46th Report, 2013 (Session 4): Subordinate Legislation

SP Paper 390 (Web Only)

DPLR/S4/13/R46

46th Report, 2013 (Session 4)

Subordinate Legislation

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:

Christian Allard
Richard Baker
Nigel Don (Convener)
Mike MacKenzie
Margaret McCulloch
John Scott
Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee
Euan Donald

Assistant Clerk
Elizabeth White

Support Manager
Daren Pratt

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 24 September 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Personal Licence (Training) (Scotland) Regulations 2013 (SSI 2013/261);

Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 (Commencement No. 2) Order 2013 (SSI 2013/262 (C.20)).

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

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

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Personal Licence (Training) (Scotland) Regulations 2013 (SSI 2013/261) (Justice Committee)

4. The purpose of these regulations is to prescribe the training required to be undertaken by personal licence holders under the Licensing (Scotland) Act 2005 (“the 2005 Act”) and the form of evidence to be presented by a licence holder to the relevant licensing board as proof that the prescribed training has been undertaken.

5. The regulations, which are subject to the negative procedure, come into force on 8 October 2013, and so will be in place prior to the holders of the first personal licences becoming required to undertake the training.

6. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced at Annex 1.

7. Regulation 2(2)(a) and (b) are a duplication of the terms of section 87(1)(a) and (b) of the 2005 Act which prescribe the period of time within which training must be completed by the holders of personal licences and evidence of that training submitted to the relevant licensing board. This duplication is unnecessary, as those time periods are already laid down in the 2005 Act. As the Scottish Ministers have no power to prescribe anew the time periods within which the training requirement must be met, regulation 2(2)(a) and (b) must fall to be disregarded in terms of legal effect.

8. The Committee considered that this duplication of primary legislation in subordinate legislation is unnecessary and has the capacity to create confusion for users as to the timescale within which the prescribed training must be completed. Given that a failure to comply with the training requirement must result in the revocation of a personal licence, the Committee considers it critical that it is clear to users what their obligations are, and when they are to be complied with. The Committee considered that the unnecessary duplication of the parent statute in regulation 2(2)(a) and (b) does not achieve this clarity.

9. The Committee further considered that the power to prescribe the training requirement in section 87(1) of the 2005 Act, when read with section 87(4) of that Act, would appear to contemplate the making of regulations which would provide users with full information as to what the training to be undertaken by personal licence holders consists of. The present regulations simply provide that personal licence holders must complete a course of training that has been accredited by the Scottish Ministers. They do not prescribe any courses or course providers, nor do they explain the process of accreditation so that it is clear to personal licence holders how they may find out which courses they can complete in order to satisfy their training obligation.

10. The regulations prescribe a training requirement, but one which can only have a practical meaning upon the taking of a further step by the Scottish Ministers, which is to accredit the relevant courses. The regulations therefore appear to sub-delegate the power to accredit courses to the Scottish Ministers. The exercise of the enabling power in this way is unexpected, because the instrument does not explain to users of the legislation – whose licences will be revoked if they fail to complete the appropriate training – how, on a practical level, they can comply with that requirement without further information from the Scottish Ministers as to which courses are accredited.

11. The Committee draws the instrument to the attention of the Parliament on reporting ground (h) as the form or meaning of the instrument could be clearer, in that regulation 2(2)(a) and (b) duplicate the terms of section 87(1)(a) and (b) of the Licensing (Scotland) Act 2005. This duplication is unnecessary and as it cannot competently be done under the powers available to Ministers falls to be ignored in terms of legal effect. This unnecessary inclusion is therefore of possible detriment to the clarity of the instrument in the context of its interaction with the parent statute.

12. The Committee also draws the instrument to the attention of the Parliament on reporting ground (g) as regulation 2(2), which prescribes the training requirement to be met by personal licence holders, appears to have been made by an unusual or unexpected use of the enabling powers. It appears to sub-delegate in part the function of prescribing the training requirement for personal licence holders by providing that the training requirement is to complete a course which has been accredited by the Scottish Ministers without further specification as to which courses are accredited for that purpose, or how the process of accreditation is to work.

POINTS RAISED: INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 (Commencement No. 2) Order 2013 (SSI 2013/262 (C.20)) (Justice Committee)

13. The purpose of this order is to bring various sections of Part 2 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 into force on 11 October 2013.

14. The order requires to be read alongside SSI 2013/271 which will amend the order on 10 October 2013 (and therefore before SSI 2013/262 comes into force) to correct a defect in the commencement scheme set out in 2013/262.

15. Together the two instruments will commence sections 17, 18(1), 19, 22 and 23 of the 2013 Act.

16. This order brings section 20 of the 2013 Act into force in error. Section 20 should not be brought into force until supporting subordinate legislation is in place. SSI 2013/271 therefore removes section 20 from the scope of this commencement order.

17. The Committee draws the attention of the Parliament to the instrument under reporting ground (i) as it is defective in that it brings section 20 of the 2013 Act into force when that was not the policy intention. Were it brought into force at this point section 20 would not operate correctly as other provisions require to be brought into force to accompany it and those provisions are not commenced by the order.

18. However, the Committee notes that the Scottish Government has brought forward SSI 2013/271 which will correct the defect in this instrument before it comes into force.

NO POINTS RAISED

19. At its meeting on 24 September 2013, the Committee considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Economy, Energy and Tourism

Overhead Lines (Exemption) (Scotland) Regulations 2013 (SSI 2013/264).

Education and Culture

Angus College (Transfer and Closure) (Scotland) Order 2013 (SSI 2013/267);

Banff and Buchan College of Further Education (Transfer and Closure) (Scotland) Order 2013 (SSI 2013/268);

Cumbernauld College (Transfer and Closure) (Scotland) Order 2013 (SSI 2013/269);

John Wheatley College and Stow College (Transfer and Closure) (Scotland) Order 2013 (SSI 2013/270).

Health and Sport

Glasgow Commonwealth Games (Trading and Advertising) (Scotland) Regulations 2013 [draft].

Justice

Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 (Commencement No. 2) Amendment Order 2013 (SSI 2013/271).

Rural Affairs, Climate Change and Environment

Common Agricultural Policy Single Farm Payment and Support Schemes (Scotland) Amendment Regulations 2013 (SSI 2013/265).

ANNEX 1

Personal Licence (Training) (Scotland) Regulations 2013 (SSI 2013/261)

On 13 September 2013, the Scottish Government was asked:

1. Regulation 2(2)(a) and (b) appear to duplicate the terms of section 87(1)(a) and (b) of the Licensing (Scotland) Act 2005. Can the Scottish Government explain this duplication? What power do Ministers consider they have to prescribe in subordinate legislation the period during which the training requirements must be complied with when the parent Act already makes provision in this regard?

2. Regulation 2(2) prescribes the training requirements for personal licence holders. In particular, it states that licence holders must undertake a course of training accredited by the Scottish Ministers for the purpose of that Regulation. Section 87(4) of the 2005 Act provides that Regulations may make provision for the accreditation by the Scottish Ministers of courses of training and persons providing such courses. These Regulations do not appear to make provision for the accreditation of courses, but simply state that a licence holder must undertake an accredited course. Does the Scottish Government consider it to be sufficiently clear from the terms of the Regulations which course or courses are to be accredited for the purposes of complying with the training requirement, breach of which must result in a licence being revoked?

The Scottish Government responded as follows:

1. The Scottish Government accepts that regulation 2(2)(a) and (b) are a duplication of the terms of section 87(1)(a) and (b) of the Licensing (Scotland) Act 2005 (the 2005 Act). The Scottish Government felt it appropriate to duplicate the provisions of the 2005 Act, as there would be a benefit to the reader of the Regulations in doing so. It is the intention of the duplication to direct the reader’s focus to the relevant timeframes by which the holder of a personal licence must produce to the licensing board evidence of meeting the training requirement as provided in the 2005 Act. It is the Scottish Government’s view that without first framing regulation 2 in the context of the relevant timeframe by which the licence holder must produce evidence of meeting the training requirement, regulation 2 would be more difficult for users of the legislation to understand.

In these circumstances, the purpose of the duplication is not to prescribe the period during which the training requirements must be complied with, we would accept there are no relevant powers to do so. However, as the provisions are not attempting to exercise any such power, it would be the view of the Scottish Government that the instrument remains intra vires.

2. Section 87(4) of the 2005 Act allows for Regulations to be made that provide for accreditation by Scottish Ministers for courses of training. It is not the intention of these Regulations to make provisions for the accreditation process nor the details of the training courses themselves. Instead, regulation 2 simply provides that the courses of training for the purposes of section 87(1) of the 2005 Act are those courses that have been accredited by Scottish Ministers. The Scottish Government has previously made Regulations in a similar manner in the Licensing (Training) (Scotland) Regulations 2007 (SSI 2007/95), and similar provision was made with regards to licensing qualification in the Licensing Qualification (Scotland) Regulations 2007 (SSI 2007/98).

The Scottish Government is of the view that it is sufficiently clear from the terms of the Regulations that the relevant courses for the purpose of section 87(1) of the 2005 Act are those that are accredited by Scottish Ministers. The Scottish Government has undertaken significant consultation and is in regular discussion with those within the trade with regards to the subject matter of these Regulations.

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