14th Report, 2016 (Session 4): Subordinate Legislation

SP Paper 908 (Web)

Contents

Report

Introduction
Points raised: instruments subject to negative procedure

National Health Service (General Dental Services) (Scotland) Amendment Regulations 2016 (SSI 2016/53) (Health and Sport)

Points raised: instruments not subject to any parliamentary procedure

Procurement Reform (Scotland) Act 2014 (Commencement No. 3 and Transitional Provisions) Order 2016 (SSI 2016/30 (C.5)) (Infrastructure and Capital Investment)

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)
Lesley Brennan
John Scott
Stewart Stevenson

Subordinate Legislation

Introduction

1. At its meeting on 9 February 2016, the Committee agreed to draw the attention of the Parliament to the following instruments—

National Health Service (General Dental Services) (Scotland) Amendment Regulations 2016 (SSI 2016/53);

Procurement Reform (Scotland) Act 2014 (Commencement No. 3 and Transitional Provisions) Order 2016 (SSI 2016/30 (C.5)).

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

National Health Service (General Dental Services) (Scotland) Amendment Regulations 2016 (SSI 2016/53) (Health and Sport)

4. These Regulations make various amendments to the National Health Service (General Dental Services) (Scotland) Regulations 2010 (“the 2010 Regulations”) (SSI 2010/208). As outlined in the Policy Note for the Regulations, the changes include provisions to—

  • Allow the Scottish Dental Practice Board to make payments on account for all types of general dental services. (Currently payments on account can only be made for orthodontic care and treatment);
  • Require dentists to examine adult patients at the time they are registered. (At present this only applies to child patients);
  • Ensure that where a dentist wishes to terminate a capitation or continuing care arrangement, their reason for doing so does not relate to the race, gender, social class, age, religion, sexual orientation, appearance, disability or medical condition of the patient;
  • Allow for the adoption of e-signature technology by dental practices;
  • Clarify existing provisions regarding the inspection of dental practices by Health Boards, and make provision to allow Health Boards to make an unannounced inspection, where there is a clear risk to the safety of the patient;
  • Require applicants, applying for the first time or after an absence of less than 5 years, to a Health Board’s dental list to provide general dental services to provide certificates which confirm that they have completed mandatory training provided by NHS Education Scotland (“NES”); and similarly for those returning to work after an absence of 5 years or more, to provide certificates which confirm that they have completed return-to-work training provided by NES.

5. The Regulations are subject to the negative procedure. They come into force on 1 April 2016.

6. Before the Committee had considered the instrument, the Scottish Government sent a letter to the Committee to explain a couple of drafting errors. The correspondence is reproduced at Annexe A. The Committee was content that the letter provides full explanation of the errors.

7. The Committee accordingly draws the Regulations to the attention of the Parliament on the general reporting ground, as they contain a couple of drafting errors.

8. Firstly, regulation 2(5) inserts new sub-paragraphs 1(v) and (w) of Part 1A of Schedule 2 to the National Health Service (General Dental Services) (Scotland) Regulations 2010. As sub-paragraph 1(v) already exists, the new sub-paragraphs should have been inserted as 1(w) and (x).

9. Secondly, the provisions of Part 1A of Schedule 2 to the principal Regulations apply to those persons who apply to join sub-part A of the first part of the dental list in Scotland. The Part 1A lists matters to be included in that application. The sub-part A consists of a list of dentists and bodies corporate who have undertaken to provide general dental services in the Health Board's area.

10. Part II of Schedule 2 to the 2010 Regulations applies to those persons applying to join the second part of the dental list. The Part II lists matters to be included in that application. The second part consists of dentists who are approved by a Health Board to assist in the provision of general dental services.

11. There is an omission, as the Scottish Government intends that the provisions of the new sub-paragraphs 1(v) and (w) as described above should have been replicated within Part II of Schedule 2 to the principal Regulations.

12. The Scottish Government has confirmed that it intends to lay a correcting instrument, early in the next parliamentary session.

Points raised: instruments not subject to any parliamentary procedure

Procurement Reform (Scotland) Act 2014 (Commencement No. 3 and Transitional Provisions) Order 2016 (SSI 2016/30 (C.5)) (Infrastructure and Capital Investment)

14. This instrument commences all sections of the Procurement Reform (Scotland) Act 2014, so far as not already in force. It also purports to commence the Schedule to that Act, so far as not already in force.

15. The appointed day for the commencement of those provisions (except sections 8(2) and (3), 9, 24 and 25) is 18 April 2016. The appointed day for the commencement of sections 8(2) and (3), 9, 24 and 25 is 1 June 2016.

16. The Order also contains transitional provision for procurement strategies which contracting authorities are not required to prepare relating to any period before 31 December 2016. The Act also does not apply to any “regulated procurement” under it, where the procedure was commenced before 18 April 2016.

17. The Order is not subject to any parliamentary procedure, and comes into force on 18 April 2016.

18. In considering the instrument, the Committee sought explanation from the Scottish Government on the inclusion of a redundant provision. The correspondence is reproduced at Annexe B.

19. The Committee accordingly draws the Order to the attention of the Parliament under the general reporting ground, as it contains a provision of no effect.

20. The Order commences, among other provisions, the Schedule to the Procurement Reform (Scotland) Act 2014, insofar as not already in force. This provision is of no effect, as the Schedule has already been brought into force on 28 September 2015 by virtue of a previous order (SSI 2015/331).

21. The Committee also invites the Scottish Government to consider what action they could undertake to make clearer to lay readers that the provision is of no effect and that the Schedule has already been brought into force by means of SSI 2015/331.

No points raised

22. At its meeting on 9 February 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:

Education and Culture

Children and Young People (Scotland) Act 2014 (Relevant Services in relation to Children at Risk of Becoming Looked After etc.) Order 2016 (SSI 2016/44);>

Children and Young People (Scotland) Act 2014 (Commencement No. 11) Order 2016 (SSI 2016/60 (C.9));

Children’s Hearings (Scotland) Act 2011 (Safeguarders Panel) Amendment Regulations 2016 (SSI 2016/61);

Teachers’ Superannuation and Pension Scheme (Scotland) Amendment Regulations 2016 (SSI 2016/62);

Registration Services (Fees, etc.) (Scotland) Amendment Regulations 2016 (SSI 2016/64).

Health and Sport

Personal Injuries (NHS Charges) (Amounts) (Scotland) Amendment Regulations 2016 (SSI 2016/59). >

Infrastructure and Capital Investment

Public Contracts (Scotland) Amendment Regulations 2016 (SSI 2016/47);

Water and Sewerage Services Licences (Cross-Border Applications) (Scotland) Order 2016 (SSI 2016/52). >

Justice

Scottish Sentencing Council (Submission of Business Plan) Order 2016 (SSI 2016/55);

Regulation of Investigatory Powers (Prescription of Ranks and Positions) (Scotland) Order 2016 (SSI 2016/56).

Parliament

Local Government Finance (Scotland) Order 2016 [draft].

Rural Affairs, Climate Change and Environment

Waste Management Licensing (Scotland) Amendment Regulations 2016 (SSI 2016/40);

Reservoirs (Scotland) Act 2011 (Commencement No. 5 and Transitional Provision) Order 2016 (SSI 2016/42 (C.7));

Reservoirs (Scotland) Regulations 2016 (SSI 2016/43);

Carbon Accounting Scheme (Scotland) Amendment Regulations 2016 (SSI 2016/46);

Orkney Islands (Landing of Crabs and Lobsters) Order 2016 (SSI 2016/50);>

Croft House Grant (Scotland) Regulations 2016 (SSI 2016/63).

Annexe A

The National Health Service (General Dental Services) (Scotland) Amendment Regulations 2016

Correspondence from the Scottish Government dated 1 February 2016

The above Regulations, which were laid on 28 January 2016, make a number of amendments to the National Health Service (General Dental Services) (Scotland) Regulations 2010. Errors have been identified in Regulation 2(5) of the Regulations.

Regulation 2(5) of the Regulations inserts new paragraphs (v) and (w) to Part IA (information, declarations, certificate, applications, disclosure requests etc,) of Schedule 2. Paragraph (v) requires dentists applying to join sub-part A of the first part or the second part of the dental list in Scotland for the first time, or where a dentist is returning to clinical work after an absence of less than 5 years, to satisfactorily complete a mandatory training programme, proof of which would be a certificate from NES. Paragraph (w) introduces a similar provision for dentists returning to clinical work after an absence of 5 years or more, requiring them to produce a certificate confirming that they have successfully completed return to work training. The following errors have been identified in Regulation 2(5):

  • a paragraph 1(v) already exists in Part IA of Schedule 2. The new paragraphs should have been inserted as paragraphs 1(w) and (x);
  • Part IA of Schedule 2 applies only to those applying to join sub-part A of the first part of a dental list. Part II of Schedule 2 applies to those applying to join the second part of the dental list and the provisions of the new paragraphs (v) and (w) should have been replicated in Part II.

These errors will be corrected at the first opportunity.

Annexe B

Procurement Reform (Scotland) Act 2014 (Commencement No.3 and Transitional Provisions) Order 2016 (SSI 2016/30 (C.5))

On 28 January 2016, the Scottish Government was asked:

Article 3 commences “[…] the schedule to, the Act in so far as not already in force […]”.

It appears that the schedule to the Procurement Reform (Scotland) Act 2014 was brought into force in its entirety by SSI 2015/331, on 28th September 2015.

(a) Is it agreed that article 3, so far as it relates to the commencement of the schedule to the 2014 Act, is a redundant provision, of no effect?

(b) If so, is any corrective action proposed?

The Scottish Government responded as follows:

We note the point raised and acknowledge that the schedule has already been commenced, but as the reference to the schedule has no effect, we do not consider that it is necessary to take any corrective action.


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

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