amendment Regulations 2014 (SSI 2014/139) Local Government and Regeneration
  • Marriage and Civil Partnership (Scotland) Act 2014 (Commencement No. 2 and Saving Provisions) Order 2014 (SSI 2014/212) Equal Opportunities
  • Teachers’ Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217) Education and Culture
  • Bankruptcy (Scotland) Regulations 2014 (SSI 2014/225) Economy, Energy and Tourism
  • Bankruptcy Fees (Scotland) Regulations 2014 (SSI 2014/227) Economy, Energy and Tourism
  • Bankruptcy and Debt Advice (Scotland) Act 2014 (Commencement No. 2, Savings and Transitionals) Order 2014 (SSI 2014/261 (C.23)) Economy, Energy and Tourism
  • Public Bodies (Joint Working) (Scotland) Act 2014 (Modifications) Order 2014 [draft] Health and Sport
  • Marriage Between Civil Partners (Procedure for Change and Fees) (Scotland) Regulations 2014 [draft] Equal Opportunities
  • Public Bodies (Joint Working) (Integration Joint Boards) (Scotland) Order 2014 (SSI 2014/285) Health and Sport
  • Food Information (Scotland) Regulations 2014 (SSI 2014/312) Health and Sport
  • Scottish Landfill Tax (Administration) Regulations 2015 (SSI 2015/3) Finance
  • Firefighters’ Pension Scheme (Consequential Provisions) (Scotland) Regulations 2015 [draft] Finance
  • Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015 [draft] Devolution (Further Powers)
  • Reservoirs (Scotland) Act 2011 (Commencement No. 3 and Transitional Provisions) Order 2015 (SSI 2015/63 (C.13)) RACCE
  • Pollution Prevention and Control Act 1999 (Commencement No. 3) (Scotland) Order 2015 2015 (SSI 2015/74 (C.16)) RACCE
  • Local Government Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/87) Local Government and Regeneration
  • Reservoirs (Scotland) Regulations 2015 (SSI 2015/90) RACCE
  • National Health Service Pension Scheme (Scotland) Regulations 2015 (SSI 2015/94) Health and Sport
  • Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141) Justice
  • Registration of Births, Deaths and Marriages (Scotland) Act 1965 (Prohibition on Disposal of a Body without Authorisation) Regulations 2015 (SSI 2015/166) Health and Sport

(i) drafting appears to be defective

  • Firefighters’ Pension Scheme (Scotland) Amendment (No. 2) Order 2014 (SSI 2014/110) Justice
  • Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2014 (SSI 2014/142) Local Government and Regeneration
  • Local Government Pension Scheme (Scotland) Regulations 2014 (SSI 2014/164) Local Government and Regeneration
  • Teachers’ Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217) Education and Culture
  • Local Government Pension Scheme (Transitional Provisions and Savings) (Scotland) Regulations 2014 (SSI 2014/233) Local Government and Regeneration
  • Public Bodies (Joint Working) (Integration Joint Boards) (Scotland) Order 2014 (SSI 2014/285) Health and Sport
  • Products Containing Meat etc. (Scotland) Regulations 2014 (SSI 2014/289) Health and Sport
  • Conservation of Salmon (Annual Close Time and Catch and Release) (Scotland) Regulations 2014 (SSI 2014/327) RACCE
  • Land and Buildings Transaction Tax (Transitional Provisions) (Scotland) Order 2014 (SSI 2014/377) Finance
  • Local Government Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/87) Local Government and Regeneration
  • National Health Service Pension Scheme (Scotland) Regulations 2015 (SSI 2015/94) Health and Sport
  • National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/96) Health and Sport
  • Food (Scotland) Act 2015 (Commencement) Order 2015 (SSI 2015/99 (C.19)) Health and Sport
  • Food (Scotland) Act 2015 (Consequential and Transitional Provisions) Order 2015 (SSI 2015/100) Health and Sport
  • Act of Adjournal (Criminal Procedure Rules Amendment No. 2) (European Protection Orders) 2015 (SSI 2015/121) Justice
  • Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141) Justice
  • Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142) Justice
  • Firefighters’ Compensation Scheme and Pension Scheme (Amendment) (Scotland) Order 2015 (SSI 2015/143) Justice

LPPO instrument

  • Act of Adjournal (Criminal Procedure Rules Amendment No. 2) (European Protection Orders) 2015 (SSI 2015/121) Justice

(j) failure to comply with laying requirements

  • National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/154) Health and Sport
  • Right to Information (Suspects and Accused Persons) (Scotland) Regulations 2014 (SSI 2014/159) Justice
  • Town and Country Planning (General Permitted Development) (Scotland) Amendment (Amendment) Order 2014 (SSI 2014/184) Local Government and Regeneration
  • Teachers’ Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217) Education and Culture
  • South Arran Marine Conservation Order 2014 (SSI 2014/260) RACCE
  • Charities Accounts (Scotland) Amendment (No. 2) Regulations 2014 (SSI 2014/335) Local Government and Regeneration
  • Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) (No. 2) Order 2014 (SSI 2014/336) Justice
  • Mutual Recognition of Supervision Measures in the European Union (Scotland) Regulations 2014 (SSI 2014/337) Justice
  • Conservation of Salmon (Annual Close Time and Catch and Release) (Scotland) Amendment Regulations 2014 (SSI 2014/357) RACCE
  • Tweed Regulation Amendment Order 2015 (SSI 2015/11) RACCE
  • Firemen’s Pension Scheme (Amendment) (Scotland) Order 2015 (SSI 2015/140) Justice
  • Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141) Justice
  • Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142) Justice
  • Firefighters’ Compensation Scheme and Pension Scheme (Amendment) (Scotland) Order 2015 (SSI 2015/143) Justice
  • Certification of Death (Scotland) Act 2011 (Authorisation of Cremation – Death Outwith Scotland) Regulations 2015 (SSI 2015/162) Health and Sport
  • Certification of Death (Scotland) Act 2011 (Application for Review) Regulations 2015 (SSI 2015/163) Health and Sport
  • Certification of Death (Scotland) Act 2011 (Consequential Provisions) Order 2015 (SSI 2015/164) Health and Sport
  • Certification of Death (Scotland) Act 2011 (Post-Mortem Examinations – Death Outwith United Kingdom) Regulations 2015 (SSI 2015/165) Health and Sport
  • Registration of Births, Deaths and Marriages (Scotland) Act 1965 (Prohibition on Disposal of a Body without Authorisation) Regulations 2015 (SSI 2015/166) Health and Sport

General reporting ground

  • Firefighters’ Compensation Scheme (Scotland) Amendment Order 2014 (SSI 2014/109) Justice
  • Firefighters’ Pension Scheme (Scotland) Amendment (No. 2) Order 2014 (SSI 2014/110) Justice
  • Children’s Hearings (Scotland) Act 2011 (Modification of Subordinate Legislation) Order 2014 (SSI 2014/112) Education and Culture
  • Adults with Incapacity (Supervision of Welfare Guardians etc. by Local Authorities) (Scotland) Amendment Regulations 2014 (SSI 2014/123) Justice
  • Children and Young People (Scotland) Act 2014 (Commencement No. 1 and Transitory Provisions) Order 2014 (SSI 2014/131 (C.9)) Education and Culture
  • National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/154) Health and Sport
  • Marriage and Civil Partnership (Scotland) Act 2014 (Commencement No. 2 and Saving Provisions) Order 2014 (SSI 2014/212) Equal Opportunities
  • Teachers’ Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217) Education and Culture
  • Bankruptcy (Scotland) Regulations 2014 (SSI 2014/225) Economy, Energy and Tourism
  • Rules of the Scottish Land Court Order 2014 (SSI 2014/229) Justice
  • Local Government Pension Scheme (Transitional Provisions and Savings) (Scotland) Regulations 2014 (SSI 2014/233) Local Government and Regeneration
  • Sulphur Content of Liquid Fuels (Scotland) Regulations 2014 (SSI 2014/258) RACCE
  • Public Bodies (Joint Working) (Integration Joint Monitoring Committees) (Scotland) Order 2014 (SSI 2014/281) Health and Sport
  • Public Bodies (Joint Working) (Integration Joint Boards) (Scotland) Order 2014 (SSI 2014/285) Health and Sport
  • Charities Accounts (Scotland) Amendment Regulations 2014 (SSI 2014/295) Local Government and Regeneration
  • Marriage Between Persons of Different Sexes (Prescribed Bodies) (Scotland) Regulations 2014 (SSI 2014/304) Equal Opportunities
  • Food Information (Scotland) Regulations 2014 (SSI 2014/312) Health and Sport
  • Children and Young People (Scotland) Act 2014 (Commencement No. 5 and Saving Provision) Order 2014 (SSI 2014/353 (C.31)) Education and Culture
  • Scottish Tax Tribunals (Eligibility for Appointment) Regulations 2014 (SSI 2014/355) Finance
  • Scottish Landfill Tax (Administration) Regulations 2015 (SSI 2015/3) Finance
  • Firefighters’ Pension Scheme (Scotland) Regulations 2015 (SSI 2015/19) Justice
  • Revenue Scotland and Tax Powers Act (Privileged Communications) Regulations 2015 (SSI 2015/38) Finance
  • Local Government Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/87) Local Government and Regeneration
  • Reservoirs (Scotland) Regulations 2015 (SSI 2015/90) RACCE
  • 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
  • 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
  • Crofting Counties Agricultural Grants (Scotland) Variation Scheme 2015 (SSI 2015/105) RACCE
  • Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141) Justice
  • Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142) Justice
  • Firefighters’ Compensation Scheme and Pension Scheme (Amendment) (Scotland) Order 2015 (SSI 2015/143) Justice
  • Certification of Death (Scotland) Act 2011 (Post-Mortem Examinations – Death Outwith United Kingdom) Regulations 2015 (SSI 2015/165) Health and Sport

LPPO instrument

  • Act of Adjournal (Criminal Procedure Rules Amendment No. 2) (European Protection Orders) 2015 (SSI 2015/121) Justice

Annex B

COMMITMENTS: 11 MAY 2014 TO 10 MAY 2015

Scottish Government instruments

Commitments met by the laying of amending instruments during the reporting year

  • Firefighters’ Compensation Scheme (Scotland) Amendment Order 2014 (SSI 2014/109)

    Commitment met by the laying of the Firefighters’ Compensation Scheme and Pension Scheme (Amendment) (Scotland) Order 2015 (SSI 2015/143)

  • Firefighters’ Pension Scheme (Scotland) Amendment (No. 2) Order 2014 (SSI 2014/110)

    Commitment met by the laying of the Firefighters’ Pension Scheme (Scotland) Amendment (No. 3) Order 2014 (SSI 2014/149)

  • Adults with Incapacity (Supervision of Welfare Guardians etc. by Local Authorities) (Scotland) Amendment Regulations 2014 (SSI 2014/123)

    Commitment met by the laying of the Adults with Incapacity (Supervision of Welfare Guardians etc. by Local Authorities) (Scotland) Amendment (No. 2) Regulations 2014 (SSI 2014/157)

  • Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2014 (SSI 2014/142)

    Commitment met by the laying of the Town and Country Planning (General Permitted Development) (Scotland) Amendment (Amendment) Order 2014 (SSI 2014/184)

  • Marriage and Civil Partnership (Scotland) Act 2014 (Commencement No. 2 and Saving Provisions) Order 2014 (SSI 2014/212)

    Commitment met by the laying of Marriage and Civil Partnership (Scotland) Act 2014 (Commencement No. 2 and Saving Provisions) Amendment Order 2014 (SSI 2014/218)

  • Teachers’ Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217)

    Commitment met by the laying of the Teachers’ Pension Scheme (Scotland) (No. 2) Regulations 2014 (SSI 2014/292)

  • Bankruptcy (Scotland) Regulations 2014 (SSI 2014/225)

    Commitment met by the laying of Bankruptcy Fees (Scotland) Regulations 2014 (SSI 2015/80)

  • Bankruptcy (Applications and Decisions) (Scotland) Regulations 2014 (SSI 2014/226)

    Commitment met by the laying of Bankruptcy Fees (Scotland) Regulations 2014 (SSI 2015/80)

  • Bankruptcy Fees (Scotland) Regulations 2014 (SSI 2014/227)

    Commitment met by the laying of Bankruptcy Fees (Scotland) Regulations 2014 (SSI 2015/80)

  • Bankruptcy and Debt Advice (Scotland) Act 2014 (Commencement No. 2, Savings and Transitionals) Order 2014 (SSI 2014/261 (C.23))

    Commitment met by the laying of the Bankruptcy and Debt Advice (Scotland) Act 2014 (Commencement No. 2, Savings and Transitionals) Amendment Order 2015 (SSI 2015/54 (C.10))

  • Public Bodies (Joint Working) (Integration Joint Monitoring Committees) (Scotland) Order 2014 (SSI 2014/281)

    Commitment met by the laying of the Public Bodies (Joint Working) (Integration Joint Boards and Integration Joint Monitoring Committees) (Amendment) (Scotland) Order 2015 (SSI 2015/86)

  • Public Bodies (Joint Working) (Integration Joint Boards) (Scotland) Order 2014 (SSI 2014/285)

    Commitment met by the laying of the Public Bodies (Joint Working) (Integration Joint Boards and Integration Joint Monitoring Committees) (Amendment) (Scotland) Order 2015 (SSI 2015/86)

  • Charities Accounts (Scotland) Amendment Regulations 2014 (SSI 2014/295)

    Commitment met by the laying of the Charities Accounts (Scotland) Amendment (No. 2) Regulations 2014 (SSI 2014/335)

  • Conservation of Salmon (Annual Close Time and Catch and Release) (Scotland) Regulations 2014 (SSI 2014/327)

    Commitment met by the laying of the Conservation of Salmon (Annual Close Time and Catch and Release) (Scotland) Amendment Regulations 2014 (SSI 2014/357)

  • Children and Young People (Scotland) Act 2014 (Commencement No. 5 and Saving Provision) Order 2014 (SSI 2014/353 (C.31))

    Commitment met by the laying of the Children and Young People (Scotland) Act 2014 (Commencement No. 6) Order 2014 (SSI 2014/365 (C.33))

  • Land and Buildings Transaction Tax (Transitional Provisions) (Scotland) Order 2014 (SSI 2014/377)

    Commitment met by the laying of the Land and Buildings Transaction Tax (Transitional Provisions) (Scotland) Amendment Order 2015 (SSI 2015/71)

  • Scottish Landfill Tax (Administration) Regulations 2015 (SSI 2015/3)

    Commitment met by the laying of the Scottish Landfill Tax (Administration) Amendment Regulations 2015 [draft]

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

    Commitment met by the laying of Pollution Prevention and Control Act 1999 (Commencement No. 4 and Amendment) (Scotland) Order 2015 (SSI 2015/139 (C.27))

Commitments outstanding (from 2014-15)

  • National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/154) to be corrected in due course
  • Sulphur Content of Liquid Fuels (Scotland) Regulations 2014 (SSI 2014/258) to be amended at the next available opportunity
  • Products Containing Meat etc. (Scotland) Regulations 2014 (SSI 2014/289) to be amended at the earliest available opportunity
  • Marriage Between Persons of Different Sexes (Prescribed Bodies) (Scotland) Regulations 2014 (SSI 2014/304) to be corrected when the Regulations are next amended
  • Food Information (Scotland) Regulations 2014 (SSI 2014/312) to be amended at the first appropriate opportunity
  • Local Government Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/87) to be corrected after 1 April 2015 but having retrospective effect from that date
  • Reservoirs (Scotland) Regulations 2015 (SSI 2015/90) to be addressed at the next opportunity
  • National Health Service Pension Scheme (Scotland) Regulations 2015 (SSI 2015/94) to be corrected after 1 April 2015 but having retrospective effect from that date
  • National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (SSI 2015/95) to be corrected when the Regulations are next amended
  • National Health Service Superannuation Scheme (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/96) to be corrected after 1 April 2015 but having retrospective effect from that date
  • Teachers’ Pension Scheme (Scotland) Amendment Regulations 2015 (SSI 2015/97) to be corrected after 1 April 2015 but having retrospective effect from that date
  • Teachers’ Superannuation (Scotland) Amendment Regulations 2015 (SSI 2015/98) to be corrected after 1 April 2015 but having retrospective effect from that date
  • Crofting Counties Agricultural Grants (Scotland) Variation Scheme 2015 (SSI 2015/105) to be corrected when the principal scheme is next amended
  • Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141) to be corrected after 1 April 2015 but having retrospective effect from that date
  • Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142) to be corrected after 1 April 2015 but having retrospective effect from that date
  • Firefighters’ Compensation Scheme and Pension Scheme (Amendment) (Scotland) Order 2015 (SSI 2015/143) to be corrected by an amending instrument with appropriate retrospective effect
  • Registration of Births, Deaths and Marriages (Scotland) Act 1965 (Prohibition on Disposal of a Body without Authorisation) Regulations 2015 (SSI 2015/166) to be corrected at the next appropriate opportunity

Commitments outstanding (from previous years)

  • Additional Support for Learning (Sources of Information) (Scotland) Amendment Order 2011 (SSI 2011/102) to be amended at the next available opportunity
  • Marketing of Horticultural Produce (Scotland) Amendment Regulations 2011 (SSI 2011/324) to be amended at the earliest available opportunity
  • Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2012 (SSI 2012/228) to be amended at the next available opportunity
  • Animal Health (Miscellaneous Fees and Amendments) (Scotland) Regulations 2013 (SSI 2013/151) to be amended at the next available opportunity
  • Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2013 (SSI 2013/176) to be corrected when the Regulations are next amended
  • Teachers’ Superannuation (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/69) to be amended at next opportunity
  • National Health Service (Charges to Overseas Visitors) (Scotland) (Amendment) Regulations 2014 (SSI 2014/70) to be amended at next opportunity

Lord President’s Private Office instruments

207. The Lord President’s Private Office had no outstanding commitments to meet at the beginning of the reporting year. During the year, one of the nineteen instruments laid by the LPPO was reported on.

208. As at the end of reporting year 2014-15, the commitment given to correct the errors in that instrument had yet to be met.

Commitments outstanding

  • Act of Adjournal (Criminal Procedure Rules Amendment No. 2) (European Protection Orders) 2015 (SSI 2015/121) to be corrected at the earliest opportunity

Annex C

INSTRUMENTS WHICH THE COMMITTEE IDENTIFIED AS BEING SUITABLE FOR CONSOLIDATION: 11 MAY 2014 TO 10 MAY 2015

  • National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009

Annex D

CONSOLIDATING INSTRUMENTS LAID IN THE REPORTING PERIOD: 11 MAY 2014 TO 10 MAY 2015

  • Smoke Control Areas (Exempted Fireplaces) (Scotland) Order 2014 (SSI 2014/316) consolidates the 2010 Order
  • Smoke Control Areas (Authorised Fuels) (Scotland) Regulations 2014 (SSI 2014/317) consolidates the 2010 Regulations
  • Plant Health (Import Inspection Fees) (Scotland) Regulations 2014 (SSI 2014/338) consolidates and amends the 2005 Regulations

Annex E

NON-COMPLIANCE WITH LAYING REQUIREMENTS: 11 MAY 2014 TO 10 MAY 2015

Committee content with reason for non-compliance

  • Right to Information (Suspects and Accused Persons) (Scotland) Regulations 2014 (SSI 2014/159) Justice
  • Town and Country Planning (General Permitted Development) (Scotland) Amendment (Amendment) Order 2014 (SSI 2014/184) Local Government and Regeneration
  • South Arran Marine Conservation Order 2014 (SSI 2014/260) RACCE
  • Charities Accounts (Scotland) Amendment (No. 2) Regulations 2014 (SSI 2014/335) Local Government and Regeneration
  • Mutual Recognition of Criminal Financial Penalties in the European Union (Scotland) (No. 2) Order 2014 (SSI 2014/336) Justice
  • Mutual Recognition of Supervision Measures in the European Union (Scotland) Regulations 2014 (SSI 2014/337) Justice
  • Conservation of Salmon (Annual Close Time and Catch and Release) (Scotland) Amendment Regulations 2014 (SSI 2014/357) RACCE

Committee not content with reason for non-compliance

  • Firemen’s Pension Scheme (Amendment) (Scotland) Order 2015 (SSI 2015/140) Justice
  • Firefighters’ Pension Schemes (Amendment) (Scotland) Regulations 2015 (SSI 2015/141) Justice
  • Police Pension Scheme (Scotland) Regulations 2015 (SSI 2015/142) Justice
  • Firefighters’ Compensation Scheme and Pension Scheme (Amendment) (Scotland) Order 2015 (SSI 2015/143) Justice
  • National Health Service Superannuation Scheme (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/154) Health and Sport
  • Teachers’ Pension Scheme (Scotland) Regulations 2014 (SSI 2014/217) Education and Culture
  • Tweed Regulation Amendment Order 2015 (SSI 2015/11) RACCE
  • Certification of Death (Scotland) Act 2011 (Authorisation of Cremation – Death Outwith Scotland) Regulations 2015 (SSI 2015/162) Health and Sport
  • Certification of Death (Scotland) Act 2011 (Application for Review) Regulations 2015 (SSI 2015/163) Health and Sport
  • Certification of Death (Scotland) Act 2011 (Consequential Provisions) Order 2015 (SSI 2015/164) Health and Sport
  • Certification of Death (Scotland) Act 2011 (Post-Mortem Examinations – Death Outwith United Kingdom) Regulations 2015 (SSI 2015/165) Health and Sport
  • Registration of Births, Deaths and Marriages (Scotland) Act 1965 (Prohibition on Disposal of a Body without Authorisation) Regulations 2015 (SSI 2015/166) Health and Sport

Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites

Footnotes:

i The withdrawal of instruments involves the Scottish Government withdrawing a draft instrument which is laid before Parliament prior to the approval of that draft instrument.

ii Scottish Parliament Standing Orders, Rule 10.3.1.

iii The figures in brackets here and in the tables throughout the report show the total number of instruments drawn to the Parliament’s attention which includes instruments reported on the advisory grounds, (in all cases, ground (g)), and, with regard to ground (j), where the Committee was satisfied with the reasons given for non-compliance with the laying requirements. To provide an overall picture of matters of concern to the Delegated Powers and Law Reform Committee, these have been removed from the overall figure

iv The one SSI that was reported on this parliamentary year was done so under both ground (i) and the general ground

v It should be noted that the Committee only considers Bills after stage 2 where there has been an amendment to the delegated powers within a Bill at Stage 2.

1 Scottish Parliament Subordinate Legislation Committee, 14th Report, 2007 (Session 2). Report on the Inquiry into the Regulatory Framework in Scotland (SP Paper 751).

2 Scottish Parliament Subordinate Legislation Committee, 9th Report, 2011 (Session 4), Scottish Statutory Instruments laid in 2010.

3 Correspondence from the Deputy First Minister to the Convener of the Delegated Powers and Law Reform Committee 19 May 2015 (as accessed on 7 October 2015)

4 Standards, Procedures and Public Appointments Committee, 2nd report 2013, Implementing Scottish Law Commission reports available here: http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/62339.aspx

5 Scottish Parliament Business Bulletin, 6 June 2013 available here; http://www.scottish.parliament.uk/parliamentarybusiness/BusinessBulletin/64350.aspx

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