40th Report, 2014 (Session 4): Subordinate Legislation

SP Paper 561 (Web Only)

DPLR/S4/14/R40

40th Report, 2014 (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:

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

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 10 June 2014, the Committee agreed to draw the attention of the Parliament to the following instrument—

Town and Country Planning (Control of Advertisements) (Scotland) Amendment Regulations 2014 (SSI 2014/139).

2. The Committee’s recommendations in relation to the above instrument 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 NOT SUBJECT TO NEGATIVE PROCEDURE

Town and Country Planning (Control of Advertisements) (Scotland) Amendment Regulations 2014 (SSI 2014/139) (Local Government and Regeneration Committee)

4. The Regulations amend the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984 (“the 1984 Regulations”). In general terms, the Regulations introduce powers to serve “stop notices”, where there is a breach of the 1984 Regulations in respect of the display of an advertisement in contravention of the Regulations, and to make it an offence to fail to comply with an enforcement notice or stop notice.

5. The Regulations apply (with modifications) various provisions in Part 6 of the Town and Country Planning (Scotland) Act 1997, which apply to enforcement notices for a breach of planning control, to enforcement notices served under the 1984 Regulations.

6. The Regulations come into force on 30 June 2014.

7. In considering the instrument, the Committee asked the Scottish Government for an explanation of one matter. The correspondence is reproduced at the Annex.

8. The Committee sought an explanation of the meaning and effect of regulation 2(2), so far as it inserts new regulation 26A(2)(d) of the 1984 Regulations, to establish whether it could be clearer.

9. Section 143(5) of the Town and Country Planning (Scotland) Act 1997 provides that “no compensation is payable under this section (a) in respect of the prohibition in a stop notice of any activity which, at any time when the notice is in force, constitutes or contributes to a breach of planning control”.

10. The new regulation 26A(2)(d) of the 1984 Regulations provides that section 143(5) applies in respect to an enforcement notice served under regulation 24 of the 1984 Regulations, as it applies in respect to an enforcement notice issued under section 127 of the 1997 Act, but subject to this modification:

“the reference in section 143(5)(a) to an activity which constitutes or contributes to a breach of planning control is to be treated as a reference to any display of an advertisement in contravention of the 1984 Regulations.”

11. That wording omits reference to some words which appear in section 143(5)(a) - “at any time when the notice is in force” (which are between “any activity which” and “constitutes or contributes to a breach of planning control” . (The modification also makes a grammatical change to the provision (from “any activity which …constitutes or contributes to a breach of planning control” to “any display of an advertisement…. in contravention of the 1984 Regulations”.)

12. The Scottish Government contends that the provision is clear. However, the response states:

“As applied with modifications by regulation 26A, the effect of section 143(5)(a) in relation to a stop notice served under regulation 24 of the 1984 Regulations is that no compensation is payable in respect of the prohibition in the stop notice, at any time when the stop notice is in force, of any display of an advertisement in contravention of the 1984 Regulations.”

13. The Committee notes that that assessment of the effect of the provision moves the words “at any time when the stop notice is in force” from the place these words appear in section 143(5)(a) to a different place in the provision, without the provision directing that this should be done. In section 143(5)(a), the words appear between “any activity which” and “constitutes or contributes to a breach of planning control”.

14. The Committee therefore draws the Regulations to the attention of the Parliament on the reporting ground (h). The meaning of the new regulation 26A(2)(d) of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984, as inserted by regulation 2(2), could be clearer, in the following respect.

15. The new regulation 26A(2)(d) applies, subject to modifications, section 143(5)(a) of the Town and Country Planning Scotland) Act 1997, in respect to an enforcement notice served under regulation 24 of the 1984 Regulations as it applies in respect to an enforcement notice issued under section 127 of the Town and Country Planning (Scotland) Act 1997.

16. The meaning of the provision could have been clearer, had it initially set out the full text of the reference in section 143(5)(a) which is modified (including the words “at any time when the notice is in force”), and then the full text of the reference which is to be treated as that reference. That approach would also have made it easier for the reader to understand its meaning and effect.

NO POINTS RAISED

17. At its meeting on 10 June 2014, 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:

Education and Culture

St Mary’s Music School (Aided Places) (Scotland) Amendment Regulations 2014 (SSI 2014/143);

Assigned Colleges (University of the Highlands and Islands) Order 2014 (SSI 2014/146);

Post-16 Education (Scotland) Act 2013 (Commencement No. 5) Order 2014 (SSI 2014/144 (C.10)).

Health and Sport

National Health Service (Pharmaceutical Services) (Scotland) (Miscellaneous Amendments) Regulations 2014 (SSI 2014/148);

Registration of Births, Still-births, Deaths and Marriages (Prescription of Forms) (Scotland) Amendment Regulations 2014 (SSI 2014/141).

Justice

Sexual Offences Act 2003 (Prescribed Police Stations) (Scotland) Regulations 2014 (SSI 2014/147);

Firefighters’ Pension Scheme (Scotland) Amendment (No. 3) Order 2014 (SSI 2014/149);

Act of Sederunt (Rules of the Court of Session, Ordinary Cause Rules and Summary Cause Rules Amendment) (Miscellaneous) 2014 (SSI 2014/152).

Rural Affairs, Climate Change and Environment

Plant Health (Scotland) Amendment Order 2014 (SSI 2014/140);

Specified Diseases (Notification and Slaughter) (Amendment) and Compensation (Scotland) Order 2014 (SSI 2014/151).

Welfare Reform

Disabled Persons (Badges for Motor Vehicles) (Scotland) Amendment Regulations 2014 (SSI 2014/145).

ANNEX

Town and Country Planning (Control of Advertisements) (Scotland) Amendment Regulations 2014 (SSI 2014/139)

On 28 May 2014, the Scottish Government was asked:

Regulation 2(2) (so far as it inserts regulation 26A(2)(d) of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984) provides that section 143(5) of the Town and Country Planning (Scotland) Act 1997 applies in respect to an enforcement notice served under regulation 24 of the 1984 Regulations, as it applies in respect to an enforcement notice issued under section 127 of the 1997 Act; but subject to the modification that the reference in section 143(5)(a) to an activity which constitutes or contributes to a breach of planning control is to be treated as a reference to any display of an advertisement in contravention of the 1984 Regulations.

In section 143(5)(a) of the 1997 Act, “at any time when the notice is in force” appears between “any activity which” and “constitutes or contributes to a breach of planning control” - but these words are not included as part of the reference which is modified by the new regulation 26A(2)(d). The modification also makes a grammatical change to the provision (from “any activity which …constitutes or contributes to a breach of planning control” to “any display of an advertisement…. in contravention of the 1984 Regulations”).

Accordingly, could you explain the meaning and effect which is properly to be given to section 143(5)(a), as modified and applied by the new regulation 26A(2)(d)? Is the provision sensible, or could it be clearer?

The Scottish Government responded as follows:

Section 143 of the 1997 Act provides that compensation is payable in certain circumstances where a stop notice ceases to have effect. In relation to a stop notice served in respect of a enforcement notice issued under section 127 of the 1997 Act section 143(5)(a) provides that no compensation is payable in respect of the prohibition in a stop notice of any activity which constitutes or contributes to a breach of planning control at any time when the stop notice is in force.

As applied with modifications by regulation 26A the effect of section 143(5)(a) in relation to a stop notice served under regulation 24 of the 1984 Regulations is that no compensation is payable in respect of the prohibition in the stop notice, at any time when the stop notice is in force, of any display of an advertisement in contravention of the 1984 Regulations. The words “at any time when the notice is in force” are applied without modification and the reference to an activity which constitutes or contributes to a breach of planning control is treated for the purposes of the application of section 143(5)(a) as a reference to the display of an advertisement in contravention of the 1984 Regulations as this is the activity in respect of which an enforcement notice under regulation 24 of the 1984 Regulations would be served. It is considered that the provision is both clear and sensible.


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.

Produced and published in Scotland on behalf of the Scottish Parliamentary Corporate Body, The Scottish Parliament, Edinburgh, EH99 1SP by APS Group Scotland, 21 Tennant Street, Edinburgh EH6 5NA

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