6th Report, 2016 (Session 4): Subordinate Legislation

SP Paper 883 (Web)

Contents

Introduction

Points raised: instruments subject to negative procedure

Public Contracts (Scotland) Regulations 2015 (SSI 2015/446) (Infrastructure and Capital Investment)

Local Government Pension Scheme (Scotland) Amendment (No. 2) Regulations 2015 (SSI 2015/448) (Local Government and Regeneration)

No points raised

Annexe A

Annexe B

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

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

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

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

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and

(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule; and

(i) any Consolidation Bill as defined in Rule 9.18.1 referred to it by the Parliamentary Bureau in accordance with Rule 9.18.3.

Membership:

Nigel Don (Convener)
John Mason (Deputy Convener)
John Scott
Stewart Stevenson

Subordinate Legislation

Introduction

1. At its meeting on 19 January 2016, the Committee agreed to draw the attention of the Parliament to the following instruments—

Public Contracts (Scotland) Regulations 2015 (SSI 2015/446);

Local Government Pension Scheme (Scotland) Amendment (No. 2) Regulations 2015 (SSI 2015/448).

2. The Committee’s recommendations in relation to the above instruments are set out below.

3. The Committee determined that it did not need to draw the Parliament’s attention to the instruments which are set out at the end of this report.

Points raised: instruments subject to negative procedure

Public Contracts (Scotland) Regulations 2015 (SSI 2015/446) (Infrastructure and Capital Investment)

4. The purpose of this instrument is to revoke and replace the Public Contracts (Scotland) Regulations 2012 and to transpose into domestic law Directive 2014/24/EU on public procurement.

5. In considering the instrument, the Committee asked the Scottish Government whether it is intended that the central government authorities listed in Schedule 1 to the regulations are also to be understood as contracting authorities for the purposes of the regulations. The correspondence is reproduced at Annexe A.

6. The Scottish Government considers that the central government authorities, which are the bodies listed in Schedule 1 to the instrument, fall within the definition of the term “contracting authority” in regulation 2(1) and that this is clear from the terms of the regulations. The Committee considers however that the definition of the term “central government authority” should refer to “the contracting authorities listed in Schedule 1” rather than simply to “the authorities listed in Schedule 1” in order to make clear the policy intention that all central government authorities are intended to be contracting authorities. The Committee notes that the definition of “central government authority” in Directive 2014/24/EU refers to “contracting authorities” rather than simply to “authorities” (emphasis added).

7. The Committee also raised queries on a number of apparent cross-referencing errors. The correspondence is reproduced at Annexe A. The Scottish Government acknowledged the errors identified and undertook to lay a further instrument to correct them in time for the commencement of the regulations on 18 April 2016.

8. The Committee accordingly draws the instrument to the attention of the Parliament under reporting ground (h) as the meaning of regulation 2(1) could be clearer in the following respect:

9. Regulation 2 defines the term “central government authority” as “the authorities listed in Schedule 1 and, where any such authority is succeeded by another authority which is itself a contracting authority, their successors”. Regulation 2 also defines the term “contracting authority” as “the state, a regional or local authority, body governed by public law or association formed by one or more such authorities or bodies”. Directive 2014/24/EU defines “central government authorities” as the contracting authorities listed in Annex 1 however the definition of “central government authority” in regulation 2 does not refer to “contracting authorities”, but only to “authorities”. The central government authorities listed in Schedule 1 of the instrument are intended to be “contracting authorities” for the purposes of the regulations however the definition of “central government authority” as set out in regulation 2(1) could make this policy intention clearer.

10. The Committee also draws the instrument to the attention of the Parliament under the general reporting ground, as the following cross-referencing errors arise:

a. Paragraphs (5), (6) and (7) of regulation 4 refer to, respectively, paragraphs (5)(a), (5)(b) and (5)(c). The references should instead be to paragraphs (4)(a), (4)(b) and 4(c).

b. Regulation 38(1) refers to “paragraph (9)(a)” however there is no paragraph (9) in regulation 38.

c. Regulation 85(3)(a) and (b) refer to, respectively, regulation 43(11) and 43(10). The references should instead be to regulation 43(14) and 43(13).

d. Regulation 91(2) refers to “paragraph (10)(b)”. The reference should instead be to “regulation 92(1)(b)”.

e. Regulation 99(5) defines the term “the Utilities amendments” as the amendments made to the Utilities Contracts (Scotland) Regulations 2012 (defined as “the UCR”) by paragraph 9 of Schedule 6. The reference to paragraph 9 should instead be to paragraph 8.

f. The new paragraphs (10)(1)(b) and 10(2) of schedule 3 to the Rehabilitation of Offenders (Exclusions and Exceptions) (Scotland) Order 2013 as substituted by paragraph 10 of Schedule 6 to the regulations refer to “regulation 80”. These references should be to “regulation 79”.

11. The Committee welcomes the commitment given by the Scottish Government to lay a further instrument to correct these cross-referencing errors. The Committee also strongly encourages the Scottish Government to take the opportunity to clarify the term “central government authority” in the amending instrument, to make clear on the face of the Regulations the policy intention that the bodies listed in Schedule 1 are “contracting authorities”.

Local Government Pension Scheme (Scotland) Amendment (No. 2) Regulations 2015 (SSI 2015/448) (Local Government and Regeneration)

12. This instrument amends the Local Government Pension Scheme (Scotland) Regulations 2014 (“the Main Regulations”) and the Local Government Pension Scheme (Transitional Provisions and Savings) (Scotland) Regulations 2014 which came into force on 1 April 2015.

13. It makes substantive amendments as a result of changes in public sector pensions policy, and technical amendments for the purposes of clarity. The substantive amendments include changes to provide for the new shared parental leave scheme, and changes to employer payments for historic liabilities (on exit and cessation of pension schemes).

14. The instrument also makes amendments to the Local Government Pension Scheme (Scotland) Regulations 1998 and the Local Government Pension Scheme (Benefits, Membership and Contributions) (Scotland) Regulations 2008 to allow for survivor benefits to be payable in relation to survivors of same sex marriages under old schemes which are carried over into the 2015 Scheme. A consequential change is also made to the Local Government Pension Scheme (Transitional Provisions) (Scotland) Regulations 2008.

15. The instrument is subject to the negative procedure and will come into force on 2 February 2016. It makes retrospective provision which has effect variously from 16 December 2014, 1 April 2015 and 6 April 2015.

16. In considering the instrument, the Committee asked the Scottish Government to explain why a definition of the term “the Transitional and Savings Regulations 2014” is inserted in Schedule 1 of the Main Regulations, as opposed to the term “the Transitional Provisions and Savings Regulations”, which is the term used in the Main Regulations. The correspondence is reproduced at Annexe B.

17. The Committee draws the instrument to the Parliament’s attention under the general reporting ground in respect that regulation 29(e) inserts a definition of “the Transitional and Savings Regulations 2014” in Schedule 1 to the Local Government Pension Scheme (Scotland) Regulations 2014. The Scottish Government has confirmed that the policy intention was to insert a definition of “the Transitional Provisions and Savings Regulations 2014” in that Schedule.

18. The Committee notes that the Scottish Government has undertaken to correct the error by a further amending instrument, to come into force on 2 February 2016.

No points raised 

19. At its meeting on 19 January 2016, the Committee considered the following instruments. The Committee determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Devolution (Further Powers)

Scottish Parliament Elections (Returning Officer Fees and Charges) Regulations 2016 (SSI 2016/10).

Health and Sport

Public Bodies (Joint Working) (Integration Joint Board Establishment) (Scotland) Amendment Order 2016 (SSI 2016/2);

Health Boards (Membership and Procedure) (Scotland) Amendment Regulations 2016 (SSI 2016/3).

Local Government and Regeneration

Local Governance (Scotland) Act 2004 (Remuneration) Amendment Regulations 2016 (SSI 2016/6);

Scottish Local Government Elections Amendment Order 2016 (SSI 2016/7);

Representation of the People (Absent Voting at Local Government Elections) (Scotland) Amendment Regulations 2016 (SSI 2016/8).

Rural Affairs, Climate Change and Environment

Community Right to Buy (Scotland) Amendment Regulations 2016 (SSI 2016/4).

Annexe A

Public Contracts (Scotland) Regulations 2015 (SSI 2015/446)

On 8 January 2016, the Scottish Government was asked:

1. Regulation 2 defines the term “central government authority” as “the authorities listed in Schedule 1 and, where any such authority is succeeded by another authority which is itself a contracting authority, their successors”. Regulation 2 also defines the term “contracting authority” as “the state, a regional or local authority, body governed by public law or association formed by one or more such authorities or bodies”. Directive 2014/24/EU defines “central government authorities” as the contracting authorities listed in Annex 1 however regulation 2 does not refer to “contracting authorities”, but only to “authorities”.

Are the central government authorities listed in Schedule 1 intended to be “contracting authorities” for the purposes of the regulations? If it is so intended, is the definition of “central government authority” considered to be sufficiently clear?

2. The following cross-referencing queries arise:

a) Paragraphs (5), (6) and (7) of regulation 4 refer to, respectively, paragraphs (5)(a), (5)(b) and (5)(c). Should these references be instead to paragraphs (4)(a), (4)(b) and 4(c)?

b) Regulation 38(1) refers to “paragraph (9)(a)”. There is no paragraph (9) in regulation 38. Can you explain whether this reference should be to another paragraph within regulation 38 or to a “paragraph (9)(a)” within another regulation?

c) Regulation 85(3)(a) and (b) refer to, respectively, regulation 43(11) and 43(10). Should these refer instead to regulation 43(14) and 43(13)?

d) Regulation 91(2) refers to “paragraph (10)(b)”. Should it refer instead to “regulation 92(1)(b)”?

e) Regulation 99(5) defines the term “the Utilities amendments” as the amendments made to the UCR by paragraph 9 of Schedule 6. Should the reference to paragraph 9 be instead to paragraph 8?

f) The new paragraphs (10)(1)(b) and 10(2) of schedule 3 to the Rehabilitation of Offenders (Exclusions and Exceptions) (Scotland) Order 2013 as substituted by paragraph 10 of Schedule 6 to the regulations refer to “regulation 80” of the 2015 regulations. Are the references to regulation 80 correct or should they be to regulation 79? Relatedly, the new sub-paragraph (4)(a) of schedule 3 to the 2013 Order refers to the reference to “regulation 79” of the 2015 regulations in sub-paragraph (1) although no such reference exists (there is, however, a reference to regulation 80).

3. In respect of the points raised above, does the Scottish Government propose to take any corrective action?

The Scottish Government responded as follows:

1. The definition of “contracting authority” is a broad one which accords with the terminology used in Directive 2014/24/EU. All of the central government authorities fall within that definition with the result that they are all contracting authorities. We do not think that it is necessary to define central government authorities as contracting authorities. Accordingly we are content that the definitions are sufficiently clear as they are drafted.

2. The Scottish Government acknowledges that, notwithstanding the normal checking process, the cross references were not all correct. In relation to each we clarify as follows:

a) Regulation 4(5), (6) and (7) should cross refer to paragraphs (4)(a), (4)(b) and (4)(c).

b) Regulation 38(1) refers to “central purchasing activity”, the definition of which had appeared in an earlier draft as paragraph (9) before being moved to the interpretation provision at regulation 2(1). The intention was to refer to paragraph (a) of the definition. On further reflection it is not necessary to refer to a specific paragraph and an amendment will be made accordingly.

c) Regulation 85(3)(a) and (b) should indeed refer to regulation 43(14) and 43(13) respectively.

d) Regulation 91(2) should cross refer to regulation 92(1)(b).

e) In regulation 99(5) “the Utilities amendments” are in paragraph 8 of Schedule 6 and the reference should therefore be to that paragraph.

f) In the substitutions made by paragraph 10 of Schedule 6 the references to regulation 80 of the 2015 Regulations should have been references to regulation 79. On correction of these the related point will fall as the cross-reference referred to these will, in fact, be correct.

3. The Scottish Government intends to make an amending instrument to address the points raised at paragraph 2. This will come into force at the same time as the principal instrument.

Annexe B 

Local Government Pension Scheme (Scotland) Amendment (No. 2) Regulations 2015 (SSI 2015/448)

On 7 January 2016, the Scottish Government was asked:

Regulation 29(e) amends Schedule 1 of the Local Government Pension Scheme (Scotland) Regulations 2014 (‘the Main Regulations’) to insert a definition of “the Transitional and Savings Regulations 2014”. The term “the Transitional and Savings Regulations 2014” does not however appear to be used anywhere in the Main Regulations.

Is the intention instead to insert a definition of “the Transitional Provisions and Savings Regulations 2014”, which is a term used throughout the Main Regulations?

If so, is any corrective action proposed?

The Scottish Government responded as follows:

The intention is to insert a definition of “the Transitional Provisions and Savings Regulations 2014” and the Scottish Government proposes to do this in a further amending instrument which will amend the Main Regulations and come into force at the same time as the Local Government Pension Scheme (Scotland) Amendment (No. 2) Regulations 2015.


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