55th Report, 2013 (Session 4): Subordinate Legislation

SP Paper 414 (Web Only)

DPLR/S4/13/R55

55th Report, 2013 (Session 4)

Subordinate Legislation

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 29 October 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Single Use Carrier Bag Charge (Scotland) Regulations 2014 [draft] (SG 2013/199).

Post-16 Education (Scotland) Act 2013 (Commencement No. 1) Order 2013 (SSI 2013/281(C.23))

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: DRAFT INSTRUMENTS LAID FOR CONSIDERATION

Single Use Carrier Bag Charge (Scotland) Regulations 2014 [draft] (SG 2013/199) (Rural Affairs, Climate Change and Environment Committee)

4. The instrument will impose a requirement on all retailers to charge a minimum of 5p for every single use carrier bag supplied new for the purpose of enabling goods to be taken away from the point of supply, or for the purpose of enabling the goods to be delivered to customers. In some circumstances bags may be provided free of charge. Those bags which are exempted from the charge are described in the Schedule. Suppliers are entitled to keep the proceeds of the charge but require to maintain a record of the amount of the net proceeds raised by the charge and the purposes to which those proceeds have been applied. Suppliers who are registered for VAT purposes and supply 1000 or more carrier bags which attract the charge must publish their records.

5. This instrument is a draft of an instrument which the Scottish Ministers propose to make under the Climate Change (Scotland) Act 2009. It is required to be laid before the Parliament for the purposes of consultation by section 97(3) of the 2010 Act. The consultation period runs for 90 days until 11 December 2013 and the Scottish Ministers must take into account representations received during that period when preparing a draft order for approval under the affirmative procedure. The Committee will scrutinise the draft laid under that procedure in the usual way, in due course.

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

7. A significant number of the definitions used in the Schedule to the instrument are inaccurate. These are important since they define those circumstances in which the supply of a carrier bag will not attract a charge. They refer to legislation which is no longer in force. They will therefore be ineffective as they currently stand. The Committee considers the draft instrument to be defective in this respect.

8. The Scottish Government accepts that these are errors and has undertaken to review all the definitions used when preparing a final draft of the regulations before they are laid for approval by the Parliament.

9. Nevertheless, the Committee considers that it is unsatisfactory that an inaccurate draft has been issued for the purposes of a statutory public consultation. The purpose of the Parliament having specified that a particular consultation process is to be followed is to ensure public understanding of, and engagement with, the Scottish Government’s proposal. The Committee considers that the inaccuracies in the draft laid for consultation could cause confusion as to the intended scope of the regulations and therefore render the consultation less effective than it would otherwise be.

10. The draft instrument also contains a patent typographical error in regulation 13(5) which the Scottish Government has agreed to correct.

11. The Committee draws the instrument to the attention of the Parliament under reporting ground (i) as the drafting is defective in the following respect.

12. Bags used for the supply of medicinal products or listed appliances in accordance with a prescription and bags used for the supply of pharmacy medicines are exempt from the charge imposed by the regulations. The circumstances in which a product is supplied under prescription and other relevant terms are defined in the Schedule to the instrument by reference to statutory provisions which have been repealed or amended. These references are therefore not accurate and do not achieve the intended legal effect.

13. The Committee notes that the Scottish Government has undertaken to review the accuracy of all definitions in the instrument before laying a final draft for approval by the Parliament.

14. The Committee draws the instrument to the attention of the Parliament under the general reporting ground as the instrument contains the following drafting error. In regulation 13(5) the reference to paragraph (4)(a) should be a reference to paragraph (4)(c). The Scottish Government has undertaken to correct this error in the final draft laid for approval by the Parliament.

15. The Committee also welcomes the Scottish Government’s commitment to review whether the meaning of “domestic premises” is sufficiently clear in regulation 13(5) in light of the consultation responses it receives.

POINTS RAISED: INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

Post-16 Education (Scotland) Act 2013 (Commencement No. 1) Order 2013 (SSI 2013/281)(Education and Culture Committee)

16. The purpose of this instrument is to bring several provisions of the Post-16 Education (Scotland) Act 2013 (“the 2013 Act”) into force on 10 October 2013. The instrument is the first in the series of instruments that will commence the Act in several stages.

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

18. This instrument commences paragraphs 2(7)(d) and 8(5)(a)(i) and (22)(a)-(c) of the Schedule to the 2013 Act which make amendments to the Further and Higher Education (Scotland) Act 1992 (“the 1992 Act”) and the Further and Higher Education (Scotland) Act 2005 (“the 2005 Act”). However, the order does not commence paragraphs 2(1) and 8(1) of the schedule. Paragraph 2(1) provides that: “The 1992 Act is amended as follows.” In similar terms, paragraph 8(1) of the schedule provides for the amendment of the 2005 Act. The subsequent sub-paragraphs of both provisions make amendments to the Acts. The Scottish Government’s failure to commence paragraphs 2(1) and 8(1) therefore raises doubts as to whether provisions commenced in paragraphs 2 and 8 could be properly interpreted as referring to and amending the 1992 Act and the 2005 Act respectively.

19. The Scottish Government admits that its failure to commence paragraphs 2(1) and 8(1) was an oversight. It intends to commence the paragraphs in the next commencement order. The Committee considers that paragraphs 2(1) and 8(1) should have been commenced in this instrument in order to exclude any doubt as to whether paragraphs 2(7)(d) and 8(5)(a)(i) and (22)(a)-(c) could be properly interpreted as amending the 1992 and 2005 Acts. However, considering all the circumstances, the Committee agrees that it is sufficiently clear that paragraphs 2(7)(d) and 8(5)(a)(i) and (22)(a)-(c) refer to and amend the 1992 Act and the 2005 Act.

20. The Committee draws the instrument to the attention of the Parliament under the general reporting ground as it fails to commence certain provisions of the 2013 Act.

21. The instrument commences provisions within paragraphs 2(7) and 8(5) and (22) to the schedule of the 2013 Act which amend and repeal provisions in the 1992 Act and the 2005 Act respectively. However, the instrument fails to commence paragraphs 2(1) and 8(1), which provide for the amendment of the 1992 and 2005 Acts by subsequent sub-paragraphs. While such drafting is not considered defective, the commencement of paragraphs 2(1) and 8(1) would have been appropriate in order to exclude any doubt as to whether the commencement of the specific provisions within paragraphs 2 and 8 could be properly interpreted as referring to the 1992 Act and the 2005 Act.

NO POINTS RAISED

22. At its meeting on 29 October 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:

European and External Relations

Public Contracts (Scotland) Amendment Regulations 2013 (SSI 2013/282).

Finance

Budget (Scotland) Act 2013 Amendment Order 2013 [draft].

Justice

Title Conditions (Scotland) Act 2003 (Conservation Bodies) Amendment Order 2013 (SSI 2013/289);

Act of Sederunt (Commisary Business) 2013 (SSI 2013/291).

Rural Affairs, Environment and Climate Change

Bee Keeping (Colonsay and Oronsay) Order 2013 (SSI 2013/279);

Loch Sligachan, Isle of Skye, Scallops Several Fishery Order 2013 (SSI 2013/280);

ANNEX A

Single Use Carrier Bag Charge (Scotland) Regulations 2014 (SG 2013/99)

On 30 September 2013, the Scottish Government was asked:

1. To explain the practical effect of the regulations in so far as they are intended to extend beyond Scotland as provided for in regulation 1(2) when the enforcement authorities’ jurisdiction is limited to Scotland.

2. Whether the reference in regulation 13(5) to paragraph (4)(a) should be to paragraph (4)(c)?

3. Whether the reference to “domestic premises” in regulation 13(5) is sufficiently clear or whether it would be preferable to define the scope of domestic premises for the purposes of the regulations?

4. Whether it agrees that various of the definitions provided in the Schedule are out of date given the amendment of the Medicines Act 1968 and the 1997 Order by the Human Medicines Regulations 2012 (SI 2012/1916) and whether it proposes to update these definitions to refer to legislation which is in force?

The Scottish Government responded as follows:

1. Retail supply chains can be complicated, so that for example goods ordered from a place in Scotland and delivered to another place here may be packaged outside Scotland. The Scottish Government intends that it should be an offence in Scotland to fail to comply with the regulations in such circumstances, and the extent provision is intended to ensure that there can be a successful prosecution in Scotland where some of the acts constituting the offence take place outside Scotland. We will of course consider all comments on the necessity for the extent provision as part of the pre-laying consultation, and adjust the laying draft if appropriate.

2. It should, and we will correct this error in the laying draft. Thank you for drawing this to our attention.

3. The Scottish Government considers that the meaning of ‘domestic premises’ is sufficiently clear in the context in which it is used, and does not intend to adjust the laying draft, but will keep this issue under review in the light of responses to the pre-laying consultation.

4. The Scottish Government intends to review all the definitions used in this instrument when preparing the laying draft, in order to ensure that all they are accurate as at the laying date. We therefore thank you for these comments which we will carefully consider at that time.

ANNEX B

Post-16 Education (Scotland) Act 2013 (Commencement No.1) Order 2013 (SSI 2013/281)

On 14 October 2013, the Scottish Government was asked:

1. Why it did not commence paragraph 2(1) of the schedule to the Post-16 Education (Scotland) Act 2013; and whether without doing so paragraph 2(7)(d) of that schedule can be properly interpreted as amending the Further and Higher Education (Scotland) Act 1992?

2. Why it did not commence paragraph 8(1) of the schedule to the 2013 Act; and whether without doing so paragraphs 8(5)(a)(i) and 8(22)(a) to (c) of that schedule can be properly interpreted as amending the Further and Higher Education (Scotland) Act 2005?

3. Why it has decided to commence paragraph 2(7)(d) of the schedule to the 2013 Act to the extent of repealing only the restrictions in paragraph 6 of Schedule 2 to the Further and Higher Education (Scotland) Act 1992? The 2013 Act provides that the rules on qualification and tenure of office for members of boards of management are to be modified more broadly by the repeal of paragraphs 7 to 10 as well. What is considered to be the difference in effect of this staged commencement of the repeals and why is it considered appropriate?

The Scottish Government responded as follows:

1. The failure to commence paragraph 2(1) of the schedule to the Post-16 Education (Scotland) Act 2013 (“the 2013 Act”) was an oversight. But we nevertheless consider that paragraph 2(7)(d) of that schedule can properly be interpreted as amending the Further and Higher Education (Scotland) Act 1992 (“the 1992 Act”).

The Post-16 Education (Scotland) Act (Commencement No. 1) Order 2013 (“the Commencement Order”) commenced section 21 of the 2013 Act on Modification of enactments for the purpose of commencing particular provisions of the schedule to the 2013 Act. It provides that:

“The schedule to this Act (which makes minor amendments to enactments and otherwise modifies enactments for the purposes of or in consequence of this Act) has effect.” (emphasis added)

The list of amendments set out in paragraphs 2(2) to 2(7) of the schedule to the 2013 Act are clearly amendments to the 1992 Act. Paragraph 2(1) of the schedule to the 2013 Act - which simply introduces the substantive amendments to the 1992 Act effected by the sub-paragraphs which follow, including paragraph 2(7)(d) - identifies this even without having been commenced. And in any event the relevant paragraph heading - “Further and Higher Education (Scotland) Act 1992 (c.37)” - identifies this, particularly when read together with section 21 of the 2013 Act.

It is in these circumstances that we consider that, notwithstanding that paragraph 2(1) of the schedule to the 2013 Act has not been commenced, paragraph 2(7)(d) of that schedule as commenced by the Commencement Order can properly be interpreted as amending the 1992 Act and, equally importantly, that this is apparent to a person reading the 2013 Act in conjunction with the Commencement Order.

We anticipate making the next Commencement Order in relation to the 2013 Act to come into force in January 2014 and would propose to address this oversight by commencing paragraph 2(1) of the schedule to the 2013 Act in that instrument.

2. Again, the failure to commence paragraph 8(1) of the schedule to the 2013 Act was an oversight. But, in line with the position set out in the answer to question 1 above, we nevertheless consider that paragraphs 8(5)(a)(i) and 8(22)(a) to (c) of that schedule can be properly interpreted as amending the Further and Higher Education (Scotland) Act 2005 (“the 2005 Act”).

The Commencement Order commenced section 21 of the 2013 Act on Modification of enactments for the purpose of commencing particular provisions of the schedule to the 2013 Act. It provides that:

“The schedule to this Act (which makes minor amendments to enactments and otherwise modifies enactments for the purposes of or in consequence of this Act) has effect.” (emphasis added)

The list of amendments set out in paragraphs 8(2) to 8(24) of the schedule to the 2013 Act are clearly amendments to the 2005 Act. Paragraph 8(1) of the schedule to the 2013 Act - which simply introduces the substantive amendments to the 2013 Act effected by the sub-paragraphs which follow, including paragraphs 8(5)(a)(i) and 8(22)(a) to (c) - identifies this even without having been commenced. And in any event the relevant paragraph heading - “Further and Higher Education (Scotland) Act 2005 (asp 6)” - identifies this, particularly when read together with section 21 of the 2013 Act.

It is in these circumstances that we consider that, notwithstanding that paragraph 8(1) of the schedule to the 2013 Act has not been commenced, paragraphs 8(5)(a)(i) and 8(22)(a) to (c) of that schedule as commenced by the Commencement Order can properly be interpreted as amending the 2005 Act and, equally importantly, that this is apparent to a person reading the 2013 Act in conjunction with the Commencement Order.

We anticipate making the next Commencement Order in relation to the 2013 Act to come into force in January 2014 and would propose to address this oversight by commencing paragraph 8(1) of the schedule to the 2013 Act in that instrument.

3. Part of the policy intention behind the repeal of paragraph 6 of Schedule 2 to the 1992 Act was a desire to ensure that individuals who had served on a board of management of a college for a period of more than eight years were no longer barred from being eligible for appointment to that board (paragraph 6(1)(b) of Schedule 2 to the 1992 Act being, as it stood prior to amendment by paragraph 2(7)(d) of the schedule to the 2013 Act, the source of that prohibition). The repeal of paragraph 6 of Schedule 2 to the 1992 Act also removes age restrictions on serving on a board of management. As we understand it, the former issue is a live issue in practice in relation to at least one college board. Ministers therefore considered that it was appropriate to commence paragraph 2(7)(d) of the schedule to the 2013 Act for the purpose of omitting paragraph 6 of Schedule 2 to the 1992 Act as soon as possible following the expiry of 2 months following the 2013 Act having received Royal Assent on 7 August 2013.

It was not considered necessary or appropriate to commence paragraph 2(7)(d) more generally.

It was not considered necessary because, first, it is considered that commencement of paragraph 2(7)(d) of the schedule to the 2013 Act for the purpose only of omitting paragraph 6 of Schedule 2 to the 1992 Act ‘works’ and, second, because there was a particular policy reason to take this approach.

It was not considered appropriate to commence paragraph 2(7)(d) of the schedule to the 2013 Act more generally for the purpose also of omitting paragraphs 7 to 10 of Schedule 2 to the 1992 Act because the rules on qualification and tenure of office for members of boards of management for which those paragraphs of Schedule 2 to the 1992 Act make provision are, as a result of other amendments to Schedule 2 to the 1992 Act effected by paragraph 2 of the schedule to the 2013 Act, to be replaced with different rules in the context of the wider reform of colleges with boards of management established under Part I of the 1992 Act for which the 2013 Act makes provision. That wider reform will, once other provisions of the 2013 Act are commenced in due course, see some such colleges designated as regional colleges and others assigned to regional strategic bodies. This new ‘classification’ of colleges will, once other amendments to Schedule 2 to the 1992 Act effected by paragraph 2(7)(d) of the 2013 Act are commenced, mean that some of the provision of Schedule 2 to the 1992 Act on the constitution and proceedings of boards of management will differ depending on whether a college is, on the one hand, a regional college or, on the other, a college assigned to a regional strategic body. Regional colleges and colleges assigned to a regional strategic body will also have some different functions as a result of other provision made in the 2013 Act.

In contrast to the position in relation to paragraph 6 of Schedule 2 to the 1992 Act, in the absence of a pressing policy need to do so it was considered more appropriate at this stage to hold off commencing paragraph 2(7)(d) of the schedule to the 2013 Act more generally for the purpose also of omitting paragraphs 7 to 10 of Schedule 2 to the 1992 Act and instead to do so in due course in connection with the new ‘classification’ of colleges as regional colleges and colleges assigned to regional strategic bodies as part of the wider implementation of the 2013 Act.

We do not consider that there is any particular “difference in effect” as a result of this resulting “staged commencement”. The effect is that the particular eligibility prohibitions for which provision was made in paragraph 6 of Schedule 2 to the 1992 Act are removed for all boards of management with effect from 10 October 2013. The other changes to the rules on qualification and tenure of office for members of boards of management which will be effected by the repeal of paragraphs 7 to 10 of Schedule 2 to the 1992 Act (and other related amendments to Schedule 2 of the 1992 Act effected by paragraph 2 of the schedule to the 2013 Act) will be brought into force at a more appropriate time in connection with the new ‘classification’ of colleges as regional colleges and colleges assigned to regional strategic bodies as part of the wider implementation of the 2013 Act.

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